House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)

Schedule 1 - Amendment of the Crimes Act 1914

29. This Schedule sets out the amendments to be made to provisions in Part 1D and in Part 1A of the Crimes Act 1914 in relation to forensic procedures and other matters.

Item 1 - section 3ZL

30. This item ensures that the power to take fingerprints already contained in section 3ZL of the Crimes Act 1914 (which is not limited to forensic procedures) will not restrict the ability to take fingerprints from prescribed convicted offenders pursuant to Part 1D (which is concerned with forensic procedures).

Item 2 - Non-judicial powers and functions (proposed sections 4AAA and 4AAB)

31. This item inserts new sections 4AAA and 4AAB into Part 1A of the Crimes Act 1914 . These sections outline the rules applicable to the situation where a Commonwealth law relating to criminal matters confers on State and Territory judges, magistrates or other court employed officers a function or power that is neither judicial nor incidental to a judicial function or power. For example, the power of a magistrate to order the carrying out of a forensic procedure on a suspect under section 23WS of the Crimes Act 1914 . The proposed section 4AAA clarifies that the function or power is conferred in a personal and voluntary capacity. This is necessary for constitutional reasons. In essence, non-judicial functions or powers must be conferred in a personal capacity because judicial office holders, for example, a magistrate, must only exercise Commonwealth judicial functions in their official capacity. Failure to adhere to this may undermine the fundamental separation of powers doctrine enshrined in Chapter III of the Commonwealth Constitution (see, for example, Grollo v Commissioner v Australian Federal Police (1995)
131 ALR 225 ; Hilton v Wells (1985)
157 CLR 57 ).

32. Proposed subsection 4AAA(1) identifies the relevant powers and functions that are considered to have been conferred and the persons upon whom those functions and powers have been conferred. The application of this provision to State and Territory officers recognises that, from a Commonwealth perspective, State and Territory courts administer the criminal justice process under section 68 of the Judiciary Act 1903 .

33. The application of this subsection is restricted to Commonwealth laws in relation to criminal matters, including matters contained in the Crimes Act 1914 . The general description of criminal matters is important as it will allow State and Territory officers, including judges or magistrates, to make orders in their personal capacity regarding matters that are contained in other Commonwealth legislation (for example, orders required for obtaining search warrants under the Customs Act 1901 regarding the seizure of forfeited goods, including prohibited imports and the proceeds of drug trafficking) and for matters that originate in an overseas jurisdiction but relate to Australia (for example, the issuing of warrants for arrest of suspected war criminals under the International War Crimes Tribunal Act 1995 ).

34. Proposed paragraph 4AAA(1)(c) extends the application of this provision to certain Justices of the Peace and other persons. As some of the orders required by investigating agencies are very administrative in nature they are able to be issued by Justices of the Peace or certain other persons employed in courts, for example, Registrars. However, it is considered important to limit the application of proposed subsection 4AAA to Justices of the Peace and other persons who are employed by a State and Territory court and who ordinarily are authorised to issue search warrants or warrants of arrest. These limitations will ensure that only appropriately trained people will be authorised to make orders relevant for the administration of the criminal justice process.

35. Proposed subsection 4AAA(2) clarifies that the function or power is conferred in a personal capacity.

36. Proposed subsection 4AAA(3) makes it clear that the performance of the function or exercise of the power must be voluntary.

37. Proposed subsection 4AAA(4) ensures that the same protection enjoyed by a State or Territory judge or a magistrate as a judicial office holder extends to the performance of functions or exercise of powers conferred by a Commonwealth law relating to criminal matters.

38. Proposed subsection 4AAA(5) applies to certain State and Territory court employed officers and achieves the same purpose as subsection 4AAA(4) does for State and Territory judges and magistrates.

39. Proposed subsection 4AAA(6) ensures that the proposed rules regarding the conferral of non-judicial functions apply in relation to functions or powers conferred pursuant to a Commonwealth law whether or not that law was made before, on or after the commencement of the proposed rules. The amendment is merely for the purpose of ensuring existing procedures operate as they were intended. It is also necessary to make the procedures apply to all such laws to ensure the law in this area is less complex.

40. Proposed subsection 4AAA(7) clarifies that the rules in section 4AAA apply to functions or powers conferred under Commonwealth laws relating to criminal matters, including functions or powers conferred under the Crimes Act 1914 . This provision ensures that the general reference to criminal matters is not somehow interpreted by the courts to evince an intention to exclude matters covered in the Crimes Act 1914 itself.

41. Section 4AAB enables the Governor-General to make arrangements with the States and Territories for the performance of functions and the exercise of powers conferred under section 4AAA. The arrangements recognise the fact that the performance of functions and exercise of powers is voluntary.

42. Proposed subsection 4AAB(1) empowers the Governor-General to make arrangements.

43. Proposed subsection 4AAB(2) validates the performance of functions or exercise of powers in the absence of arrangements made under subsection (1). This provision reflects the reality that arrangements are contemplated as a constitutional precaution. However, it is not conceded that orders made where there is no arrangement are not valid.

44. Proposed subsections 4AAB(3) and (4) replicate subsections 4AAA(6) and (7).

Item 3 - Repeal of section 15FA

45. In light of the insertion of proposed sections 4AAA and 4AAB, section 15FA (which is a similar but specific provision concerning orders for forensic procedures) will no longer be required as there are no arrangements under that provision. This item repeals section 15FA. Section 3CA which also performs a similar function with respect to search warrants, has not been repealed because there are current arrangements under that provision.

Item 4 - Simplified Outline

46. This item summarises the main provisions contained in Part 1D of the Crimes Act 1914 and updates the existing Simplified Outline to take into account the proposed amendments to Part 1D in this Bill. The Simplified Outline is not an operative legislative provision, rather it acts as a signpost which enables a reader to get an overview of Part 1D.

Items 5 - 36 - Definitions (subsection 23WA(1)

47. These proposed items include amendments to the following defined terms currently in section 23WA of Part 1D: forensic material; forensic procedure; incapable person; intimate forensic procedure; investigating constable; non-intimate forensic procedure; order; relevant offence; tape recording and are technical rather than substantive changes.

48. The remainder of these proposed items insert definitions for new terms required for the purposes of this Bill. Most of the definitions are based on the 2000 Model Bill. The new terms are: AFP function; authorised applicant; Commissioner; corresponding law; destroy; DNA database system; exercise a function; function; member of the opposite sex of a person; member of the same sex as a person; offender; participating jurisdiction; prescribed offence; prescribed offender; prison medical officer; recognised transgender person; responsible person; serious offence; serious offender; transgender person; under sentence; volunteer. Those of particular note are:

(a)

prescribed offender is a person convicted of an offence under a law of the Commonwealth punishable by a penalty of imprisonment for life or 2 or more years who is still under sentence. Existing Part 1D of the Crimes Act 1914 allows the taking of forensic material from a suspect in relation to an indictable offence. Indictable offence is currently defined in section 4G of the Crimes Act 1914 as an offence against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months. The term prescribed offence is the terminology used in the 2000 Model Bill and is used to set a standard maximum penalty for relevant provisions. There is no substantive difference between indictable offence and prescribed offence as the lowest maximum penalty prescribed by Commonwealth laws which exceeds imprisonment for 12 months is imprisonment for 2 years.

(b)

serious offender is a person convicted of an offence under a law of the Commonwealth punishable by a penalty of imprisonment for life or 5 or more years who is still under sentence. This is consistent with the current approach of Division 11 of Part 1D of the Crimes Act 1914 . However, Division 11 of Part 1D will be repealed by this Bill and replaced with exhaustive provisions regulating the carrying out of forensic procedures from convicted serious offenders.

The distinction between these two groups of offenders is important as it is only convicted serious offenders that can be requested or ordered to provide a forensic sample for storage on the national DNA database. A prescribed offender can only be ordered to provide fingerprints upon or after conviction.

