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CRIMES (FORENSIC PROCEDURES) AMENDMENT BILL 2008
2008THE
LEGISLATIVE ASSEMBLY FOR THEAUSTRALIAN
CAPITAL TERRITORYCRIMES
(FORENSIC PROCEDURES) AMENDMENT BILL
2008EXPLANATORY
STATEMENT
Presented by
Simon Corbell
MLA
Attorney General
EXPLANATORY
STATEMENT
Overview
Outline
The
Crimes (Forensic Procedures) Act 2000 (Act)
was enacted as part of a national model Bill endorsing national protocols
for the collection and storage of forensic materials as well as the exchange of
DNA information between participating jurisdictions.
The
Crimes (Forensic Procedures) Amendment Bill
2008 (Bill) advances this national scheme by advancing and facilitating the
creation of a viable cross-jurisdictional DNA matching system throughout
Australia, consistent with the national scheme, by enabling the ACT to use
CrimTrac as its agent in handling the ACT’s DNA data. The Bill also
reduces practical inefficiencies and impediments surrounding the enforcement and
implementation of the Act; and reduces operational disconnection between the
Forensic Act, the enforcers of the Act and the technology involved.
The Bill amends the Act enabling the ACT to use the
National Criminal Investigation DNA Database, as established by the Commonwealth
Agency CrimTrac, as an agent for the ACT’s DNA database.
When the Act was first enacted in 2000, the
ACT stored and conducted matches on an internal database system. Following the
creation of the National Criminal Investigation DNA Database (NCIDD),
ACT’s DNA data was uploaded onto the NCIDD because ACT Policing recognised
its superior storage and matching capabilities and superior security
infrastructure. However, the act of uploading ACT DNA data onto the NCIDD
raised the issue of who then had ownership over the DNA data because the NCIDD
was a Commonwealth entity. The Bill solves this problem by allowing the ACT to
enter into agreements with an entity for the storage and use of the ACT’s
DNA data. This will enable CrimTrac, who currently run the NCIDD to hold and
run matches on behalf of the ACT as a service
provider.
The Act has always been intended to
allow intra-jurisdictional (matches within the ACT) and inter-jurisdictional
matching (matches between different jurisdictions). The scope of matching
relies on a matching table (matching table 97) that outlines permissible
matching combinations between particular indexes. For example, a serious
offender DNA profile can only be matched with a crime scene index containing DNA
material at a crime scene if it is a permissible match under the table.
In order to enable effective
intra-jurisdictional and inter-jurisdictional matching the table needs to be
consistent and allow matching across the board, except when a person volunteers
their DNA information for the specific purposes. When a person volunteers their
DNA information for a specific purpose, matching can only occur in accordance
with that specific purpose. This Bill creates the requisite
consistency.
In 2006, the Commonwealth passed
amending legislation to allow state and territory ‘inspection
entities’ to audit or inspect sate and territory data held on the NCIDD.
Any inspection would be limited to the data sourced from the originating
jurisdiction. The Bill empowers the Auditor General, the Privacy Commissioner,
the Human Rights Commission, the Ombudsman, the Chief Police Officer for the ACT
and the Chief Executive Officer of the Department of Justice and Community
Safety with oversight and accountability powers. The oversight and
accountability powers authorises the ACT inspection entities to inspect and
audit the manner in which DNA information is retained, used and destroyed by
other jurisdictions that receive such information from the ACT to ensure
compliance with ACT legislation.
As a
national agreement for reciprocal oversight and accountability comes into line,
there will be arrangements made for interstate authorities to check the way in
which the ACT handles extra-jurisdictional
information.
An unintended legislative gap has
prevented ACT Policing from obtaining forensic samples from convicted serious
offenders where they are suspects for another crime that does not warrant the
taking of a forensic procedure. The Bill ensures that forensic samples are
taken from all convicted serious offenders so that they cannot evade detection
for other offences they may commit.
The Bill
also addresses the rules surrounding the destruction of forensic samples. The
existing Act requires that all forensic material belonging to a suspect,
including materials obtained through non-intimate processes such as photographs,
casts and fingerprints, be destroyed after one year unless the Director of
Public Prosecutions makes a successful application to the court for the material
to be retained for a longer period. While this provision may have provided some
protection for suspects it has proved to be a risky investigative tool for
police, with important evidence being lost in some cases when an investigation
has spanned over a long period of time, or has involved a number of suspects.
In looking at how best to address this issue,
the benefits of preserving forensic material as evidence needs to be balanced
against the rights of an individual to have their privacy and DNA profile
protected. As a result the Bill now distinguishes between the identifying
information that is obtained from a person’s forensic sample, that is,
their DNA analysis that can be placed on a DNA database and compared against all
other DNA profiles on the database, and the forensic material itself - the
actual swabs or blood samples or fingerprints. The existing provisions are
retained with respect to the identifying material so that it must be removed
from DNA databases after 12 months, or if the person is acquitted of a charge
relating to the information, in less than 12 months. The police still have the
ability to apply to keep those samples on the database if there is a proper
forensic purpose.
To round out the new approach
to preserving forensic evidence a new provision is introduced in the Bill that
allows police to retain forensic material for the life of the investigation. A
provision enabling the suspect to apply for the destruction of the material
after a year if no proceedings have been commenced affords the suspect
protection against long term retention of their material in a case where they
have no involvement. If an application is made for the destruction of the
material the police will be required to establish why the material should be
retained. This new provision provides police with greater certainty that they
can retain evidence in ongoing investigations and prosecutions without fear that
it will be destroyed part way through the
process.
The existing Act does not provide for
the common situation where a suspect avoids coming to court for the hearing of
an application for a forensic sample to be taken, or where the suspect is
apprehended in another jurisdiction and is in the custody of that State or
Territory. The Bill establishes that a Magistrate may make an order for a
forensic procedure, in the absence of the suspect, where the suspect is in the
custody of another jurisdiction and cannot appear by audio link or video link
for the hearing, or a suspect has been served with a summons to appear before a
magistrate and chooses not to appear.
