Bills Digest 151 1996-97 Crimes Amendment (Forensic Procedures) Bill 1997


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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History

Crimes Amendment (Forensic Procedures) Bill 1997

Date Introduced: 26 March 1997
House: House of Representatives
Portfolio: Attorney-General
Commencement: Item 12 of Schedule 2 is taken to have commenced immediately after the commencement of the Crimes Amendment Act 1995.(1) Schedules 1 and 3 and the remaining items of Schedule 2 commence six months after the date of Royal Assent, unless commenced earlier by Proclamation. All other provisions in the Bill commence on Royal Assent.

Purpose

The main purpose of the Crimes Amendment (Forensic Procedures) Bill 1997 (the 1997 Bill) is to amend the Crimes Act 1914 (Cwlth) by inserting new Part 1D which provides for a regime:

  • for carrying out forensic procedures during the investigation of Commonwealth offences; and
  • for the storage, use and destruction of material so obtained.

Background

At common law there is no power to compel a suspect to provide a sample of his or her blood, hair, saliva or other body matter. Use of physical force to obtain such a sample, whether exercised by a police officer or by a doctor acting at the request of a police officer, is an assault. The Bill extends the powers of police officers to take such body samples from suspects and people in police custody.

A Crimes Amendment (Forensic Procedures) Bill 1995 (the 1995 Bill) was introduced into the House of Representatives on 29 June 1995. Government amendments to the Bill were introduced in October 1995. The 1995 Bill was based on draft legislation developed by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General. On 28 August 1995, the Senate referred the 1995 Bill to its Legal and Constitutional Legislation Committee. The Committee received 20 submissions, held a public hearing, produced a report with 20 recommendations and concluded:(2)

Whilst the goal of a uniform code and uniform standards for the taking of forensic samples is desirable, the Committee has reservations in relation to the current draft of the Bill. It is a question of drawing a balance between the goal of bringing offenders to justice and the other public good of upholding the public's right to privacy, unless there are compelling reasons to interfere with that right.

The 1995 Bill lapsed when Parliament was prorogued in 1996. The Government has now introduced a new Crimes Amendment (Forensic Procedures) Bill 1997. In his Second Reading Speech, the Attorney-General said that the alterations the Government made to the 1995 Bill are 'minor but important,' implement the majority of the changes recommended by the Senate Committee, and 'increase the safeguards on the rights of suspects who undergo a forensic procedure.'

This Bills Digest addresses the major changes brought about by the 1997 Bill. For a full account of the 1995 Bill and its background, the reader is referred to Bills Digest No.24 of 1995-96 (Crimes Amendment (Forensic Procedures) Bill 1995). A further useful source of information is the report of the Senate Legal and Constitutional Affairs Legislation Committee on the Crimes Amendment (Forensic Procedures) Bill 1995 which was tabled in October 1995.

In brief, the Bill distinguishes between suspects who are adults and in custody, adults not in custody, and incapable persons or children who are over the age of 10 but under 18 years of age whether or not they are in custody. The Bill includes some special provisions in relation to Indigenous suspects. It also distinguishes between intimate and non-intimate forensic procedures, and provides time limits for carrying them out.

Intimate and non-intimate forensic procedures on adults who are not in custody can be performed with informed consent or under a magistrate's order. Intimate forensic procedures can be performed on adults who are in custody with informed consent or under a magistrate's order. Non-intimate forensic procedures can be carried out on an adult in custody with informed consent, or by order of a senior constable or magistrate. A magistrate's order is required for both intimate and non-intimate forensic procedures in the case of a suspect who is an 'incapable person' whether or not in custody, and for a child(3) whether or not in custody. The Bill does not authorise forensic procedures to be carried out on children who are under the age of 10 years.

Main Provisions

Schedule 1 of the Bill amends the Crimes Act 1914 relating to forensic procedures.

Definitions

Proposed section 23WA(1) is located in Division 1 of Schedule 1 and contains definitions. The definition of 'child' has been changed. As originally defined in the 1995 Bill, a child was a person under the age of 18 years. 'Child' is now defined as 'a person who is at least 10 years of age but under 18 years of age.'

Forensic procedures by consent when does informed consent occur?

Division 3 of Schedule 1 relates to the carrying out of forensic procedures by consent on adult, capable suspects.

Proposed section 23WF applies where a constable asks a 'capable', adult suspect to consent to a forensic procedure and has a reasonably based belief that the suspect is not an Indigenous person. In these circumstances, the Bill adds an additional requirement to that contained in the 1995 Bill that, in order to give informed consent, the suspect must have been given a written statement containing certain information which is set out in proposed section 23WJ.