(c)

The meaning attributed to destroy, in the context of destroying forensic material, is explained in proposed subsection 23WA(5). The definition recognises that it is not feasible to require the destruction of all the microscopic forensic material taken from a person that inevitably remains on a laboratory bench. Instead, destruction requires the removal of the identifying links that connect a particular person to any forensic material or information. This definition assumes great importance in Division 8 of Part 1D which outlines the rules requiring the destruction of forensic material and information. New destruction rules are inserted into Division 8 by items 59 - 64 of this Bill.

(d)

The concept of a transgender person is defined in proposed subsection 23WA(6). Certain forensic procedures involving the breasts are classified according to whether the person on whom the procedure is carried out is a woman or a transgender person who identifies as a woman. In brief, a transgender person is someone who identifies as a member of the opposite sex to the sex that person was born. A recognised transgender person is someone whose birth record is altered under law to change the sex specified in the record.

(e)

The terms member of the opposite sex of a person and member of the same sex as a person are defined in proposed subsection 23WA(7). These definitions are important so that when carrying out a forensic procedure on a transgender person, particularly an intimate forensic procedure, that persons privacy can be respected by having the procedure performed by an appropriate person.

(f)

The term under sentence is defined in proposed subsection 23WA(8) by reference to Division 1B of the Crimes Act 1914 . An offender is considered to be under sentence if they are currently serving a sentence in prison, if they are serving a sentence imposed by a State or Territory court (for example, a community service order), if they are released under a bond, parole order or on licence, if they are a child or young person serving a sentence imposed by a State or Territory court mentioned in subsection 20C(1) (for example, a juvenile detention order) or if they are subject to an order made pursuant to Division 9 of Part 1B (for example, a hospital order). This provision ensures that forensic procedures can only be performed on those convicted serious and prescribed offenders who are under sentence. The 2000 Model Bill does not contain a restriction of this nature. The Government considers that there should be some limit on when such procedures should be carried out which is linked to the sentencing process.

Item 36 - Meaning of destroy, transgender person, member of the opposite sex of a person, member of the same sex as a person and under sentence (proposed subsections 23WA(5), (6), (7) and (8))

49. This item inserts proposed subsections 23WA(5), (6), (7) and (8) which provide comprehensive definitions of the terms destroy, transgender persons, member of the opposite sex of a person and member of the same sex as a person and under sentence, respectively. These terms are described in detail in the discussion on items 5 - 34 above. Proposed subsections 23WA(5), (6) and (7) relate directly to subclauses 1(5), (6) and (7) of the 2000 Model Bill.

Items 36A and 36B - Section 23WB

50. These items make consequential amendments to existing section 23WB in the Crimes Act 1914 so that the description of who may act as a persons interview friend extends beyond suspects to the offender and volunteer contexts.

Item 37 - Sub-heading

51. This proposed item alters the heading for Division 2 of Part 1D so that it better reflects the content of Division 2.

Item 38 - Sub-heading

52. This proposed item alters the heading for Division 3 of Part 1D so that it better reflects the content of Division 3.

Item 39 - Matters to be considered by police officer before requesting consent to forensic procedure (proposed paragraph 23WI(1)(d))

53. This proposed amendment adds a new consent requirement that a constable must be satisfied of before requesting a suspect to undergo a forensic procedure. At present, section 23WI(1) stipulates that before requesting a suspect consent to a forensic procedure a constable must be satisfied on the balance of probabilities that the person is a suspect, that there are reasonable grounds to believe the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed the offence being investigated and that the request is justified in all the circumstances. In finalising the 2000 Model Bill, and through a consultative process, it was decided to reinforce these grounds by adding the proposed paragraph to ensure the constable considers whether the person is a child or incapable person (so that the appropriate procedures in Division 5, which require the involvement of a magistrate, are followed if the person is a child or incapable person).

54. The proposed amendment adopts the approach taken in subclause 8(1) of the 2000 Model Bill.

Items 40 & 41 - Matters that suspect must be informed of before giving consent (proposed paragraphs 23WJ(1)(ia) and (k))

55. The purpose of these proposed amendments is to ensure that a suspects consent is properly informed, by requiring the police officer requesting the consent to provide the suspect with detailed information about the procedure and its potential consequences for the criminal investigation and any ensuing proceedings. Most of this information is already included in subsection 23WJ(1) but these amendments, consistent with the 2000 Model Bill, ensure that a suspect is also informed about the limited circumstances in which a suspects refusal to consent to a forensic procedure is admissible in subsequent proceedings and the fact that the forensic information may be placed on the national DNA database system.

56. These proposed amendments adopt the approach taken in subclause 9(1) of the 2000 Model Bill.

Item 41A - Subsection 23WJ(2)

57. This item is a consequential amendment relating to item 50 of the Bill, which will ensure that a suspect has a right to have a medical practitioner or dentist present during intimate forensic procedures. This item ensures that section 23WJ(2) is consistent with section 23XM(3), as proposed to be amended in item 50.

Item 42 - Sub-heading

58. This item alters the heading for Division 4 of Part 1D so that it better reflects the content of Division 4.

Item 43 - Sub-heading

59. This item alters the heading for Division 5 of Part 1D so that it better reflects the content of Division 5.

Item 44 - Proposed paragraph 23WT(3)(g)

60. This item is a technical amendment that changes reason into the plural reasons, reflecting the fact that a suspect may have more than one reason for refusing to consent to a forensic procedure.

Item 45 - Procedure at hearing of application for order (proposed subsections 23WX(6) and (6A))

61. This proposed amendment replaces subsection 23WX(6) to clarify that the suspect or his or her representative has the right to cross-examine the applicant and, with leave, the right to cross-examine or call other witnesses. The magistrate cannot grant leave to a suspect or his or her representative to call other witnesses unless the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should be called or cross-examined. This amendment is designed to ensure the hearing of such matters is not unduly complex. The procedure is based on subsection 48E(2)(b) of the Justices Act 1902 (NSW) and is found at subclause 23(4) of the 2000 Model Bill.

Item 46 - Sub-heading

62. This item alters the heading for Division 6 of Part 1D so that it better reflects the content of Division 6.

Item 47 - Taking samples of hair (proposed section 23XL)

63. Proposed subsection 23XL allows the plucking of hair roots when a hair sample is being taken. This change to the current position in Part 1D (which only allows the cutting of hair) is based on advice from forensic science experts that DNA extracted from a hair root is necessary to obtain suitable DNA. Submissions were received in consultation from the John Tonge Centre for Forensic Science (Queensland), the National Institute of Forensic Science Australia,the Australian Federal Police and the New South Wales Police strongly recommending the proposed change. In recognition that this procedure is more involved than cutting the hair, safeguards have been built into the new provision so that only the exact amount of hair that is necessary should be plucked from a person and that the least painful technique known and available is used to pluck each hair strand individually.

64. The proposed provision follows clause 37 of the 2000 Model Bill.

Item 48 - People who may carry out forensic procedures (proposed subsections 23XM(1) and (2))

65. This item alters a cross-reference in light of the insertion of proposed subsection 23XM(4) by this Bill.

Item 49 - video recordings (proposed subsection 23XM(3))

66. This proposed amendment ensures that video recordings as well as photographs may be taken to record and provide evidence of an external examination.

Item 50 - People who may carry out forensic procedures (proposed subsection 23XM(3))

67. At present, section 23XM contains a table which outlines the persons capable of carrying out forensic procedures. The emphasis is on ensuring that only those with appropriate qualifications are able to carry out forensic procedures. At present, a suspect is entitled, for each type of forensic procedure, to request the presence a medical practitioner or dentist of their choice. This situation is based on the approach adopted in the 1995 Model Bill. However, in developing the 2000 Model Bill and through the consultative process the policy was reassessed. For simple forensic procedures it was considered overly protective and inefficient to allow a suspect to request the presence of his or her medical practitioner at the carrying out of the relevant procedure. A medical practitioner should only be required for those forensic procedures where health or safety considerations might be relevant. Otherwise, an appropriately qualified person is suitable to perform simple forensic procedures.

