House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Attorney-General, the Honourable Philip Ruddock MP)

Schedule 3 - Forensic Procedures

Item 1

This item defines 'State offence' as an offence against a law of a State or the Australian Capital Territory. This definition ensures that 'State offence' will include all State and Territory offences, as 'State' is already defined in subsection 3(1) of the Crimes Act 1914 as including the Northern Territory.

Item 2

Item 2 broadens the heading of Division 11A of Part 1D to refer to 'certain incidents' rather than 'overseas incidents'.

Item 3, 4, 5 and 6

Section 23YUF defines the incidents to which Division 11A applies. The purpose of items 3 - 6 is to broaden the scope of Division 11A so that, in addition to overseas incidents where Australians have died, it can also apply to:

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incidents within Australia which are suspected to involve the commission of Commonwealth offences (such as terrorism offences) or State offences of federal concern (such as an offence affecting interstate or international aviation),

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incidents within Australia where it is suspected that some of the victims may be persons in respect of whom the Federal Parliament can make laws (such as foreign nationals),

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incidents within Australia which the Minister considers to be, or to have created, a national emergency, and

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incidents occurring partially inside Australia and partially outside Australia.

To ensure that there is certainty as to the incidents in relation to which Division 11A applies, the Division will only apply to an incident that the Minister has determined in writing. A determination may only be made where the Minister is satisfied that it is appropriate in the circumstances for Division 11A to apply to the incident.

The new subsection 23YUF(2B) provides some examples of persons in respect to whom the Federal Parliament can make laws.

The purpose of the new subsection 23YUF(2C) in item 5 and item 6 is to define 'State offences with a federal aspect' until such time as a definition for that term is inserted into the Crimes Act 1914 by Schedule 3 of the Australian Federal Police and Other Legislation Amendment Act 2004. The interim definition in subsection 23YUF(2C) adopts the definition in section 4A of the Australian Crime Commission Act 2002 with the modification that references to the Australian Crime Commission in that definition are also to include references to the Australian Federal Police. The interim definition in section 4A of the Australian Crime Commission Act 2002, and the subsequent definition in Schedule 3 to the Australian Federal Police and Other Legislation Amendment Act 2004 are very similar. A State offence may be identified as having a federal aspect where it potentially falls within Commonwealth legislative powers because of the elements of the State offence or the circumstances in which the State offence was committed, or because the investigation of that State offence is incidental to an investigation of a Commonwealth or Territory offence.