Lack of harmonisation

40.2 Every Australian jurisdiction has implemented forensic procedures legislation. As outlined in Chapter 39, some jurisdictions have followed the Model Forensic Procedures Bill 2000 (Model Bill)^[1] closely; some have followed the Model Bill with significant variations, while others have not followed the Model Bill provisions at all.

Legislative differences among jurisdictions

40.3 Legislative variations among the jurisdictions gain significance in light of the proposed inter-jurisdictional sharing of information. Examples of jurisdictional variations are the differences in the:

• classification of certain forensic procedures as ‘intimate’ and ‘non-intimate’;

• seriousness of the offence for which a forensic procedure might be carried out on a suspect or offender;

• treatment of volunteers, children and other vulnerable persons;

• procedure for authorising compulsory forensic procedures;

• index matching rules (or other rules regarding profile matching); and

• requirements for destruction of genetic samples or profiles.

Sharing of forensic material and information

40.4 The Commonwealth has established a National Criminal Investigation DNA Database (NCIDD system) and a Disaster Victim Identification Database, both of which provide for inter-jurisdictional sharing of information held on them.^[2]

40.5 Division 11 of Part 1D of the Crimes Act 1914 (Cth) (Crimes Act)provides for the sharing of information held on a DNA database system between participating jurisdictions. Section 23YUD(1) provides that the Minister may enter into arrangements with participating jurisdictions for the sharing of information held on a DNA database system for the purpose of criminal investigations and prosecutions. This provision does not appear to cover the sharing of forensic material which is not held on a DNA database system.^[3]

40.6 A ‘participating jurisdiction’ is defined as a State or Territory in which there is a corresponding law in force. A ‘corresponding law’ is a law relating to the carrying out of forensic procedures and DNA databases that substantially corresponds to Part 1D of the Crimes Act or is prescribed by the regulations for the purpose of the definition.^[4]

40.7 It is unclear the extent to which a law must mirror Part 1D to satisfy this ‘substantial correspondence’ requirement. A broad reading of the definition would require substantial compliance in all provisions of the legislation, while a narrow reading would require correspondence only in the provisions relating to the ‘carrying out’ of forensic procedures and the operation of a DNA database system. The Revised Explanatory Memorandum provides some guidance, commenting that a ‘corresponding law’ means ‘another jurisdiction’s law that is in substantially similar terms to this Bill’.^[5] This suggests that the broader approach may have been intended.

40.8 Under s 23YP(2)–(3), the Commonwealth may retain or use forensic material or information obtained from another jurisdiction for investigative, evidentiary or statistical purposes, provided the material or information was taken in accordance with a state or territory law.

40.9 Section 23YUD(2) provides that information that is transmitted must not be recorded, or maintained in an identifiable database in the second jurisdiction after the specified destruction date.^[6]

Concerns with sharing of information

40.10 The Inquiry has heard concerns that in the absence of real harmonisation among Australian jurisdictions’ forensic procedures legislation, a jurisdiction that has loose controls and allows the collection of samples in a wider range of circumstances could undermine appropriate restrictions on the use of a DNA database system in another jurisdiction.^[7] The Model Criminal Code Officers’ Committee (MCCOC) provided the following example:

State A may only allow taking samples from serious offenders while State B might allow them to be taken from any offender. A law enforcement officer in State A could then check to see if the suspect had committed an offence in State B through a criminal records check. The officer discovers the person committed a traffic offence after which a person had been required to give a sample for DNA analysis. The law enforcement officer then conducts matching on the DNA database against someone who would not be on the database in the same circumstances under local legislation.^[8]

40.11 MCCOC considered it undesirable that jurisdictional variations should be able to undermine the legislative safeguards:

It is not desirable that variations of the nature described … should be allowed to undermine the DNA databases legislative requirements. The Committee therefore believes that a consistent approach between jurisdictions is very important in combating this type of problem.^[9]

40.12 The Senate Legal and Constitutional Legislation Committee expressed a similar concern in its report on the Crimes Amendment (Forensic Procedures) Bill 2000 (Cth). The Committee commented that the provisions for the sharing of data were the most contentious aspect of the Bill, and concluded that uniform adoption of the highest standards in the collection, use and disposal of information was fundamental to the effectiveness of the legislation.^[10]

40.13 In response to IP 26, several submissions raised concerns about the lack of harmonisation in forensic procedures legislation.^[11] Most of these concerns focused on the potential undermining of privacy and other legislative safeguards if forensic material or information obtained in one jurisdiction is shared with a jurisdiction that does not have equivalent legislative safeguards.