68. Accordingly, the purpose of this proposed amendment is to allow certain forensic procedures to be carried out by appropriately trained police or civilian staff members of law enforcement agencies or forensic facilities without a person being able to insist on the presence of a medical practitioner. The nominated procedures are all those where an appropriately authorised person is capable of performing the procedure without endangering the health of the person undergoing the forensic procedure. In some instances a medical practitioner may not be available for some time, for example in a remote community, so that it is unreasonable to prolong the carrying out of those forensic procedures which will not endanger the health of the person where an appropriately qualified person is able to perform the procedure. These changes will also avoid the undesirable situation of having to detain a suspect for a long period while waiting for a medical practitioner to become available.

69. The proposed amendment reflects the approach taken in clause 38 of the 2000 Model Bill.

Item 51 - People who may carry out forensic procedures (proposed subsection 23XM(3))

70. This amendment is necessary to maintain a consistent approach to authorising persons to carry out forensic procedures. Allowing a constable to perform a forensic procedure is anomalous when the preferred approach is to authorise an appropriately qualified person to carry out forensic procedures. This amendment ensures that only persons with suitable training and qualifications can perform forensic procedures rather than constables at large.

71. The proposed amendment reflects the approach taken in clause 38 of the 2000 Model Bill.

Item 52 - video recordings (proposed subsection 23XM(3))

72. As with item 49, this proposed amendment ensures that video recordings as well as photographs may be taken to record and provide evidence of an external examination.

Item 53 - Suspect able to take own samples in certain circumstances (proposed subsection 23XM(4))

73. This proposed amendment allows a person to perform relatively simple forensic procedures on themselves, that is, saliva and buccal swab samples, with a negligible risk of injury, provided the procedure is supervised by an appropriately qualified person. This approach avoids any unnecessary invasion of a persons privacy and is consistent with subclause 38(3) of the 2000 Model Bill.

Item 54 - Person may get help to carry out forensic procedure (proposed subsection 23XO(3))

74. The purpose of this proposed amendment is to enable a person assisting in the carrying out a forensic procedure to use reasonable force where necessary. Section 23XJ of Part 1D already enables people, in addition to police, to carry out a forensic procedure. However, it is not clear in that section whether this is restricted to medical practitioners or other appropriately trained persons authorised to assist them. If the person carrying out the procedure requires authorisation to use reasonable force, it is necessary that those assisting them have the same capabilities. It is not possible to perform such procedures in the gentlest way without authorisation of this nature. This amendment merely implements what was the original intention of the existing legislation and is consistent with subclause 40(3) of the 2000 Model Bill.

Item 54A - Subsection 23XP(1)

75. This item is a consequential amendment relating to item 50 of the Bill, which will ensure that a suspect has a right to have a medical practitioner or dentist present during intimate forensic procedures. This item ensures that section 23XP(1) is consistent with section 23XM(3), as proposed to be amended in item 50.

Item 55 - Preventing the carrying out of forensic procedure (proposed section 23XWA)

76. This proposed amendment makes it an offence to interfere with or prevent the carrying out of a forensic procedure. Although there is a general offence of obstructing, hindering and resisting police (see section 76 of the Crimes Act 1914 ) and for that reason in 1998 Parliament decided not to include such an offence, the general offence would not apply to a situation in which the obstruction was directed at a person assisting in carrying out a forensic procedure. It makes sense to include a specific offence in Part 1D.

77. The proposed offence is consistent with that included in clause 48 of the 1995 and 2000 Model Bills.

Item 56 - Convicted offenders and volunteers (proposed Divisions 6A and 6B)

78. Proposed Division 6A contains procedures in relation to obtaining forensic material from convicted offenders and follows the Division 7 of the 2000 Model Bill. It replaces current Division 11 of Part 1D of the Crimes Act 1914 . Proposed Division 6B contains completely new provisions in relation to obtaining forensic material from volunteers and follows Division 8 of the 2000 Model Bill.

Proposed Division 6A - Carrying out of certain forensic procedures after conviction of serious and prescribed offenders

79. The purpose of this Part is to set out rules regulating the carrying out of forensic procedures on certain convicted offenders for law enforcement purposes. Experience in Australia and in other jurisdictions indicates that a small percentage of the community is responsible for committing most of the offences within that community, and that recidivism rates for certain offences, particularly property offences and sex offences, are significant. This Division will enable forensic material to be taken from convicted offenders for inclusion on the national DNA database which can be subsequently used in criminal investigations. The type of forensic procedure that can be performed depends upon whether a person is a serious or prescribed offender: fingerprints are all that can be obtained from a prescribed offender. This reflects the fact that, historically, police have been able to obtain fingerprints from offenders and that it is a different procedure.

Proposed section 23XWB - Forensic procedures to which this Division applies

80. Proposed subsections 23XWB(1) and (2) stipulate that only a limited range of forensic procedures may be carried out on convicted offenders. The permitted procedures are taking blood samples and buccal swabs, which are intimate forensic procedures, and hair samples (non-pubic only) and fingerprints which are non-intimate forensic procedures. No other forensic procedure is authorised by this Division.

81. Proposed subsection 23XWB(3) states that a forensic procedure can be carried out on a convicted offender regardless of whether the conviction was recorded before or after the commencement of this Bill. This is subject to the fact that the offender must be under sentence. Under sentence is defined in proposed subsection 23WA(8) which is discussed at item 36 of this Bill. It includes those who are still in prison, on parole, community service or other form of supervised release. It is critical to the creation of a useful DNA database system that forensic material can be obtained from all such offenders. The fact that they have been convicted of a serious offence is enough to justify, for reasons of community protection, the availability of the procedure where the person was convicted prior to the commencement of the legislation. However, there are safeguards to ensure it does not occur in inappropriate circumstances. These are discussed below. In the scheme of things, the procedure is not an enormous imposition compared to other consequences of conviction.

82. The proposed subsection is consistent with clauses 49 and 50 of the 2000 Model Bill.

Proposed section 23XWC - Non-intimate forensic procedures authorised to be carried out

83. This proposed provision summarises when a non-intimate forensic procedure can be carried out. In the case of a serious offender, with the consent of the offender or by order of a constable, provided the offender is not a child or an incapable person. Only fingerprints can be obtained from a prescribed offender either with the consent of that prescribed offender or pursuant to an order of a constable (provided the prescribed offender is not a child or incapable person). A magistrates order is required to authorise any non-intimate forensic procedure, including the taking of fingerprints, on an offender who is a child or incapable person. An intimate forensic procedure cannot be carried out on a child or incapable person. Consistent with other criminal procedures, this recognises the inexperience and vulnerability of young people.

84. The proposed subsection is consistent with clause 50 of the 2000 Model Bill.

Proposed section 23XWD - Intimate forensic procedures authorised to be carried out

85. Proposed section 23XWD provides that the consent of a serious offender, who is not a child or incapable person, is necessary to authorise an intimate forensic procedure (a mouth swab or blood sample). Otherwise, the procedure must be authorised by a magistrate.

86. The proposed section is consistent with clause 51 of the 2000 Model Bill.

Proposed section 23XWE - Application of Division 6

87. The effect of proposed section 23XWE is to ensure that forensic procedures carried out on offenders are performed in the same way, and subject to the same limitations, as forensic procedures carried out on suspects. The rules in Division 6 of Part 1D, regarding the carrying out of forensic procedures on suspects, include requirements:

(a)

that the procedure will be performed in a dignified manner;

(b)

that force may be used where necessary;

(c)

regarding the qualifications and gender of the person performing the procedure;

(d)

regarding who may be present; and

(e)

that the giving of informed consent must be recorded.

88. All these procedures are just as relevant to the carrying out of forensic procedures on offenders.

89. The proposed section is consistent with clause 52 of the 2000 Model Bill.

Proposed section 23XWF - Scope of authorisation

90. The purpose of proposed section 23XWF is to make it clear that Division 6A is not to be used to obtain forensic material from an offender who is also a suspect or a volunteer. In other words, this Division cannot be used to by-pass the provisions which deal with carrying out forensic procedures on suspects or volunteers. This is an important provision as the circumstances in which forensic procedures can be carried out differ depending on whether the person is a suspect, offender or volunteer.

