Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Hansard source

by leave—I table a supplementary explanatory memorandum in relation to amendments (1) to (5) and I move:

(1)    Schedule 1, page 5 (after line 4), after item 5, insert:

5A  Subparagraph 19B(1)(b)(i)

Omit “cultural background,”.

5B  After subsection 19B(1)

Insert:

     (1A)    However, the court must not take into account under subsection (1) any form of customary law or cultural practice as a reason for:

             (a)    excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or

             (b)    aggravating the seriousness of the criminal behaviour to which the offence relates.

      (1B)    In subsection (1A):

criminal behaviour includes:

             (a)    any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and

             (b)    any fault element relating to such a physical element.

(2)    Schedule 1, page 5, after proposed item 5B, insert:

5C  Paragraph 23WI(3)(c)

Omit “age, physical and mental health, cultural background and (where appropriate) religious beliefs”, substitute “age, physical health and mental health”.

5D  Paragraph 23WI(3)(d)

Repeal the paragraph.

5E  At the end of section 23WI

Add:

        (4)    Without limiting the matters that the constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the constable must (where appropriate) take into account the religious beliefs of the suspect.

(3)    Schedule 1, page 5, after proposed item 5E, insert:

5F  Paragraph 23WO(3)(c)

Omit “age, physical and mental health, cultural background and (where appropriate) religious beliefs”, substitute “age, physical health and mental health”.

5G  Paragraph 23WO(3)(d)

Repeal the paragraph.

5H  At the end of section 23WO

Add:

        (4)    Without limiting the matters that the senior constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the senior constable must (where appropriate) take into account the religious beliefs of the suspect.

(4)    Schedule 1, page 5, after proposed item 5H, insert:

5J  Paragraph 23WT(3)(c)

Omit “age, physical and mental health, cultural background and (where appropriate) religious beliefs”, substitute “age, physical health and mental health”.

5K  Paragraph 23WT(3)(d)

Repeal the paragraph.

5L  At the end of section 23WT

Add:

        (4)    Without limiting the matters that the magistrate may take into account in considering, for the purposes of paragraph (3)(f), the intrusiveness of the forensic procedure, the magistrate must (where appropriate) take into account the religious beliefs of the suspect.

(5)    Schedule 1, item 6, page 5 (line 9), omit “items 4 and 5”, substitute “items 4 to 5L”.

criminal behaviour includes:

In relation to these amendments, which I spoke to in the second reading debate, the question was raised during the debate on the bill in the Senate as to why section 16A and not 19B of the Crimes Act was being amended. Also, the sentencing part of the Crimes Act was not being amended. The government considered the position and agreed that it was not consistent to amend one and not the other. Both sections deal with sentencing of Commonwealth offenders. In our view, it is not appropriate in either case that there be a specific reference to cultural background, and the proposed amendments will make changes to section 19B to parallel those already made to 16A.

In relation to the measures dealing with forensic procedure provisions, in our view the cultural background of a suspect should not be a factor used to determine whether or not they provide a forensic sample. It is not acceptable that there be a possibility, even a remote one, that a person from one ethnic group may avoid undergoing a procedure which provides evidence which may lead to their prosecution or conviction in circumstances where a person from another group would have no choice but to undergo testing.

There are issues in relation to religious beliefs which we are leaving intact. There is a difference between a person’s cultural background and their deeply held personal beliefs. It is clearly appropriate to take the latter into account in deciding how that person should be dealt with under law enforcement processes. That might apply to Indigenous people in the same way as it would to others. It needs to be borne in mind that there will be a range of options available for collecting DNA samples. If a person has a deeply held religious belief and that should be a factor in deciding which of those options were used, then the provisions will be amended to ensure that religious belief is only relevant to deciding what type of testing is to be carried out, not whether there should be testing in the first place. For instance, some people for religious reasons do not believe that a sample of blood should be taken. A DNA sample might be able to taken in a less intrusive way and still achieve the same outcome. We think that draws the appropriate balance between protecting deeply held beliefs while still enforcing the criminal law in a fair way.

Why are we taking out Aboriginal customary beliefs? In our view, there is no need to keep the current references to Aboriginal customary beliefs in DNA testing. We have clear advice that the term ‘religious beliefs’ is wide enough to encompass deeply held personal beliefs of a kind that should not be taken into account under the provisions. Whatever specific religion those are based on, the term is wide enough to pick up beliefs based on Aboriginal religion as well as any other religion. The change will make the point that all that is relevant under those provisions is a deeply held personal belief, and that will avoid any argument as in the case of Aboriginal suspects that there are other matters that should be taken into account. Removing the reference to Aboriginal customary or cultural beliefs will avoid any potential ambiguity.

In summary, the amendments will make certain that a court cannot take into account any form of customary law or cultural practice as a reason for lessening or aggravating the seriousness of the criminal behaviour that a court is considering and that customary law and cultural practice cannot be used as a basis for avoiding DNA testing. I commend the amendments to the House.

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