Advice regarding collection of information about serious crimes

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					      Advice regarding collection of information about serious crimes – UNSW HREC



CRIMES ACT 1900 – Section 316 Concealing serious indictable offence

1.    SECTION 316 OF THE CRIMES ACT PROVIDES:

      (1)    If a person has committed a serious indictable offence and another person who knows or
             believes that the offence has been committed and that he or she has information which
             might be of material assistance in securing the apprehension of the offender or the
             prosecution or conviction of the offender for it fails without reasonable excuse to bring
             that information to the attention of a member of the Police Force or other appropriate
             authority, that other person is liable to imprisonment for 2 years

      (2)    […]

      (3)    […]

      (4)    A prosecution for an offence against subsection (1) is not to be commenced against a
             person without the approval of the Attorney General if the knowledge or belief that an
             offence has been committed was formed or the information referred to in the subsection
             was obtained by the person in the course of practising or following a profession, calling
             or vocation prescribed by the regulations for the purposes of this subsection.

      (5)    The regulations may prescribe a profession, calling or vocation as referred to in
             subsection (4).



2.    CLAUSE 6 OF THE CRIMES (GENERAL) REGULATION PROVIDES:

6.    Concealment of offences by certain persons

      For the purposes of section 316(4) of the Act, the following professions, callings or vocations
      are prescribed:

      (g)    a researcher for professional or academic purposes



3.    WHAT DOES THE ACT AND REGULATION SAY

      Section 316 in essence requires anyone that knows or believes that a serious criminal offence
      has been committed to report information of material assistance to the Police Force or other
      appropriate authority. Failure to do so “without reasonable excuse” makes a person liable to
      imprisonment for two years.
4.   Prosecution for an offence under s316(1) is not to be commenced against, amongst other things,
     a researcher who has obtained information for professional or academic purposes, unless the
     approval of the Attorney General has first been obtained for the commencement of the
     prosecution.

5.   A serious indictable offence is one that can lead to imprisonment for 5 years or more. At the
     present time there does not appear to be any precedent concerning how s316 and the Regulation
     to it would be interpreted with respect to researchers.

6.   LAW REFORM COMMISSION

     Enquiries made by HREC with the Law Reform Commission disclose that there has apparently
     been a great deal of lobbying of the Attorney General by various researchers who have sought to
     obtain more substantial protection from the operation of s316 than is presently the case. See
     below an extract of paragraphs 3.40 to 3.43 of the Law Reform Commission’s Report into s316:

     “3.40 Researchers and research subjects. Information about serious offences is frequently
     disclosed by research subjects to academic and professional researchers engaged in
     criminological and other research. Such research may involve interviews with witnesses,
     particularly victims, or self-reporting by offenders. Field observation of and interaction with
     offenders in the course of ethnographic research may also reveal information about serious
     offences. Other types of research may also incidentally disclose such information. For example,
     health research into euthanasia, alcohol and drug use may reveal information about homicide,
     drug offences and domestic violence.77 The Commission received many submissions which
     argued that researchers should be exempted from s 316.78

     3.41 Institutional ethics committees, which are required to approve research proposals,
     generally require researchers to obtain the consent of research subjects. This involves outlining
     the risks of participation, including the risk that the researcher will report serious offences
     observed in the course of the research, or information about serious offences disclosed to the
     researcher, to police. Several researchers stated that warning potential research subjects about
     s 316 was likely to be a significant impediment to participation in research.79

     3.42 The Commission received numerous submissions which stated that s 316 presents a
     problem for institutional ethics committees. The criteria which ethics committees use to
     determine whether to approve proposed research projects includes whether the proposal would
     involve any illegal conduct by the researcher. It appears that, in many cases, ethics committees
     adopt a technical interpretation of the legal position, disregarding the fact that there is no
     precedent in New South Wales for prosecutions of researchers under s 316. 80 In some cases
     university ethics committees have suspended research projects and in at least one case approval
     has been declined due to the risk of breach of s 316.81

     3.43 There is no case law dealing with researchers either in relation to s 316 or misprision of
     felony. Under the recent amendments to the section, the Attorney General is required to approve
     prosecutions against researchers whose knowledge or belief that a serious offence has been
     committed was acquired during their research projects.82 However, the recent amendments to s
     316 do not specify the types of research protected by this requirement. The technical possibility
     of prosecution of researchers still exists, either where the Attorney General approves such a
     prosecution under s 316(1) or under s 316(2).83 Therefore, participation in research
     theoretically may still be jeopardised by the section. In our view, the confidentiality of
     researchers engaged in appropriate research and research subjects should not be undermined
     by a reporting obligation of the nature of s 316.”