House of Representatives

Second Reading Speech

Mr WILLIAMS (Tangney - Attorney-General)

I move:

That the bill be now read a second time.

This is a bill to ensure police enforcing federal criminal offences can use the latest technology to solve crime. Developments in DNA technology promise to transform the criminal investigation landscape. Indeed, some commentators have suggested that the advent of DNA technology is the most significant change to crime detection since the invention of the fingerprint classification system by Sir Edward Henry in 1897.

This government recognised the necessity of maximising the benefits of new technology in criminal investigations when in 1998 it announced the establishment of CrimTrac and provided $50 million in funding to assist CrimTrac in establishing a world-class national DNA database system and other investigative tools, such as the new national fingerprint system.

During the same year new part 1D of the Crimes Act 1914 was enacted. It provides for comprehensive powers and procedures for the taking and use of forensic material from anyone suspected of having committed a Commonwealth offence. The question of comprehensive procedures in relation to the taking of forensic material from convicted offenders and volunteers and placing DNA information derived from that material on a database system was deferred until more work had been done on the establishment of the national DNA database system.

Part 1D does not preclude the taking of forensic material from convicted offenders, but only allows it to be done in very restricted circumstances. It does not form the basis for the creation of the type of comprehensive national database system that has been so successful in other countries. In particular, it only provides for the inclusion of DNA information from those convicted since the commencement of the legislation. This is inadequate. Australians deserve greater protection from the activities of criminals.

It is not unreasonable for the community to expect that the national DNA database system should have DNA information from serious offenders who are still in prison or otherwise under sentence. The consequences of any of these people reoffending are too significant for the rest of the community not to expect the protection afforded by such a system. I think this is true regardless of whether the crime involved is one where reoffending is very common. However, I would note that it is the case that a small proportion of the community commits the vast majority of crime. I am advised that it has been reported that some overseas studies indicate that less than 10 per cent of the community commit more than 90 per cent of crime. The matching of DNA information will not only give law enforcement the capacity to catch those who reoffend but also add to efficiency and reduce inconvenience for those who are eliminated as potential suspects. The amendments to part 1D proposed in this bill will provide the framework for providing this additional protection, along with appropriate safeguards to ensure there is adequate accountability on the part of those who administer the system.

Part 1D also does not preclude the taking of forensic material from volunteers for investigative purposes and placement on the national DNA database system. However, there are no procedures for the taking and use of that material. I think it is very important that those who care enough about their community to volunteer samples should be afforded the type of safeguards concerning informed consent and the use of such material that is afforded to suspects and offenders. This bill provides for such procedures.

The bill has not been drawn up in haste. It is the result of consultations throughout Australia and a concerted effort to get consistent legislation by the Standing Committee of Attorneys-General. The standing committee, in cooperation with the Australasian Police Ministers Council, tasked the Model Criminal Code Officers Committee, which is composed of criminal law advisers from Commonwealth state and territory jurisdictions, to produce a model bill.

After consultation on an initial draft developed in 1995 (which is the basis of the existing procedures in part 1D) and a May 1999 discussion paper proposing the type of modifications I have outlined above, a final draft of the Model Forensic Procedures Bill was completed in February 2000. The 2000 model bill reflects the consideration given to comprehensive submissions received from a variety of groups, including the federal and New South Wales privacy commissioners, law enforcement agencies, forensic experts, defence lawyers, prosecutors, judges, bar councils, academics, law societies, civil liberties groups, human rights organisations, victims groups, legal aid organisations and government departments.

The government is very supportive of the 2000 model bill because it provides a carefully balanced legislative regime, which when implemented in each jurisdiction will allow Commonwealth, state and territory law enforcement agencies to better utilise DNA technology but at the same time will safeguard individual liberty and ensure there is adequate accountability on the part of those who administer the system. Accordingly, this bill updates part 1D of the Crimes Act 1914 to implement the 2000 model bill.

A national DNA database system is not a new concept to criminal investigation. The United Kingdom pioneered the national DNA database and have been using DNA technology as an investigative tool since 1986. Interestingly, the first use of DNA technology in the United Kingdom prevented an innocent man, who had confessed to a crime he did not do, from being tried and wrongly convicted on the strength of his false confession. DNA database systems are also being used as an investigative tool in other European countries, the United States of America, Canada, New Zealand and elsewhere, with considerable success. It is anticipated that the national DNA database system established and administered by Crim Trac, and monitored by the Federal Privacy Commissioner, will be state of the art, not only in its technology but also in the accountability mechanisms contained in the bill and the protocols for administering the system.

