Page 2740 - Week 07 - Thursday, 3 July 2008
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With regard to clause 16, is “reasonable force” reasonable? The explanatory statement’s discussion of the definition of “reasonable force” was highlighted by the scrutiny of bills committee as it “cannot have any effect on what a court might say that the concept meant”. I have been advised that while the court is not required to consider the explanatory statement it is unlikely that it would not be brought to the court’s attention if the interpretation of the term “reasonable force” was raised in a hearing.
I also accept that reasonable force, as outlined in the explanatory statement, is appropriate to enable a non-intimate forensic procedure to be carried out if absolutely necessary and that a court order will be sought to allow reasonable force for intimate forensic procedures and suspects not in custody. The onus is now on the AFP to demonstrate that it respects what should be its obligations under the ACT Human Rights Act in its performance and application.
Clause 18 enables a magistrate to make an order without a suspect being present. The amended sections are generally left as is, with the change allowing for orders to be made for suspects currently in the custody of another state and where audio or audiovisual link is not practicable. I hope that this signifies greater collaboration between jurisdictions, which is certainly one of the aims of this bill, and that the other states will make every effort to ensure that the suspect can be present in some form for the hearing.
The first reading of clause 44, which amends section 68, caused some debate in my office. But after closer inspection, I am assured that there is no outstanding privacy or human rights issue with the amendment which clarifies “that a forensic procedure may be carried out on a serious offender even if the serious offender is also a volunteer or suspect”.
This bill aims to improve the human rights compliance of the act. The scrutiny report did not raise this clause as a concern and, most reassuringly, if the offender feels that their rights have been breached in this instance there are avenues for appeal, either through this legislation or through relevant agencies such as the Human Rights Commission.
The scrutiny report did raise the point that there may be some discrepancies between the new section 92—clause 65—and another section of the bill. I am hoping that Mr Corbell will address this in his closing speech or in the response to the scrutiny of bills committee report, which I hope does not occur after the legislation is passed.
Also, in relation to this clause, I would like to discuss the changes regarding the destruction of forensic material and the removal of identifying information. I agree with the changes which retain the existing measure to ensure that DNA information is removed from the database after one year. I also accept the practicality of being able to retain forensic material for the life of the court proceedings. I am happy with the provisions for the removal of DNA information and the destruction of forensic material for volunteers.
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