Victims
of crime often provide forensic samples to police to aid in the investigation of
the crime. The Bill introduces new provisions to ensure that those volunteers
are treated with sensitivity and are empowered to have control over the
processes that they are subject to. These include the ability of a volunteer to
elect not to have an independent person present when they are undergoing their
forensic procedure and also elect not to have the procedure video recorded.
Although it is important to have an independent person present to verify that a
procedure has been conducted appropriately and that is why it still remains as
the default position, this requirement should still be sensitive to the wishes
of the victim. For certain victims, such as victims of sexual assault, it would
be insensitive to deny the person an ability to choose whether a stranger is
allowed to be present during the procedure, or to choose whether the
invasiveness of the procedure is increased by having it video taped.
A number of areas in the Bill contain amendments
that address the human rights of people who may provide forensic samples under
the Act. These include improving the manner in which victims of crime are
empowered to make choices about how they participate in forensic procedures.
There is also assurance that people of the same sex are present for the taking
of intimate forensic samples.
The Bill refers
to a suspect being informed in section 24(4)(b) that a police officer may use
reasonable force to take a forensic sample. It should be noted that the concept
of reasonable force in this context is limited by Commissioner’s Order 3
that governs how police exercise their use of force, and the role of the Chief
Medical Officer who is on record as saying that he would not take a blood based
sample, whether a venous sample or finger prick sample, by force. It is not
envisaged that the concept of reasonable force in this Bill overrides either of
those two considerations in any way.
Detail
Part 1 Preliminary
Clause 1 Name of
Act
This clause is a technical clause and sets out the
name of the proposed Act as the Crimes (Forensic Procedures) Amendment Act
2008.
Clause
2 Commencement
The Act commences on the day fixed by the Minister by
written notice.
Part 2 Crimes (Forensic
Procedures) Act 2000
Clause 3 Legislation
amended—part 2
This clause identifies the Act to be amended, namely
the Crimes (Forensic Procedures) Act 2000.
Clause 4 New section
4A
This clause notes the application of the Criminal
Code.
Clause 5 What is an intimate
forensic procedure?
Section 6(a), (d) and
(e)
This clause inserts the words ‘or
intersex’ to paragraphs 6(a) to (e), to be consistent with the Act’s
recognition of intersex persons under section
49A.
Clause 6 Section
6(g)
This clause amends paragraph 6(g) to
include video recordings of intimate areas of the body in the definition of an
intimate forensic procedure. It also includes intersex people who identify as
female in the group of people covered by the
subsection.
Clause 7 What is non-intimate
forensic procedure?
Section 7 (a), (e) and
(f)
This clause inserts the words ‘or
intersex’ to be consistent with the Act’s recognition of intersex
persons under section 49A to paragraphs 7(a) to
(f).
Clause 8 Section
7(h)
This clause amends paragraph 7(h) to
include video recordings of non-intimate parts of the body in the definition of
non-intimate procedures. It also includes intersex people who identify as
female in the group of people covered by the subsection.
Clause 9 Section
11
This clause amends section 11 to
redefine the meaning of investigating police officer. An investigating officer
is defined to be the police officer in charge of the investigation as well as
any police officer who has been directed by the police officer in charge to
undertake a task relevant to the investigation.
The amendment is a practical amendment to
allow flexibility, so that the regulation of who may perform common
investigative tasks does not unnecessarily restrict the enforcement of the Act.
However, the provision still requires the
police officer in charge to remain the directing officer so that the integrity
of the investigation is maintained. It provides for protection to individuals
who undergo forensic procedures by maintaining that the responsibility for
ensuring that directions to take forensic samples are only given to police
officers who are capable (both by virtue of rank and by virtue of skill) of
performing the relevant task, rests with the officer in charge of the
investigation.
Clause 10 Meaning of
authorised applicant
Section 12
(b)
This clause broadens the scope of who may be considered
an authorised applicant. The amendment allows any investigating police officer,
appropriately involved in the investigation of the commission of an offence, to
be considered as an authorised applicant.
Clause 11 How forensic procedures
may be authorised in different circumstances
Section 18, table 18, item
2
This clause amends table 18 to clarify
that a magistrate, under section 31 of the Act, can order a non-intimate
forensic procedure under section 32 of the Act.
This clarification enables non-intimate
forensic procedure orders to be registered under section 101 of the Act, and
allows law enforcement officials from other jurisdictions, who have custody of a
suspect, who is suspected of an ACT offence, to carry out a non-intimate
forensic procedure, by registered order under section 101 of this
Act.
For example, Benny is suspected of assault
in the ACT and escapes to NSW to avoid capture by ACT Policing. Benny enters
into a fight at a pub in NSW and is apprehended and remanded by NSW police.
Finding out that Benny is in the custody of NSW police, ACT Policing apply for
an order in the ACT Magistrates Court for the carrying out of a non-intimate
forensic procedure, including obtaining a buccal swab from Benny for DNA
analysis. When ACT Policing have sufficient evidence to satisfy the ACT
Magistrate that Benny is reasonably suspected of the assault in the ACT, an
order is made for the carrying out of a non-intimate forensic procedure. This
order is then registered by ACT Policing onto a register of orders. NSW police
use the registered order to get a buccal swab from Benny for the purposes of the
ACT assault case.
Clause 12 Matters that suspect
must be informed of before giving
consent
Section 24 (1) (a)
This clause has been amended to remain consistent
with section 26 of the Act. Under section 26 the recording of giving of
information and consent can be done by audiotape, video tape or other electronic
means or by writing if it is not practicable to make an electronic recording.
The amendment to paragraph 24(1)(a) recognises that that the recording of giving
of information and consent can be done by electronic means, as provided under
section 26 of the Act.
Clause 13 Section 24 (1)
(k)
Section 24 provides a list of the facts that a
suspect must be informed of before giving consent to provide a forensic sample.
This clause amends to paragraph 24(1)(k) to
remain consistent with the insertion of new section 94A. New section 94A allows
the Minister to enter into agreements with other entities, such as CrimTrac who
currently administer the NCIDD, to keep and store ACT DNA data as a service
provider. A new definition of ACT DNA database has been inserted under section
94.