This statement includes information that any consent given by the suspect will be recorded, the suspect has a right to a copy of that record, that the forensic evidence obtained may be used against the suspect in a court of law and that the suspect may refuse to consent to the forensic procedure. Before informed consent can be given, a suspect must also be given a reasonable opportunity to communicate with a lawyer in private [proposed section 23WF(2)(d)]. Private communication with a lawyer can be denied if the suspect is in custody and the constable has a reasonable suspicion that the suspect might try to destroy or contaminate any evidence that might be obtained from carrying out the forensic procedure [proposed section 23WF(3)].

Proposed section 23WG deals with informed consent to forensic procedures by Indigenous people. A change in the 1997 Bill is that the constable asking an Indigenous person to consent to a forensic procedure must be a senior constable(4) [proposed section 23WG(3)(c)]. A senior constable is defined in proposed section 23WA(1) as a constable of the rank of sergeant or higher.

What a constable is obliged to consider before he or she can ask a suspect to consent to a forensic procedure

Proposed section 23WI concerns those matters which must be considered by a constable before asking a suspect to consent to a forensic procedure. The constable must consider certain specified matters including whether the request for consent is justified in all the circumstances. In determining whether the request is justified in all the circumstances, the constable must balance the public interest in obtaining evidence tending to prove or disprove that the suspect committed the offence against the public interest in the physical integrity of the suspect. In conducting this balancing exercise, the constable must have regard to matters such as the gravity of the relevant offence and the seriousness of the surrounding circumstances. The 1997 Bill adds that, where appropriate, the constable must also consider the religious beliefs of the suspect where these can be discovered by asking the suspect or otherwise [proposed section 23WI(3)(c)]. Under proposed section 23WI(3)(d), the constable must also take account of any customary beliefs held by an Indigenous suspect to the extent that those beliefs can be known or reasonably discovered by the constable. The 1997 Bill adds that those beliefs can be discovered 'by asking the suspect or otherwise.'

Time limits where the suspect is not in custody and has consented to the forensic procedure

Proposed section 23WLA relates to the time limits in which forensic procedures must be carried out if the suspect is not in custody. Where a suspect is not in custody but consents to a forensic procedure, the procedure must be carried out as quickly as reasonably possible. However, if the suspect is a child* or is believed to be an Indigenous person, then the forensic procedure must be carried out within 2 hours after the suspect presents himself or herself to undergo the forensic procedure. In any other case, the forensic procedure must be carried out within 4 hours after presentation. In calculating these times, various times listed in proposed section 23WLA(2), must be disregarded as 'dead' time for example, any time during which the suspect is communicating with a lawyer, is receiving medical attention, or when the suspect has requested the procedure to be suspended or delayed.

* The inclusion of 'child' in proposed section 23WLA appears to be an error because, under the Bill, children cannot consent to forensic procedures such procedures can only be carried out on a magistrate's order.

Non-intimate forensic procedure by order of a senior constable

Division 4 of Schedule 1 relates to non-intimate forensic procedures by order of a senior constable. In specified circumstances, a senior constable may order non-intimate forensic procedures to be carried out if a suspect in custody does not consent. Division 4 does not authorise the carrying out of these procedures if the suspect is a child or an incapable person [proposed section 23WM(2)]. The corresponding Division (Division 4) in the 1995 Bill enabled a constable, rather than a senior constable, to order that non-intimate forensic procedures be carried out.

Proposed section 23WN sets out the circumstances in which a senior constable may order non-intimate forensic procedures and proposed section 23WO details the matters to be considered by a senior constable before ordering a non-intimate forensic procedure to be carried out.

The senior constable must consider certain specified matters including whether the request for consent is justified in all the circumstances. In determining whether the request is justified in all the circumstances, the constable must balance the public interest in obtaining evidence tending to prove or disprove that the suspect committed the offence against the public interest in the physical integrity of the suspect. In conducting this balancing exercise, the constable must have regard to matters such as the gravity of the relevant offence and the seriousness of the surrounding circumstances. The 1997 Bill adds that, where appropriate, the constable must consider the religious beliefs of the suspect where these can be discovered by asking the suspect or otherwise [proposed section 23WO(3)(c)]. Under proposed section 23WO(3)(d), the constable must also take account of any customary beliefs held by an Indigenous suspect to the extent that those beliefs can be known or reasonably discovered by the constable. The 1997 Bill adds that those beliefs can be discovered 'by asking the suspect or otherwise.'

