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2015
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
CRIMES LEGISLATION AMENDMENT BILL 2015
EXPLANATORY STATEMENT
Presented by
Simon Corbell MLA
Attorney-General
CRIMES LEGISLATION AMENDMENT BILL 2015
Purpose
of the Bill
The Crimes Legislation Amendment Bill 2015 will make amendments to
address a number of criminal justice legislation issues that have arisen in the
ACT.
In summary, the Bill will:
a) amend the Bail Act 1992 to
remove section 233B of the Customs Act 1901 (Cwlth) from item 3 in part
1.5 of schedule 1 and insert part 9.1 of the Criminal Code Act 1995
(Cwlth) to create a neutral presumption for bail for drug offences where amounts
are equal to or greater than the trafficable quantity of a controlled drug;
b) amend the Crimes Act 1900 to authorise police officers to take
fingerprints, photographs (including video recordings), samples of handwriting
and voice recordings of suspects who are children and young people for
identification purposes;
c) amend the Crimes (Forensic Procedures) Act
2000 to:
i) create a requirement that police officers, when intending to
ask an Aboriginal or Torres Strait Islander person to consent to a forensic
procedure, inform the person that the Aboriginal Legal Service (NSW/ACT) will be
notified;
ii) provide a mechanism to allow an Aboriginal or Torres Strait
Islander person to decline the presence of an interview friend or lawyer during
a forensic procedure;
iii) expand the definition of ‘incapable
person’ to include adults who are temporarily incapacitated;
and
iv) allow a ‘close associate’ of an incapable person to
consent to non intimate forensic procedures on behalf of that incapable
person;
d) amend the Crimes (Sentencing) Regulation 2006 to allow a
victim impact statement to be made for category 2 offences under the Work
Health and Safety Act 2011 where exposure to a risk of death or serious
injury or illness has resulted in death or serious injury or illness;
and
e) authorise police officers to issue infringement notices for certain
offences under the Magistrates Court (Security Industry Infringement
Notices) Regulation 2008 to enforce obligations on licensees, including that
security licensees wear their licence number when carrying out certain security
activities.
Human Rights Considerations
The Crimes
Legislation Amendment Bill 2015 engages a number of the rights in the
Human Rights Act 2004 (HR Act).
The Bill engages, and places
limitations on, the following HR Act rights:
- the right of every
child to the protection needed by the child because of being a child, without
distinction or discrimination of any kind (s 11(2));
- the right to privacy
and reputation (s 12);
- the right to liberty and security
(s18);
- children in the criminal process (s 20); and
- rights in criminal
proceedings (s22).
Human rights are subject only to reasonable limits which
are demonstrably justifiable. In determining if a limit is reasonable and
demonstrably justifiablethe following relevant factors are
considered:
• the nature of the right affected;
• the
importance of the purpose of the limitation;
• the nature and extent of
the limitation;
• the relationship between the limitation and its
purpose; and
• the least restrictive means reasonably available to
achieve the purpose the limitation seeks to
achieve.[1]
In ensuring that
limitations on individual human rights are demonstrably justifiable, public
authorities must act consistently within these rights. In making decisions,
public authorities must give proper consideration to relevant human
rights.[2]
Section 28 requires that
any limitation on a fundamental right must be authorised by a Territory law, be
based on evidence, and be reasonable to achieve a legitimate aim. Whether a
limitation is reasonable depends on whether it is proportionate. Proportionality
can be understood and assessed as explained in R v Oakes. A party must
show:
First, the measures adopted must be carefully designed to achieve
the objective in question. They must not be arbitrary, unfair or based on
irrational considerations. In short, they must be rationally connected to the
objective. Second, the means, even if rationally connected to the objective in
this first sense, should impair “as little as possible” the right or
freedom in question. Third, there must be a proportionality between the effects
of the measures which are responsible for limiting the Charter right or freedom,
and the objective which has been identified as of “sufficient
importance.[3]
This
explanatory statement provides an assessment of rights engaged and limited. The
Government believes that the limitations in human rights under this Bill are
proportionate and justified in the circumstances because it is the least
restrictive means available to address criminal justice issues that have arisen
in the ACT.
Crimes Legislation Amendment Bill
2015
Detail
Part 1 –
Preliminary
Clause 1 — Name of Act
This is a
technical clause that names the short title of the Act. The name of the Act
would be the Crimes Legislation Amendment Act 2015.
Clause
2— Commencement
This clause provides that the Act commences the day
after it is notified.
Clause 3— Legislation amended
This
clause identifies the legislation amended by the Act.
Part 2 –
Bail Act 1992
The amendments to the Bail Act ensure consistency
when applying bail legislation to ACT drug offences and Commonwealth drug
offences.