This clause requires police to inform a
suspect, before the suspect gives consent, that the forensic material obtained
from them may be placed on the ACT DNA database as described under new section
94A.
The insertion of paragraph 24(1)(l)
works in conjunction with the amendments to sections 92 relating to destruction
of forensic materials belonging to suspects. The amendment to section 92
empowers suspects with a right to apply for the destruction of forensic
materials belonging to them after one year. Suspects must therefore be informed
of this before the suspect gives consent to the carrying out of the forensic
procedure to, satisfy privacy requirements.
Clause 14 Section 24 (2)
This clause requires police to inform a suspect that
they can request a doctor of the suspect’s choice to be present when they
are undergoing certain forensic procedures, as provided under table
53.
Clause 15 Section
24(3)
This clause states that a buccal swab is a process and
not an actual sample, although the material obtained from the process of
swabbing is a sample.
Clause 16 Section 24(4) to
(6)
This clause requires police to inform a
suspect that reasonable force may be used to enable the forensic procedure to be
carried out, as provided under section 50 of the Act. This provision ensures
that a suspect is fully informed when involved in the process of having a
forensic sample taken.
The concept of
reasonable force is tempered by the Commissioner’s Order 3 under which ACT
Policing operate, and the role of the Chief Medical Officer who will not take a
fingerpick sample or venous blood sample from a suspect being held
forcibly.
Clause 17 Circumstances in which
magistrate may order forensic
procedure
Section 32 (b)
This clause clarifies that a magistrate may make an
order for the carrying out of a non-intimate forensic
procedure.
This clarification enables
non-intimate forensic procedure orders to be registered under section 101 of the
Act. It allows law enforcement officials from other jurisdictions, who have
custody of a suspect, who is suspected of an ACT offence, to carry out a
non-intimate forensic procedure, such as a buccal swab, by registered order
under section 101 of this Act.
Clause
18 Application for order
Section 35 (2)
(d)
This clause removes paragraph 35(2)(d)
from section 35 of the Act. The omission enables a magistrate to make an order
without requiring the suspect to be present as contemplated by amended sections
38 and 42.
Clause 19 Securing the presence
of suspects at hearings—suspect not in
custody
Section 37
(1)
This clause amends subsection 37 (1)
enabling police to make an application to a Magistrates court, which includes
the registrar of the Magistrates court, for a summons to issue for the
appearance of a suspect at the hearing of the application to the summons.
This enables police to apply for a summons
without requiring a magistrate to hear the application for a summons and
introduces consistency with other legislation that allows for a summons to
issue.
The amendment preserves that the
decision to order a warrant is still made by a magistrate.
Clause 20 Procedure at hearing of
application for order
Section 38
(1)
This clause amends subsection 38(1) so
that section 38 can be read in conjunction with section 35.
While the overarching principle is still that
the suspect should be present at the hearing of and the making of any forensic
order, the provision contemplates the situation where a suspect is in another
jurisdiction and allows the court to order that the suspect may be present
through audio link or audiovisual link. Section 20 of the Evidence
(Miscellaneous Provisions)
Act 1991
gives the court the power to direct that evidence may be taken or a submission
made by audio or audiovisual link from a participating jurisdiction. Section
311 of the Magistrates Court Act 1930 allows that a person who is
appearing by audio or audiovisual link is taken to be before the
court.
As has been articulated earlier, an
order that is made in the absence of the suspect because the suspect is in the
lawful custody of another jurisdiction can be placed on a register of orders as
provided under section 101 of the Act.
This
section does not provide for evidence to be given by those means from within the
ACT as if the suspect is in custody, as the geography of the ACT is such that it
should always be possible for a suspect to be before the court if they are in
custody.
The provision contemplates that it
will be a matter for the magistrate to determine whether the application can be
heard in the absence of the suspect, and the question of whether it is
practicable for them to be present via audio or audiovisual
link.
Clause 21 New section 38
(6)
New subsection 38(6) provides a definition of audio link
and audiovisual link, which encompasses communication via emerging
technologies.
Clause 22 Action to be taken on
making orders
Section 39 (1)
(c)
This clause amends paragraph 39(1)(c)
to remain consistent with the amendments to sections 35, 37 and 38. The
amendment recognises the possibility that a suspect may not be present at the
hearing of the order, after the amendments to section 35, 37 and
38.
Clause 23 Applications for
interim orders
Section 42
(4)
This clause amends
subsection 42(4) so that a magistrate may make an interim order for the urgent
carrying out of a forensic procedure on a suspect if the suspect is in the
lawful custody of another jurisdiction. This remains the only exception to the
requirement that the suspect must be in the presence of the applicant for an
interim order.
Clause 24 New section 42 (7)
The insertion of new subsection 42(7) keeps section 42
consistent with provisions allowing a person to be present at a hearing for an
interim order through audio or audiovisual link.
Clause 25 Procedure at
hearing of application for interim
order
Section 43 (1) (a) and
(c)
This clause amends paragraphs 43(1)(a) and (c) to
remain consistent with the amendments to section 42 which allows that the
suspect may not be present when the order is made if they are in the custody of
another jurisdiction and the suspect cannot be present through audio or audio
visual link.
Clause 26 New section
48A
This clause inserts new section 48A, which provides
a meaning for relevant person under part 2.6 of the Act. The amendment
clarifies that part 2.6 which sets out provisions for the carrying out of
forensic procedures can be applied to suspects, serious offenders or
volunteers.
Clause 27 General rules for
carrying out forensic procedures
Section
49 (a) and (b)
Clause 22 amends paragraphs 49 (a) and (b) to remain
consistent with new section 48A. The amendment clarifies that part 2.6 which
sets out provisions for the carrying out of forensic procedures can be applied
to suspects, serious offenders or volunteers.
Clause 28 Section 49A and
49B
This clause amends section 49A to provide rules
relating to the giving and recording of information for the carrying out of
forensic procedures. The amendments require police to ensure that a person is
informed of all relevant issues before the forensic procedure is carried out.
