Crimes Amendment Regulations 2002 (No. 4)

Administered by Attorney-General's Department

Legislation au F2002B00191 Regulations Not in force Legislative Instrument

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Crimes Amendment Regulations 2002 (No. 4) 2002 No. 194

EXPLANATORY STATEMENT

Statutory Rules 2002 No. 194

Issued by the authority of the Minister for Justice and Customs

Subject:        Crimes Act 1914

Crimes Amendment Regulations 2002 (No. 4)

Section 91 of the Crimes Act 1914 ('the Act') provides that the Governor-General may make regulations for the purposes of the Act.

The Crimes Regulations 1990 ('the Principal Regulations') set out various matters necessary to give effect to that Act.

Part 1D of the Act provides for prescribed persons to carry out forensic procedures on those suspected of committing indictable offences, those that have committed prescribed and serious offences, and volunteers. Part 1D also refers to a DNA database system and regulates the use of information stored on that database system.

Section 23YUA of the Act defines 'corresponding law' as a law relating to the carrying out of forensic procedures and DNA databases that substantially correspond to Part 1D of the Act or is prescribed in regulations.

The purpose of the Regulations is to prescribe under Part 1D of the Act Victorian and Western Australian forensic procedure laws as 'corresponding laws'.

The Commonwealth Government has created the national DNA database system in cooperation with State and Territory Governments to assist with the investigation of crimes by facilitating the sharing of DNA information. However, under the legislation the sharing of DNA information is meant to occur between jurisdictions with corresponding laws.

The Regulations:

(i)       prescribe as a corresponding law under section 23YUA of the Act, Part 3, Division 1, Subdivision 30A of the Crimes Act 1958 of Victoria and the Criminal Investigation (Identifying People) Act 2002 of Western Australia (together 'the relevant State laws'); and

(ii)       include in Schedule 3C of the Principal Regulations, which sets out the provisions of corresponding laws taken to correspond to particular Divisions of Part 1D of the Act, provisions of the relevant State laws.

Details of the Regulations are set out in the Attachment.

The Regulations commence on gazettal.

ATTACHMENT

The Regulations

Regulation 1 describes how the Regulations are to be cited.

Regulation 2 provides that the Regulations commence on gazettal.

Regulation 3 provides that the Principal Regulations will be amended in accordance with Schedule 1 of the Regulations.

Schedule 1, Item 1 amends subregulation 6E(1) of the Principal Regulations so that the relevant State laws are corresponding laws for the purposes of Section 23YUA of the Act.

In order to participate in the sharing of information stored on the Commonwealth's national DNA database system, State and Territory Governments must have corresponding laws. That is, laws relating to the carrying out of forensic procedures and DNA databases that substantially correspond to Part 1D of the Act or laws that are prescribed in regulations.

The Regulations will add the relevant State laws to the list of corresponding laws in subregulation 6E(1) of the Principal Regulations.

Schedule 1, Item 2 of the Regulations amends Schedule 3C of the Principal Regulations to identify the provisions of the relevant State laws that substantially correspond to the provisions of Part 1D of the Act.

More specifically -

•       Schedule 3C, Item 1 lists the relevant State laws that substantially correspond with the Act, Part 1D, Division 3. Division 3 regulates forensic procedures on a suspect that consents to those procedures.

•       Schedule 3C, Item 2 lists the relevant State laws that substantially correspond with the Act Part 1D, Division 4. Division 4 regulates how, and under what circumstances, a police constable may authorise the carrying out of a non-intimate forensic procedure on a suspect that does not consent.

•       Schedule 3C, Item 3 lists the relevant State laws that substantially correspond with the Act, Part 1D, Division 5. Division 5 regulates how, and under what circumstances, a magistrate may authorise the carrying out of a forensic procedure on a suspect.

•       Schedule 3C, Item 4 lists the relevant State laws that substantially correspond with the Act, Part 1D, Division 6. Division 6 regulates the carrying out of forensic procedures on suspects including who may carry out those procedures.

•       Schedule 3C, Item 5 lists the relevant State laws that substantially correspond with the Act, Part 1D, Division 6A. Division 6A regulates the carrying out of forensic procedures after the conviction of serious and prescribed offenders.

•       Schedule 3C, Item 6 lists the relevant State laws that substantially correspond with the Act, Part 1D, Division 6B. Division 6B regulates the carrying out of forensic procedures on volunteers.

•       Schedule 3C, Item 7 lists the relevant State laws that substantially correspond with the Act, Part 1D, Division 7. Division 7 regulates the admissibility of evidence obtained from forensic procedures.

