Inquiry’s views

40.42 The need for greater harmonisation in this area has been well recognised. During the course of this Inquiry, several Australian jurisdictions have amended, or have indicated an intention to amend, their forensic procedures legislation to effect greater conformity with the Model Bill.

40.43 DP 66 noted the Inquiry’s concerns that efforts at harmonisation could take a ‘lowest common denominator’ approach. The Inquiry considers that this has occurred at two levels. First, although several jurisdictions have amended their laws to effect greater conformity with the Model Bill, they have done so in a minimal way, leaving significant variations between their own legislation and the Model Bill provisions. Second, several jurisdictions have formally prescribed the forensic procedures laws of other jurisdictions as constituting ‘corresponding laws’, despite the existence of significant variations between them. The most extreme example of this occurrence was the action by New South Wales and Western Australia in prescribing the forensic procedures legislation of all other jurisdictions—including the Northern Territory and Queensland, whose laws were developed independently of the Model Bill and do not contain the safeguards developed through that process.

40.44 In summary, developments over the course of the Inquiry have suggested a growing pragmatism among the Australian jurisdictions regarding the need for ‘corresponding laws’ as a precondition to participation in inter-jurisdictional sharing of forensic material and profiles. While each of the Australian jurisdictions participated in the development of the Model Bill, none has been willing to adopt its provisions entirely. As a result, harmonisation in practice has involved a process of negotiation between the Commonwealth and the other jurisdictions to determine the minimum number of amendments required in order for their laws to be considered to ‘correspond’ with Part 1D of the Crimes Act.

40.45 At the same time, the Inquiry recognises that full harmonisation of forensic procedures legislation might require the removal of higher protections from existing state or territory legislation. Legislation in Victoria, Western Australia and South Australia currently contains procedural and other safeguards that are absent from the Model Bill provisions.^[43]

40.46 In DP 66, the Inquiry suggested that if it is not possible, or realistic, to achieve fully harmonised forensic procedures legislation, the Commonwealth should specify the critical features of the legislation upon which it would be reasonable for the public to expect commonality. At a minimum, it would be necessary to achieve commonality in relation to the collection, use, storage, destruction and index matching of forensic material and information obtained from it.

40.47 The Inquiry considers that this approach better reflects the current Australian climate in relation to forensic procedures regulation. Achieving commonality in these provisions is especially important in light of the lack of co-ordinated, independent oversight of DNA database systems established for law enforcement.^[44] Where all jurisdictions participating in information sharing have common provisions regarding the handling of that information, the community can have greater confidence that such information will be used only as would be permitted within the jurisdiction in which the information was obtained.

40.48 Consequently, the Inquiry suggests that the Commonwealth, States and Territories should work together to determine a set of national standards for the use, storage, destruction and index matching of forensic material and DNA profiles shared between jurisdictions for law enforcement purposes. The Model Bill provisions could provide a model for these standards. Inter-jurisdictional sharing should be permitted only where both of the jurisdictions involved have inserted a legislative provision into their forensic procedures legislation providing that information transferred to the jurisdiction must be treated in accordance with the national minimum standards. This would avoid the existing difficulties arising form the existing requirement that participating jurisdictions must have ‘corresponding laws’.

40.49 While the mutual recognition approach might be possible in the absence of such common standards—for example, New South Wales could pass information to the Northern Territory provided the latter had a legislative requirement to respect the information handling rules in the former—the Inquiry considers it could be overly con-fusing for investigators who, depending on the number and source of the information held, could be required to comply with up to nine different legislative regimes.

40.50 The better approach would be to settle on a set of common standards for implementation by each jurisdiction, so that once the information has been transferred, the latter jurisdiction would have a clear understanding of the information handling standards with which it must comply.

40.51 The Inquiry recommends that in order to facilitate an effective national approach to sharing genetic information for law enforcement purposes, the Commonwealth, States and Territories should collaborate to develop adequate national minimum standards in Australian forensic procedures legislation for the use, storage, destruction and index matching of forensic material, and the DNA profiles created from such material. A jurisdiction should not be permitted to engage in the inter-jurisdictional sharing of genetic information—whether on a bilateral basis or through the national DNA database system—unless there is legislation requiring that any information transferred to that jurisdiction will be treated in accordance with the national minimum standards.

40.52 In order to implement this recommendation, the Inquiry recommends that where applicable, state and territory legislatures should amend their forensic procedures legislation in a manner consistent with the recommendations made in this Report in relation to the Crimes Act.