Crimes Amendment Regulations 2003 (No. 1) 2003 No. 165
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 165
Issued by the authority of the Minister for Justice and Customs
Subject: Crimes Act 1914
Crimes Amendment Regulations 2003 (No. 1)
Section 91 of the Crimes Act 1914 ('the Act') provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
The Crimes Regulations 1990 ('the Principal Regulations') set out various matters necessary to give effect to the 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 Part 1D of the Act defines 'corresponding law' as a law relating to the carrying out of forensic procedures and DNA databases that substantially corresponds 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 South Australian forensic procedure law as a 'corresponding law'.
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 Act 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, the Criminal Law (Forensic Procedures) Act 1998 of South Australia ('the relevant State law'); 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 law.
Details of the regulations are set out in the Attachment.
The Regulations commence on gazettal.
ATTACHMENT
Crimes Amendment Regulations 2003 (No. 1)
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 to provide that the relevant State law is a corresponding law 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 Criminal Law (Forensic Procedures) Act 1998 of South Australia (the relevant State law) 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 law that substantially correspond to the provisions of Part 1D of the Act.
More specifically -
• Schedule 3C, Item 1 lists the relevant State law that substantially corresponds 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 law that substantially corresponds 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 law that substantially corresponds 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 law that substantially corresponds 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 law that substantially corresponds 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 law that substantially corresponds 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 law that substantially corresponds 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 law that substantially corresponds 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 law that substantially corresponds 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 law that substantially corresponds with the Act, Part 1D, Division 11. Division 11 regulates the inter jurisdictional aspects of the national DNA database system.