These amendments engage and restrict:
• the right to
liberty (HR Act, s 18); and
• rights in criminal proceedings (HR Act, s
22).
Right to liberty
Section 18 of the HR Act sets out
the right to liberty and is particularly relevant to the formulation of
legislation relating to bail. Reasonable limitations of the right are permitted
under section 28 of the HR Act.
Section 18(2) of the HR Act states that
“no-one may be deprived of liberty, except on the grounds and accordance
with the procedures established by law”. Those laws should be
proportionate to the purpose (Winterwerp v Netherlands (1979 2 EHRR 387).
The Bail Act provides both the grounds and procedures for continued
detention in custody following charge.
Section 18(5) of the HR Act
provides that accused people awaiting trial should not be detained in custody as
a general rule.
The International Covenant on Civil and Political Rights
(ICCPR) commentary suggests that the right to liberty and security of person
relates only to a very specific aspect of human
liberty.[4] This specific aspect of
human liberty is an interference that results only from the forceful detention
of a person at a certain narrowly bounded location, such as a prison or other
detention facility. In Celepli v Sweden the United Nations Human Rights
Committee considered the assigned residence of a Turkish citizen to a Swedish
municipality for nearly seven years and his obligation to report to the police
three times a week as an interference with his freedom of movement but not his
personal liberty.[5]
The right
to security and liberty of person is engaged by amendments in part 2 because a
presumption against bail or a neutral presumption for bail arguably amounts to
arbitrary detention (HR Act, s 18(1)). The United Nations Human
Rights Committee confirmed in the case of Van Alphen v the Netherlands
that ‘arbitrary’ deprivation of liberty must not be manifestly
disproportionate, unjust or
unpredictable.[6] In this regard, the
amendments support predictability within the legislation and ensure that clarity
and transparency are maintained.
The purpose of the limitations is to
ensure that the question of bail in relation to serious drug importation
offences properly balances the presumption of innocence on the one hand and the
right of the community to be safe and for justice to be done on the other. In
this context the limitations in the Bill are justified and proportionate.
The nature and extent of the limitations are restricted to only apply a
neutral presumption to offences involving the importation of amounts equal to or
greater than the trafficable quantity of a controlled drug. The amendments
reflect the original intention of Bail Act provisions dealing with neutral
presumptions.
The limitations are the least restrictive means available
to ensure the purpose is achieved as the onus is placed on the prosecution to
show why bail should not be
granted.[7]
This limitation
on the right to liberty is proportionate and justified in the
circumstances.
Rights in criminal proceedings
This
clause also engages section 22 (rights in criminal proceedings) in the HR Act.
Section 22(1) of the HR Act provides that everyone charged with a criminal
offence has the right to be presumed innocent until proved guilty according to
law. The right to be presumed innocent requires judges, juries and the relevant
public authorities to refrain from prejudging any case. The authorities,
particularly prosecutors and police, should not make statements about the guilt
or innocence of an accused before the outcome of the
trial.[8]
The amendments engage
and limit this presumption by stating that there is no presumption for bail for
a person accused of an offence listed in the Bill. This limitation is
proportionate as the clause does not interfere with the court’s ability to
consider the circumstances of the case and the onus is placed on the prosecution
to show why bail should not be granted. Furthermore, the amendments give effect
to the original intention of the Bail Act and are consistent with the neutral
presumption that applies to serious drug offences in the Criminal Code
2002.
Section 28 of the HR Act permits reasonable limitations on
human rights and sets out in section 28(2) considerations in deciding whether
the limitation is reasonable. While introducing a new reference to part 9.1 of
the Commonwealth Code, the clause is restricted to offences involving amounts
equal to or greater than the trafficable quantity of a controlled drug.
Clause 4 —Offences against Customs Act 1901 (Cwlth), Schedule
1, part 1.5, item 3
This clause repeals the reference to section 233B of
the Customs Act in schedule 1, part 1.5, item 3 in the Bail Act. The need to
omit this reference has resulted from the court applying a presumption in favour
of bail to people charged with serious drug offences. The repeal is in response
to the Law and Justice Legislation Amendment (Serious Drug Offences and Other
Measures) Act 2005 (Cwlth), which transferred offences relating to the
importation and possession of serious drug offences from section 233B of the
Customs Act to part 9.1 of the Criminal Code Act. Part 9.1 of the Criminal Code
Act now contains the Commonwealth serious drug offences.
Clause 5
— Schedule 1, new part 1.6
Section 9B of the Bail Act 1992
provides that there is no presumption for bail for a person accused of an
offence set out in schedule 1 (offences to which presumption of bail does not
apply).