Amended section 49A requires police to inform a person of the person’s
rights under subsections 60(2), 61(2) and
62(2).
Police must also ensure, under amended
section 49A, that the giving of information is appropriately recorded by
electronic means, or if it is impractical to have an electronic recording, then
police must ensure that a written record of the giving of the information is
made, and that a copy of the written record is made available to the person.
The onus is on police to provide the person with the written record, even if
there is no request for it to be provided.
New section 49B is a redrafting of old section
49A. New section 49B enables a transgender or intersex person to elect their
identifying gender if they wish to. A person who elects to be identified as a
particular gender shall be taken to be that particular gender under new section
49B.
If there is no election of their
identifying gender, a transgender or intersex person can nominate the gender of
the individual who will carry out the forensic procedure on them. If a
nomination is made instead of an election, then the transgender or intersex
person is deemed under new section 49B to be of the same gender as the person
carrying out the forensic procedure on them, in order to satisfy the requirement
of new section 54.
Clause 29 Forensic procedures not
to be carried out in cruel, inhuman or degrading
way
Section 51 (2)
This clause amends subsection 51(2) to remain
consistent with new section 48A. The amendment clarifies that part 2.6 which
sets out provisions for the carrying out of forensic procedures can be applied
to suspects, serious offenders or volunteers.
Clause 30 Section
52
This clause amends paragraph 52(b) to permit the
taking of more than one strand of hair at a time, using the least painful
technique. This allows for the practical difficulty encountered when people are
trying to remove one individual hair at a time. The amendment does not allow
the taking of a handful of hair as an attempt to obtain
hair.
Clause 31 People who may carry
out forensic procedures
Section 53 (3)
This clause amends subsection 53(3) to remain
consistent with new section 48A. The amendment clarifies that part 2.6 which
sets out provisions for the carrying out of forensic procedures can be applied
to suspects, serious offenders or volunteers.
Clause 32 Section 53
(4)
This clause amends subsection 53(4) to remain
consistent with new section 48A.
Clause 33 Table 53
This clause amends column 4 of Table 53 to clarify
the circumstances in which a relevant person can ask for a doctor or dentist of
the person’s choice to be present during the carrying out of the forensic
procedure. Table 53 is a table outlining the provisions under Division 2.6.3 of
the Act.
Clause 34 Section
54
This clause amends section 54 to clarify when a
suspect or serious offender, is undergoing an intimate forensic procedure, the
person who is carrying out the procedure, or any person helping to carry out the
procedure, must be the same sex as the suspect or the serious offender. The
amendment also clarifies that when a volunteer is undergoing an intimate
forensic procedure, the procedure must be carried out by a person of the same
unless the volunteer requests that a person of the opposite sex carry out the
intimate forensic procedure. The amendment to subsections 54(1) and (2) enables
victims of crime to elect the sex of the person who is to carry out or help
carry out an intimate forensic procedure on
them.
This clause also amends section 54 to
clarify that the person who is carrying out a forensic procedure on a relevant
person (the person who is having the forensic procedure carried out on them) is
not required to be of the of the same sex to the relevant person, if the
forensic procedure is a non-intimate forensic procedure. This also applies to a
person who is asked under section 55 to help carry out a non-intimate forensic
procedure. However the circumstances in which this applies relates to
non-intimate forensic procedure that do not require touching or the removal of
any item of clothing.
It is intended that the
references to “overcoat, coat, jacket, gloves, socks, shoes and hat”
do not include any garment of cultural or religious significance. If items of
cultural or religious significance are required to be removed, then the
procedure would be performed or assisted by a person of the same sex as the
person undergoing the forensic procedure.
Clause 35 Section 56
This clause amends section 56 so that a suspect or
volunteer has the right to elect to have a doctor or dentist of their choice
present during their forensic procedure. This creates consistency with table 53
and creates parity for suspects, volunteers and serious offenders where
practical.
Clause 36 Presence of interview
friend or lawyer while forensic procedure is carried
out
Section 57 (1)
This clause amends subsection 57(1) to remain
consistent with new section 48A.
Clause 37 Section 57
(1)
This clause amends subsection 57(1) to remain
consistent with new section 48A.
Clause 38 Section 57
(3)
This clause amends subsection 57(3) to remain
consistent with new section 48A.
Clause 39 Presence of police
officers while forensic procedure is carried
out
Section 58 (2)
This clause amends subsection 58(2) to remain
consistent with new section 48A.
Clause 40 Section 58 (3)
(b)
This clause amends paragraph 58(3)(b) to remain
consistent with amendments to section 54 of the Act. A police officer of the
same sex must be present for non-intimate forensic procedures that require
touching the relevant person who is having the non-intimate forensic procedure
carried out on them. If the relevant person can carry out the non-intimate
forensic procedure by themselves, such as making a fingerprint impression or
performing a buccal swab, then a person of the same sex as the person undergoing
the procedure does not need to be present.
It
is intended that the references to “overcoat, coat, jacket, gloves, socks,
shoes and hat” do not include any garment of cultural or religious
significance. If items of cultural or religious significance are required to be
removed, then the procedure would be performed or assisted by a person of the
same sex as the person undergoing the forensic procedure.
Clause 41 Division
2.6.4
This clause amends section 59 to remove the
requirement for a record to be made of a forensic procedure if the forensic
procedure is a video recording or photograph of a part of the body of a person,
other than intimate areas of the person’s body including the genital or
anal areas, buttocks, or for a person who identifies as a female, the breasts.
A video recording or photograph has the same effect as a toeprint, fingerprint,
handprint or footprint. The results from these forensic procedures are evidence
in and of themselves that the forensic procedure was carried out and are
confined to forensic procedures that are non-intimate forensic
procedures.
The amendment also enables a
relevant person who is having a forensic procedure performed on them to waive
their right to have an independent person present during the carrying out of the
forensic procedure if the forensic procedure is not being video recorded. This
amendment enables victims of crime, for example victims of sexual assault, to
elect not to have an independent person be present when the forensic procedure
is being carried out. However, if there is a perceived need to have an
independent person present, police can still direct that an independent person
to be present.