•       Schedule 3C, Item 8 lists the relevant State laws that substantially correspond with the Act, Part 1D, Division 8. Division 8 regulates the destruction of forensic material obtained from forensic procedures.

•       Schedule 3C, Item 9 lists the relevant State laws that substantially correspond with the Act, Part 1D, Division 8A. Division 8A regulates the storage and use of forensic material on the national DNA database system.

•       Schedule 3C, Item 10 lists the relevant State laws that substantially correspond with the Act, Part 1D, Division 11. Division 11 regulates the inter-jurisdictional aspects of the national DNA, database system.

 

Overview

The Crimes Amendment Regulations 2002 (No. 4) were introduced by the Commonwealth Government to address the need for a streamlined and legal framework for the sharing of DNA information across different jurisdictions in Australia. Enacted under the authority of the Minister for Justice and Customs, these regulations were issued pursuant to the Crimes Act 1914, specifically amending the Crimes Regulations 1990 to accommodate the national DNA database system. The overarching policy objective of these regulations is to facilitate the sharing of DNA information between jurisdictions by ensuring that state and territory laws correspond to the requirements set forth in the Commonwealth's national DNA database system. This was achieved by prescribing Victorian and Western Australian forensic procedure laws as 'corresponding laws', thereby enabling the lawful exchange of DNA data across jurisdictions to aid in crime investigation and prevention.

Scope and Application

The Crimes Amendment Regulations 2002 (No. 4) are a set of regulations made under the Crimes Act 1914, specifically to facilitate the sharing of DNA information between jurisdictions by prescribing corresponding laws. The regulations apply to the Commonwealth of Australia and aim to ensure that the national DNA database system can be effectively used in the investigation of crimes. They apply to persons involved in forensic procedures and DNA databases, including those suspected of committing indictable offences, convicted offenders, and volunteers. The regulations also apply to entities and industries involved in the collection, storage, and use of DNA information in the context of criminal investigations. The scope of these regulations is national, extending across federal, state, and territory jurisdictions that have corresponding laws in place. The regulations extend the application of the Crimes Act 1914 by prescribing Victorian and Western Australian forensic procedure laws as corresponding laws, thereby enabling these states to participate in the national DNA database system. This inclusion facilitates the sharing of DNA information between jurisdictions that have adopted compatible legal frameworks. The regulations do not explicitly state any exclusions or thresholds, but their application is contingent on the existence of corresponding laws in each jurisdiction. Subordinate instruments, such as the Principal Regulations and Schedule 3C, further detail the specific provisions of the state laws that correspond to various divisions of Part 1D of the Act, thereby extending and clarifying the application of the primary legislation.

Key Provisions

The Crimes Amendment Regulations 2002 (No. 4) (the Regulations) primarily serve to prescribe Victorian and Western Australian forensic procedure laws as 'corresponding laws' under section 23YUA of the Crimes Act 1914 (the Act). This is done to facilitate the sharing of DNA information between jurisdictions that have corresponding laws. The Regulations also amend the Crimes Regulations 1990 (the Principal Regulations) to include these laws in Schedule 3C, which outlines the provisions of corresponding laws taken to correspond to particular Divisions of Part 1D of the Act. The Regulations establish obligations on State and Territory Governments to enact corresponding laws to participate in the national DNA database system. This involves creating laws that substantially correspond to Part 1D of the Act, particularly regarding the carrying out of forensic procedures, the management of DNA databases, and the admissibility and destruction of forensic material. The Regulations specify that the Crimes Act 1958 of Victoria and the Criminal Investigation (Identifying People) Act 2002 of Western Australia meet these criteria. These State laws are identified in Schedule 3C of the Principal Regulations, which provides a detailed alignment of State provisions with the federal requirements. The Regulations include provisions that delineate the specific sections of the relevant State laws that correspond to various Divisions of Part 1D of the Act. For example, Schedule 3C, Item 1 lists the provisions of Victorian and Western Australian laws that align with Division 3, which deals with forensic procedures on consenting suspects. Similarly, other items in Schedule 3C map out the correspondence of State laws with other Divisions, such as non-intimate forensic procedures on non-consenting suspects (Division 4), authorisation by magistrates (Division 5), and the admissibility of evidence (Division 7). Offences and penalties for breaches of the Regulations are not explicitly detailed within the explanatory statement. However, the general framework of the Act and the Principal Regulations suggests that non-compliance with these requirements could lead to significant legal consequences. This could include fines, imprisonment, or other penalties prescribed under the Act, depending on the severity and nature of the breach. The Act generally provides for enforcement through the courts, and the Principal Regulations may outline specific penalties for non-compliance with forensic procedures and DNA database regulations.

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