Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

The question was asked: why are we amending section 19B of the Crimes Act? As Senator Ludwig has pointed out, during the debate that we had in the Senate on 8 November this year, Senator Ludwig asked why the government was amending section 16A of the Crimes Act but not amending section 19B. I took that on notice at the time. That position was considered and examined by the government, which agreed that it is appropriate to amend section 19B as well as section 16A to bring consistency to the sentencing provisions in the Crimes Act.

As well as that, there are amendments on forensic procedure. We are removing the term ‘cultural background’ from the forensic procedure provisions. The reason for that is that the cultural background of a suspect should not be a factor in determining 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 can avoid undergoing a procedure that provides evidence which may lead to their prosecution and conviction when a person from another ethnic group would have no choice but to undergo that forensic procedure.

Of course, when we are looking at forensic procedures such as those to do with DNA, they are often relevant to violence offences. I would suggest that in violent sexual offences and sexual offences generally the forensic evidence is an essential and common feature. Certainly, the question has been asked as to why we are taking out ‘Aboriginal customary beliefs’. The government believes there is no need to keep the current references to ‘Aboriginal customary beliefs’ in the forensic procedure provisions. The government has received legal advice that the term ‘religious beliefs’ is wide enough to pick up any type of religious or customary belief.

By amending these provisions in the Crimes Act, the Commonwealth is demonstrating leadership in an important area and is continuing to improve the criminal justice system for all Australians. I think these issues were canvassed by the Attorney-General in the House of Representatives. It is important, if the government sees that it can improve its legislation, even while it is before the parliament, that that be done, and that is what the government is doing in this case.

Senator Ludwig raised this issue by way of a question in the previous debate we had. The government have looked at it and are of the view that it needs to be amended. Accordingly, we have done that. As I said at the time, cultural background can still be considered under the term ‘antecedents’, which is broad enough for that to be included. We do not believe the term ‘cultural background’ should have that special significance. Having it in the legislation in that manner could lead to it having undue significance. I think that in the circumstances it was appropriate that the government act, and we have.