House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator the Hon Chris Ellison)

Schedule 1 - Amendment of the Crimes Act 1914

Item 1

This Schedule inserts proposed Division 11A of Part 1D (Operation of this Part in relation to overseas incidents).

Proposed section 23YUE - Definitions

Proposed section 23YUE contains definitions of terms used in proposed Division 11A of Part 1D of the Act.

incident is defined to include a reference to a series of incidents.

permitted purpose means the purpose of identifying an unidentified deceased person whose death has been caused by an incident to which the Division applies. Second, it includes the purpose of conducting a criminal investigation of an incident to which the Division applies.

Proposed section 23YUF - Application of this Division

Proposed section 23YUF provides that this Division applies to particular incidents overseas involving the deaths of Australian citizens and residents. The Bali bombing incident is expressly included as an incident as is any overseas incident that the Minister determines, in writing, to be an incident to which Division 11A of Part 1D applies.

Proposed subsection 23YUF(2) details the matters that the Minister must be satisfied of before making a determination that an incident is one to which Division 11A of Part 1D applies. The amendment is confined to the deaths of Australian citizens and residents and where it is appropriate in the circumstances for this Division to apply in relation to the incident. Proposed subsection 23YUF(3) provides that the Minister's determination is a disallowable instrument for the purposes of the Acts Interpretation Act 1901 .

Proposed section 23YUG - Use of information on DNA database system

Proposed subsection 23YUG(1) provides that despite section 23YDAE, a person may access information stored on a DNA database system if the access is for the purpose of forensic comparison under a State or Territory forensic procedures/DNA database law and that comparison is for a permitted purpose.

Proposed subsection 23YUG(1) is inserted to ensure that a State or Territory law enforcement officer authorised to access a DNA database system is not prevented from doing so by the section 23YDAE of the Act. That is, provided the access is only for the purpose of forensic comparison under the forensic procedures/DNA database law operating in the State or Territory where the officer is located and that comparison is for a permitted purpose (as defined).

Proposed subsection 23YUG(2) provides that despite any forensic procedures/DNA database law of a State or Territory, a person may access information stored on a DNA database system if the access is for the purpose of forensic comparison under the Act and that comparison is for a permitted purpose (as defined).

Proposed subsection 23YUG(2) is inserted to ensure that a Commonwealth law enforcement officer authorised to access a State/Territory DNA database system is not prevented from doing so by any forensic procedures/DNA database law of a State or Territory. That is, provided the access is only for the purpose of forensic comparison under the Act and that comparison is for a permitted purpose.

Proposed subsection 23YUG(3) provides that despite any Commonwealth, State or Territory law, a person may access information stored on a DNA database system for the purpose of disclosing that information under section 23YUI.

Proposed section 23YUH - Permissible matching of DNA profiles

Proposed subsection 23YUH(1) provides that despite section 23YDAF, a person may match a DNA profile on the unknown deceased persons index of a DNA database system with another DNA profile on that index if the matching is for a permitted purpose. Section 23YDAF details the permissible matching of DNA profiles between various indexes.

Proposed section 23YUH(1) is inserted to permit the matching of DNA profiles of unknown deceased persons within the unknown deceased persons index. This amendment is necessary to allow the matching of one body part with another body part to determine whether they came from the same body. The matching can only be undertaken for permitted purposes. Permitted purpose is defined in proposed section 23YUE.

Proposed subsection 23YUH(2) provides despite any State or Territory forensic procedures/DNA database law a person may match a DNA profile on the unknown deceased persons index of a DNA database system with another DNA profile on that index if the matching is for a permitted purpose.

This amendment is necessary to enable the matching of one body part with another body part to determine whether they came from the same body. The matching can only be undertaken for permitted purposes.

Proposed section 23YUI - Disclosure of information

Proposed subsection 23YUI(1) outlines the circumstances in which a person may disclose information stored on a DNA database system. This proposed subsection operates despite section 23YO, which also deals with disclosure, or despite any law of a State or Territory relating to forensic procedures and a DNA database system.

Proposed subsection 23YUI(1) provides that disclosure may be made in certain circumstances to a law enforcement agency, a foreign law enforcement agency, the International Criminal Police Organisation (Interpol) or any other Commonwealth, State, Territory or foreign country agency prescribed in the regulations. In order for disclosure to be permitted, the information must be relevant to the activities of the agency and the disclosure must be for a permitted purpose. Permitted purpose is defined in proposed section 23YUE.

Proposed subsection 23YUI(2) outlines additional circumstances in which a person may disclose information stored on a DNA database system. Again, this proposed subsection operates despite section 23YO or any law of a State or Territory relating to forensic procedures and DNA databases. Information stored on a DNA database system may be disclosed if the information concerns the result of a match of an unknown deceased person's DNA profile with a missing person's DNA profile, the disclosure is made to a relative, guardian, spouse, de facto partner or friend of the deceased person.

Proposed section 23YUJ - This Division does not restrict operation of this Part

Part 1D of the Crimes Act 1914 deals with forensic procedures. Proposed section 23YUJ provides that Division 11A (which is contained in Part 1D of the Crimes Act) does not limit the operation of Part 1D in relation to the circumstances in which a person may undertake certain activities. Those activities are accessing information stored on a DNA database system, matching of a DNA profile on an index of a DNA database system or disclosing information stored on a DNA database system.

The purpose of this amendment is to preserve the operation of other access, matching and disclosure provisions in Part 1D in relation to matters that proposed Division 11A will not apply to.

Proposed section 23YUK - Review of operation of this Division

Proposed section 23YUK provides that the Minister must cause an independent review of the operation of Division 11A to be undertaken as soon as possible after the commencement of the Division. The provision is similar to section 23YV which deals with the review of the operation of the whole of Part 1D.

Item 2

Item 2 deletes the reference to the National Crime Authority Act 1984 in proposed subparagraph 23YUI(1)(a)(i) of the Act and substitutes the Australian Crime Commission Act 2002 . Once enacted, the Australian Crime Commission Act will replace the National Crime Authority Act 1984 . The amendment is required for that purpose. This item will commence immediately after the commencement of Schedule 1 to the Australian Crime Commission Act.