Proposed section 23WP provides that the senior constable who orders a non-intimate forensic procedure must make a signed record of that order, when it was made and why it was made. The 1995 Bill provided that the record must be made by a constable.

Forensic procedures by order of a magistrate

Division 5 of Schedule 1 deals with forensic procedures by order of a magistrate. In the circumstances specified in the Bill, a magistrate may order forensic procedures to be carried out if a suspect (in custody or not) has not consented to the forensic procedure or cannot consent because he or she is a child (as defined) or an incapable person [proposed section 23WR].

Proposed section 23WT deals with the matters that a magistrate must have regard to before ordering a forensic procedure when balancing the public interest in obtaining evidence tending to prove or disprove that the suspect committed the offence against the public interest in upholding the physical integrity of the suspect. A new factor to be taken into account in this balancing process is, where appropriate, the religious beliefs of the suspect where these can be discovered by asking the suspect or otherwise [proposed section 23WT(3)(c)]. Under proposed section 23WT(3)(d), the magistrate must also take account of any customary beliefs held by an Indigenous suspect to the extent that those beliefs can be known or reasonably discovered by the magistrate. The 1997 Bill adds that those beliefs can be discovered 'by asking the suspect or otherwise.'

Proposed section 23WW concerns ensuring that a suspect who is not in custody is present at a hearing before a magistrate when an application for a forensic procedure order is made. In order to secure the suspect's presence a magistrate may, in certain circumstances, issue a warrant for the suspect's arrest. The magistrate may issue such a warrant only if satisfied of the matters specified in proposed section 23WW(5). One of the matters specified in the 1995 Bill was that the magistrate was satisfied that the suspect's arrest was necessary to ensure their appearance at the hearing of the application. The 1997 Bill adds to this that the magistrate must also be satisfied that the issue of a summons would not secure the suspect's appearance.

Proposed section 23XGB relates to time limits for the carrying out of forensic procedures where a magistrate's order has been made and the suspect is not in custody but presents himself or herself to the investigating constable so that the forensic procedure can be carried out. In such a case, the procedure must be carried out as quickly as possible and within:

  • two hours if the suspect is a child, an incapable person or is believed to be an Aboriginal person or Torres Strait Islander;
  • four hours in any other case.

If the suspect is in custody then the person can be detained so long as is reasonably necessary for the forensic procedure to be carried out. However, the period of detention cannot exceed:

  • two hours from the time the magistrate orders the forensic procedure or the suspect is arrested (whichever is the later) in the case of a child, an incapable person or a person believed to be an Aboriginal person or a Torres Strait Islander;
  • four hours from the time the magistrate orders the forensic procedure or the suspect is arrested (whichever is the later) in any other case [proposed section 23XGD(1)].

How forensic procedures are carried out

Division 6 of Schedule 1 of the Bill sets out general rules and specific provisions relating to the carrying out of forensic procedures.

Proposed section 23XIB provides that before a forensic procedure is carried out on a suspect, a constable must warn the suspect that he or she does not have to say anything while the procedure is being carried out and that if anything is said by the person it may be used in evidence.

Proposed section 23XU relates to material taken from a suspect during a forensic procedure. If there is enough material for it to be analysed both by those investigating the offence and on behalf of the suspect, then the suspect must be provided with sufficient material for analysis 'as soon as practicable after the procedure has been carried out' [proposed section 23XU(2)(a)]. In the 1995 Bill, the equivalent provision simply provided that the suspect be given sufficient material for analysis 'as soon as practicable.'

Proposed section 23XUA deals with the situation where there is insufficient material collected by a forensic procedure to be shared with the suspect and the material does not need to be analysed immediately after collection. In this case, a suspect has a right to request that his or her nominee be present while the material is analysed [proposed section 23XUA(2)]. This request can also be made by the suspect's legal representative or interview friend [proposed section 23YE(1)]. The suspect's nominee is entitled to be present unless he or she does not wish to attend, cannot attend or cannot be contacted within a reasonable time [proposed section 23XUA(3)].

Admissibility of evidence

Division 7 of Schedule 1 deals with admissibility of evidence.

Proposed section 23XX deals with the inadmissibility of forensic evidence when there has been a breach of, or failure to comply with, statutory procedures. In these circumstances, forensic material is not admissible unless the suspects consents to its admission [proposed section 23XX(4)(a)] or the court is satisfied on the balance of probabilities that the admission of the evidence is justified [proposed section 23XX(4)(b)].

