Page 3303 - Week 11 - Tuesday, 22 September 2015
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legislation after drug importation offences were moved from the Customs Act to the Commonwealth Criminal Code. The result is that courts can apply a neutral presumption for bail for certain serious drug offences, which is consistent with the bail presumptions for drug offences in the ACT Criminal Code.
When it comes to Aboriginal and Torres Strait Islander notification, the bill amends the process that must be followed when police wish to undertake a forensic procedure on an Aboriginal or Torres Strait Islander person. It requires that the Aboriginal Legal Service is notified of the procedure. This change, like other considerations police must give to Aboriginal and Torres Strait Islander people in custody, seeks to ensure that Aboriginal and Torres Strait Islander people are treated fairly, respectfully and legally and that they have support and assistance with cultural issues. These types of provisions were first implemented in response to the Royal Commission into Aboriginal Deaths in Custody.
The need for these specific provisions arises from the evidence to a New South Wales committee on forensic procedures that bodily samples are used by Aboriginal and Torres Strait Islander people for spiritual purposes and, as a result, they may be reluctant to give such samples. As the bill’s explanatory statement states, the amendments allow Aboriginal and Torres Strait Islander people an opportunity to seek support from interview friends and to seek advice from legal representatives.
These types of provisions mean, of course, that special considerations are given to certain classes of people. It is a clear and well-developed aspect of human rights and anti-discrimination laws that differential treatment is sometimes necessary to try and advance the rights of a particular disadvantaged group or to try and achieve a human rights purpose. Treating every person in exactly the same way does not achieve an equal outcome because it does not acknowledge people’s different circumstances, for example, historical disadvantage and cultural issues. This is particularly the case for Australia’s indigenous people.
In terms of identifying material, the bill will introduce a new limited circumstance in which police can take identifying material from young people, non-intrusive identifying information from young people, which are fingerprints, photographs—including video recordings—samples of handwriting and voice recordings.
The addition of this power addresses a gap in the law relating to taking material for identification from people under 18 years of age. Police previously had this power but the section was contained in the old Children and Young People Act and was not reproduced when the act was updated in 2008. The result is an operational constraint for police when dealing with children and young people.
Whether a police officer can take identifying material and what safeguards are required differs depending on the age of a person and the circumstances. For example, a magistrate’s order is required for the taking of identification material if the person is under 18 years old and not in police custody, if the person is under 16 years old and is in police custody, or if the person is 16 years old, in police custody and is impaired.
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