The substantive changes to existing part 1D can be separated into three major categories.

The first is the carrying out of forensic procedures on convicted offenders; second, the carrying out of forensic procedures on volunteers; and, third, the rules regulating the use of forensic material taken and stored on the national DNA database system.

The bill complements the existing provisions in part 1D of the Crimes Act 1914, which carefully balances the rights of suspects against the public interest in gathering evidence of offences by ensuring similar procedures and safeguards apply to convicted offenders and volunteers-for example, the special procedures for taking forensic material from a child or incapable person. The rules as to admissibility of evidence obtained from a forensic procedure that are contained in existing division 7 of part 1D will be extended to cover the offender and volunteer contexts. These safeguards are supplemented by criminal offences which provide for substantial penalties for those who misuse information derived from forensic procedures.

Forensic procedures on convicted offenders

Proposed division 6A will regulate the carrying out of forensic procedures for law enforcement purposes on certain convicted offenders 'under sentence'.

There are two categories of convicted offenders: serious offenders and prescribed offenders. A serious offender is a person convicted of an offence punishable by life or five or more years imprisonment; in other words, a person convicted of a crime which is generally recognised to be a serious crime. Included in this classification would be homicide, sexual offences (which are crimes where the Commonwealth has a limited jurisdiction), theft, fraud, burglary and serious drug offences. Consistent with longstanding practice, under division 6A, only fingerprints can be obtained from prescribed offenders. A prescribed offender is a person convicted of a wider range of offences, that is punishable by two or more years imprisonment. In contrast, hair samples, saliva or blood samples may also be obtained from serious offenders, and forensic information obtained from that material can be placed on the national DNA database system. This recognises that the proposed procedures are more intrusive and that resources should be focused on the more serious offences.

If a serious offender does not give informed consent to the carrying out of an intimate forensic procedure (saliva or blood samples), then the procedure can only be carried out with the approval of a magistrate. This is an important safeguard. It provides some reassurance that serious offenders will not be subjected to the inappropriate carrying out of such procedures. Further, the independent arbitration of a magistrate in these situations will play a role in defusing any tension which might otherwise exist in the performance of such procedures.

The qualification that the convicted offender must be `under sentence' is also important. It means that only offenders who are serving terms of imprisonment, or who are subject to certain release orders under part 1B of the Crimes Act 1914-for example, on parole-can undergo a forensic procedure under the bill. A distinction should not be made between offenders still in prison and offenders released on parole-a paroled offender may have committed a heinous crime for which the Australian community could rightfully expect the provision of forensic material. However, for practical purposes, the overwhelming majority of offenders convicted prior to enactment of the bill, who will be required to undergo a forensic procedure, will still be in prison. Further, in the longer term, forensic material will usually be obtained from offenders at the time of sentencing.

Forensic procedures on volunteers

There is one recent example of most residents in a New South Wales country town volunteering to provide law enforcement authorities with forensic material in the investigation of a specific offence. Indeed, such investigations have also proven to be very effective in the United Kingdom. However, in the majority of cases, the police are only likely to need the assistance of a small number of volunteers and the circumstances will vary markedly from case to case. Proposed division 6B of the bill provides a secure legislative basis for carrying out forensic procedures on volunteers and ensures that volunteers, as well as the law enforcement authorities, can be certain of the way in which forensic material can be taken and how it can be used. They will also benefit from safeguards which ensure that forensic material obtained from volunteers is used only as intended.

Subject to special procedures for children and incapable persons, forensic procedures can only be conducted on volunteers if there is informed consent. A volunteer can withdraw consent to the carrying out of a forensic procedure or the retention of the forensic material taken at any time. In limited circumstances, and in the investigation for a serious offence, a magistrate can authorise the retention of forensic material notwithstanding the withdrawal of consent. For example, where the volunteer withdraws consent because they conclude that suspicion has turned in his or her direction.

National DNA law enforcement database

Proposed division 8A deals with the establishment and operation of the national DNA law enforcement database by CrimTrac.

Because of the federal nature of Australia's criminal justice system, it is desirable that equivalent legislation in the various jurisdictions adequately describe the national DNA database system and the way in which different information may be stored and matched. This aspect of the bill is to some extent based on the equivalent Canadian legislation which describes that country's DNA database and was developed after close consultation with the Federal Privacy Commissioner and those who would be administering the system.