This clause inserts new part 1.6 to update reference to item 3 of
part 1.5 of schedule 1 references to part 9.1 of the Criminal Code Act. This
amendment gives effect to the original intention of the Bail Act and is
consistent with the neutral presumption that applies to serious drug offences in
the Criminal Code Act.
The neutral presumption for bail only applies to
offences involving amounts equal to or greater than the trafficable quantity of
a controlled drug. The amendment will allow a court to apply a neutral
presumption to bail and support bail decisions determined according to the
relative seriousness of the alleged offending behaviour.
Part 3
– Crimes Act 1900
Clause 6 – Definitions for pt 10,
Section 185, new definitions
This clause inserts a new definition for
‘identification material’ in part 10 of the Crimes Act dealing with
criminal investigation. This definition includes the taking of a print of a
person’s hands, fingers, feet or toes, a recording of the person’s
voice, a sample of the person’s handwriting or a photograph (including a
video recording) of the person. The singular form of the definition does not
limit the taking of more than one sample of material where authorised.
Clause 7 – Section 230
Clause 7 inserts section 230 and
section 230A to outline the procedures and legislative requirements for the
taking of identification material for people at least 18 years of age (s 230)
and people under 18 years of age (s 230A). This clause remakes section 230
to restructure and modernise the provision.
Section 230
This
section provides authority for a police officer to take identification material
from a person who is at least 18 years old, not in police custody for an offence
and not in an impaired state, only if the person consents in writing.
If
a person is at least 18 years of age, is not in police custody and is in an
impaired state, a police officer may only take identification material when a
magistrate orders the material to be taken. The material must be taken with a
parent, guardian or spouse present, in circumstances where it is practicable to
do so and the suspect does not object. If it is not practicable for a parent,
guardian or spouse to be present, another person who is capable of representing
the interests of the person must be present. This person must be acceptable to
the suspect, so far as is practicable in the circumstances.
Section
230(3) authorises a police officer to take identification material from a person
who is at least 18 years of age and in police custody for an offence only if the
officer is of or above the rank of sergeant, or is the officer in charge of a
police station at which the person is in custody. For the taking of material to
occur in these circumstances, the suspect must not be in an impaired state and
must consent, in writing, to the material being taken.
Where consent is
not given, the material must be limited to a print of the person’s fingers
or a photograph of the suspect, or both. A print or photograph can only be taken
in circumstances where a police officer believes on reasonable grounds that the
taking of material is necessary to identify the person, generally or in
connection with an offence, or where a police officer suspects on reasonable
grounds that the person has committed another offence and that the material is
likely to identify a person as having committed the other offence.
A
magistrate may make an order allowing identification material to be taken from a
person who is not in police custody and in an impaired state as set out in
section 230(2), if satisfied that the information is reasonably necessary for
the identification of the person. A police officer may apply to the court in
accordance with section 230(5).
If a police officer has to use force to
take identification material from a person, a police officer must ensure that
the forceful taking of identification material is recorded by a video recording
and sound recording.
Section 230A
This section provides
authority for a police officer to take fingerprint, photograph (including a
voice recording), a sample of handwriting and voice recording material from
suspects who are under 18 years of age (a child or young person). This clause
allows identification to be determined through non-invasive procedures before
the child or young person attends court. This process can be undertaken with a
magistrate’s approval, unless subject to an exception set out in the new
section.
The ability of police officers to take material from those under
18 years of age was previously contained in section 84 of the Children and
Young People Act 1999 (repealed). The repeal of this section by the
Children and Young People Act 2008 and the failure to relocate the
provision has removed the power of a police officer to take identifying material
from a child or young person. This presents an operational constraint for police
dealing with certain children and young people.
A police officer may take
material from a person who is under 18 years old and not in custody for an
offence, or under 16 years old and in custody for an offence, only if a
magistrate orders that the material be taken. A magistrate must not make an
order allowing material to be taken unless satisfied that the information is
reasonably necessary to identify the child or young person.
Under section
230A (2), a police officer may take identification material from a young person
who is aged 16 or 17 years of age and in police custody, only if the offence was
allegedly committed by the person when they were aged 16 or 17 years old and if
the young person is not in an impaired state at the proposed time for taking the
material. The material can only be taken by a police officer who is an officer
of or above the rank of sergeant, or is the officer in charge of a police
station at which the person is in custody.
This material can only be
taken in circumstances where the officer believes on reasonable grounds that the
taking of the material is necessary to identify the person either generally or
in connection with an offence, or the officer suspects on reasonable grounds
that the person has committed another offence and that the material is likely to
identify the person as having committed the other offence. If the person is in
an impaired state, a magistrate order is required for the taking of such
material.
