Chris Hayes (Werriwa, Australian Labor Party) Share this | Hansard source

By and large the Crimes Legislation Amendment (Miscellaneous Matters) Bill 2008 could probably be classified as one of those bills which are reasonably technical in nature. It really makes three essential changes. It varies the Australian Federal Police Act 1979 to reinstate a penalty provision for breach of secrecy. It amends the Crimes Act 1914 to alter the timing for a second independent review of part ID of that act, which deals with the application of review of the national DNA database. Thirdly, it amends the Crimes Aviation Act 1991 to install the terms of the common Criminal Code as it applies in the ACT and in the Jervis Bay territory for all purposes of transportation in and out of the country, including on airlines. I will go to each of these in turn.

Firstly, I will deal with the AFP Act and the provisions of secrecy. Mr Deputy Speaker Bevis, I know you had a very clear interest in this matter when the former government decided to establish the Australian Commission of Law Enforcement Integrity. As you would recall, this commission was established to look at integrity regimes as they applied through the Australian Federal Police and the Australian Crime Commission. I understand that the minister may be considering extending that to other areas of federal law enforcement, but that was the way the act was originally initiated. It was to carry out the same sort of activity as one would find, for instance, in the Police Integrity Commission in my home state of New South Wales and ensure that the integrity of the Australian Federal Police and the Australian Crime Commission did allow for the conducting of operations by the law enforcement integrity commission. It has coercive jurisdiction. It can compel people to answer its questions. It is a body to ensure that appropriate standards are being met by our senior law enforcement agencies. I know some would say that that was all just a matter of fact, but these were very significant changes at the time because since 9-11 we have given significant powers to our federal law enforcement agencies and what goes with those powers is responsibility. As we have seen in a recent exercise, unfortunately in New South Wales, involving their crime commission shows how important it is that we do everything that we physically can as legislators to ensure the integrity of those officers working within those bodies.

In establishing the Australian Commission of Law Enforcement Integrity, variations were made to the act and principally variations were made also to the Australian Federal Police Act, in particular provision 60A of that act. Section 60A made it an offence for officers engaged under that act to divulge certain information, to make a record or to distribute information. Those provisions were quite significant. The secrecy provisions had a provision of up to a two-year period of imprisonment for breaching that legislation.

With the advent of ACLEI and its own act, for some reason—inadvertently, as I understand it—the AFP Act was varied to remove that part of 60A(2) which dealt with the secrecy provisions and in particular the terms of breach of the secrecy provisions. This bill before us purports to reinstate the provisions of retrospectivity without impacting on the general scheme of arrangement in terms of the law enforcement integrity commission and its act but to ensure that officers and personnel employed under the AFP Act are still bound by the secrecy provisions of the AFP itself. So that is what that provision attempts to do through this relatively minor amendment which in terms of law enforcement integrity, certainly the integrity and discipline of the Australian Federal Police, would be regarded as a significant rectification of a deficiency in the legislation.

The second aspect deals with the Crimes Act and seeks to amend section 23YV(5)(a). This deals with the second scheduled review of the national DNA database. I recall only too well the time I spent before coming to this place in lobbying federal members of parliament and the government of the day for the establishment of the national DNA database. More particularly, I recall lobbying many state and territory jurisdictions to ensure that we had mirror legislation established. It was a matter not just of agreeing to have a national DNA database but also of agreeing to standards and procedures under which, by law of the various jurisdictions, samples could be taken and held for the purpose of further comparison. The national DNA database is one of the most significant tools of contemporary policing. Most state and territory governments certainly agreed with the establishment of the database and, although it may have gone beyond most aspects of the Constitution in terms of law enforcement, the federal government at that time committed something like $50 million for its establishment. To put it in colloquial terms, it might have been the Commonwealth’s buy-in to that arrangement, but it has certainly had a significant impact on policing across the board. Whilst all of the state and territory ministers seemed to be able to come together and agree that this was a good piece of kit for modern-day policing, by the time they all returned to the various parliaments from whence they came the odd variation got into this common piece of model legislation that was to be developed.

It came to a head with the Peter Falconio case in the Northern Territory. The Northern Territory Police were very keen to ascertain a possible match from DNA taken from a suspect. The suspect was in South Australia. They had the sample taken, only to find that the manner in which the sample was taken was not admissible in a court in the Northern Territory because, whilst government was going to enact mirror legislation, as it transpired there were significant differences between the enabling legislations, such that the sample was not admissible in that court. I have represented police officers for many years, and one of the things that has constantly been put to me is that crime and criminals do not exactly observe geographic boundaries. That being the case, it would seem a little erroneous on our part to have legislation that was not compatible in each of our respective criminal jurisdictions. That is how the DNA data profiling and the establishment of the DNA database came about. In its time it was a laudable event. It certainly was one of the biggest impacts on modern-day policing, but there are still things that need to be examined. One of those things is to protect the liberties of men and women who have, for some reason, had their DNA collected. It is important to ensure that their rights are not being abused and that the procedures established in this legislation are followed.