The database is broken up into a series of indexes. For example, there is a suspects index, an offenders index, a crime scene index, a volunteers (limited purposes) index, a volunteers (unlimited purposes) index and some others. The DNA profiles are stored on these separate indexes and can be matched with profiles in another index according to a set of tabulated matching rules. Matching according to these rules will be enforced by criminal offences carrying a maximum penalty of 2 years imprisonment. Normal police disciplinary procedures are not adequate to regulate the matching of DNA profiles on the national DNA law enforcement database. Specific offences prohibiting impermissible matching is considered necessary to ensure the community can have confidence in the integrity of the DNA profiles stored on the system.

It is important that we all appreciate the nature of the forensic information that will be stored on the national law enforcement database as a DNA profile. The analysis of the DNA samples will only reveal the sex of the person from whom it is taken. It does not reveal any other personal characteristics.

The privacy interests of Australian citizens are safeguarded because each step in dealing with forensic material obtained from a forensic procedure, either through the national DNA law enforcement database or otherwise, is regulated and reinforced by a series of criminal offences targeting the supply of forensic material, the use of information stored on the national DNA law enforcement database, the destruction of forensic material and the recording, the retention and the removal of DNA profiles on the national DNA law enforcement database. All these offences carry maximum penalties of two years imprisonment.

The Office of the Federal Privacy Commissioner has been engaged in discussions concerning the CrimTrac Agency's administration of the national DNA database system. This was acknowledged by the Senate Legal and Constitutional Legislation Committee when it reported on the bill on 5 December 2000. In response to one of the committee's recommendations, the government decided to incorporate into the bill some legislative measures aimed to bring about effective, independent oversight and accountability mechanisms of the national DNA database. These measures were developed by the Minister for Justice and Customs in close consultation with the Federal Privacy Commissioner and were endorsed by the Senate. The government agreed to amendments moved by Senator Greig in the Senate to clarify the scope of an independent review of the operation of the legislation which under the bill must occur 12 months after the commencement of the proposed provisions. The government also adopted the committee's other three recommendations.

Many of the changes contained in this bill are directly related to the insertion of proposed divisions 6A (offenders), 6B (volunteers) and 8A (national DNA database system). For example, the provisions relating to the permitted disclosure of information derived from a forensic procedure are strengthened to take into account the fact that information can now be stored on a database. Proposed division 11 recognises that the Commonwealth, the states and the territories will cooperate in using the national DNA database system. Orders for the carrying out of forensic procedures obtained in one jurisdiction will be able to be enforced in another jurisdiction provided they are recorded on a register of orders. Pursuant to appropriate ministerial arrangements entered into with participating jurisdictions, information contained on the national DNA database system can be shared between the jurisdictions for the purpose of criminal investigations.

Other changes which do not relate to proposed divisions 6A, 6B or 8A seek to improve the existing provisions of part 1D. For example, proposed subsection 23XM(4) clarifies that a person is able to take a saliva sample or buccal sample from themselves. This will allow a person to self-administer a relatively simple forensic procedure, provided the procedure is supervised by an appropriately qualified person. This approach avoids any unnecessary invasion of a person's privacy.

The opportunity has been taken in the bill to clarify that state and territory judges, magistrates or court employed officers who issue orders in relation to criminal matters under a law of the Commonwealth do so in a personal and voluntary capacity. Although some of these orders may relate to forensic procedures, most will relate to other criminal matters. Accordingly, it is proposed that these provisions be inserted into the general part 1A of the Crimes Act 1914.

The bill also includes a minor amendment to the Mutual Assistance in Criminal Matters Act 1987 to ensure that Australia can fulfil its international obligations in assisting other countries seeking to enforce orders which are intended to preserve the suspected proceeds of crime.

In conclusion, I stress that the national DNA database system and the use of DNA technology is but one investigative tool law enforcement agencies will be able to rely on to build a case against a suspect. In the vast majority of cases, DNA evidence alone will not convict. In fact, DNA technology is likely to be at its most useful in eliminating suspects and focusing police investigations, whereupon the more traditional methods of policing will come into play. I am therefore strongly of the view that this bill is best characterised as an initiative which will give the police an additional tool to do their job properly. The bill is very much part of this government's commitment to making Australia a safer place to live. I commend the bill to the House and I present the revised explanatory memorandum to the bill.