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Scope of DNA testing a worry

News

Cite as: (2009) 83(06) LIJ, p.19

Concerns have been raised about state government plans to increase the number of offences for which police can take suspects’ DNA samples.

By Jason Gregory

Liberty Victoria and the Criminal Justice Coalition (CJC) are wary of proposals to increase “forensic sample crimes” and police powers to obtain DNA.

The proposals are part of the Criminal Investigation Powers Bill, which will strengthen the ability of police to obtain and retain DNA and fingerprints, and simplify procedures for processing the genetic material.

The key stakeholders are also critical about the lack of consultation over the proposals.

While Police Association of Victoria (PAV) secretary Greg Davies and shadow Attorney-General Robert Clark cautiously support the proposals, they are also concerned that the mooted changes have not been publicly examined.

According to the 2009 Statement of Government Intentions, the Bill is planned for introduction within six months.

Police can currently take a DNA sample from a person suspected of having committed a serious indictable offence, such as murder, serious sexual assault or armed robbery, if they possess relevant crime scene material.

Mr Davies and the CJC believe any extension to the powers would likely allow testing for all other Schedule 8 indictable crimes and some summary offences not currently listed as “forensic sample crimes”.

Should those suspected of committing offences such as minor assault or drug offences, offensive behaviour, wilful damage and traffic violations be tested, tens of thousands of samples could potentially be added to the state’s DNA database.

These concerns have been echoed by LIV Councillor Mark Woods.

“Whenever in a free country you are going to impose a greater burden on the citizenry, the government must justify it and show where the current law is flawed and how they will solve the problem, which they are yet to do,” Mr Woods said.

“There are lots of issues, from assuming those who commit a summary offence have the propensity to commit future indictable crimes to someone on the database for shoplifting having to prove their innocence years later after their DNA was found at a jewellery store they had visited the day before it was robbed.”

He said there were major privacy concerns should the DNA database, which feeds into the National Crime Investigative DNA Database (NCIDD), be obtained by other parties.

The planned revamp is part of an overhaul of the Crimes Act 1958 under state Attorney-General Rob Hull’s Justice Statement 2, released in October 2008.

“The government will create a standalone Act to consolidate and simplify the main criminal investigation powers, including the power to obtain fingerprints and DNA samples,” the Justice Statement said.

“The DNA scheme will be expanded to apply to more offences and to simplify processes for police in collecting and retaining DNA.”

However, a spokesperson for Mr Hulls could not reveal what offences may be included or how collection powers would be simplified as “the Act is currently being drafted and no further details are available at this stage”. Nor could the spokesperson give any indication why the public had not been consulted or whether there were plans for such a process.

CJC convenor Father Peter Norden said “the traditional limits have served the community well and you need to be careful when whittling them down”.

Liberty Victoria president Michael Pearce SC said he “cannot see any justification for extending the range of offences to which the DNA testing regime currently applies”.

However, Mr Davies said, while being “cold comfort” for civil libertarians, police would rather the new legislation “go one step too far than one too short”.

“We would rather one person who committed a minor sexual offence be inconvenienced now than have them later victimise people as a serial rapist,” he said.

“It appears, on the face of it, the government may make DNA testing available on a wide range of offences, possibly even beyond indictable matters.

“But, with sufficient privacy safeguards, DNA testing is a proven method of identifying individuals and little different in practice to the taking of fingerprints.”

Mr Clark also believed that swabbing the mouth for DNA was “relatively non-intrusive” and wanted laws governing the collection of fingerprints to be extended to DNA.

Under current Victorian laws, a non-commissioned officer can demand fingerprints be taken from someone suspected of a summary offence.

DNA samples can be obtained voluntarily or with a magistrate’s order, although police ranked inspector or above may authorise a test in exceptional circumstances.

Currently, if convictions are not recorded both DNA and fingerprint samples are destroyed.

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