Commonwealth of Australia Explanatory Memoranda

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CRIMES ACT AMENDMENT (FORENSIC PROCEDURES) BILL (NO. 1) 2006

                          2004-2005-2006




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                             SENATE




              CRIMES ACT AMENDMENT
        (FORENSIC PROCEDURES) BILL (No.1) 2006




    SUPPLEMENTARY EXPLANATORY MEMORANDUM




      Amendments to be Moved on Behalf of the Government




  (Circulated by authority of the Minister for Justice and Customs,
               Senator the Honourable Chris Ellison)
                              CRIMES ACT AMENDMENT
                        (FORENSIC PROCEDURES) BILL (No.1) 2006

GENERAL OUTLINE

The purpose of the Bill is to ensure that inter-jurisdictional DNA profile matching, using the
National Criminal Investigation DNA Database (NCIDD), may be implemented by all
corresponding law jurisdictions within Australia. The Crimes Act Amendment (Forensic
Procedures) Bill (No. 1) 2006 (the Bill) will address specific impediments, raised by the States and
Territories, which hitherto have prevented inter-jurisdictional DNA profile matching.

The Bill was introduced into the Parliament on 21 June 2006 and was subsequently referred to the
Senate Legal and Constitutional Legislation Committee, which reported on the Bill on 1 August
2006.

The proposed Government amendment implements the Senate Committee recommendation. The
proposed Government amendments also address specific concerns raised by the States and
Territories after the introduction of the Bill.

The principal new features of the proposed amendments to this Bill are:
   · Expanding the access of State/Territory officials to the NCIDD database
   · Aligning the permissible matching of DNA profiles under Commonwealth legislation with
       other jurisdictions, and
   · Clarifying that Ministerial arrangements can also deal with transmission of information to
       and from NCIDD.

FINANCIAL IMPACT

There is no financial impact flowing directly from the offence provisions in this Bill.
NOTES ON ITEMS

SCHEDULE 1 ­ Amendments

Amendment (1)

This omits item 7 of the Crimes Act Amendment (Forensic Procedure) Bill (No. 1) 2006 (`the Bill')
and substitutes a new section 23XSA. This Bill amended the Crimes Act 1914 to allow security
personnel to be in attendance at a forensic procedure when necessary. Some jurisdictions have
expressed concern that the word "law" in the Bill might be too restrictive in that the presence of
prison officers might be authorised under prison orders and it might be disputed that such orders
were `law'. The amendment removes the word `law' from the provision.

Amendment (2)

This omits item 20 of the Bill and substitutes a new subsection 23YDACA(2). The amendment
implements the Senate Legal and Constitutional Committee recommendation. The original
intention s234YDAC(2) was to grant access to State or Territory officials, Privacy Commissioners
or Ombudsman etc to the National Criminal Investigation DNA Database ("NCIDD"). The word
"audit" was used in the Bill. Some jurisdictions expressed concern that this word might be too
narrowly interpreted and unnecessarily restricting access to authorities that only had audit functions
and arguably would not permit Privacy Commissioners or the Ombudsman to access the
information on NCIDD. The amendment removes the word audit and instead says that an authority
can access information on NCIDD if it is permitted by State and Territory law. State and Territory
laws can only permit access to State and Territory's own data. States and Territories cannot create
laws that allow access to other participating jurisdictions information that is on NCIDD.

Amendment (3)

Item 26A amends s23YDAE(2) of the Crimes Act 1914. Section 23YDAE(2) makes it an offence
for a person to access information stored on the Commonwealth DNA database or NCIDD unless it
is for a permitted purpose. This amendment adds to the definition of permitted purpose.
Subsection 23YDDAE (2A) is being inserted to allow people to access information on NCIDD if it
is permitted by a State or Territory law. State and Territory laws can only permit access to State
and Territory's own information on NCIDD. States and Territories cannot create laws that allow
access to other participating jurisdictions information that is on NCIDD.

