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CRIMES AMENDMENT REGULATIONS 1998 (NO. 2) 1998 NO. 361Explanatory Statement
Statutory Rules 1998 No. 361
Issued By the Authority of the Minister for Justice and Customs
Crimes Act 1914
Crimes Amendment Regulations 1998 (No. 2)
The Crimes Amendment (Forensic Procedures) Act 1998 (the FP Act) was passed by the Commonwealth Parliament on 3 July 1998. Schedule 1 of the FP Act inserts a new Part 1D in the Act. The FP Act received Royal Assent on 23 July 1998 and commenced on 24 January 1999.
The FP Act lays down a principled and balanced regime for carrying out forensic procedures during the investigation of Commonwealth offences, and for the storage, use and destruction of material derived from those procedures. It carefully balances the rights of the suspect against the public interest in gathering evidence of serious offences. The rights and interests of suspects are protected by providing numerous safeguards, and by requiring scrutiny of magistrates before the carrying out of most procedures where a suspect does not or cannot provide consent. Further safeguards have been built in to protect those under 18, incapable persons, and Aboriginal persons and Torres Strait Islanders, as those groups may be particularly vulnerable in the circumstances contemplated by the Act.
Appropriately qualified persons
The purpose of the regulations is to supplement the classes of persons who are qualified to perform a forensic procedure under paragraph (a) of the definition of "appropriately qualified", appearing in sub-section 23WA(1) of the FP Act.
Section 23XM of the FP Act contains a table that identifies the persons who may perform each forensic procedure. As indicated by that table, each forensic procedure (with the exception of the taking of a dental impression, hand print, finger print, foot print or toe print) may be performed by an "appropriately qualified person". Under sub-section 23WA(1) of the Act, "appropriately qualified", in relation to carrying out a forensic procedure, means having suitable professional qualifications or experience to carry out the forensic procedure, or qualified under the regulations to carry out the forensic procedure.
At the time the Act was passed, it was considered appropriate to have a flexible definition of "appropriately qualified". That was to ensure that, subject to Parliamentary scrutiny, appropriate classes of persons could be added more rapidly to reflect changing qualifications and standards.
Regulation 1 is a formal clause providing for the citation of these amending regulations.
Regulation 2 provides that these regulations would commence on 24 January 1999.
Regulation 3 is also a formal clause providing for amendment of the Crimes Regulations as set out in Schedule 1 to the amending regulations.
Schedule 1 Amendments
Item 1 deletes Regulation 1 and amends the citation of the Regulations to the Crimes Regulations 1990. That new title of the Regulations reflects a revised approach to the of Commonwealth regulations.
Item 2 - Appropriately qualified persons
Item 2 inserts regulation 6B in the Regulations to provide that, for the purpose of paragraph (b) of the definition of "appropriately qualified" in section 23WA of the Act, a person mentioned in an item in Schedule 3B is qualified to carry out the forensic procedure mentioned in that item (subregulation 6B(1).
Subregulation 6B(2) provides that a reference to "forensic scientist" or "forensic technician" is a reference to a person engaged (whether as an employee or otherwise) in that capacity by the Australian Federal Police (AFP) or a State or Territory police force or service.
Forensic scientists and forensic technicians are employed in the Forensics Services Unit of the AFP and in equivalent forensics units of State and Territory Police services. Forensic scientists and forensic technicians are well qualified to assess forensic evidence; to collect forensic samples in accordance with proper medical procedures, where appropriate and in a manner that ensures a sufficient representative sample is collected; and to treat a sample in a manner best suited to preserving its integrity.
Item 3 - Appropriately qualified persons
Item 3 inserts Schedule 3B in the Regulations which contains a table listing appropriately qualified persons and the forensic procedures that those persons may perform. These groups have been chosen to ensure that only qualified persons are permitted to carry out forensic procedures.
In addition to forensic scientists and forensic technicians, Schedule 3B provides that medical practitioners and constables are authorised to carry out some forensic procedures. Medical practitioners are well qualified to carry out procedures referred to in items 7 and 13 of the Table in Schedule 3B.
In respect of constables, they are authorised to carry out forensic procedures mentioned in items 2, 3 and 13. Forensic procedures listed in items 2 and 3 are regarded as "intimate forensic procedures" under the FP Act. Under item 2 of the Table, a constable is authorised to take a sample of blood by fingerprick. In addition, item 3 of the table authorises a constable to take a sample of saliva, or a sample by buccal swab. In the absence of a suspect's consent, such procedures may only be carried out by order of a magistrate.
While taking a mouth swab or a blood prick sample is rightly an intimate procedure which should be authorised by a court, the question of who carries out the procedure is a different issue. That issue is to do with whether the person carrying out the intimate procedure is appropriately qualified. While it is appropriate that a medical practitioner, nurse, forensic scientist and forensic technician should be the only people who take a full blood sample, the simpler procedures involved in taking a mouth swab or blood prick can be performed by constables.
The regulations commenced on 24 January 1999.