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Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
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the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008
House: Representatives
Portfolio: Home Affairs
Commencement: Sections 1 to 3 and Schedule 1 items 2, 3 and 4 on Royal Assent. Schedule 1 item 1 commences immediately after 30 December 2006.
Links: The relevant links to the Bill, Explanatory Memorandum and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.
In 2006 the Law Enforcement Integrity Commissioner Act 2006 and the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006 were passed. The purpose of that legislation was to establish the Australian Commission for Law Enforcement Integrity (‘ACLEI’) with power to detect, investigate and prevent corruption in the Australian Federal Police (‘AFP’), the Australian Crime Commission (‘ACC’), the former National Crime Authority (‘NCA’) and prescribed Commonwealth law enforcement agencies. ACLEI also has a role to maintain and improve the integrity of staff members of Commonwealth law enforcement agencies. The Integrity Commissioner can report to the Minister for Justice[1] on reforms that may be needed to prevent corruption and preserve integrity in law enforcement agencies.[2]
Prior to 2006, subsection 60A(2) of the AFP Act prohibited the making of a record of prescribed information, or divulging or communicating, that information to other persons except in certain circumstances in prescribed legislation. The penalty for making such records, or divulging information, was imprisonment for 2 years.
In 2006, the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006 amended the provision to include reference to the Law Enforcement Integrity Commissioner Act 2006. However the penalty was, according to the second reading speech, ‘inadvertently repealed.’[3] This Bill reinstates the penalty into the provision retrospectively making it operative as from the commencement of the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006, that is as from 30 December 2006. As the second reading speech of the Minister for Home Affairs states:
It should not be the case that individuals can escape punishment simply because of the inadvertent repeal of the penalty.[4]
This Bill seeks to amend paragraph 23YV(5)(a) of the Crimes Act to amend the date required for a further independent review of the operation of the forensic procedures of Part 1D of the Crimes Act.
Part 1D of the Crimes Act 1914 was inserted by the Crimes Amendment (Forensic Procedures) Act 1998 which commenced on 23 January 1999. Part 1D was based on the model provisions developed in 1995 by the Model Criminal Code Officers Committee (MCCOC) of the Standing Committee of Attorneys-General (SCAG). The model provisions drew heavily on the recommendations of the Report on Body Samples and Examinations (1989) published by the Victorian Consultative Committee on Police Powers of Investigation.[5]
Part 1D was amended in 2001 to include provisions authorising the matching of DNA profiles on a DNA database system and the carrying out of forensic procedures on volunteers. It also included updated provisions relating to carrying out of forensic procedures on serious offenders. It was amended again in 2002 with the addition of Division 11A of Part 1D which came into force on 22 October 2002.
Division 11A was an urgent response to the terrorist attacks in Bali and was required to facilitate inter-jurisdictional cooperation between law enforcement and other agencies on victim identification matters and other matters.[6]
The report of the first Independent Review of Part 1D of the Crimes Act 1914 – Forensic Procedures was completed in March 2003. Division 11A did not form part of this review. The second review was due to take place two years after the first review in March 2005. However as the Explanatory Memorandum notes
The purpose of this amendment is to ensure the National Criminal Investigation DNA Database (NCIDD) has been fully operational for some time when the review takes place. Inter-jurisdictional matching between most jurisdictions only commenced in mid-2007. For a review to be fully effective, it is desirable that a body of cases to have progressed from matching, to investigation, to trial, so that there has been a real test of the powers and safeguards in the legislation.[7]
The NCIDD was developed with the collaboration and cooperation of state, territory and Commonwealth police services and forensic units. It provides police access to a national DNA database and the capability to conduct rapid, automated inter-jurisdictional and intra-jurisdictional DNA profile matching. This is provided under strict access and disclosure safeguards in accordance with privacy and other relevant legislation.
