Bills Digest 151 1996-97
Crimes Amendment (Forensic Procedures) Bill 1997
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
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.
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.
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.
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.
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)
- The Crimes Amendment Act 1995 commenced on 15 September 1995.
- Senate Legal and Constitutional Legislation Committee, Crimes Amendment
(Forensic Procedures) Bill 1995, October 1995, p.57.
- Child is defined in the Bill as a person who is at least 10 years
of age but under 18 years of age.
- In the 1995 Bill the person asking an Indigenous suspect to consent
to a forensic procedure was a constable, not a senior constable.
- Proposed section 23YP(3)(d).
- Proposed section 23YP(3)(f).
- Proposed section 23YP(3)(e).
- Senate Committee, op.cit, p.9.
- Ibid, p.11.
- Proposed section 23WA(1).
- Senate Committee, op.cit, p.17.
- 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.
- Ibid, p.15.
- Ibid.
- Ibid, p.25.
- Ibid, p.30.
- Ibid.
- Ibid, p.38.
- Ibid, p.52.
- Ibid, p.55.
Jennifer Norberry
13 June 1997
Bills Digest Service
Information and Research Services
This Digest does not have any official legal status. Other sources should
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ISSN 1328-8091
© Commonwealth of Australia 1997
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Published by the Department of the Parliamentary Library, 1997.
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Last updated: 17 June 1997
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