The perceived need might include
circumstances where police are concerned about the mental health of the relevant
person, or a need to ensure that police officers are not placed in a position
where unjustified complaints can be made about their conduct toward the relevant
person.
Clause 42 Sections 60 to
62
This clause amends sections 60, 61 and 62 to enable
a relevant person (a suspect, serious offender or volunteer) to request that:
• a sample of forensic material be provide
to the relevant person;
• a copy of a
photograph or video recording of a part of the relevant person’s body be
provided to the relevant person;
• a copy of
the results of the analysis obtained from the forensic material be provided to
the relevant person.
These amendments change
the previous requirement that police provide a sample to every person from whom
one was taken and moves to a position where samples are only provided to those
who request them. It does not override the requirements of prosecution
disclosure so that all copies of material such as photographs will still be
provided in a brief of evidence, whether requested or not.
Section 105 provides the rules for making
materials or copies available to a person following a request under amended
sections 60 to 62.
Clause 43 Non-intimate forensic
procedures authorised to be carried
out
Section 65
note
This clause is a
technical clause and removes the note in section 65.
Clause 44 Sections 67 and
68
This clause amends section 67 to remain consistent
with new section 48A. The amendment enables a person to carry out a forensic
procedure on a serious offender only in accordance with section 65, which
provides the circumstances in which a non-intimate forensic procedure is to be
carried out on serious offender, section 66, which provides the circumstances in
which an intimate forensic procedure is to be carried out on serious offender,
and part 2.6, which provides the rules for carrying forensic procedures on a
relevant person, contemplated to be a serious
offender.
Section 68 is amended to clarify that
a forensic procedure may be carried out on a serious offender even if the
serious offender is also a volunteer and/or a suspect. It is intended to close
a gap in the previous section, which prevented a sample being taken from a
serious offender who had then become a suspect in a case that had no basis for a
forensic sample, thus avoiding providing a forensic sample at
all.
Clause 45 Matters that serious
offender must be informed of before giving
consent
Section 72 (1) (e)
This clause amends paragraph 72(1)(e) to remain
consistent with the amendments to sections 67 and 68.
Clause 46 Section 72 (1) (f)
(i)
This clause amends
paragraph 72(1)(f)(i) to require that a serious offender must be informed that
the serious offender can request that a health correctional health professional
(including but not limited to nurses, doctors, dentist etc) be present during
the taking of a blood sample. This provides consistency with the
Corrections Management Act
2007.
Clause 47 New
section 72 (1)
(fa)
This clause adds
the requirement that a serious offender must be informed of their rights to have
certain people present when a buccal swab is taken.
Clause 48 Section 72 (1)
(j)
This clause amends paragraph 72(1)(j) to remain
consistent with the insertion of new section 94A. New section 94A allows the
Minister to enter into agreements with other entities, such as CrimTrac who
currently administer NCIDD, to keep and store ACT DNA data as a service
provider. A new definition of ACT DNA database has been inserted under section
94.
The amendment requires police to inform
the serious offender before the serious offender provides informed consent that
information obtained from the analysis of the serious offender’s forensic
material may be placed on the ACT DNA database, which may be the
NCIDD.
Clause 49 Carrying out of
forensic procedure following
conviction
Section 78 (1)
This clause amends subsection 78(1) to remain
consistent with the amendments to sections 67 and 68.
Clause 50 Carrying out of
forensic procedure following conviction
Section 79 (3) and (4)
This clause amends subsection 79(3) to remain
consistent with new section 48A.
This clause
also amends subsection 79(4) to remove unnecessary rules under part 2.6 relating
to the carrying out of forensic procedures on relevant persons who are
volunteers and who may be victims of crime. It is not necessary to use force to
enable the carrying out of a forensic procedure on a volunteer. It is also not
necessary to enable any rules that raise a suggestion of struggle or conflict,
as this would indicate that the volunteer has withdrawn consent, in which the
forensic procedure should not be permitted to continue.
Clause 51 Sections 80 and
81
This clause amends section 80 to clarify the rules
for obtaining informed consent from a volunteer, or the parent or guardian of
the volunteer. The amendment to subsection 80(1) enables police to inform the
volunteer, parent or guardian in writing or orally. The amendment requires
police to inform the volunteer, parent or guardian that the consent provided by
the volunteer, parent or guardian is also consent
for:
• the retention of forensic material
taken and information obtained from analysis of the forensic material under
paragraph 80(1)(f)(A); and
• that the
volunteer, parent or guardian can set a period for which the material or the
information may be retained under paragraph 80(1)(f)(B).
The amendment separates forensic material from the
information obtained from analysis of the material. The issue of consent is
broken up into consent of retention of material or information obtained. The
volunteer may elect that they do not wish to have an independent person present.
This allows for victims of crime who may not wish to have any extra people
present during their discussions with police.
The amendment adds new subsection 80(3)
requiring police to inform the volunteer, parent or guardian of the volunteer
that:
• the information obtained from the
analysis of the forensic material may be place on the ACT DNA database and may
be compared with data from other
jurisdictions;
• that information placed on
the volunteers (limited purposes) index may only be used for that
purpose;
• that information placed on the
volunteers (unlimited purposes) index may be used for a criminal investigation
or any other purpose for which the ACT DNA database may be used for under parts
2.11 and 2.13 of the Act; or
• anything else
that is prescribed by regulation.
The insertion
of section 80A clarifies that the consent of the volunteer, or the
volunteer’s parent or guardian is consent to the retention of the forensic
material and information obtained from analysis of the material, not just the
retention of the forensic material.
New
section 80A also clarifies that the volunteer, parent or guardian in
consultation with a delegated police officer of appropriate rank, can set the
period for which the forensic material or information obtained from analysis of
the material may be retained.
The amendment
to section 81 enables a volunteer, parent or guardian to request that a written
record of the giving of information under amended section 80 is made, rather
than an electronic recording such as a video recording. This amendment enables
victims of crime, for example victims of sexual assault, to elect not to have a
video recording featuring them whilst police are informing them or their parent
or guardian of issues under amended section
80.
