Wednesday, 6 October 2010

Legislation Watch: Crimes Amendment (Forensic Procedures) Bill 2010

The Crimes Amendment (Forensic Procedures) Bill 2010 was introduced to the lower house yesterday. The Explanatory Memorandum can be read here. A link to a government press release about the Bill is here. The Statement of Compatibility is here, and the Second Reading is here.

There are two key changes that are likely to increase the number of DNA samples taken by police:

  • Amending ss 464R, 464T, 464U, 464V and other provisions of the Crimes Act 1958 to lower the threshold of certainty for acquisition of a forensic sample. Under the amendments police would be required to have reasonable grounds to suspect rather than believe that the procedure would tend to confirm or disprove the involvement of the suspect in the commission of an indictable offence.

  • Allowing applications under s 464ZF for a compulsory DNA sample on a finding of guilt for any indictable offence. At present only a finding of guilt of a forensic sample offence found in Schedule 8 of the Crimes Act permits an application to be made.

If the Bill passes it will come into effect on 1 April 2011, unless proclaimed earlier. The new sampling provisions will apply only to findings of guilt made after the commencement date.

(Edit: But, as the Elucubrator pointed out to me, the Bill will have to be re-introduced after the election, if the present government is re-elected. So the dates in the present Bill are unlikely to be accurate.)


Kyle said...

I'm not sure of the purpose of this Bill: it smacks a little of grandstanding.

Today is the last day that Parliament sits before the election is held on 24 November, when the Parliament is prorogued.

At Bills before the House will then lapse, and must be re-introduced in the next session. That is — back to square one for the whole process.

Perhaps the ALP is just testing the water?

Dr Manhattan said...

Don't know, but I suspect you're right about the trial balloon.

When introducing the Bill, Rob Hulls left open the door to either re-introducing this as stand-alone legislation or as part of the Criminal Investigation Powers Bill the Labor Party intend to enact if re-elected.

It seems untidy to deal with DNA procedures separate from all other aspects of investigation procedure. Given the sensitivity around the issue it also seemed unlikely that DNA sampling would apply to all indictable offences, including those where the information could not possibly assist in the detection or prevention of crime.

Jeremy Gans said...

Another bill the government introduced at the same time as the DNA bill - the Sentencing Amendment Bill 2010, abolishing suspended sentences for serious offences, amongst other things - looks set to pass Parliament this week. At least, it passed the lower house yesterday, not long after it was second read, with the support of both major parties.

If that was a trial balloon, then it looks like it's gone beyond the government's grip...

Dr Manhattan said...

I wonder whether there is concern that the interaction between this Bill and the Charter would play out in a similar way to the Case of S. and Marper v The United Kingdom (2008) 158 NLJ 1755. There are some significant differences in the scope of the statutory schemes, but perhaps enough similarities between the two to cause concern.

The Grand Chamber [at 119 - 121]:

'119 In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed (see paragraph 35 above); in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.

120 The Court acknowledges that the level of interference with the applicants' right to private life may be different for each of the three different categories of personal data retained. The retention of cellular samples is particularly intrusive given the wealth of genetic and health information contained therein. However, such an indiscriminate and open-ended retention regime as the one in issue calls for careful scrutiny regardless of these differences.

121 The Government contend that the retention could not be considered as having any direct or significant effect on the applicants unless matches in the database were to implicate them in the commission of offences on a future occasion. The Court is unable to accept this argument and reiterates that the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data.

I'll have a post on the Sentencing Amendment Bill next week.