91. The proposed section is consistent with clause 53 of the 2000 Model Bill.

Proposed section 23XWG - Informed consent to forensic procedure

92. The proposed section explains what a constable must do before an offenders consent to a forensic procedure will be considered to be informed consent. The offender must be advised of certain matters and given an opportunity to consult a legal practitioner before deciding whether or not to consent. The precise nature of the matters an offender must be informed of are contained in proposed section 23XWJ which is discussed below. The exception to this is where there is a danger that attempting to comply with the procedure might give the defendant the opportunity to destroy or contaminate the evidence.

93. The proposed section is consistent with clause 54 of the 2000 Model Bill.

Proposed section 23XWH - Constable may request offender to consent to forensic procedure

94. The proposed section allows a constable to seek a serious offenders consent to an intimate or non-intimate forensic procedure, providing the serious offender is not a child or incapable person. The section allows the same with respect to a prescribed offenders consent to the taking of fingerprints. The purpose of the provision is to give offenders an opportunity to agree to the procedure without the need to obtain a constables order or magistrates order for the carrying out of a forensic procedure. This will encourage a conciliatory approach between offender and law enforcement agency and is efficient.

95. The proposed section is consistent with clause 55 of the 2000 Model Bill.

Proposed section 23XWI - Matters to be considered by constable before requesting consent to forensic procedure

96. The purpose proposed section 23XWI is to require a constable, prior to requesting an offender to consent to undergoing a forensic procedure, to consider the justification for the request. Further, where the offender is not in prison or otherwise in detention when the request is made, the constable must be satisfied that the person whose consent is requested is in fact an offender (this requirement is not considered necessary for persons who are in detention because there are already procedures in prisons and remand centres to establish a persons identity and convictions for offences). An example of where the request might not be justified is if the constable is aware the person has provided samples on a number of occasions over a short period of time.

97. The proposed section is consistent with clause 56 of the 2000 Model Bill.

Proposed section 23XWJ - Matters that offender must be informed of before giving consent

98. The purpose of proposed section 23XWJ is to ensure that an offenders consent is properly informed, by requiring the constable seeking consent to provide the offender with detailed information about the procedure and its potential consequences, including possible use in proceedings against the offender, and for serious offenders, the inclusion of forensic material on the DNA database system. In proposed subsections 23XWJ(2) and (3) the constable must also explain the consequences of non-consent with respect to non-intimate and intimate forensic procedures respectively. The requirements for informed consent are substantially the same for offenders as for suspects (see section 23WJ of the Crimes Act 1914 ).

99. The proposed section is consistent with clause 57 of the 2000 Model Bill. The Model Criminal Code Officers Committee consulted the Federal Privacy Commissioner to ensure provisions like this complied with privacy policy.

Proposed section 23XWK - Circumstances in which constable may order non-intimate forensic procedure

100. This section permits a constable to order the carrying out of a non-intimate forensic procedure on a serious offender or the taking of fingerprints for a prescribed offender, providing the offender is not a child or incapable person, only if consent has been refused and the constable has considered the matters listed in proposed section 23XWL. These safeguards ensure that the carrying out of forensic procedures must be relevant to law enforcement purposes.

101. The proposed section is consistent with clause 58 of the 2000 Model Bill.

Proposed section 23XWL - Matters to be considered by constable

102. This proposed section lists the matters to be considered before an order can be made by a constable under the previous section. The relevant matters for consideration are:

(a)

whether Part 1D would authorise the forensic procedure in the absence of the constables order;

(b)

the seriousness of the circumstances surrounding the offence committed by the offender;

(c)

whether the carrying out of the forensic procedure could assist law enforcement; and

(d)

whether the order would be justified in all the circumstances.

103. The proposed section is consistent with clause 59 of the 2000 Model Bill. Clause 59 is based on procedures that have been used in Victoria where they have worked well. Paragraph (c) has been added to link the provision back closely to the purpose of the legislation.

104. The grounds under the existing provision (subsection 23YQ(5)) which require the court to be satisfied the offender has a propensity to reoffend were based on the 1995 Model Bill. The authors of that Bill and submissions received during the consultative process during the development of the 2000 Model Bill, suggest that these grounds were far too onerous. They were formulated as an interim solution and provide an inadequate basis for establishing an effective national DNA database system.

Proposed section 23XWM - Recording of giving of information and consent

105. Proposed section 23XWM is intended to prevent disputes about whether the information or consent was given, by requiring the process to be recorded electronically. If electronic recording is not possible, a written record must be made and a copy of that record given to the offender.

106. The proposed section is consistent with clause 60 of the 2000 Model Bill.

Proposed section 23XWN - Record of constables order

107. This section incorporates natural justice considerations. It requires the order made by a constable to be recorded and a copy provided to the offender as soon as practicable after the order is made.

108. The proposed section is consistent with clause 61 of the 2000 Model Bill.

Proposed section 23XWO - Court order for carrying out forensic procedure on serious offender

109. As noted above, an order from a judge or magistrate is required before a non-intimate forensic procedure can be carried out on an offender who is a child or incapable person. This applies to both serious and prescribed offenders who are children or incapable persons. An order from a judge or magistrate is also required if a serious offender has refused consent and the procedure is an intimate forensic procedure. The application for the order can be made by an authorised applicant either at the time of sentencing or later. In practice, the application will usually be made at the time of sentencing and this is why subsection 23XWO(2) refers to an application being made to a judge as well as a magistrate. This has been the experience in Victoria which already has operative legislation enabling forensic procedures to be carried out on convicted offenders.

110. The critical provision in the section is subsection 23XWO(7). This subsection details the matters that a judge or magistrate must be satisfied of before making an order directing an offender is justified in all the circumstances. The relevant matters for consideration are the same as those to be taken into account by a constable who is ordering a non-intimate forensic procedure under proposed section 23XWK. As in proposed section 23XWK, the additional matter for consideration - that the carrying out of the forensic procedure could assist law enforcement purposes - has been inserted into proposed subsection 23XWO(7).

111. Subsection 23XWO(8) explains what is to happen to the results of the procedure, requiring a person who conducts the analysis of forensic material obtained to take into account the potential for the conviction to be overturned on appeal. In short, analysis results cannot be disclosed pending the expiration of an appeal period or if a conviction is quashed.

112. Other than the addition of proposed paragraph 23XWO(7)(c) the proposed section is consistent with clause 62 of the 2000 Model Bill.

Proposed section 23XWP - Carrying out forensic procedure following conviction

113. Proposed section 23XWP serves a practical purpose. It is intended to ensure that orders for carrying out forensic procedures on convicted offenders can be implemented, by enabling the court to make ancillary orders so constables have access to offenders to carry out the procedure. For example, these orders would allow a constable and an appropriately qualified person to attend on an offender in the prison or place of detention in which the offender was serving his or her sentence. An offender must comply with an order from a judge or magistrate authorising a forensic procedure to be carried out on him or her. This is consistent with existing section 23YQ(6) of the Crimes Act 1914 , which is repealed and replaced by proposed section 23XWP.

114. As Commonwealth offenders are serving their sentences in the State and Territory administered institutions, arrangements will be made in consultation with the States and Territories for enforcing orders to carry out forensic procedures on those offenders.

115. The proposed section is consistent with clause 63 of the 2000 Model Bill.

Proposed Division 6B - Carrying out of forensic procedures on volunteers and certain other persons

116. The purpose of this Part is to provide a secure legislative basis for carrying out forensic procedures on volunteers, and on children or incapable persons whose parents or guardians have given informed consent to the procedure. Indeed, there are examples of large numbers of residents in a particular town being prepared to volunteer for the purposes of solving a local crime. In these circumstances, it is important that persons who volunteer to undergo a procedure (or who volunteers that a child or incapable person undergo the procedure), as well as the law enforcement authorities, are certain of how forensic material can be taken, how it can be used and what safeguards are in place to ensure that it is used only as intended.