In making a decision for the purposes of proposed section 23XX(4)(b), the court may take account of the matters listed in proposed section 23XX(5). One of the matters listed in the 1995 Bill was 'the gravity of the failure to comply with the provisions of this Part.' The 1997 Bill has amended this provision to read 'the gravity of the failure to comply with the provisions of this Part, and whether the failure deprived the suspect of a significant protection under this Part.' The 1997 Bill also adds proposed section 23XX(5)(g) to the matters that may be taken into account by the court this is, whether admitting the evidence would undermine the statutory protections given to suspects. Where a judge admits forensic evidence despite the fact that statutory procedures have been breached, then the judge must inform the jury of the breach and make any warnings that he or she considers appropriate [proposed section 23XX(7)].

Proposed section 23YB applies where a suspect has resisted the carrying out of a forensic procedure and provides that evidence of such resistance is admissible in certain circumstances. The 1997 Bill adds proposed section 23YB(3) which provides that where a forensic procedure was carried out satisfactorily even though the suspect resisted the forensic procedure, evidence of that resistance is not admissible.

Interpreters

Proposed section 23YDA relates to interpreters and applies where a constable believes that the suspect cannot communicate with reasonable fluency in English. Proposed section 23YDA provides a list of circumstances in which a constable must arrange for an interpreter to be present for example, where a constable is asking a suspect to consent to a forensic procedure. An additional circumstance is added by the 1997 Bill where a constable is cautioning a suspect who the constable believes is not reasonably fluent in English [proposed section 23YDA(2)(d)].

Disclosure of information obtained by forensic procedures

Proposed section 23YP deals with the disclosure of information obtained from forensic procedures carried out under Part 1D and sets out the circumstances in which information obtained by a forensic procedure can be disclosed. Amongst those circumstances are where an offence is being investigated(5), for the purpose of proceedings for an offence(6) and for the purpose of deciding whether to institute proceedings for an offence.(7) An 'offence' is defined by proposed section 23YP(1) in the 1997 Bill to mean an offence against Commonwealth, State or Territory law punishable by a maximum penalty of 12 or more months imprisonment.

Children

Proposed section 12YQA (this appears to be a numbering error and should be proposed section 23YQA) provides that the amendments do not authorise the carrying out of a forensic procedure on a child who is under 10 years of age.

Concluding Comments

The report of the Senate Legal and Constitutional Legislation Committee made 20 recommendations relating to the Crimes Amendment (Forensic Procedures) Bill 1995. Most of these appear to have been incorporated in the 1997 Bill for example, recommendations in relation to children, Indigenous people, time limits for detention, the rank of police officer ordering non-intimate forensic procedures, provisions regarding the sex of the police officer present when an intimate forensic procedure is being carried out on a child, and the drawing of adverse inferences where a suspect has refused to consent to forensic procedures although a forensic sample has, in fact, been taken.

Without taking a position on the Senate Committee's recommendations, this Digest mentions recommendations which do not appear to have been implemented wholly or partly. Readers are advised to consult the Senate Committee report if they wish to make a comprehensive comparison between the Committee's recommendations and the 1997 Bill. The Digest also draws attention to the Committee's recommendation about the setting up of a Mandatory Code of Practice by regulation.

Forensic procedures under the Bill

Differing views were expressed before the Senate Legal and Constitutional Legislation Committee about the power to take body samples and conduct investigations, other than 'non-intimate forensic procedures' as defined in proposed sections 23WA(1)(b), (c) and (f). For example, the Australian Law Reform Commission argued that the power to compel such procedures should be limited to serious offences that is, offences punishable by a maximum penalty of 5 years or more imprisonment. On the other hand, the Attorney-General's Department argued that this would 'confine the Bill too narrowly' because there are a number of potentially serious offences which carry a maximum penalty of less than five years imprisonment.(8)

The Senate Committee recommended that:

... the power to take body samples and conduct examinations other than 'non-intimate forensic procedures' defined in paragraphs 23WA(1)(b), (c) and (f), should be available only where a police officer has 'reasonable grounds to believe' that a suspect has committed an indictable offence, that is serious, being punishable by imprisonment for five years or more. The police officer must have the same 'reasonable grounds to believe' as required to make a lawful arrest.(9)

The 1997 Bill, like the 1995 Bill, defines a 'suspect' as a person who 'a constable suspects on reasonable grounds has committed the indictable offence; or a person charged with an indictable offence; or a person who has been summonsed to appear before a court in relation to an indictable offence.'(10) An 'indictable offence' is defined in the Crimes Act 1914 (Cwlth) as an offence against a Commonwealth law punishable by imprisonment for a period exceeding 12 months.

