Commonwealth legislation

39.17 Part 1D of the Crimes Act closely follows the Model Bill provisions. Briefly, Part 1D provides for the conduct of intimate forensic procedures^[17] and non-intimate forensic procedures^[18] on suspects, serious offenders and volunteers; and regulates DNA database systems established for storing and matching DNA profiles.

Suspects

39.18 A ‘suspect’ is a person whom a constable^[19] suspects on reasonable grounds has committed an indictable offence; a person charged with an indictable offence; or a person who has been summonsed to appear before a court in relation to an indictable offence. An indictable offence is a Commonwealth offence punishable by imprison-ment for a period exceeding 12 months.^[20] As of August 2002, 34 samples had been collected in the course of a criminal investigation—including 17 samples taken from suspects, nine taken from crime scenes, one from a victim, and three from volunteers.^[21]

Forensic procedures by consent

39.19 A constable may ask a suspect (other than a child or incapable person)^[22] to consent to a forensic procedure if the constable is satisfied on the balance of probabilities that: the person is a suspect; that there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; that the request for consent is ‘justified in all the circumstances’; and that the suspect is not a child or an incapable person.^[23]

39.20 The term ‘relevant offence’ is defined broadly. With respect to a suspect, it means: the indictable offence which the person is suspected of having committed; or any other indictable offence arising out of the same circumstances; or any other indictable offence in respect of which the evidence expected to be obtained by the forensic procedure is likely to have probative value.^[24]

39.21 In determining whether a request is justified in all the circumstances, the constable must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect. In balancing these interests, the cons-table must have regard to matters specified in the legislation. These matters include the seriousness of the circumstances surrounding the commission of the offence and the gravity of the offence, and the degree of the suspect’s alleged participation.^[25]

39.22 A suspect (other than a child or incapable person) gives informed consent to a forensic procedure if he or she consents after a constable asks the suspect to consent, and gives the suspect a written statement setting out specified information, informs the suspect about the forensic procedure in accordance with s 23WJ, and gives the suspect a reasonable opportunity to communicate, or attempt to do so, with a legal practitioner of the suspect’s choice.^[26]

Forensic procedures without consent

39.23 If a suspect who is in custody withholds consent, a senior constable^[27] may order the carrying out of non-intimate forensic procedure if satisfied on the balance of probabilities that: the suspect is in lawful custody; there are reasonable grounds to believe the suspect committed a relevant offence, and that the forensic procedure is likely to produce evidence tending to confirm or disprove that he or she committed a relevant offence; and the carrying out of the forensic procedure without consent is ‘justified in all the circumstances’.^[28]

39.24 A magistrate may order the carrying out of a forensic procedure on a suspect who is in or out of police custody, or who is a child or incapable person. The magistrate must consider similar matters as a senior constable before ordering the forensic procedure.^[29]

Serious offenders

39.25 A ‘serious offender’ is a person under sentence for a Commonwealth offence punishable by a maximum penalty of imprisonment for life or five or more years.^[30] As of August 2002, 294 offenders had been approached for sampling—of these, 286 gave consent, seven withheld consent and court orders were sought; and one obtained a Federal Court order that placed the sample collection ‘on hold’ until the appeal was heard.^[31]

Forensic procedures with consent

39.26 A constable may ask a serious offender (other than a child or incapable person) to consent to a forensic procedure if he or she is satisfied on the balance of probabilities that the request for consent is justified in all the circumstances, and in the case of persons not serving a sentence of imprisonment, that the person is an offender.^[32]

39.27 A serious offender gives informed consent to a forensic procedure if he or she consents after a constable asks the offender to consent, informs the offender about the forensic procedure in accordance with s 23XWJ, and gives the offender the opportunity to communicate, or attempt to do so, with a legal practitioner of the offender’s choice.^[33]

Forensic procedures without consent

39.28 If the offender withholds consent, a constable may order the carrying out of a non-intimate forensic procedure if the constable has taken into account: whether Part 1D would authorise the forensic procedure to be carried out in the absence of an order; the seriousness of the circumstances surrounding the offence committed by the offender; whether the carrying out of the forensic procedure ‘could assist law enforcement’ (whether federal or otherwise); and whether the carrying out of the forensic procedure without consent is ‘justified in all the circumstances’.^[34]

