Bills Digest no. 143 2007–08
Crimes Legislation Amendment (Miscellaneous Matters)
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Crimes Legislation Amendment
(Miscellaneous Matters) Bill 2008
introduced: 4 June
Portfolio: Home Affairs
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.
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
- the Australian Federal Police Act 1979 (the AFP Act)
to re-insert a penalty to the secrecy provisions;
- the Crimes Act 1914 (the Crimes Act) to alter the
required date for a second independent review of Part 1D of that
- the Crimes (Aviation) Act 1991 (the Crimes Aviation
Act) to make reference to the Criminal Code 2002
(ACT) (the ACT Criminal Code) in its application to the
Jervis Bay Territory.
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 on reforms
that may be needed to prevent corruption and preserve integrity in
law enforcement agencies.
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repealed.  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
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.
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
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
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.
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
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
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. New South Wales is currently matching with six of
the eight other Australian jurisdictions and is progressing with
bilateral agreements with the remaining jurisdictions.
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
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
- any aircraft engaged in a commercial flight with other
countries or among the States and Territories
- any aircraft engaged in a flight that started in Australia
- an Australian aircraft engaged in a flight wholly outside
- a Commonwealth aircraft or defence aircraft.
The Explanatory Memorandum states that this Bill has no
financial impact on Government revenue.
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.
18 June 2008
Bills Digest Service
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