Section 230A (3) requires that where material is to be taken, a
police officer must inform the person about the purposes for which the material
is required, the offence/s which the person is believed to have committed or
have been charged with, and that the material may be used as evidence in
proceedings in relation to the alleged offence/s. The person’s response to
such information may also help inform a police officer to determine whether the
young person has sufficient mental capacity to understand the proposed
procedure.
Section 230A(7) requires that a police officer involved with
giving the explanation to the person or involved in the taking of identification
material must allow someone with parental responsibility for the person to be
present, if it is practicable to do so and the person does not object. If it is
not practicable or the person objects to someone with parental responsibility
being present, then a police officer must allow an interview friend for the
person to be present when the explanation is given or the material is taken. As
soon as practicable, a police officer must then take reasonable steps to tell
someone with parental responsibility about the action that has been taken. These
safeguards provide increased protections to children and address the
requirements contained in the HR Act, section 11 (protection of the family and
children) and section 20 (children in the criminal process). Section 230A
(7) will streamline identification procedures for police officers and support
the person’s right in criminal proceedings by ensuring that the person is
detained for a minimal amount of time while their identity is being
determined.
Section 230A (6) provides that a magistrate must not make an
order allowing identification material to be taken under section 230 unless
satisfied that the material is reasonably necessary to identify the person. A
police officer may apply for an order under section 230A (5).
If
a police officer needs to use force to take identification material from a
person, the police officer must ensure that the forceful taking is recorded by a
video and sound recording (s 230A (10)).
This clause is consistent
with the current powers available in section 230 of the Act and addresses a gap
in the law relating to taking material from people under 18 years of age. A
summary of the offence is provided in diagrams 1 – 4 below.
The
amendments under new section 230A that give police officers authority to take
identification material from children and young people may limit a number of
human rights including:
• the rights of children under section 11
(Protection of family and children);
• section 12 (Privacy and
reputation);
• section 18 (Liberty and security of the person)
• section 20 (Children in criminal proceedings).
The nature of
the rights engaged centres on the encroachment of the child or young
person’s private life through the taking of fingerprint or other samples
including photographs and voice recordings. The possibility that police may use
force for the purpose of taking identifying material may limit the security of
the person.[9]
The purpose of
any limitations is to allow police officers, with appropriate safeguards and
controls, to obtain material to establish the identity of the child or young
person who is suspected of committing a criminal offence and to identify the
child or young person as the person who committed the offence.
Canadian case law suggests that the right to privacy is not limited by
provisions allowing the taking of fingerprints if a person has been taken into
custody for a serious crime.[10]
This is on the basis that the person has either been taken into custody or
suspected of committed a serious criminal offence and the taking of fingerprints
does not aggravate the invasion of privacy that occurs on arrest.
While
section 230A goes further than the circumstances considered in Beare by
allowing the taking of identifying material from a person under 18 years old in
police custody for an offence without reference to the seriousness of the
offence, the circumstances that give rise to a police officer’s power to
take identifying material are analogous to those considered in Beare.
This is because of the graduated safeguards included in section 230A that limit
when material may be taken and the protections available to the child or young
person. The diagrams below provide a useful summary of the circumstances and
requirements in section 230A.
In addition, existing section 231
(Destruction of identification material) will apply to new section 230A. In
summary, section 231 requires that identification material must be destroyed as
soon as practicable once a 12-month period has elapsed and proceedings to which
the identification material relates have not been instituted or have been
discontinued. Material must also be destroyed if the person is either acquitted
of the offence or is found to have committed the offence but no conviction is
recorded (under the Crimes (Sentencing) Act 2005, s 17). This approach is
consistent with the case of S and Marper v United
Kingdom [2008] ECHR 1581
decided by the European Court of Human Rights (ECHR). The ECHR
held that holding DNA samples of individuals arrested but who are
later acquitted or have the charges against them dropped is a violation of the
right to privacy under the European Convention on Human Rights.
Any
limitations on rights are justified and proportionate given the safeguards that
have been legislated for and discussed above.
Diagram 1 – Circumstances when a Magistrates Order is required for the taking of identification material – See section 230A (1) and (2)
(1) Under 18 years old and not in police custody
(6) Where material reasonably necessary for ID of person
Magistrates Order required
(1) Under 16 years old and in police custody
(2) 16 and 17 years old, in police custody and impaired
Diagram 2 – Circumstances where a Police Officer may take identification material
(2) 16 or 17 years old, in police custody and not impaired
(b) Committed alleged offence when at least 16
(c) Reasonable grounds – Identification for alleged offence
(d) Reasonable grounds – Identification for other alleged
offence
OR
(a) Officer at or above rank of Sergeant or officer in charge can take
material
Diagram 3 – Taking of identification material – Explanation
Information is to be taken in accordance with the section (Inform whether
a magistrate has ordered the taking of the material);
The offence
allegedly committed by the person that is relevant to the material being taken;
and
The material may be used as evidence in proceedings in relation to
the offence.
