Report of the review of Division 11A of Part 1D of the Crimes Act 1914 - Forensic Procedures - July 2004
Executive Summary
This review arises from section 23YUK of Division 11A of the Crimes Act 1914 which requires the Commonwealth Minister for Justice to commission an independent review of the operation of Division 11A as soon as possible after the first anniversary of the commencement of the Division. The Division commenced operation on 12 October 2002.
The Review was initiated on 14 October 2003 but notification of the Review and the calling for submissions (by newspaper advertisements) was delayed until the end of January 2004 to avoid any adverse impact on the next of kin of the Bali victims over the Christmas period.
Division 11A was enacted in urgent circumstances immediately following the Bali bombings on 12 October 2002 to facilitate the identification of victims by DNA analysis. The new legislation was necessary because the original scheme for the sharing of DNA profiles amongst Australia’s jurisdictions (Part 1D of the Crimes Act) was directed to assisting law enforcement investigations and did not assist disaster victim identification (DVI). Division 11A authorises the comparison of DNA profiles for DVI purposes. Further the existing regime did not permit the sharing of DNA information outside Australia. Division 11A authorised the sharing of such information with other countries.
It is important to note that DNA analysis was only one means of DVI used following the Bali bombings. Approximately 60% of the victims were identified within 21 days using dental evidence. Nevertheless, DNA analysis was extremely valuable in assisting identification in the more difficult cases, confirming other evidence of identification, and in assisting in the matching of body parts recovered from the scenes of the bombings with deceased persons.
All submissions supported the continuation of Division 11A. The Review concludes that Division 11A was very effective in achieving its legislative purposes and recommends it should continue in operation.
The principle deficiency exposed in the Review was that Division 11A, being confined to overseas incidents, does not apply to assist DVI if similar mass casualty incidents occurred in Australia. This issue was raised in a number of submissions. The Review concluded that this matter could not await the Review’s final report and accordingly the Chair of the Review wrote to the Minister for Justice and Customs on 8 April 2004 recommending an early resolution of the problem. The Review is gratified to note that amending legislation dealing with the issue was introduced into the Parliament on 24 June 2004.
The submissions raised a number of issues directed to improving Division 11A. These issues are considered in Chapters 5 and 6. Ultimately the Review recommended relatively few changes, other than in relation to the domestic incidents issue. The remaining recommendations are that:
- It would be appropriate to amend paragraph 23YUF (2) (a) by the insertion of the word“may” after “residents” so that it would read “one or more Australian citizens or residents may have died in or as a result of the incident…”. The purpose of this recommendation is to broaden the Minister’s discretion in the application of Division 11A to those situations where it may not be certain initially that Australians have been killed.
- The issue of greater separation of DNA regimes for DVI and criminal investigation be considered in the 2005 review of Part 1D.
- In any future application of Division 11A, a standard AFP information sheet should be given to relatives in all jurisdictions when collecting DNA samples, including both an explanation of the matching process and retention of samples, and the personal information collection notice requirements under the Privacy Act 1988.
Finally, two important matters should be noted. First, this Review did not encompass the whole response to the Bali bombings, it was confined to the DNA processes facilitated by Division 11A.
Second, both in relation to DNA processes and otherwise, the States and Territories played an important role in the response which should be recognised. This role underlines the fact that mass casualty events of this scale are beyond the capacity of any individual Australian jurisdiction to cope with, and require effective cooperation across all jurisdictions. The involvement of other countries, notably Indonesia, was also crucial both in the DVI and criminal investigation relating to the Bali bombings. It is important to remember that the role of the AFP was to assist the Indonesian National Police in the DVI and criminal investigation of the Bali bombings.
