Bills Digest no. 143 2007–08
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
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Crimes
Legislation Amendment (Miscellaneous Matters) Bill 2008
Date introduced: 4
June 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/.
To amend:
- 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 Act, and
- 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[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:
- 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 Australia,
and
- a Commonwealth aircraft or defence aircraft.[11]
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.
Moira Coombs
18 June 2008
Bills Digest Service
Parliamentary Library
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