This aspect of the bill defers that second investigation, the second review period. Having been engaged in the past to represent police from just about every state and territory jurisdiction, I am aware that the establishment of the national DNA database not only has increased the number of arrests but also has had the effect of eliminating a number of people as suspects in various crimes. That in itself is also a significant development. This database has been operational for some time and we are doing much to ensure that each of our forensic laboratories in every state and territory jurisdiction fully complies. We are also improving the degree of matching investigation and the way the information is discarded. That will all be addressed in this second review. The national criminal investigation database was the result of genuine collaboration and cooperation of state, territory and Commonwealth police services and their forensic units. It provides police access to a national DNA database and the capability to conduct rapid automated interjurisdictional and ultrajurisdictional DNA profile matching. This is provided under very strict guidelines laid down by this legislation. There are also disclosure safeguards in accordance with the privacy legislation and other relevant legislation. Procedural compliance will also be examined in this second review.

The database itself is operated by CrimTrac. One of the things about CrimTrac is that they do not source their own information; information is only actually put on the database by state and territory police jurisdictions and is then capable of being accessed. To that extent, CrimTrac do operate as a major search engine—or at least a sort of matching engine, if you like—when it comes to DNA profiling. At the moment all states and territories, with the exception of New South Wales and Victoria, have signed on to having a common application. In terms of New South Wales and Victoria, whilst they are still waiting for some legislative aspects to come into play before they can legally commit, nevertheless they are following the identical pattern now of how they go about collecting information and what information is to be stored on the national database. So a common standard is actually being applied.

I did indicate that I know, having worked for the police in the past, that the national DNA database is considered to be probably the most significant advance in contemporary policing. Having said that, I would like to talk about a person whom I know you, Mr Deputy Speaker Bevis, know well—Peter Alexander, who was the president of the Police Federation of Australia for the last 10 years. Quite frankly, he spearheaded the approach of the development of what could be seen as the police profession itself. He is one of those individuals who was absolutely convinced of the merit of establishing a national DNA database as a tool for contemporary policing. I should advise you, Mr Deputy Speaker, that, after serving as head of the PFA for 10 years and as head of his own association in South Australia for 17 years, Peter has only just retired. I had the opportunity to spend some time with him last weekend. As a person who has spent so much time on criminal investigations as a senior sergeant of a major crime squad in South Australia, it was very interesting to hear his thoughts on what has changed in policing—apart from the criminals—in terms of the ability of the police to do their work efficiently and effectively and to serve the community.

Without putting too fine a point on it, one of the biggest things that he suggested has changed is technology, and the DNA database itself is what has established a significant amount of that change—a change not just because of what it did in relation to being able to data-match DNA samples across the nation but also because this, together with the national fingerprint register, actually brought criminal investigation intelligence into some form of central repository. It gets back to what I said a little earlier—that is, criminals do not necessarily respect geographic boundaries; therefore, it stands to reason that we should not simply have states and territories with stand-alone technology which works against the ability for crimes to be detected.

People say that that should have been dealt with years ago. It probably should have. There was something that came up only recently in an inquiry held by the committee oversighting the Australian Crime Commission. In that inquiry Mark Burgess, who is the Chief Executive Officer of the Police Federation of Australia, referred to the shooting of a police officer which took place in Karratha. The shooting was actually committed by a person who was suspected of murdering two people only a couple of days earlier in Victoria. Talking about offender William Watkins, Mr Burgess said:

Watkins had three days earlier murdered sisters Colleen and Laura Irwin in Melbourne. He had then driven 5½ thousand kilometres in those three days to Western Australia, where he came under the notice of Senior Constable Shane Gray at Karratha for failing to pay for petrol.

So he did a runner from a petrol station. Mr Burgess continued:

When Gray did a check on Watkins via the Western Australian police computer system he was not shown as wanted or a suspect on the system.

Unfortunately for the constable involved, when he went to actually stop this bloke for what he thought was just not paying his petrol bill, the constable was shot. What Mike Burgess draws from that is that one of the things we could do more effectively is to take a leaf out of what we did in establishing the national fingerprint registry and also the national database and look at having a single national case management system where all intelligence could be captured and whereby police from each state would be able to know what they were likely to be confronting on a case-by-case basis. (Time expired)

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