Proposed section 23XWQ - Carrying out of forensic procedures on volunteers

117. Proposed section 23XWQ identifies those persons who will be considered volunteers. A child or incapable person can be volunteered by a parent or guardian. This is particularly important in the investigation of child sex offences where forensic material can be crucial in securing sufficient evidence to commence a prosecution.

118. Proposed subsection 23XWQ(2) makes it clear that forensic procedures can only be carried out:

(a)

on volunteers who have given informed consent;

(b)

with the informed consent of a parent or guardian of a child or incapable person; and

(c)

in the absence of the informed consent of a parent or guardian of a child or incapable person, pursuant to a magistrates order.

119. The third limb addresses the situation where a parent or guardian withholds consent because they themselves may be a suspect in an offence in which the child or incapable person is the victim. In these situations it is necessary for a magistrate to grant an order authorising the carrying out of a forensic procedure.

120. Proposed subsection 23XWQ(3) makes it clear that these provisions only authorise the carrying out of a forensic procedure if it is related to functions of the Australian Federal Police. AFP function is defined at item 5 to mean a function under section 8 of the Australian Federal Police Act 1979 , which lists a range of law enforcement activities,

121. Proposed subsections 23XWQ(2)(ii) and (4) make it clear that the rights of the child or incapable person are paramount. If the child or incapable person resists the carrying out of the forensic procedure the procedure must be stopped. While such people cannot consent, the procedure is supposed to be of a voluntary nature.

122. Proposed subsection 23XWQ(5) also ensures that forensic procedures carried out under this Part are performed in the same way, and subject to the same limitations, as forensic procedures carried out on suspects under Division 6 of Part 1D.

123. Apart from proposed subsection 23XWQ(3), the proposed section is consistent with clause 64 of the 2000 Model Bill.

Proposed section 23XWR - Informed consent of volunteer or parent or guardian of a volunteer

124. The purpose of proposed section 23XWR is to ensure that a volunteers consent, or the consent of a parent or guardian of a child or incapable person, is properly informed. It is proposed that this is achieved by requiring the constable requesting the consent to provide the volunteer, parent or guardian with detailed information about the procedure and its potential consequences. Some of the requirements for informed consent are common to those requirements with respect to informed consent from suspects (see section 23WJ of the Crimes Act 1914 ). However, the requirements are more onerous here in the case of volunteers. For example, the detailed information given by a constable must be provided in the presence of an independent person. Further, the volunteer, parent or guardian must be informed that they may withdraw consent at any time with respect to undergoing the forensic procedure, the retention of the forensic material taken or the retention of information obtained from analysis of that material. The Senate Standing Legal and Constitutional Legislation Committee recommended that volunteers be given an express choice as to which index of the national DNA database their DNA profiles may be stored on. This recommendation has been adopted and is represented in proposed subparagraph 23XWR(2)(b). The volunteer, parent or guardian must also be informed of the purposes for which the forensic information obtained from carrying out the forensic procedure will be stored on the national DNA database system and the length of time agreed to by the volunteer, parent or guardian for which the information may be retained on the DNA database. It is open for a volunteer, parent or guardian to insist that information be stored for a limited purpose, for example, for the limited purpose of investigating a particular offence.

125. The proposed section is consistent with clause 65 of the 2000 Model Bill and was developed following consultation with the Federal Privacy Commissioner.

Proposed section 23XWS - Recording of giving of information and consent

126. As with proposed section 23XWN discussed above, proposed section 23XWS is intended to prevent disputes about whether the information or consent was given, by requiring the process to be recorded electronically. If electronic recording is not possible, a written record must be made and a copy of that record given to the volunteer, or volunteers parent or guardian. The standard for volunteers should not be less than those for suspects and convicted offenders.

127. The proposed section is consistent with clause 66 of the 2000 Model Bill.

Proposed section 23XWT - Withdrawal of consent

128. Proposed section 23XWT explains what happens if consent is withdrawn to either the carrying out of the procedure or retention of forensic material from the procedure. Withdrawal of consent need not be in writing to be effective. For example, the withdrawal of consent can be inferred from the conduct of a volunteer, parent or guardian. This reflects the voluntary nature of these procedures.

129. Where consent is withdrawn before the procedure is carried out and the volunteer is a child or incapable person, the procedure cannot proceed except by order of a magistrate. The purpose of permitting a procedure in relation to a child or incapable person to proceed by order of a magistrate is to protect that child or person where there are reasons to believe that the withdrawal may not be in the child or incapable persons best interests - for example, if the child or incapable person is believed to be a victim of an offence committed by the relevant parent or guardian.

130. If the withdrawn consent concerns the retention of material generated by forensic procedure, the material must be destroyed unless an order is made by a magistrate under proposed section 23XWV to retain the material.

131. The proposed section is consistent with clause 67 of the 2000 Model Bill.

Proposed section 23XWU - Circumstances in which magistrate may order carrying out of forensic procedure on child or incapable person

132. Proposed section 23XWU explains when a magistrate may order that a child or incapable person undergo a forensic procedure for which there is no consent by the relevant parent of guardian. An order can be made where the consent cannot be obtained or is withdrawn. The consent may be unobtainable because the parent or guardian cannot be found or if the child or incapable person is unwilling or unable to reveal the identity or whereabouts of their parents or guardians. An order can also be made under this section if the consent is refused and the parent or guardian who refused consent is a suspect for the offence and is likely to be implicated by the results of the forensic procedure.

133. The factors to be considered by the magistrate before making an order are:

(a)

whether Part 1D would authorise the forensic procedure in the absence of the order;

(b)

the seriousness of the circumstances surrounding the commission of the relevant offence;

(c)

the best interests of the child or incapable person;

(d)

as far as they can be ascertained, the wishes of the child or incapable person; and

(e)

the circumstances.

134. It can be seen that the interests and wishes of the child or incapable person are important considerations. As noted above, the procedure cannot be carried out if the child or incapable person objects or resists.

135. The proposed section is consistent with clause 68 of the 2000 Model Bill.

Proposed section 23XWV - Retention of forensic material by order of a magistrate after withdrawal of consent

136. Proposed section 23XWV explains what is to happen if consent is withdrawn after a forensic procedure under this Division has been carried out. Ordinarily, the forensic material must be removed from the national DNA database system otherwise prosecution for the commission of a criminal offence is possible (see the offence in proposed subsection 23YDAG(2) at item 65 of this Bill). In some situations it may be necessary to retain the forensic material notwithstanding the withdrawal of consent - the typical example may be where the person withdraws consent because they conclude that suspicion has turned in their direction. Accordingly, in the investigation of a serious offence, it is proposed that an authorised applicant may seek a magistrates order to retain the material. The magistrate may make the order only if he or she is satisfied of the matters in subsection 23XWV(2).

137. In summary, these matters relate to whether the material taken from the volunteer is likely to have probative value in the context of a serious offence for which there is forensic material available (such as material from the crime scene) which could identify the perpetrator, and whether the retention is justified in all the circumstances. The purpose is to authorise retention only where the material from the volunteer is likely to be useful in proceedings regarding the serious offence.

138. The proposed section is consistent with clause 69 of the 2000 Model Bill which is based on section 464ZGF of the Crimes Act 1958 (Victoria) and provides for a stricter standard than that which applies to suspects or offenders in recognition that the material was originally obtained voluntarily.

Item 57 - Inadmissibility of evidence from improper forensic procedures etc (proposed paragraph 23XX(1)(a))

139. This proposed amendment is technical, though important. It is proposed to extend the rules regarding inadmissibility of evidence obtained from the improper carrying out of forensic procedures to persons generally. The protection was previously available to suspects only. It is important that offenders and volunteers who provide forensic material are accorded the same safeguards and guarantees as suspects because the rules of inadmissibility in subsequent proceedings is an important safeguard. This safeguard underpins compliance by law enforcement agencies with the rules set out in Part 1D of the Crimes Act 1914 . This provision is also consistent with a line of High Court of Australia decisions regarding the importance to be attached to compliance with statutory criminal investigative procedures (see, for example, Bunning v Cross (1978)
141 CLR 54 ; Ridgeway v R (1995)
184 CLR 19 ).

