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New DNA powers go too far

New DNA powers go too far

By Karin Derkley

Police Powers Young Persons 


Stronger protections are needed around proposed new police powers to take DNA samples from people suspected of a crime, the LIV has said in a letter to the police minister Lisa Neville.

The Justice Legislation (Police and Other Matters) Bill 2018 that was introduced this week will remove the need for police to obtain a court order to take DNA samples from certain suspects and offenders.

Police will also be able to take DNA samples without a court order from 15 to 17-year-olds suspected of serious offences, including serious injury in circumstances of gross violence, rape, home invasion and armed robbery.

But the LIV’s president Stuart Webb says that, given the private and personal nature of DNA information and its potential evidentiary significance, it is vital there is court oversight of the procedure to ensure the powers are used appropriately to balance the interests of the public and a suspect.

Mr Webb says the LIV is also concerned about the enforcement of these powers against suspects between 15 and 18 years without needing a court order.

“It appears this has been made in an effort to make the process more consistent with fingerprint procedures,” he says.

“However, the two procedures are very different. Obtaining DNA is a far more invasive procedure than fingerprinting. DNA samples are also a source of much more personal and private information. As such, the LIV maintains that stronger protections should be applied to the collection and use of DNA.”

The LIV questions whether children as young as 15 are capable of giving real and informed consent to the taking of DNA samples. “Given the greater vulnerability of children, this gives rise to the possibility of undue influence,” Mr Webb says.

Youthlaw advocacy and human rights officer Tiffany Overall says the provision takes away from courts the power and discretion to make forensic procedure orders in indictable matters and for an experienced judicial officer to hear submissions from both parties before making an informed decision.

“A senior police officer can now make a decision without hearing both sides. Where are the safeguards for a 15 year old suspected of serious indictable offence? If a young person is ultimately not charged does this means their DNA is stored away regardless?” she says.

There is no avenue to appeal the decision, Ms Overall says, “whereas there would be avenues to appeal a court decision making a forensic procedure order”.

Relying on DNA is not foolproof and has been shown to result in miscarriages of justice when evidence has been compromised in some way, the LIV says. The increased availability of samples may also lead to increased DNA exoneration cases for wrongful convictions where DNA has been transferred either intentionally or unintentionally.

As DNA matching technology develops, the procedure can also unjustly implicate other family members. “Insufficient oversight of these methodologies and the potential for abuse under the proposed amendments needs to be considered further,” Mr Webb says.

The LIV has also raised concerns about the administrative burden brought by the increased number of DNA samples, and the extra resources needed to collect, store, analyse and destroy the samples.

Mr Webb says the proposed legislation should be subject to broader review and consultation. “We would welcome the opportunity to be a part of this process,” he says.

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