Amendment (4)

Permissible matching of DNA profiles, found in S23YDAF of the Crimes Act 1914, prevents DNA
matching in certain cases. The Report of Independent Review of Part 1D of the Crimes Act 1914 ­
Forensic Procedures, by Tom Sherman AO (`the Sherman Report') recommended that the Crimes
Act should be amended to permit the matching of suspects to suspects. This amendment
implements that recommendation. Item 27A changes the cell at table item 2, column 3 to `yes'.

Item 27B amends the cell at table item 2, column 5 to `yes'. This will allow suspect DNA profiles
with volunteers who have provided their DNA samples for an `unlimited' purpose.

These amendments bring the Commonwealth table of permissible matching in line with Queensland
and Western Australia. Other jurisdictions are considering amending their matching tables to


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mirror that of Queensland. To avoid a situation where States and Territories allow DNA profile
matching in certain circumstances but the Commonwealth does not, a situation that would impede
the usefulness of NCIDD, this amendment changes the permissible matching situations to mirror
other jurisdictions matching table.

Amendment (5)

Permissible matching of DNA profiles, found in S23YDAF of the Crimes Act 1914, prevents DNA
matching in certain cases. Item 28A is a consequence of Amendment (4) and changes the cell at
table item 4, column 3 to `yes'. This will allow suspect DNA profiles to be matched with
volunteers who have provided their DNA samples for an `unlimited' purpose. There is no need to
have a restriction on the use of volunteer samples that have been supplied by the person for an
unrestricted purpose.

Item 28B changes the cell at table item 4, column 5 to `yes'. This will permit volunteer DNA
profiles to be matched with each other when the samples have been provided with no restrictions.
There is no need to have a restriction on the use of volunteer samples that have been supplied by the
person for an unrestricted purpose.

These amendments bring the Commonwealth table of permissible matching in line with Queensland
and Western Australia. Other jurisdictions are considering amending their matching tables to
mirror that of Queensland. To avoid a situation where States and Territories allow DNA profile
matching in certain circumstances but the Commonwealth does not, a situation that would impede
the usefulness of NCIDD, this amendment changes the permissible matching situations to mirror
other jurisdictions matching table.

Amendment (6)

Item 35A amends s23YO of the Crimes Act 1914. Section 23YO makes it an offence for a person
to disclose information stored on the Commonwealth DNA database or NCIDD unless it is for a
permitted purpose. This amendment makes it clear that this offence does not apply if the access to
information stored on NCIDD is permitted by a State or Territory law. State and Territory laws can
only permit access to State and Territory's own information on NCIDD. States and Territories
cannot create laws that allow access to other participating jurisdictions information that is on
NCIDD.

Amendment (7)

Section 23YUD permits the Minister, on behalf of the Commonwealth, to enter into arrangements
with a State or Territory to deal with exchanging, keeping and managing DNA information. This is
the section that permits inter-jurisdictional DNA matching. This section has been the main focus of
discussions with States and Territories. Item 41A clarifies that the arrangements can deal with
using the DNA information subject to subsection 23YUD(1B). The information. can only be used
for the purpose of the investigation of a matter relating to the Commonwealth or participating
jurisdiction, or the proceedings in that matter.

Amendment (8)

Subsection 23YUD(1A) permits CrimTrac to enter into memorandum of understanding or other
arrangements, on behalf of the Commonwealth with a State or Territory to deal with exchanging,


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keeping and managing DNA information. This is the section that permits inter-jurisdictional DNA
matching. Section 23YUD has been the main focus of discussions with States and Territories. Item
43A clarifies that the memorandum of understanding or other arrangement can deal with using the
DNA information subject to subsection 23YUD(1B). The information can only be used for the
purpose of the investigation of a matter relating to the Commonwealth or participating jurisdiction,
or the proceedings in that matter.

Item 43B clarifies that the memorandum of understanding or other arrangement that CrimTrac
enters into can include the comparing of information on NCIDD and transmitting that information
to the participating jurisdiction. The memorandum of understanding or other arrangement is
restricted by s23YUD(1B). This subsection also does not limit the arrangements that CrimTrac can
enter into in subsection 23YUD(1A)




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