140. The proposed amendment is consistent with subclause 70(1) of the 2000 Model Bill.

Item 58 - Inadmissibility of evidence from improper forensic procedures etc (proposed paragraph 23XX(1)(b))

141. The proposed amendment is required for similar purposes to those articulated with respect to item 57 above, only this time, the inadmissibility protection is proposed to be extended to cover non-compliance with rules governing the use of forensic material stored on the national DNA database system.

142. Proposed subparagraph 23XW(1)(b)(i) retains the existing protection in paragraph 23XWB(1)(b) of the Crimes Act 1914 in relation to the restrictions applying to the use of evidence relating to forensic procedures carried out under Part 1D (including material or other information generated from such procedures) where there was a breach of, or failure to comply with, the Bill. Proposed subparagraph 23WXB(1)(b)(ii) applies that protection to the use of information generated as a result of a breach of, or failure to comply with, the provisions relating to the recording or use of information on the DNA data system in proposed new Division 8A.

143. The proposed amendment is consistent with clause 70 of the 2000 Model Bill and the High Court of Australia decisions mentioned under item 57 above.

Items 58A to 58E - Admissibility rules

144. These items amend existing sections 23XX, 23XY, 23YA of the Crimes Act 1914 to ensure that the admissibility rules extend beyond suspects to the offender and volunteer contexts. The proposed amendments will provide the same protection to offenders and volunteers as is accorded suspects, including the requirement to destroy forensic material once it has been found to be inadmissible.

Item 59 - Destruction of certain forensic material obtained by court order (proposed paragraph 23YC(a))

145. The proposed amendment to paragraph 23YC(a) is intended to ensure that material obtained from a suspect under an interim order is destroyed as soon as practicable after an order is disallowed. This is an improvement on the current situation under section 23YC(a) where no time limit for destruction is set - there is just a bare requirement that the forensic material be destroyed.

146. The proposed amendment is consistent with subclause 75(1) of the 2000 Model Bill.

Item 60 - Destruction of certain forensic material obtained by court order (proposed subsection 23YC(2))

147. Proposed subsection 23YC(2), deals with orders made by magistrates under sections 23XWU and 23XWV (the provisions dealing with volunteers). The provision acknowledges that a magistrate, in exercising his or her discretion, can set time limits for retaining forensic material when it makes those orders and requires the material to be destroyed once the relevant retention period expires.

148. The proposed amendment is consistent with subclause 75(2) of the 2000 Model Bill.

Item 61 - Destruction of certain forensic material (proposed subsection 23YD(1))

149. The proposed amendment to section 23YD is technical. It ensures forensic material from volunteers and offenders is subject to the appropriate destruction rules (and not those rules in section 23YD which deal with the destruction of forensic material obtained from suspects). Different destruction rules apply for volunteers and offenders. For example, a volunteer can agree with the Commissioner as to the time limit for retention of forensic material provided by that volunteer (see proposed paragraph 23XWR(2)(d) and the offence in proposed subsection 23YDAG(2)). For offenders, refer to proposed section 23YDAA which requires the destruction of forensic material as soon as practicable after an offenders conviction is quashed.

150. The proposed amendment is consistent with subclause 77(1) of the 2000 Model Bill.

Item 62 - Destruction of forensic material after 12 months (proposed subsection 23YD(2))

151. This proposed amendment changes existing section 23YD(2) so that forensic material obtained from a suspect does not have to be destroyed after 12 months if a warrant for apprehension of the suspect has been issued. If the suspect is wanted in relation to the commission of an offence it is reasonable that the forensic material stored on the national DNA database system be retained for the purposes of investigating the new offence.

152. The proposed amendment is consistent with subclause 77(2) of the 2000 Model Bill. This change was a result of submissions made in consultation.

Item 63 - Destruction of forensic material (proposed subsections 23YD(4), (5), (6), (7) and (8))

153. Proposed subsection 23YD(4) is the companion to subsection 23YD(2) and ensures that if a warrant has been issued the forensic material must be destroyed after the warrant lapses or a period of 12 months lapses after the suspect is apprehended under the warrant.

154. The period for retaining forensic material obtained from suspects can be extended by a magistrate on application by the Commonwealth Director of Public Prosecutions. Proposed subsections 23YD(5) to (8) contain the procedures to be followed in such applications and include the right of the person from whom the forensic material was obtained to have his or her lawyer make representations to the magistrate regarding the extension. These proposed provisions are consistent with existing subsection 23YD(4) which allows for the Commonwealth Director of Public Prosecutions to apply for an extension. The proposed new provisions provide a more exhaustive description of the relevant procedures and were in response to the consultation on the 2000 Model Bill.

155. The proposed subsections are consistent with clause 77 of the 2000 Model Bill.

Item 64 - Destruction of forensic material (proposed sections 23YDAA and 23YDAB)

Proposed section 23YDAA - Destruction of forensic material taken from offender after conviction quashed

156. Proposed section 23YDAA ensures that if an offenders conviction is subsequently quashed, forensic material taken from that offender pursuant to an order of a constable or a judge or magistrate is destroyed. Note that destruction includes destroying the means of identifying the material (see item 36, proposed subsection 23WA(5)).

157. The proposed section is consistent with clause 76 of the 2000 Model Bill.

Proposed section 23YDAB - Destruction of forensic material if related evidence is inadmissible

158. The proposed section requires the destruction of forensic material where a magistrate has found that evidence relating to that material is inadmissible under section 23XX (the inadmissibility rules). The purpose is to ensure that once improperly obtained forensic material has been found inadmissible, it is destroyed so that it can never be used.

159. The proposed section is consistent with clause 78 of the 2000 Model Bill.

Item 65 - DNA Database System (proposed Division 8A)

Proposed Division 8A - DNA Database System

160. This proposed Division deals with the establishment and operation of the proposed DNA database system. It is intended that substantially similar legislation be enacted by other Australian jurisdictions so that a national DNA database system, similar to the national fingerprint database, can be established to assist with national law enforcement activities. The Commonwealth Government has contributed $50 million towards the establishment of CrimTrac, including the national DNA database system, national fingerprint system and much better access to operational policing information.

161. The proposed Division is consistent with Division 11 of the 2000 Model Bill.

Proposed section 23YDAC - Definitions relating to DNA database system

162. The proposed section defines key concepts and terms relating to the national DNA database system, including definitions of the indexes which are to comprise the database. The information derived from a sample of DNA from forensic material by laboratory analysis is known as a DNA profile. DNA profiles will be stored in particular indexes depending on the source of the forensic material from which the DNA profile was derived.

163. The various indexes to be included on the national DNA database system are the result of considerable discussion between Australian jurisdictions, the Federal Privacy Commissioner and in consultation during the development of the 2000 Model Bill.

164. The serious offenders index is to contain DNA profiles derived from forensic material taken from serious offenders taken under proposed Division 6A and equivalent provisions in other jurisdictions, and can also contain DNA profiles from suspects who are subsequently convicted of prescribed offences - this will avoid the need to carry out another forensic procedure after the suspect is convicted of an offence.

165. As well as DNA profiles derived from forensic procedures carried out under the Bill, the DNA system will include a crime scene index, an unknown deceased persons index, a missing persons index and a statistical index. It should also be noted that DNA profiles from known deceased persons may be included on the volunteers (unlimited purposes) index.

166. The statistical index cannot include any information which can be used to identify an individual.

167. The proposed indexes are consistent with those included in clause 79 of the 2000 Model Bill.

Proposed section 23YDAD - Supply of forensic material for purposes of DNA database

168. The purpose of proposed section 23YDAD is to protect the integrity of the database system by preventing the inclusion of certain forensic material on the DNA database system. It is considered that the best means of achieving this is to utilise criminal sanctions to deter the improper supply of forensic material. The only material which can be included on the DNA database system is listed in subsection 23YDAD(3) and is, forensic material taken from:

(a)

a crime scene

(b)

a person as permitted by the Bill (that is, suspects, offenders and volunteers - but not if the material must be destroyed under the Bill)

(c)

a deceased person

(d)

a missing person

(e)

a volunteer who is a blood relative of a missing or deceased person.