39.29 A magistrate or judge may order the carrying out of an intimate forensic procedure on an offender, or a non-intimate forensic procedure in relation to an offender who is a child or incapable person, if the magistrate or judge is satisfied that it is justified in all the circumstances. The magistrate or judge must take into account generally the same matters as a constable when making this determination.^[35]

Volunteers

39.30 A ‘volunteer’ is a person who volunteers to undergo a forensic procedure, or in the case of a child or incapable person, whose parent or guardian volunteers on his or her behalf.^[36] As of August 2002, one sample had been collected from a victim of crime and three from volunteers.^[37]

Forensic procedures with consent

39.31 A volunteer (or his or her parent or guardian) gives informed consent to a forensic procedure if he or she consents in the presence of an independent person after a constable informs the person of the matters specified in s 23XWR. For example, the constable must advise the person that: he or she may consult a legal practitioner before giving consent; that the forensic procedure might produce evidence that might be used in a court of law; and to the extent relevant, that information obtained from the forensic material may be placed on the DNA database system, and that the person may choose the particular volunteer’s index in which the profile should be stored.^[38]

Forensic procedures without consent

39.32 A magistrate may order the carrying out of a forensic procedure on a volunteer who is a child or incapable person if the consent of the parent or guardian cannot reasonably be obtained; the parent or guardian withholds consent and the magistrate is satisfied there are reasonable grounds to believe the child or incapable person is a suspect and the forensic procedure is likely to produce evidence tending to confirm or disprove that he or she committed the offence; or the parent or guardian consented to the carrying out of the forensic procedure, but subsequently has withdrawn consent. In making this decision, the magistrate must take into account matters specified in the legislation.^[39]

Vulnerable persons

39.33 Part 1D provides procedural safeguards for certain categories of vulnerable persons. As noted above, children and incapable persons cannot consent to a forensic procedure in any context.^[40] In addition, suspects who are Aborigines and Torres Strait Islanders are generally entitled to the presence of an ‘interview friend’ when being asked to consent to a forensic procedure.^[41]

Carrying out forensic procedures

39.34 Division 6 of Part 1D regulates the carrying out of forensic procedures on suspects, serious offenders and volunteers.^[42] The Division specifies who may carry out different forensic procedures, and provides procedural safeguards including: the provision of reasonable privacy; videotaping the procedure; the presence of an interview friend for certain vulnerable persons; prohibiting cruel, inhuman and degrading treatment; and providing the subject of the procedure with part of the sample for his or her own analysis.

DNA database systems

39.35 Division 8A of Part 1D of the Crimes Act regulates DNA databases that fall within the definition of a ‘DNA database system’. The division contains rules governing index matching, and criminal offences for certain unauthorised activities in relation to forensic material and information held on a DNA database system.

39.36 By early 2003, the Commonwealth had established the National Criminal Investigation DNA Database (NCIDD system), and a Disaster Victim Identification Database. An executive agency of the Commonwealth government, known as CrimTrac, operates both of these systems. In addition, the AFP operates its own DNA database system.

Inter-jurisdictional sharing

39.37 Division 11 deals with inter-jurisdictional enforcement. The responsible Minister may enter into arrangements with participating jurisdictions for inter-jurisdictional sharing of information held on a DNA database system.

39.38 A new Division 11A was inserted into Part 1D in October 2002. This division was designed to apply to the Bali bombings of 12 October 2002, and other incidents occurring outside Australia in which one or more Australian citizens or residents have died.^[43]

39.39 As of February 2003, CrimTrac had not conducted any inter-jurisdictional information sharing on the NCIDD system. CrimTrac advised the Inquiry that it will not conduct inter-jurisdictional index matching until it finalises agreements with the participating jurisdictions. CrimTrac will enter into a Memorandum of Understanding (MOU) with each participating jurisdiction, which will include permitted index matching protocols between the jurisdictions.^[44] As of February 2003, the MOU was still in draft form.

39.40 The Commonwealth Attorney-General’s Department has advised the Inquiry that these protocols will reflect the legislative provisions of each participating jurisdiction, and inter-jurisdictional matching will be conducted on the ‘least permissive’ terms. However, any inconsistencies between jurisdictions’ legislative definitions—for example, the definition of a suspect, an offender and a child—could undermine this principle.