(3) - For any offence where person is not in an impaired state, a police officer must explain –
(7) – Safeguards – Presence of person with parental responsibility
Diagram 4 –Taking of identification material – Other
safeguards
A police officer must allow a person with parental responsibility to be present when the explanation is given and material is taken if –
1. It is practicable for a person with parental responsibility to be present; and
2. The person from whom the material is to be taken does not object to the person with parental responsibility being present.
3. If it is not practicable for a person with parental responsibility to be present, then a police officer must allow an interview friend to be present.
A police officer is to take all reasonable steps to tell someone with parental responsibility about the action taken.
Note: Independent person to be present where practicable.
Clause 8 –
Destruction of identification material, Section 231(1)(a) and (2)
This
clause is a consequential amendment to the section dealing with the destruction
of identification material to ensure it also addresses section 230A.
Clause 9 – Section 232 heading
This clause amends the
title of the offence relating to the refusal to allow a fingerprint or a
photograph to be taken to more accurately reflect the physical elements of the
offence.
Clause 10 – Laws relating to taking forensic samples
not affected, Section 247
This clause is a technical amendment to ensure
consistency of language in the legislation.
Clause 11 –
Dictionary, new definitions
This clause inserts new definitions in the
dictionary to ensure consistency in the Act.
Part 4
– Crimes (Forensic Procedures) Act 2000
The amendments to
the Crimes (Forensic Procedures) Act make three categories of amendments that
will:
1. require notification of the Aboriginal Legal Service (NSW/ACT) when
a police officer intends to ask an Aboriginal or Torres Strait Islander person
to consent to a forensic procedure;
2. expand the definition of
‘incapable’ in section 15 to allow a third party, a close associate,
to give consent to non-intimate forensic procedures on behalf of a person who is
incapable or temporarily incapable; and
3. provide a mechanism to allow an
Aboriginal or Torres Strait Islander person to decline the presence of an
interview friend or lawyer during a forensic procedure.
These amendments
engage and support the following HR Act rights:
• the right of every
child to the protection needed by the child because of being a child, without
distinction or discrimination of any kind (s 11(2));
• the right to
privacy and reputation (s 12);
• children in the criminal process (s
20); and
• rights in criminal proceedings (s22).
These
amendments support the right to freedom of expression and recognition and
equality before the law by allowing an Aboriginal or Torres Strait Islander
person to decline the presence of an interview friend or lawyer, where not
required. The bill also supports the right to privacy by providing a close
associate as an additional safeguard and supports rights in criminal proceedings
by ensuring that the Aboriginal Legal Service is notified when a police officer
intends to ask an Aboriginal or Torres Strait Islander person to consent to a
forensic procedure.
Clause 12 – Part 2.1 heading
This clause updates the heading for part 2.1 for consistency in
legislation.
Clause 13 – Meaning of volunteer, Section
10 (b) and note
Section 10 (b), which defines the term
‘volunteer’ for the Act, is substituted by two separate paragraphs
that differentiate between a person who is a child and a person who is an
incapable person. This clause states that if a person is an incapable person, a
volunteer includes a close associate. A close associate is able to volunteer to
a police officer that the incapable person undergoes a forensic
procedure.
Clause 14 – New section 14A
This clause
inserts a new defined term of close associate to support the giving of consent
on behalf of a person who is temporarily incapable or unable to give consent to
a non intimate forensic procedure. A person who is deemed to be an incapable
person must be aged 18 years or older for a close associate to be able to
volunteer for them.
This clause expands the class of people who are
authorised to provide consent on behalf of the incapable or unconscious person
for non-intimate forensic procedures. This amendment does not interfere with the
requirement for a Magistrate to approve the conduct of an intimate forensic
procedure where consent of a specified third party, parent or guardian cannot be
obtained.
This authority will extend to a person who is the incapable
person’s domestic partner, carer, close relative or close friend. However,
the power does not extend to a person under the age of 18 years or a person who
has impaired decision making capacity.
This will streamline procedures
and allow a broad class of people to provide consent where the person is
incapable of making decisions and an authorised person cannot be located. This
is consistent with section 12 of the HR Act, as the expansion of the definition
does not unlawfully or arbitrarily interfere with the person’s privacy and
is the least restrictive means available in the circumstances.