169. It is proposed that the supply of any other forensic material to another person so it can be analysed and included on the database system should be an offence. The offence in subsection 23YDAD(1) targets the supply of forensic material that is required to have been destroyed pursuant to the destruction rules contained in Division 8 of Part 1D (for example, when the relevant conviction is quashed). The offence in subsection 23YDAD(2) targets the supply of forensic material that is not of a kind described as excluded forensic material in subsection 23YDAD(3) and outlined in paragraphs (a) - (e) above. The maximum penalty of imprisonment for 2 years is justified because of the significant damage that could be done to an individual or to the public confidence in the DNA database system if someone were to breach the procedures.

170. The proposed section is consistent with clause 80 of the 2000 Model Bill.

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

171. The purpose of proposed section 23YDAE is to protect the privacy of information stored on the system and to prevent the misuse of DNA profiles.

172. The offence in subsection 23YDAE(1) prohibits a person from accessing information for improper purposes, that is, for a purpose that does not accord with the specific purpose listed in subsection 23YDAE(2). The penalty for unauthorised access to information is 2 years imprisonment.

173. This is the basic offence protecting the confidentiality of the national DNA database system. Immense damage could be done to the reputation of someone if forensic information was publicly disclosed. Further, the reputation of the DNA database is dependent on the level of confidentiality maintained with the information stored on it. If a person discloses information other than for the legitimate purposes listed in subsection 23YDAE(2) it is appropriate that they should face a maximum penalty of imprisonment for 2 years.

174. The proposed section is consistent with clause 81 of the 2000 Model Bill.

Proposed section 23YDAF - Permissible matching of DNA profiles

175. The process of comparing two DNA profiles on different indexes is known as matching those DNA profiles. The Bill does not permit general matching between all profiles in all indexes - only certain profiles on the indexes can be compared with each other.

176. In particular, the matching rules for the volunteers (limited purpose) index are very restrictive to ensure that DNA profiles from volunteers are used only for the purpose for which the forensic procedure was carried out. Given the important role that volunteers can play in eliminating potential suspects from investigations, thereby reducing the time and resources used by investigations, it is important that volunteers can be confident that their forensic material will not be misused.

177. Proposed section 23YDAF contains a table setting out the rules for permissible matching of the DNA profiles on the various indexes of the DNA database system. The table unequivocally sets out whether or not a particular index can be matched against another index. As with most of proposed Division 8A, the detail of the proposed table is the result of considerable discussion between the Australian jurisdictions, the Federal Privacy Commissioner, CrimTrac and in consultation during the development of the 2000 Model Bill. The table was requested by those who will be using it.

178. The matching rules are reinforced by the offence at subsection 23YDAF(2), which prohibits a person from causing a match that is not permitted unless the matching is done only for the purpose of administering the DNA database system. The offence carries a maximum penalty of imprisonment for 2 years.

179. The proposed section is consistent with clause 82 of the 2000 Model Bill.

Proposed section 23YDAG - Recording, retention and removal of identifying material on DNA database system

180. This proposed section contains offences which reinforce the destruction requirements contained in Division 8 of Part 1D.

181. Proposed section 23YDAG will ensure that the database is kept up-to-date and will reduce the potential for impermissible matches of DNA profiles. It applies to information derived from forensic material which is stored on the DNA database system and which can be used to identify the person from whom the forensic material was taken.

182. Proposed subsection 23YDAG(1) makes it an offence to record or retain any identifying information if the forensic material to which it relates is required to be destroyed under the Bill. The maximum penalty prescribed is imprisonment for 2 years.

183. Proposed subsections 23YDAG(2) and (3) make it an offence for the person who is responsible for administering the DNA database system (the responsible person) to fail to remove within the required time frame, any identifying material relating to:

(a)

a person from whose forensic material a DNA profile on the volunteers (unlimited purposes) index or volunteers (limited purposes) index is derived (see subsection 23YDAG(2)); and

(b)

an offender from whose forensic material a DNA profile on the serious offenders index is derived and the offender has been pardoned or acquitted of the relevant offence or if the conviction has been quashed (see subsection 23YDAG(3)).

184. Both offences are punishable by a maximum penalty of imprisonment for 2 years.

185. Proposed subsection 23YDAG(4) also describes the relevant time periods after which identifying material relating either to volunteers or to deceased persons must be removed from the national DNA database system.

186. The proposed section is consistent with clause 83 of the 2000 Model Bill.

Items 66 - 68 - Powers etc of legal representatives and interview friends (section 23YE)

187. These proposed amendments ensure that an offender, as well as a suspect, can make a request or objection under Part 1D and is entitled to have a legal representative or interview friend informed of relevant matters in relation to the carrying out of forensic material and the retention of forensic information on the national DNA database system.

188. The proposed amendments are consistent with clause 88 of the 2000 Model Bill.

Items 69 - 70 - Powers etc of legal representatives and interview friends (section 23YE)

189. These proposed amendments incorporate procedural fairness considerations. The amendments ensure that the interview friend or legal representative of a suspect or offender is informed in a language in which they are able to communicate with reasonable fluency.

190. The proposed amendments are consistent with clause 88 of the 2000 Model Bill.

Items 71 - 72 - Obligations of investigating constables (section 23YF)

191. These proposed amendments incorporate procedural fairness considerations. The amendments ensure that where copies of tape recordings or opportunities to view video recordings are required to be provided to suspects under Part 1D, they are also provided to offenders and volunteers or their legal representatives or interview friend.

192. The proposed amendments are consistent with clause 89 of the 2000 Model Bill.

Items 73 - 74 - Obligations of investigating constables (section 23YG)

193. These proposed amendments incorporate procedural fairness considerations. The amendments ensure that where samples, copies or other material must be made available to suspects under Part 1D, they must also be made available to offenders and volunteers or their legal representatives.

194. The proposed amendments are consistent with clause 90 of the 2000 Model Bill.

Item 75 - Time limits for providing material (subsection 23YG(2))

195. This proposed amendment clarifies that where material must be provided by the police to a suspect, offender, volunteer or their respective legal representatives or interview friends it must be provided within 7 days of its coming into existence or within 7 days of a request.

196. Apart from the time limits, the proposed amendments are consistent with clause 90 of the 2000 Model Bill. At present, section 23YG prescribes a time limit of 7 days for the provision of material. It is proposed to adopt this more onerous time limit of 7 days rather than adopting the 4 week time period specified in the 2000 Model Bill because it was preferred by the Parliament when the legislation was considered in 1998. The 4 week time limit was included in the 2000 Model Bill at the request of law enforcement agencies.

Item 75A - Subsection 23YG(2) (note)

197. This proposed item corrects a faulty cross-reference in a legislative note.

Item 76 - Material to be provided without charge (section 23YH)

198. This proposed amendment extends the current provision so that where material of any kind must be given to a suspect, offender or volunteer or an opportunity to view a video recording must be given to a suspect, offender or volunteer the material or the opportunity must be given to the suspect, offender or volunteer without charge.

199. The proposed amendments are consistent with clause 91 of the 2000 Model Bill.

Item 77 - Dealing with information obtained under Part 1D

Proposed section 23YN - Retention of electronic recordings

200. This proposed section enables the Commissioner to keep recordings beyond the period required for the investigations and prosecution of a specific crime. It may be needed for a police disciplinary purpose. However, it would be unreasonable to expect the police to keep it forever. It is therefore something best left to the Commissioner.