In circumstances where a volunteer
withdraws consent before the agreed retention period ends, the withdrawal of
consent will over-ride the agreed retention period.
Clause 52 Section 82
heading
This clause changes the heading of section 82 to
include a reference to the ending of an agreed retention period, which has been
added to various volunteer’s provisions.
Clause 53 Withdrawal of
consent
Section 82 (2)
This clause amends subsection 82(2) to clarify that
consent is broken up into consent of retention of material ‘or’
information obtained, not forensic material ‘and’ information
obtained. Therefore, withdrawal of consent can be in relation to forensic
material or information obtained; or forensic material and information
obtained.
Clause 54 New section 82 (4) to
(6)
This clause inserts new subsections 82(4) to (6) to
remain consistent with the amendments to sections 80 to 82 relating to the
conceptual separation of forensic material from information obtained from
analysis of the forensic material.
The new
subsections refer to the agreed set period of retention of forensic material or
information obtained from the analysis under s80A. When the agreed set period
expires for retention of material, withdrawal of consent is deemed to have taken
place and this clause deals with how the material or information is to be dealt
with. Under new subsection 80(4) the forensic material or information obtained
from the analysis of the material may be retained for a further period if a
successful application is made to a magistrate under section 84 of the Act,
before the agreed retention period expires.
Clause 55 Circumstances in which
magistrate may order carrying out of forensic procedure on child or incapable
person
Section 83 (3)
This clause amends subsection 83(3) to clarify that
an order made under section 84 may include the circumstances in which the
forensic procedure is to be carried out, for example the time and place; but
must state the period for which forensic material or the information obtained
from the analysis of the material is to be retained.
The amendment requires that a court in
ordering the carrying out of a forensic procedure must also set the time frame
in which the forensic material (which is separate from the information derived
from analysis of that material) can be retained. The court must also set the
time frame in which in the information derived from the analysis of the material
(which is separate form the actual forensic material itself) can be retained.
This permits the court to set different time frames for the forensic material
itself and the information derived from the forensic
material.
Clause 56 Retention of forensic
material by order of magistrate after parent or guardian of child or incapable
person withdraws consent
Section
84
This clause amends section 84 to enable an
authorised applicant to apply for the retention of forensic material or
information obtained from the analysis of the material when consent has been
withdrawn or when the agreed retention period ends. The application can be any
time before the expiration of the agreed retention.
While it is envisaged that such an application
would be made before the end of the agreed period, there is nothing to prevent
an authorised applicant making an application after the period has expired. The
risk will be that the material may have been destroyed if the application is not
made in time, but the lateness of the application does not bar it being
made.
Clause 57 Section 84
(3)
This clause amends subsection 84(3) to remain
consistent with amended subsection 83(3). The retention order under section 84,
if made, must set the period in which the material or information is to be
retained.
There is nothing in this section
that limits the rights of a volunteer or authorised applicant to appeal a
decision of a magistrate order under subsection 84(2).
Clause 58 New section
84A
This clause inserts new section 84A to require
police to inform a volunteer, who undergoes a forensic procedure for the
purposes of placing the volunteer’s DNA profile on the ACT DNA database to
be matched with the missing person’s index or unknown deceased
person’s index, either with ACT DNA database or another
jurisdiction’s DNA database, of any matches that are made.
Clause 59 New part
2.8A
This clause inserts new part 2.8A, which creates a
new part for dealing with the analysis of forensic material. The inserted part
2.8A enables the Minister to enter into an agreement with 1 or more forensic
laboratories accredited with the National Association of Testing Authorities
Australia to analyse forensic material for the Territory. New part 2.8A enables
the outsourcing of forensic analysis tasks to accredited forensic laboratories.
New part 2.8A provides a mechanism for the effective distribution of workload
regarding forensic analysis.
Clause 60 Inadmissibility of
evidence from improper forensic procedures
etc
Section 85 (1) (b) (ii)
This clause amends paragraph 85(1)(b)(ii) to remain
consistent with the insertion of new section 94A.
Clause 61 Section 85
(2)
This clause amends paragraph 85(2)(a) to clarify
that section 85 also applies to court orders as well as provisions of the Act.
Clause 62 Inadmissibility of
evidence if forensic material required to be
destroyed
Section 86 (1)
This clause amends subsection 86(1) to clarify that
section 86 also applies to court orders as well as provisions of the Act. The
amendment recognises the amendments to section 92 where a court can order the
destruction of forensic material on the application of a
suspect
Clause 63 Destruction of certain
forensic material obtained by court order
Section 90
(1)
This clause amends subsection 90(1) to remain
consistent with the amendment to section 11.
Clause 64 Destruction of
certain forensic material obtained by court
order
Section 90 (2)
This clause amends subsection 90(2) to remain
consistent with the change of the heading name at section 84.
Clause 65 Section
92
This clause inserts new section 92 enabling a suspect to
apply for the destruction of forensic material one year after the samples are
taken. It changes the position under the previous section 92 where all forensic
material and identifying information was to be destroyed after 12 months unless
an application to retain the information was
successful.
Now identifying information must be
removed from DNA databases after one year under new section 98A, but all
forensic material can be retained by police unless the suspect makes a
successful application for the material to be destroyed. While the onus is on
the suspect to make the application, the onus of proving the probative value of
the material shifts to the police.
The amendment will have prospective effect. Amended
section 92 will apply to all forensic materials obtained from a suspect, on the
day of, or after the day of commencement of this Act.
Clause 66 Part
2.11
This clause amends the heading name of part 2.11 to ACT
DNA database.
Clause 67 Section 94 heading
This clause amends the heading of section 94 to
refer to Definitions of the Act.
Clause 68 Section 94, new
definition of ACT DNA
database
This clause inserts a new definition of ACT DNA
database, which signposts the definition provided at new section
94A.
Clause 69 Section 94, definition
of volunteers (limited purposes) index,
paragraph (a)
This clause amends the definition of volunteers
(limited purposes) index to remain consistent with the insertion of new
section 94A.
