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- 8 June 2000
Crimes (Forensic Procedures) Bill
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Page: 6915
Second Reading
Debate resumed from 7 June.
Ms MOORE (Bligh) [12.28 p.m.]: Many members who have spoken in this debate have said that the bill will be an effective tool in solving crime, particularly heinous crime, and will establish the innocence of people who have been unjustly accused. Details of its success rate in Britain were set out by a number of members. I join in the in-principle support for this bill and for its goals. I am pleased to see that the Ombudsman will review its effects after 18 months of operation. I would like to briefly put before the House concerns that have been expressed to me about the specifics of the bill. The Law Society recommends that, due to the substantial and serious differences between the model criminal code officers committee and the New South Wales bill, it is imperative that a public inquiry into the bill be established.
It is important, when formulating groundbreaking legislation, that we hasten slowly to ensure that we get it right. I remind honourable members that it can take up to 18 months in the Commons to get legislation right. There is no need to rush this legislation through, even though it is commendable that the Government is enthusiastic about reform. We should listen to the Law Society and others who are concerned about the specifics of the bill, and allow it to be examined so this House can be sure that ultimately we get the best possible legislation.
The Law Society recommends that, due to the differences between this proposal and the Model Criminal Code Officers Committee proposal, an inquiry be established. It has recommended that the bill be referred to the parliamentary Standing Committee on Law and Justice. I urge the Government, the Opposition and the crossbenchers in the upper House to seriously consider that course. That view of the Law Society is supported by Justice Action, which is of the view that a moratorium should be imposed on the introduction of DNA technology in the criminal justice system. The Parliament should consider that view. Justice Michael Kirby said:
To the extent that you enhance the capacity of the State, without reasonable cause, to take body samples, you at least raise a number of questions. First, the issue of self-examination. Second, the enhanced power of the State to intervene in the life of the individual. Third, the problem of the risk of tampering with samples, which must be carefully secured if the system is to have integrity.
Many honourable members would have seen the film Gattaca; this is perhaps shades of that film. We must be quite sure that there is no opportunity for future corruption in this area. Justice Michael Kirby continued:
And finally, the risk of error.
Justice Kirby made these points at a speech given at the University of Technology, Sydney, earlier this year, and it was reported in the Australian Financial Review. The Law Society has made some suggestions about amending the bill to address its major concerns. The amendments include, first, the need to set an upper limit on the amount of time testing procedures can be deferred for time-outs. There is concern that time-outs may be manipulated under the legislation and that police may be empowered to detain people indefinitely. Second, the current legislation differs from the model bill in that it only requires reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove the suspect committed an offence. The Law Society wants to replace the word "might" with the words "is likely to" in clauses 12, 20 and 25. This is supported by Justice Michael Kirby, who has expressed concerns about this aspect of the DNA testing procedures. He said:
The obligation that our system lays down is that before the great power of the organised State can come into your life, [there has to be] reasonable cause to suspect you of an offence. It's a very important definitional element … it's the reason we've never had a society where people can stop you in the street and say "papers".
Third, the question of requirements to balance the public interest and the suspect's interest have been omitted from the New South Wales bill. The Law Society suggests the following additions to clause 12:
(2) In determining whether a request is justified in all circumstances, the police officer must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3) In balancing those interests, the police officer must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence,
(b) the degree of the suspect's alleged participation in the commission of the relevant offence,
(c) the age, physical and mental health and cultural background of the suspect, to the extent that they are known to the officer,
(d) whether there is a less intrusive but a reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence,
(e) if the suspect has any reasons for refusing to consent, the reasons,
(f) any other matter considered relevant to balancing those interests.
Fourth, the bill does not afford the same protections to volunteers as to suspects, that is, suspects are not to be questioned during procedures and are to be cautioned. Fifth, no offender convicted prior to the commencement of the legislation should be subject to DNA testing. Sixth, any order for testing should be a court order. Seventh, the public must be assured of the independence and integrity of the testing, analysis, retention of material, and creation and management of the data and database. The bill is not specific about these details, which need clarification to ensure the security of the data and protection of the process from corruption. These very important matters that have been raised with the Parliament by the Law Society should be examined, and we should take the time needed to ensure that we get the best possible model for this very important legislation. I hope these matters will be considered by the Government, the Opposition and the crossbenchers in the upper House.