The Committee also recommended that if the recommendation quoted above was not adopted, then the power to gather forensic evidence obtained by examination of the breasts such as by breast swabbing and vacuum suctioning, should be restricted to circumstances where a police officer has"

"reasonable grounds to believe" that a suspect has committed an indictable offence, that is serious, being punishable by imprisonment for five years or more. The police officer must have the same "reasonable grounds to believe" as required to make a lawful arrest.(11)

Dental impressions

The Senate Committee referred to evidence before it and to the report of the Victorian Coldrey Committee(12) that the taking of dental impressions have not yet attained a sufficient level of reliability and that dental evidence has been excluded in criminal trials. The Committee acknowledged evidence from the Australian Federal Police about recent developments in forensic dentistry but concluded that these did not overcome the concerns that had been raised in submissions. The Senate Committee considered that '... sufficient arguments have not yet been raised which support the forcible taking of a dental impression from a suspect'(13) and it recommended that 'paragraph (g) "the taking of a dental impression" be deleted from the definition of "intimate forensic procedure" as contained in proposed section 23WA.'(14)

Indigenous people

The Senate Committee report recommended that the maximum time limit for detention of Indigenous people should be two hours this recommendation has been adopted in the Bill. The Committee also added, 'Unless there are extraordinary circumstances, Aboriginal and Torres Strait Islander people should not be kept in custody solely for the purpose of undergoing forensic procedures.'(15)

The power of arrest and children under the age of 16 years

The Committee recommended that 'subparagraph 23WW(1)(b) be re-drafted to include a provision that children under the age of sixteen, from whom a forensic sample is sought, should be required to attend court only by means of summons, and not by a warrant for arrest, unless they have failed to respond to the summons.'(16)

Written statement of a suspect's rights

The Bill contains certain requirements that must be met before the informed consent of a suspect to a forensic procedure can be obtained. The Bill appears to adopt a number of Senate Committee recommendations relating to informed consent for example, the requirement that a suspect be given a written statement of their rights. The Committee also recommended that the written statement should be available in a variety of community languages.(17)

Audit of forensic procedures provisions

The Senate Committee recommended that the taking of forensic samples authorised by the legislation should be audited bi-annually and that an independent organisation, such as the Commonwealth Ombudsman should be responsible for the review, be given full access to relevant records, and report her or his assessment to Parliament.(18)

Liability for forensic procedures

The Senate Committee recommended that proposed section 23YL of the Bill be amended 'to specify that nothing in the section excuses a person taking a forensic sample or assisting in the taking of a forensic sample from criminal liability for the malicious or reckless conduct of a forensic procedure.'(19) There is now a notation at the foot of proposed section 23YL that 'This section does not provide any protection in respect of action taken maliciously or recklessly.'

Mandatory Code of Practice

The Senate Committee recommended that a Mandatory Code of Practice be implemented 'by regulation setting out appropriate procedures for the collection, storage and retention and analysis of genetic material.'(20)

Endnotes

  1. The Crimes Amendment Act 1995 commenced on 15 September 1995.
  2. Senate Legal and Constitutional Legislation Committee, Crimes Amendment (Forensic Procedures) Bill 1995, October 1995, p.57.
  3. Child is defined in the Bill as a person who is at least 10 years of age but under 18 years of age.
  4. In the 1995 Bill the person asking an Indigenous suspect to consent to a forensic procedure was a constable, not a senior constable.
  5. Proposed section 23YP(3)(d).
  6. Proposed section 23YP(3)(f).
  7. Proposed section 23YP(3)(e).
  8. Senate Committee, op.cit, p.9.
  9. Ibid, p.11.
  10. Proposed section 23WA(1).
  11. Senate Committee, op.cit, p.17.
  12. The Victorian Consultative Committee on Police Powers of Investigation (also known as the Coldrey Committee) published its report on Body Samples and Investigations in 1989.
  13. Ibid, p.15.
  14. Ibid.
  15. Ibid, p.25.
  16. Ibid, p.30.
  17. Ibid.
  18. Ibid, p.38.
  19. Ibid, p.52.
  20. Ibid, p.55.

Contact Officer and Copyright Details

Jennifer Norberry
13 June 1997
Bills Digest Service
Information and Research Services

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1997

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Published by the Department of the Parliamentary Library, 1997.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 17 June 1997


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