Clause
15 – Meaning of incapable person, Section 15
This clause
expands the definition of incapable person to include a person who is
temporarily incapable. This clarifies the intended operation of this provision.
This definition applies to people aged 18 years or older.
Clause 16
– Section 15, new examples
This clause provides examples of
circumstances where a person may be temporarily incapable. The examples include
incapacity caused by a lack of cogent consciousness caused or affected by drugs
and/or alcohol or sedation.
Clause 17 – Interview friend, New
section 16 (2) (ba)
This clause inserts an additional paragraph for the
definition of interview friend. If the person is an incapable person, an
interview friend of the person includes a close associate of the
person.
Clause 18 – Section 16 (2) (c)
This clause is a
consequential amendment to ensure the effective operation of amendment to the
definition of ‘interview friend’.
Clause 19 – New
section 17
This clause inserts new section 17 which requires a police
officer to ask a suspect if he or she identifies as an Aboriginal person or
Torres Strait Islander person, before asking a suspect to consent to a forensic
procedure under the Act. This procedural requirement is an important measure to
support amendments set out in clause 20.
Clause 20 - New section
24A
This clause inserts a new requirement for a police officer, when
intending to ask an Aboriginal or Torres Strait Islander suspect to consent to a
forensic procedure, to inform the suspect that the Aboriginal Legal Service
(NSW/ACT) will be notified. The police officer is to notify the Aboriginal Legal
Service as soon as practicable. This clause supports rights in criminal
proceedings by assisting an Aboriginal or Torres Strait Islander person to
understand the nature and reason of the procedure and seek legal advice and
support where appropriate. This clause also provides recognition and equality
before the law by allowing vulnerable people to access support and protection of
the law without discrimination.
This clause recognises Aboriginal and
Torres Strait Islander people as vulnerable groups and the need for a special
provision to protect their rights in the context of forensic procedure. It is
based on section 23WG of the Crimes Act 1914 (Cwlth), with minor changes
to reflect the approach in section 10 of the Crimes (Forensic Procedures) Act
2000 (NSW).
This clause is consistent with the requirement that an
interview friend is present when a forensic procedure is carried out in respect
of an Aboriginal or Torres Strait Islander person. If a suspect waives their
right to an interview friend, this waiver does not remove the requirement for
the police officer to notify the Aboriginal Legal Service about the proposed
forensic procedure application. This means that the amendment requires
notification to the Aboriginal Legal Service in addition to, and not as an
alternative to, the presence of an interview friend.
The requirement to
notify the Aboriginal Legal Service does not apply in circumstances where a
suspect arranges for a lawyer to be present or where a suspect expressly waives
their right to have a lawyer present. This right of waiver is separate to the
right to waive an interview friend.
A suspect can only give informed
consent to a forensic procedure or waive their right to an interview friend or a
legal representative, if the person is not a child or is not an incapable
person. New section 24A does not require police officers to make a determination
as to whether the Aboriginal or Torres Strait Islander suspect is at a
disadvantage in relation to the request for consent by comparison with members
of the Australian community generally. This removes the exercise of a discretion
that would require a high level of subjectivity.
After notifying the
Aboriginal Legal Service, a police officer must allow the suspect to
communicate, or attempt to communicate with the interview friend or lawyer in
private. This requirement applies unless the suspect is under arrest and a
police officer believes on reasonable grounds that the suspect may attempt to
destroy or contaminate any evidence that may be obtained by carrying out the
forensic procedure.
The need for these special provisions in relation to
Aboriginal and Torres Strait Islander people was raised by an inquiry by the NSW
Legislative Council Standing Committee on Law and Justice into the Crimes
(Forensic Procedures) Act 2000
(NSW).[11] The Aboriginal and Torres
Strait Islander Commission and the NSW Aboriginal Land Council made submissions
to the inquiry, stating that bodily samples are used by Aboriginal and Torres
Strait Islander people for spiritual purposes and as a result they may be
particularly reluctant to give such
samples.[12] These amendments
attempt to address these issues by providing Aboriginal and Torres Strait
Islander people with an opportunity to seek support from interview friends and
seek legal advice from legal representatives.
Clause 21 –
Presence of interview friend or lawyer while forensic procedure is carried out,
New section 57 (1A)
An Aboriginal or Torres Strait Islander person may
waive their right to have an interview friend or lawyer present. A waiver of the
right to an interview friend does not amount to waiving the right to a lawyer. A
waiver of the right to a lawyer does not amount to waiving the right to an
interview friend. Neither waiver applies to Aboriginal or Torres Strait Islander
people who are children or deemed incapable. A waiver of these rights must be
express and voluntary.