NCIDD comprises a central database and matching engine. It is a web-based system that provides secure online access to jurisdictions to view potential and confirmed matches between DNA information held by police agencies. NCIDD also allows users to group similar DNA profiles and search for links between groups.[8]
On 28 June 2007, the Single Ministerial Arrangement was signed by the Australian Capital Territory, the Commonwealth, CRIMTRAC, Northern Territory, Queensland, South Australia, Tasmania and Western Australia allowing the exchange of DNA profile information with each other. New South Wales and Victoria committed to signing when their legislation allows.[9] New South Wales is currently matching with six of the eight other Australian jurisdictions and is progressing with bilateral agreements with the remaining jurisdictions.[10]
The Jervis Bay Territory Acceptance Act 1915 section 4A states that the laws of the Australian Capital Territory including the principles and rules of common law and equity will apply in the Jervis Bay Territory as long as they are not inconsistent with any Jervis Bay Ordinances in force at the time.
The ACT Criminal Code came into force in January 2003. Once the ACT Criminal Code came into force there were no common law offences in the ACT. The ACT Criminal Code implemented the principles of the Model Criminal Code. The Bill to amend the Crimes Aviation Act inserts a reference into the Crimes (Aviation) Act to the ACT Criminal Code as it applies to the Jervis Bay Territory. The Bill also provides that other ACT laws may be prescribed under the Crimes (Aviation) Regulations in their application to the Jervis Bay Territory.
The Bill ensures that the offences contained within the Criminal Code (ACT) will apply to criminal conduct on board aircraft relating to the Jervis Bay Territory that includes:
The Explanatory Memorandum states that this Bill has no financial impact on Government revenue.[12]
Item 1 amends existing subsection 60A(2) by the addition of a penalty of imprisonment for two years. This is the same clause which was inadvertently repealed by the Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006.
Item 1 applies from 30 December 2006 and is, therefore, retrospective in its effect.
As a matter of practice, there is no prohibition on a Bill which seeks to have retrospective impact.
In this case the prohibited behaviour, that is, making a record of prescribed information or divulging or communicating that information to any other person, except as proscribed, has been a feature of the Australian Federal Police Act 1979 since 17 December 1989. Section 60A was inserted by the Australia Federal Police Legislation Amendment Act (No. 2) 1989.
While the amendment will clearly have retrospective effect, it merely restates the nature and extent of the penalty for any breach of what has been a long standing prohibition, rather creating the prohibition per se.
Item 2 amends existing paragraph 23YV(5)(a) by changing the required date for a second independent review of Part 1D of the Crimes Act so that it commences no later than 1 November 2009.
Item 3 inserts new subparagraph 15(1)(b)(iia) which is a reference to the ACT Criminal Code and its application to the Jervis Bay Territory.
Item 4 inserts new subparagraph 15(1)(b)(iv) which provides that other Australian Capital Territory laws may be prescribed in the regulations if they apply to the Jervis Bay Territory.
[1] The Minister for Home Affairs now has responsibility for justice matters.
[2] Australian Commission for Law Enforcement Integrity http://www.aclei.gov.au/www/aclei/aclei.nsf/Page/About_Us
[3] Hon. Bob Debus, Minister for Home Affairs, ‘Second reading speech: Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008’, Representatives, Debates, 4 June 2008, p. 2.
[4] ibid, p. 2.
[5]
Independent Review of Part 1D of the Crimes Act 1914–Forensic Procedures,
March 2003,
p. 1.
[6] Independent Review of Part 1D of the Crimes Act 1914–Forensic Procedures, March 2003, p. 1.
[7] Explanatory Memorandum, Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008, p. 4.
[8] CRIMTRAC Annual Report, 2006-07, CrimTrac Agency, Canberra, p. 19.
[9] ibid, p. 20.
[10] Crimtrac, http://www.crimtrac.gov.au/systems___projects_key_dates_in_the_history_of_forensic_dna_profiling.html, accessed on 17 June 2008.
[11] Explanatory Memorandum, Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008, p. 4.
[12] ibid, p. 1
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