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ALRC : Keeping track of DNA

Every Issue

Cite as: (2002) 76(10) LIJ, p.82

A discussion paper proposes a unified approach to achieve harmonisation in Australian forensic procedures legislation.

DNA profiling is increasingly used as an intelligence tool to identify or eliminate suspects in criminal investigations. It also may be used to identify victims of crime or mass disasters and, in some circumstances, to exonerate convicted offenders.

The use of genetic information in law enforcement is one of the issues currently being considered in a joint inquiry by the Australian Law Reform Commission (ALRC) and the Australian Health Ethics Committee (AHEC) into the protection of human genetic information.

One of the primary issues to have emerged in the law enforcement context is the lack of harmonisation in the forensic procedures legislation operating in the various Australian jurisdictions.

The Model Criminal Code Officers Committee (established by the Standing Committee of Attorneys-General) released the Model Forensic Procedures Bill (Model Bill) in 2000. The Model Bill provides for the carrying out of “forensic procedures” on suspects, convicted offenders and volunteers to obtain DNA samples for use in criminal investigations, and for the establishment of a DNA database system. The Bill also contains a number of safeguards against the improper taking, use or retention of DNA samples.

However, the Model Bill has not been adopted by all Australian jurisdictions. The Commonwealth, NSW and the ACT closely follow the Model Bill, with some variations. Tasmania and South Australia have followed the Model Bill in some respects, with further variations.

Victoria was the first Australian jurisdiction to implement forensic procedures legislation, predating the Model Bill. Despite subsequent amendment to bring the Victorian legislation into closer conformity with the Model Bill, variations remain.

Western Australia has recently implemented forensic procedures legislation that conforms to the Model Bill in some respects, but with significant departures. Finally, lawmakers in Queensland and the Northern Territory have not followed the Model Bill at all.

These legislative variations gain significance in light of the proposed sharing of genetic information among the federal, state and territory jurisdictions. This form of sharing involves the transfer of DNA samples or profiles in the course of a criminal investigation. Information could be shared through the national DNA database system operated by CrimTrac or, alternatively, on a bilateral basis between jurisdictions.

The Model Bill provides for the sharing of information held on DNA database systems between “participating jurisdictions”. Information sharing is to be based on ministerial arrangements. A jurisdiction may participate if its law relating to the carrying out of forensic procedures and DNA databases “substantially corresponds” to those based on the Model Bill, or is prescribed by the regulations for the purpose of the definition.

As the term “substantially corresponds” is not legislatively defined, this leaves a large measure of discretion for each jurisdiction to determine whether another jurisdiction’s law is sufficiently similar to permit information sharing. Alternatively, a jurisdiction could prescribe another law in regulations regardless of the degree of variation between them.

Notwithstanding the variations from the Model Bill, by the end of August 2002 the Commonwealth had prescribed the forensic procedures legislation of Victoria, NSW, the ACT, Tasmania and Western Australia.

The inquiry has received a number of submissions expressing concern that variations in forensic procedures legislation may result in a “lowest-common-denominator” approach to privacy protections and other legislative safeguards. For example, where a DNA sample is transferred from a jurisdiction with strong privacy and civil liberties protections to a jurisdiction with lesser protections, the safeguards applying in the first jurisdiction may be lost. This would significantly undermine the value of the safeguards, as well as public confidence in the integrity of the national DNA database system.

The inquiry is concerned at the apparent lack of real harmonisation in forensic procedures legislation, particularly in relation to the collection, use, storage and destruction of forensic material and DNA profiles. While several jurisdictions have amended their laws to achieve greater conformity with the Model Bill so as to be recognised as a corresponding law by other Model Bill jurisdictions, these amendments have not gone as far as fully mirroring the Model Bill provisions (or Part 1D of the Crimes Act 1914 (Cth)).

In addition, several jurisdictions have formally prescribed the forensic procedures laws of other jurisdictions as constituting “corresponding laws”, despite some significant variations. For example, New South Wales has prescribed the forensic procedures legislation of every jurisdiction – including the Northern Territory and Queensland, even though the laws in these jurisdictions were developed independently of the Model Bill, and differ markedly in approach.

In the recently released discussion paper, Protection of Human Genetic Information (ALRC DP 66), the inquiry has proposed that the Commonwealth, states and territories should work together to achieve harmonisation in Australian forensic procedures legislation, in particular in relation to the collection, use, storage, destruction and index matching of forensic material and the DNA profiles created from such material. The inquiry has proposed that inter-jurisdictional sharing of forensic material and DNA profiles, whether on a bilateral basis or via the national DNA database system, should be permitted only after such harmonisation has been achieved.

The inquiry is currently seeking comment and submissions on these and other proposals in the discussion paper, prior to the development of final recommendations to be submitted to the commonwealth Attorney-General and the Minister for Health and Ageing in March 2003.

In order to be considered for use in the final report, submissions in response to the discussion paper should reach the ALRC no later than Friday, 29 November 2002.


NOTES

Contributed by the AUSTRALIAN LAW REFORM COMMISSION. The discussion paper, Protection of Human Genetic Information (ALRC DP 66) is available free of charge from the ALRC’s website, or in printed form or CD-ROM format from the Australian Law Reform Commission, GPO Box 3708, Sydney 2001; tel (02) 8238 6333; fax (02) 8238 6363; email genetic@alrc.gov.au; website http://www.alrc.gov.au.

natlawreform@liv.asn.au

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