This amendment will act as a mechanism to allow
an Aboriginal or Torres Strait Islander person to decline the presence of an
interview friend or lawyer during a forensic procedure. This will allow police
officers to take material without delay in circumstances where it is appropriate
to do so. This is consistent with the right to privacy and reputation and the
right to humane treatment when deprived of liberty, in sections 12 and 19 of the
HR Act.
Clause 22 – Section 79
This clause substitutes
section 79 (Carrying out of forensic procedures on volunteers) with amendments
to support the expansion of provisions to allow for substitute decisions for the
carrying out of forensic procedures on volunteers who are not able to consent.
The remade section allows a ‘close associate’ to consent on behalf
of an incapable person where the person’s parent or guardian cannot be
contacted.
In Australia, provisions regulating the taking of
forensic samples from volunteers in their current form were proposed in the
Model Criminal Code Officers Committee Discussion Paper, Model Forensic
Procedures Bill and Proposed National DNA Database
(May 1999).[13]
The 1999 proposal to legislate for the taking of samples from volunteers
was based on the need to establish ‘statutory safeguards concerning
informed consent, the ability to withdraw consent, proper procedures and
controls over the storage, security, use and disclosure of
information’.[14] The 1999
Discussion Paper recognised that while most suspects will normally be victims or
people who submit to a forensic procedure to exclude them as a suspect, it is
possible that volunteers may also be potential suspects.
A key safeguard
relating to volunteers is the requirement for informed consent to be given
before a forensic procedure is carried out. The giving of informed consent in
relation to volunteers is set out in section 80 (Informed consent of volunteer
or parent or guardian of volunteer). Amendments are made to section 80 to
include reference to ‘close associates’.
If the volunteer is
an incapable person and the parent or guardian of the volunteer cannot be
contacted, the informed consent of a close associate may be obtained for a non
intimate forensic procedure only. This consent must be obtained in accordance
with section 80 or by order of a magistrate under section 83. The incapable
person must then be informed that consent has been given by a close associate.
If the incapable person objects to or resists the carrying out of the forensic
procedure, the procedure cannot be carried out.
Similarly, the section
does not authorise a person to carry out a forensic procedure on a child or
incapable person who objects to or resists the carrying out of the forensic
procedure.
Clause 23 - Section 80 heading
This clause amends
the heading of section 80 to reflect the inclusion of close associate or a class
of person who may be covered for a forensic procedure on behalf of volunteers
and certain other people.
Clause 24 – Section 80
This
clause is a technical amendment that includes a reference to ‘close
associate’ to ensure consistency in the Act.
Clause 25 –
Consent to retention of forensic material taken etc, Section 80A
This
clause is a technical amendment that includes a reference to ‘close
associate’ to ensure consistency in the Act.
Clause 26 –
Recording of giving of information etc, Section 81
This clause is a
technical amendment that includes a reference to ‘close associate’
to ensure consistency in the Act.
Section 27 – Withdrawal of
consent or end of agreed retention period, Section 82
This clause is a
technical amendment that includes a reference to ‘close associate’
to ensure consistency in the Act.
Clause 28 – Circumstances in
which magistrate may order carrying out of forensic procedure on child or
incapable person, Section 83(1)
This clause substitutes section 83(1) to
state the circumstances in which a magistrate may order the carrying out of
forensic procedures on a child or incapable person. This clause supports the
protection of children and incapable people and provides additional safeguards
for those involved in the criminal process.
A magistrate may order the
carrying out of a forensic procedure on a child or incapable person if consent
to the carrying out of a forensic procedure cannot reasonably be obtained from
the parent or guardian of the child, or the parent, guardian or close associate
of an incapable person.
If the parent or guardian of the child, or the
parent, guardian or close associate of the incapable person refuses to consent
to the carrying out of the forensic procedure, a magistrate may order the
carrying out of a forensic procedure on a child or incapable person. The
magistrate must be satisfied that there are reasonable grounds to believe that
the parent, guardian or incapable person is a suspect and the forensic procedure
is likely to produce evidence that confirms or disproves that the parent,
guardian or close associate committed an offence.
Clause 29 –
Section 83 (2) (d), note
This clause is a technical amendment to ensure
consistency in the Act.
Clause 30 – Section 83 (2)
(e)
This clause is a technical amendment that includes a reference to
‘close associate’ to ensure consistency of language in the
legislation.
Clause 31 – Retention of forensic material etc by
order of magistrate – Section 84
This clause is a technical
amendment that includes a reference to ‘close associate’ to ensure
consistency of language in the legislation.