Clause 70 Section 94, definition
of volunteers (unlimited purposes)
index, paragraph (a) (i)
This clause amends the definition of volunteers
(unlimited purposes) index to remain consistent with the insertion of new
section 94A and the amendment to subsection 80(4).
Clause 71 New section
94A
This clause inserts new section 94A to provide a
contextual definition of ACT DNA database. The ACT DNA database is the database
on which DNA collected in the ACT is stored. However this database may be kept
by an external entity, such as CrimTrac who administer the NCIDD, by agreement
between the Minister and the entity. The agreement between the entity and the
Minister will be an agreement of service, where the entity is a service provider
for the ACT in storing and matching DNA
data.
The database referred to is the one kept
on an electronic or computer system that facilitates the matching of DNA
profiles. It does not extend to the working files used during the analysis of
the DNA, nor the files on which investigating police may store the results of
analysis.
Clause 72 Section 95
heading
This clause amends the heading to section 95 in
consideration to new section 94A.
Clause 73 Section 95 (2)
(a)
This clause amends paragraph 95(2)(a) to remain
consistent with the insertion of new section 94A.
Clause 74 Section 95 (3),
definition of prohibited
analysis
This clause amends the definition of prohibited analysis
to remain consistent with the insertion of new section 94A and amended section
92, which enables a court to make a destruction order.
Clause 75 Section 96
heading
This clause amends the heading to section 96 to
remain consistent with the insertion of new section 94A.
Clause 76 Section 96 (1)
This clause amends
subsection 96(1) to better frame the offence that occurs if an unauthorized
access of the DNA database occurs, and to ensure consistency in the use of the
definition in section 94A.
Clause 77 Section 96 (2) and (2)
(c)
The clause amends subsection 96(2) and paragraph
96(2)(c) to remain consistent with the insertion of new section 94A.
Clause 78 Section 96 (2)
(d)
This clause amends paragraph 96(2)(d) to clarify
that a person may access information stored on the ACT’s DNA database in
accordance with the terms of an arrangement entered into by the Minister with
the appropriate authority of another jurisdiction for the sharing of DNA
information as permitted under section 102 of the Act. This enables other
jurisdictions to compare their DNA information with that of the ACT as part of
their criminal investigations.
Clause 79 New section 96
(2A)
This clause inserts new subsection 96(2A) to enable
the auditor-general, the human rights commissioner, the ombudsman, the privacy
commissioner, or anyone else prescribed by regulation with accountability powers
to audit or review information that is stored on the ACT DNA database. The
Minister may delegate to the Chief Police Officer or the Chief Executive under
section 94A(4) an accountability power under new subsection 96(2A) to audit or
review information stored on the ACT’s DNA database. This ensures
transparency and accountability for the storage of the
information.
Clause 80 Section 97 and table
97
This clause amends section 97
to:
• to permit matching between all indexes
of DNA profiles except with volunteers (limited purposes), where matching is
permitted only within the purpose;
• permit
matching universally between columns 1 and columns 2 through to column 8, where
a ‘yes’ is indicated, except with volunteers (limited purposes),
where matching is permitted only within the purpose which is defined in section
94; and
• permit matching between samples
derived from crime scenes, suspects, volunteers (unlimited purpose), serious
offenders, missing persons and deceased persons
interchangeably.
Amended table
97:
• enables a suspect’s profile to be
matched against the suspect index. In the event of a number of suspects being
profiled, enabling a cross match will reduce instances of identity fraud;
• clarifies that the volunteers for limited
purposes index should remain as an index that can only be matched for the
purpose of the matching. For example, volunteers who give a sample for a
particular investigation, or to assist identifying a deceased person, should
only have their DNA matched for that purpose;
and
• clarifies that the volunteers’
(unlimited purposes) profiles index is able to be matched against serious
offenders’ profiles, suspects’ profiles and the volunteers’
(unlimited purposes) profile itself. Volunteers (unlimited purposes) are
contemplated to be people who offer a profile for unrestricted matching because,
for example, they are a repeat offender wishing to be eliminated from an
investigation, or a police officer not wishing to be re-sampled for every
investigation they are involved with.
Clause 81 Section
98
The clause amends section 98 to reflect the
distinction between the destruction of forensic material and the removal of
identifying information from the DNA database. It should be noted that it is
not contemplated that the need to remove information from a DNA database extends
to removing the information from the working files of those who performed the
analysis, or the investigation files maintained by
police.
The section is also amended to ensure
consistency in the approach taken to their information relating to volunteers,
suspects and serious offenders.
New section 98A
provides that the identifying information obtained from a forensic sample must
be removed from the electronic DNA databases after 1 year, unless an
application is made to keep the information on the database. The purpose of
this section is to protect the privacy rights of suspects and prevent their DNA
profiles being kept on databases that enable their matching for extended periods
of time.
The amendment will have prospective
effect. New section 98A will apply to forensic DNA materials obtained from a
suspect for purpose of matching or storing on a DNA database, on the day of, or
after the day of commencement of this Act.
Clause 82 Definitions relating to
interstate enforcement
Section 100,
definition of DNA database
This clause amends the definition of DNA database
under section 100. The amendment re-defines the meaning of DNA database to
include the new definition of ACT DNA database as provided under section 94A of
the Act; the NCIDD which is administered by CrimTrac; and DNA databases held by
another State or Territory, or the Commonwealth’s DNA database. This
covers jurisdictions that similar to the ACT require the services of a service
provider, such as CrimTrac to keep that jurisdiction’s DNA
database.
Clause 83 Section 100, new
definition of NCIDD
This clause inserts a definition of NCIDD to section
100 of the Act. The NCIDD is the National Criminal Investigation DNA Database,
which is managed by CrimTrac, a Commonwealth entity. This is the database which
it is contemplated will store the DNA information from the ACT to be used in
inter and intra-jurisdictional matches.
Clause 84 Section
102
The clause amends section 102 so that the Minister
may enter into an arrangement with a responsible Minister of another
jurisdiction for the provision and exchange of information relevant to an
investigation or a proceeding of an offence against the law of the ACT or the
law of the participating jurisdiction; and the identification of missing or
unknown deceased persons.
