Page 2822 - Week 09 - Thursday, 13 August 2015
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The bill also makes a number of key amendments to the Crimes (Forensic Procedures) Act 2000 which have been raised by the Aboriginal Legal Service of New South Wales and the ACT and ACT Policing. The first amendment includes a requirement that a police officer, when intending to ask an Aboriginal or Torres Strait Islander person to consent to a forensic procedure, inform a suspect that the Aboriginal Legal Service will be notified. These amendments build on a significant body of law that makes special provision to protect Aboriginal and Torres Strait Islander peoples and their rights in the context of their contact with law enforcement generally.
Secondly, a mechanism has been inserted in the act to allow an Aboriginal or Torres Strait Islander person to decline the presence of an interview friend or lawyer during a forensic procedure. This recognises that Aboriginal or Torres Strait Islander people in police custody will at times have a lawyer assisting them in relation to another matter. Allowing an Aboriginal or Torres Strait Islander person to waive the right to have an interview friend or lawyer present will allow police officers to take material without delay in circumstances where it is appropriate to do so.
Thirdly, the definition of incapable in the act has been expanded to include adults who are incapable or temporarily incapacitated and unable to give consent to a non-intimate forensic procedure. This includes, but is not limited to, situations where the person is incapacitated by the effect of drugs, alcohol or sedation. The class of people authorised to give consent for a non-intimate forensic procedure on behalf of the incapable or temporarily incapable adult has also been expanded to include “close associates”.
This new category of authorised people includes a domestic partner, a carer, a close relative or close friend of the incapable person. The close associate must be over 18 years old and have decision-making capacity. This amendment will streamline procedures and allow a broad class of people to provide consent where a person is incapable of making an informed decision and an authorised person cannot be located.
The bill also makes amendments to schedule 1 of the Bail Act to correctly reference part 9.1 of the commonwealth Criminal Code Act 1995 which reflects the change already made to commonwealth law for serious drug offences. This amendment gives effect to the original intention of the Bail Act by applying a neutral presumption for bail in relation to serious drug offences in the ACT criminal code. The amendments to the Bail Act raise important human rights issues which have been addressed in the explanatory statement.
The Bill also proposes amendments to the Crimes (Sentencing) Regulation 2006 to allow the use of victim impact statements for category 2 offences under the Work Health and Safety Act 2011. This will be limited to offences where there is exposure to a risk of death or serious injury or illness actually resulting in death, serious injury or illness. Currently industrial manslaughter under part 2A of the Crimes Act and category 1 offences under section 31 of the Work Health and Safety Act are the only offences that allow for a victim impact statement to be used. However, due to the high thresholds to prove these offences there are occasions where it is only possible to lay a category 2 charge, despite there being a death, serious injury or illness. This amendment will allow a victim impact statement to be used more often.
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