Clause 32 –
Definitions – Act, Section 94, Definition of volunteers (unlimited
purposes) index
This clause is a technical amendment that includes a
reference to ‘close associates’ to ensure consistency of language in
the legislation.
Clause 33 – Section 94, Definition of
volunteers (unlimited purposes) index
This clause is a technical
amendment that includes a reference to ‘close associate’ to ensure
consistency of language in the legislation.
Clause 34 –
Dictionary, note 2
This clause is a technical amendment to ensure
consistency of language in the legislation.
Clause 35 –
Dictionary, new definition of close associate
This clause is a
technical amendment that includes a reference to ‘close associate’
to ensure consistency of language in the legislation.
Clause 36
– Dictionary, Definition of forensic order, paragraph
(d)
This clause is a technical amendment to ensure consistency of
language in the legislation.
Clause 37 – Dictionary –
Definition of informed consent, paragraph (c)
This clause is a
technical amendment that includes a reference to ‘close associate’
to ensure consistency of language in the legislation.
Part 5
– Crimes (Sentencing) Regulation 2006
Clause 38 –
Section 1A
This clause authorises a person to make a Victim Impact
Statement (VIS) where a person is exposed to a risk of death or serious injury
or illness and it has actually resulted in death or serious injury or illness.
This clause supports the right to freedom of expression in criminal proceedings
and supports recognition and equality before the law by providing a voice to
those who have been affected by a death or serious injury or illness.
The Crimes (Sentencing) Act 2005 provides for the making of a VIS
for offences punishable by imprisonment for longer than one year or another
offence as prescribed by the Crimes (Sentencing) Regulation 2006 (the
Regulation).
Category 1 offences (reckless conduct) under section 31 of
the Work Health and Safety Act 2011 (WHS Act) are the only offences
under the WHS Act that meet the VIS imprisonment threshold. In some
circumstances where a conviction of a category 2 offence (failure to comply with
health and safety duty exposing individual to risk of death or serious injury or
illness) occurs, it is appropriate that a VIS should be made by a victim.
This clause amends the Regulation to allow a VIS to be made for category
2 offences under the WHS Act when the exposure to a risk of death or serious
injury or illness has resulted in death or serious injury or
illness.
Part 6 – Magistrates Court (Security Industry
Infringement Notices) Regulation 2008
Clause 39 – Contents of
infringement notices – identifying authorised person, Section 10 (a) and
(b)
A person is authorised to issue infringement notices in accordance
with the Security Industry Act 2003 pursuant to the Magistrates
Court (Security Industry Infringement Notices) Regulation. An authorised person
includes a police officer or a person authorised by the Commissioner of Fair
Trading under section 36 of the Fair Trading (Australian Consumer Law) Act
1992.
An authorised person may serve an infringement notice for an
infringement notice offence under the Security Industry Act and a
reminder notice for an infringement notice offence against the Security Industry
Act.
Clause 40 – Contents of reminder notices –
identifying authorised person, Section 11 (a) and (b)
This clause is a
technical amendment consistent with clause 39 that ensures consistency of
language in the Act.
Clause 41 – Section 12
This clause
is a technical amendment consistent with clauses 39 and 40 to ensure consistency
of language in the Act.
[1] HR Act, s 28.
[2] HR Act, s 40B
[3] R v Oakes [1986] 1 S.C.R. 103.
[4] Murdock, J.L (ed.), 2005, Article 5 of the European Convention on Human Rights: The Protection of Liberty and Security of Person.
[5] (Communication no. 456/1991 Ismet Celepli v Sweden ) Under the Optional Protocol, individuals who claim that any of their rights set forth in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Human Rights Committee for consideration.
[6] Van Alphen v The Netherlands UN Doc CCPR/C/39/D/305/1988, 15 August 1990, paragraph 5.8)
[7] In the matter of an application for bail by Le Clair [2014] ACTCS 245 referring at 36-44 to R v Kissner (Unreported, New South Wales Supreme Court, Hunt J, 17 January 1992).
[8] UN Human Rights Committee General Comment 13, para. 7; Allenet de Ribemont v. France, 1995
[9] R v Beare [1988] 2 SCR 387 at 41-42.
[10] R v Beare [1988] 2 SCR 387 at 60-61.
[11] Parliament of New South Wales, Legislative Council Standing Committee on Law and Justice, Review of the Crimes (Forensic Procedures) Act 2000, Recommendations 33 and 37.
[12] Thomson Reuters, The Law Handbook, 13th Edition, Redfern Legal Centre Publishing, 2009.
[13] Discussion Paper, Model Forensic Procedures Bill and Proposed National DNA Database (May 1999)Available at URL:
[14] Ibid, p. 33.