Harmonisation in practice

Legislative amendment

40.14 In April 2002, the Commonwealth entered into an agreement with State and Territory leaders providing, among other things, for modernisation of the criminal law by legislating in the area of model forensic procedures during 2002; and the enhance-ment of capacity in each jurisdiction for the collection and processing of samples to create DNA profiles, and the uploading of profiles onto the national DNA database.^[12]

40.15 As of February 2003, several state and territory jurisdictions had either amended, or expressed an intention to amend, their forensic procedures legislation to bring them into closer conformity with the Model Bill provisions. For example:

• In March 2002, Victoria enacted the Crimes (DNA Database) Act 2000 (Vic), which amended the Crimes Act 1958 (Vic) to ‘facilitate Victoria’s participation in the national DNA Database system, and to amend procedures for the obtaining, use and retention of forensic samples’.^[13]

• In June 2002, the Western Australia Parliament passed the Criminal Investigation (Identifying People) Act 2002 (WA), which varies significantly from the Model Bill but has been recognised by the Commonwealth as a ‘corresponding law’.^[14]

• In December 2002, the South Australian Parliament passed the Criminal Law (Forensic Procedures) (Misc) Amendment Act 2002 (SA), which amends the Criminal Law (Forensic Procedures) Act 1998 (SA) to facilitate participation in the NCIDD system.

• The Queensland government has advised that it intends to amend the Police Powers and Responsibilities Act 2000 (Qld) to facilitate participation in the NCIDD system. Queensland intends to generally retain its current standards regarding the collection, use, and storage of forensic material and DNA profiles.^[15]

40.16 The Northern Territory remains unwilling to amend its forensic procedures legislation to bring it into greater conformity with the Model Bill. In a press release prior to the Australasian Police Ministers Council (AMPC) conference in November 2002, the Northern Territory’s Acting Police Minister, Syd Stirling, commented:

If the NT was to move towards this national ‘model’, it would significantly reduce the capacity of NT Police to use DNA as a crime fighting tool. I will be taking the Territory’s position to the Police Minister’s Conference and calling on all jurisdictions to make greater use of DNA as a modern crime fighting tool.^[16]

40.17 The APMC meeting resolved that, as a matter of priority, the Commonwealth and the Northern Territory would commit to further exploring ways to enable the Northern Territory to participate in the national DNA database.^[17]

Prescribed jurisdictions

40.18 The Commonwealth has recognised several state and territory jurisdictions as participating jurisdictions by prescribing them in the Crimes Regulations 1990 (Cth). As of February 2003, the Commonwealth had prescribed the forensic procedures legislation of New South Wales, the Australian Capital Territory, Tasmania, Victoria and Western Australia.^[18] Each of these jurisdictions has followed the Model Bill to some extent; however as noted above, some significant variations remain.^[19]

40.19 In addition, New South Wales and Western Australia have prescribed in regulations the forensic procedures legislation of all other Australian jurisdictions for the purposes of the definition of ‘corresponding legislation’—including the Northern Territory and Queensland—despite significant variations between the jurisdictions.^[20] Dr Jeremy Gans has commented that:

The NSW government has … taken advantage of the regulatory power under the [Crimes (Forensic Procedures) Act 2000 (NSW)] to abandon MCCOC’s commitment to encouraging similar legislation through the definition of ‘corresponding law’. Relying on the pretext of supposed administrative difficulties in transferring a profile from a NSW detainee who was a suspect in the Northern Territory backpacker kidnapping case, the NSW government issued regulations deeming the forensic procedures law of every jurisdiction in Australia to be a ‘corresponding law’.^[21]

Ministerial arrangements

40.20 The Inquiry understands that the Commonwealth is negotiating ministerial agreements with each of the States and Territories, and the intention is for ministerial agreements to contain tables specifying the index matching permitted between each participating jurisdiction. As noted above, the wording of s 23YUD(1) suggests that these agreements only would deal with the transfer of profiles, and not with the forensic material from which the profiles are obtained.

40.21 The Inquiry has not been given access to these draft agreements, and therefore cannot comment on their contents. However, the greater the number of variations in the provisions of each jurisdiction’s forensic procedures legislation, the greater the complexity of the index matching tables or protocols, and the greater the difficulties of operation in practice.