201. The proposed amendments are consistent with clause 98 of the 2000 Model Bill.

Section 23YO - Disclosure of information

202. The purpose of proposed section 23YO is to protect the privacy of persons whose DNA profiles are included on the DNA database system or who have undergone a forensic procedure under the Bill. Existing section 23YP, which is to be repealed by this Bill, lists the permitted purposes for which disclosure of forensic material derived from the carrying out of a forensic procedure can be made. These reasons are retained in proposed subsection 23YO. The only addition is that disclosure to the suspect, offender or volunteer to whom the information relates is permitted.

203. It is also important to list the permitted purposes for disclosure of information retained on the national DNA database system. This is the purpose of proposed subsection 23YO(2). The permitted purposes include a range of legal proceedings, including coronial inquiries, and certain kinds of criminal investigations. In response to recommendation 4 of the Senate Standing Legal and Constitutional Legislation Committee paragraph 23YO(2)(g) is proposed to be amended to allow disclosure to the Commonwealth Ombudsman as well as the Federal Privacy Commissioner. This amendment recognises the own-motion investigation powers of both the Ombudsman and the Privacy Commissioner and will assist in ensuring effective, independent monitoring of the national DNA database occurs.

204. The permitted purposes in proposed subsections (2) and (3) are underpinned by the proposed offence in subsection 23YO(1). It is proposed that a person shall be guilty of an offence if that person, having access to any information stored on the DNA database system or to any other information revealed by a forensic procedure, improperly discloses that information. The offence carries a maximum penalty of imprisonment for 2 years. Proposed subsections 23YO(2) and (3) list the legitimate purposes for which information can be disclosed. As stated in proposed subsection 23YO(4), it is not an offence if the information cannot be used to identify anyone.

205. The proposed section is consistent with clause 96 of the 2000 Model Bill which was developed after consultation with the Federal Privacy Commissioner.

Proposed section 23YP - Taking, retention and use of forensic material in accordance with another law

206. This proposed section ensures that the proposed procedures do not interfere with the taking, retention or use of information or forensic material generated under other State and Territory laws.

207. It also makes it clear, in subsection 23YP(2), that information or material that was lawfully taken under a State or Territory law can be retained or used for the investigative, evidentiary and statistical purposes of the Commonwealth, even if that retention or use would (if this section did not exist) not comply with this Bill. Subsection 23YP(3) stipulates that the validation provision in subsection (2) also extends to forensic material or information that is obtained lawfully under a law of a State or Territory before the commencement of this Bill.

208. This provision is included in recognition that Australia's federal structure can result in variations between legislation on the same subject matter. In this case, the Federal Government has worked closely with the States and Territories to achieve consistent procedures. Unfortunately, complete consistency could not be achieved. However, the provision is consistent with the approach taken in the Uniform Evidence Act, namely, to avoid the situation where evidence can be excluded in one jurisdiction even where that evidence would be acceptable to a court in another Australian jurisdiction. It would be most abnormal for it to be any different given Australia's federal structure.

209. The proposed section is consistent with clause 97 of the 2000 Model Bill.

Proposed section 23YQ - Commissioner may delegate functions and powers

210. This proposed provision allows the Commissioner to delegate his or her functions to a constable or staff member. Constable is defined in section 3 of the Crimes Act 1914 and means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory, A staff member is defined in the Australian Federal Police Act 1979 . It is important that the Commissioner can delegate functions to forensic experts, database technicians, etc, as the Commissioner is not able to perform all the functions contemplated under Part 1D by him or herself.

211. This proposed section does not have an equivalent in the 2000 Model Bill. It was realised after the finalisation of the 2000 Model Bill in February 2000 that a power of delegation was required for the Commissioner of the AFP. There is not a pre-existing power of delegation in the Crimes Act 1914 .

Item 78 - Divisions 10 and 11

212. This proposed item repeals these Divisions. They will be superseded by Division 9 as amended by this Bill and new Division 8A respectively.

Item 79 - Renumbering Division 12

213. This proposed item renumbers Division 12 as Division 10 of Part 1D.

Item 80 - Application of other laws

214. This proposed amendment ensures that the operation of any Commonwealth, State or Territory laws allowing the carrying out of breath analysis or a breath test or the production of samples of blood and urine to determine the level of alcohol or drugs, if any, present in a persons blood is not limited or excluded by Part 1D.

215. The proposed amendment is consistent with subclause 84(1) of the 2000 Model Bill.

Item 81 - Proposed Division 11 - Interjurisdictional enforcement

216. The purpose of this proposed Division 11 is to enable orders for the carrying out of forensic procedures that were made in one jurisdiction to be enforced in another jurisdiction, to deal with persons subject to those orders who move between jurisdictions. From a Commonwealth perspective, this provision is critical as the enforcement of a forensic procedures order relating to a Commonwealth offender or a person suspected of committing a Commonwealth offence will, from time to time, involve a State or Territory jurisdiction. It is envisaged that other Australian jurisdictions will include equivalent provisions in their legislation. For example, this provision would be very useful with respect to an offence under ACT law committed in Canberra by a suspect living in Queanbeyan, which is in NSW jurisdiction.

217. The proposed Division is consistent with Division 13 of the 2000 Model Bill.

Proposed section 23YUA - Definitions relating to interstate enforcement

218. This proposed section explains key terms and concepts used in this Part of the Bill. A term of particular importance is corresponding law, which means another jurisdictions law that is in substantially similar terms to this Bill.

219. The proposed section is consistent with clause 85 of the 2000 Model Bill.

Proposed section 23YUB - Registration of orders

220. This proposed section enables the Minister to make agreements with other jurisdictions which have corresponding laws (these jurisdictions are referred to in the Bill as participating jurisdictions) about registering, in one or more jurisdictions, orders for carrying out forensic procedures under this Bill and the corresponding laws. The section also provides for reciprocal enforcement: orders from participating jurisdictions which are registered by such arrangements can be enforced by the Commonwealth. This is an important provision in the context of Commonwealth-State-Territory cooperation regarding the national DNA database system.

221. The proposed section is consistent with subclause 86 of the 2000 Model Bill.

Proposed section 23YUC - Carrying out of registered orders

222. It is proposed that the forensic procedures covered by an interstate order can only be carried out in the way set out in Division 6. In other words, they must be carried out in the same way as orders made under this Bill.

223. The proposed section is consistent with subclause 86 of the 2000 Model Bill.

Proposed section 23YUD - Database information

224. The proposed section in the Bill enables the Minister to enter into agreements with participating jurisdictions for sharing information on the national DNA database system for the purposes of criminal investigations. The proposed section allows for the sharing of information on that database.

225. Information provided to or by the Commonwealth cannot be retained or recorded in any database which can be used to determine a persons identity if this Bill or a corresponding law requires the destruction of the forensic material from which the information was derived.

226. The proposed section is consistent with clause 87 of the 2000 Model Bill.

Item 81A - Section 23YT

227. This item repeals existing section 23YT of the Crimes Act 1914 , which is no longer required in light of the provisions regulating the carrying out of forensic procedures on offenders and volunteers.

Item 82 - Renumbering Division 13

228. This proposed item renumbers Division 13 as Division 12 of Part 1D.

Items 83 - 86 - Independent review

229. This item amends existing section 23YV of the Crimes Act 1914 to give effect to Recommendation 4 of the Senate Standing Legal and Constitutional Legislation Committee report on the Bill. Four changes to section 23YV are proposed to:

(1)

ensure that the independent review considers:

(i)

the effectiveness of independent oversight and accountability mechanisms for the DNA database system;

(ii)

any disparities between the legislative and regulatory regimes of the Commonwealth and participating jurisdictions for the collection and use of DNA evidence;

(iii)

any issues relating to privacy or civil liberties arising from forensic procedures permitted by this part;

(2)

postpone the independent review until 12 months after the commencement of the provisions to be inserted by this Bill, including those relating to the national DNA database system;

(3)

insert a nominee of the Privacy Commissioner into the independent review team; and

(4)

ensure the Minister causes a further independent review to be undertaken if the written report tabled in Parliament identifies any inadequacies. The Minister must cause the independent review to be undertaken within 2 years of the tabling of the initial written report.