The amendment
establishes that the Ministerial arrangement may cover issues relating to the
matching of DNA data between ACT DNA data and the DNA data of other
jurisdictions.
Clause 85 Section
103
This clause amends section 103 to remain consistent
with the insertion of new section 48A to include volunteers as well as suspects
and serious offenders. The amendment also requires police to ensure that when a
person is represented by a lawyer or friend, then any information conveyed to a
person under the Act must be communicated in a form that can be understood by
the person, or the person’s lawyer or friend, including through the use of
a lawyer.
Clause 86 Obligation of
investigating police officers relating to electronic
recordings
Section 104 (1)
This clause amends subsection 104(1) to remain
consistent with amendment to section 11.
Clause 87 Material required to be
made available to suspect, serious offender or
volunteer
Section 105 (1)
(b)
This clause amends paragraph 105(1)(b) to remain
consistent with amendment to section 11.
Clause 88 Section 105,
note
This clause amends the note under section 105 to
remain consistent with the amendments to section 60. The amendments to section
60 relocate the issue of when a sample must be made available to amended
paragraph 60(3)(a).
Clause 89 Disclosure
information
Section 111 (1) (a) and (2)
This clause amends paragraph 111(1)(a) and
subsection 96(2) to remain consistent with the insertion of new section 94A.
Clause 90 Section 111 (2)
(a)
This clause amends paragraph 111(2)(a)
to include missing or unknown deceased persons. The amendment remains
consistent with the amendment to section 102.
Clause 91 Section 111 (2)
(c)
This clause amends paragraph 111(2)(c) to remain
consistent with the insertion of new section 94A.
Clause 92 Section 111 (2)
(ca)
This clause amends paragraph
111(2)(ca) to remain consistent with the insertion of new sections 94A and
96(2A).
Clause 93 section 111 (2)
(d)
This clause amends paragraph 111(2)(d)
to recognize the addition of provisions in amended section
102.
Clause 94 Forensic procedures under pt
2.7
Section 116
(2)
This clause inserts new subsection
116(2) as a transitional provision. New subsection 116(2) clarifies that if a
person convicted of a serious offence before the commencement of new subsection
116(2), for the purposes of this Act the conviction carries on after the
commencement of new 116.
Clause 95 New
section 118
This clause inserts new section
118 as a transitional provision. New section 118 clarifies that any arrangement
entered into by the Minister under the Crimes (Forensic Procedures) Act
2000 before the commencement of new section 118, still has effect after the
commencement of the new section 118.
Clause
96 Dictionary, note 2, new notes
This
clause inserts new notes to note 2 of the Dictionary. The new notes to provide
assistance in locating the definitions of auditor-general, human rights
commissioner, ombudsman and privacy commissioner as referred to in new
subsection 96(2A); and entity as referred to in new section 94A.
Clause 97 Dictionary, new
definitions
This clause inserts new
definitions for ACT DNA database, appeal period and DNA database. The new
definition for ACT DNA database and DNA database signpost sections 94 and 100.
The new definition for appeal period has been added as a result of the insertion
of new subsection 102(4).
Clause
98 Dictionary, definition of DNA database
system
This clause omits the definition for
DNA database system. The omission reflects the adoption of the new terms
‘ACT DNA database’ and ‘DNA database’ to replace
‘DNA database system’.
Clause
99 Dictionary, definition of medical
officer
This clause removes the
definition for medical officer as the term has been substituted by corrections
health professional.
Clause 100
Dictionary, new definition of relevant
person
This clause inserts a new
definition for relevant person. Relevant person replaces the references to
suspect in part 2.6 and is provided as conceptual definition under new section
48A.
Clause 101 Dictionary, definition of
responsible person
This clause
inserts a new definition for responsible person. A new definition for
responsible person has been inserted as a result to amendments to section 92 of
the Act. Section 92 requires the court to notify a responsible person for the
ACT DNA database about a destruction order that is made by the court under
amended section 92.
Part 3 Crimes
(Forensic Procedures) Regulation
2000
Clause 102 Legislation
amended—pt 3
This clause identifies the regulation to be amended,
namely the Crimes (Forensic Procedures) Regulation 2000.
Clause 103 Section
5
This clause amends regulation 5 to
include investigations relating to missing persons or unknown deceased persons.
The amendment also recognises the amendments to section
102.
Clause 104 Corresponding law—Act,
s 100, def corresponding
law
Section 6 (1)
(f)
This clause amends regulation 6(1)(f)
to recognise that Criminal Law (Forensic Procedures) Act 2007 (SA) is
corresponding law for the purposes of section 100 of the original
Act.
Clause 105 Schedule 1, item 1, column
2
This clause amends item 1, column 2 of
schedule 1 to include intersex persons as well as transgender
persons.
Clause 106 Schedule 1, item 3,
column 2
This clause amends item 3, column
2 of the schedule 1 to remain consistent with the addition of video recordings
to sections 6 and 7 of the primary
Act.
Clause 107 Schedule 1, items 4, 7 and
8, column 2
This clause amends items 4, 7
and 8, column 2 of schedule 1 to include intersex persons as well as transgender
persons.
Clause 108 Schedule 1, item 10,
column 2
This clause amends item 10, column
2 of schedule 1 to remain consistent with the addition of video recordings to
sections 6 and 7 of the primary
Act.
Clause
109 Schedule 1, notes
This clause amends
the notes of schedule 1 relocate the references to police officer and doctor to
note 2 of the Dictionary.
Clause
110 Schedule 2, item 9, column 2
This
clause amends item 9, column 2 of schedule 1 to remain consistent with new
section 94A of the primary Act.
Clause
111 Schedule 2, item 11, column 2
This
clause amends item 11, column 2 of schedule 2 to remain consistent with the
change to section 80 of the primary
Act.
Clause 112 Dictionary, notes 2 and
3
This clause amends note 2 of the
Dictionary to include doctor, police officer, intersex person, and transgender
person. This clause also amends note 3 of the Dictionary to replace the
reference to DNA database system to ACT DNA database, given that term DNA
database system has been removed from the original Act. Forensic procedure is
also added to the list in note 3.
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