Mr WHELAN (Strathfield—Minister for Police) [12.35 p.m.], in reply: I thank honourable members for their contributions to this important debate. The honourable member for Bligh and other honourable members have referred to the submissions made by the Bar Association. The Government always welcomes input from the Bar Association, which has made a very thoughtful contribution. However, the issues raised by the association have been well considered by the Government. Although the contribution by the Bar Association has been recognised by all members in this House, it appears that the Opposition does not support the view of the Bar Association, as indicated by the honourable member for Gosford. The Opposition has given me the opportunity to look at amendments it intends to move. The Government will agree to the amendments to be moved by the honourable member for Epping.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 122
Mr TINK (Epping) [12.37 p.m.], by leave: I move Opposition amendments Nos 1 to 7 in globo:
No.1 Page 2, clause 2, line 7. Insert "except as provided by subsection (2)" after "proclamation".
No. 2 Page 2, clause 2. Insert after line 7:
(2) Section 121 commences on the date of assent.
No. 3 Page 92, clause 121 (1), line 7. Omit "18 months". Insert instead "2 years".
No. 4 Page 92, clause 121 (3), line 13. Omit “"8-month". Insert instead "2-year".
No. 5 Page 92, clause 121. Insert after line 15:
(4) The Ombudsman may at any time make a special report on any matter arising out of the operation of this Act to the Minister.
No. 6 Page 92, clause 121 (4), lines 16 and 17. Omit all words on those lines. Insert instead:
(4) The Minister is to lay (or cause to be laid) a copy of any report made or furnished to the Minister under this section before both Houses of Parliament as soon as practicable after the Minister receives the report.
(5) If a House of Parliament is not sitting when the Minister seeks to furnish a report to it, the Minister may present copies of the report to the Clerk of the House concerned.
(6) The report:
(a) on presentation and for all purposes is taken to have been laid before the House, and
(b) may be printed by authority of the Clerk of the House, and
(c) if printed by authority of the Clerk, is for all purposes taken to be a document published by or under the authority of the House, and
(d) is to be recorded:
(i) in the case of the Legislative Council - in the Minutes of the Proceedings of the Legislative Council, and
(ii) in the case of the Legislative Assembly - in the Votes and Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the report by the Clerk.
No. 7 Page 92, clause 122 (4), lines 27 and 28. Omit all words on those lines.
I understand that the amendments are not opposed by the Government. The amendments are designed to enhance the powers of the Ombudsman to oversight the legislation and, in particular, to provide the Ombudsman with a specific power to make special reports to Parliament at any time on any matter arising out of the operation of the Act through the Minister. In addition, the Minister is required to lay upon the table of both Houses of Parliament at the earliest opportunity a copy of the report of the Ombudsman. For practical purposes, contemporaneously with the Minister being made aware of the special reports and any concerns within them, the Parliament is also informed. Previously at times there has been considerable delay in the Parliament being informed of the contents of reports to the Government. I am not singling out the police ministry in this regard, because it has been the case in a whole range of matters. The Opposition strongly believes that because this legislation is of fundamental importance any concerns of the Ombudsman about which he seeks to make the Government aware should be made known to the Parliament at the same time.
The current provision requiring the Ombudsman to make a substantive report at the end of 18 months remains an important provision and should not be superseded or overtaken by the proposal to report at any time. We want to maintain the provision of a report after an 18-month period. When the Minister receives a copy of the report we would like a copy to be tabled in both Houses of Parliament. To make that point crystal clear: the amendment states that if the Parliament is not sitting, the report should be tabled using the appropriate procedure through the Clerks or the Speaker. In that way, the contemporaneous reporting is emphasised in these amendments. The final point is to amend the 18-month period to two years, but it will not change the intent of the time for the Ombudsman to report. June 2002 is the date for reporting under current legislation, which comes into effect in January next year. June 2002 is appropriate for the main report on the bill, subject to any reports in the mean time. We are moving to insert two years in lieu of 18 months to reach the same effective date, but that amendment is to commence on the date of assent rather than of proclamation.
In the past, because amendments passed by both Houses of Parliament were required to come into effect only on proclamation, some were never proclaimed by this Government. We want these amendments to have effect from the date of assent. I understand that the strong constitutional convention is that the Governor's assent happens within a very short time of bills being passed through the Parliament. We want to avoid the problems of the past of bills never being proclaimed. In effect, the amendments will be operative in a couple of weeks time. As the Minister said in his second reading speech, although police training will commence straightaway, the Act will effectively commence at the beginning of next year, but a further six months must be added for the clause to start on the date of assent and not on proclamation. Although the length of time is being changed, the date will not. We believe that is appropriate to ensure the amendments have practical effect.
Mr WHELAN (Strathfield—Minister for Police) [12.43 p.m.]: As I indicated earlier, the Government agrees to the amendments.
Amendments agreed to.
Clauses 1 to 122 as amended agreed to.
Schedules 1 and 2 agreed to.
Bill reported from Committee with amendments and report adopted.
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