40.22 New South Wales, Western Australia and South Australia have each entered into ministerial agreements for the sharing of information with the Northern Territory, despite significant variations between them.^[22] The Inquiry understands that New South Wales and South Australia entered into these agreements in the context of a criminal investigation into the presumed murder of British tourist, Peter Falconio, in the Northern Territory in 2001.

Inquiry’s preliminary views

40.23 DP 66 noted the Inquiry’s preliminary view that harmonisation of forensic procedures legislation is a necessary precondition for the effective operation of a national DNA database system, or of any inter-jurisdictional information sharing.

40.24 The Inquiry commented that greater harmonisation would avoid complexity in the operation of the NCIDD system. The greater number of variations in index matching rules between the jurisdictions, the greater complexity and difficulty there will be in administering the matching regime, which may create operational problems for police as well as making it more difficult to ensure compliance with all of the legislative safeguards.

40.25 In addition, the Inquiry noted that variations in forensic procedures legislation may tend to result in a ‘lowest-common-denominator’ approach. Where a sample or profile 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 could be undermined. For example, where a person in the first jurisdiction volunteers for a forensic procedure for ‘limited purposes’, that persons’ sample or profile should not be subjected to use for other purposes in any jurisdiction to which it is legitimately transferred.

Submissions and consultations

40.26 DP 66 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. 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.^[23]

40.27 Most of the submissions supported the proposal.^[24] In its initial submission, the Commonwealth Attorney-General’s Department commented that:

Consistent legislation between jurisdictions based on the Model Bill is the key to ensuring that information transmitted to another jurisdiction is protected by the same safeguards as those in the originating jurisdiction.^[25]

40.28 In a further submission, the Department commented that the proposal

is consistent with the commitment made by the leaders of the Commonwealth, States and Territories at the 5 April 2002 Leaders’ Summit to legislate in the priority areas of model forensic procedures before the end of 2002 … all jurisdictions are also fast-tracking the preparation of arrangements that will facilitate the inter-jurisdictional matching of DNA profiles. It is important that harmonisation is achieved because inconsistencies in legislation will limit the optimal use of the DNA database and reduce its effectiveness as a crime fighting tool.^[26]

40.29 The Office of the Federal Privacy Commissioner supported the proposal, commenting that:

Lack of legislative uniformity may have the unintended consequence of diminishing the utility of the national DNA database system, as well as compromising an individual’s privacy rights. The need for legislative uniformity, however, should not provide an excuse for an extension of the power to collect, use, retain and match DNA profiles, in ways which would have the effect of diminishing the standards of privacy protection … achieving a high degree of uniformity may be many years away. In the meantime, the means should be found to make the best use of existing transparency and accountability mechanisms.^[27]

40.30 National Legal Aid submitted that in order to have access to a national DNA database system, participating jurisdictions should be required to comply with national standards for the collection, use and destruction of DNA samples.

As things currently stand, a law enforcement agency in one State may have access to forensic information obtained in another jurisdiction to which they would not have had access if they were limited to information collected, used and destroyed in accordance with their own State legislation. This may occur because the sample would not have been collected, or because it would have already been destroyed, or because it would have been included on a limited purpose index which could not have been accessed for the relevant purpose … this situation is unacceptable. It undermines the protections provided by those jurisdictions which have adopted legislation provid-ing appropriate levels of protection to people from whom forensic samples are taken.

One of the areas in which the lack of uniformity in the legislation is most pronounced is the use which can be made of information obtained from the samples taken … Because of the variations in indexes and permissible matching, there are numerous types of matching which are lawful in some jurisdictions but not in others. With the confusion arising from such a situation there is a real risk that a match will be made which is not permitted under the law of the relevant jurisdiction.^[28]

40.31 In its initial submission, Privacy NSW expressed concerns regarding the lack of uniformity:

A uniform national legislative approach is very important as a means of holding the line against ad hoc and incremental arrangements which would undermine the protective provisions of forensic legislation. I am concerned that Police Services have been exploiting the political appeal of crime control to play off the different jurisdictions so as to weaken the safeguards provided in the Model Forensic Procedures Bill. Ministerial agreements would simply promote this process.^[29]

40.32 In its subsequent submission, Privacy NSW noted two recent legislative amendments in relation to forensic procedures legislation. First, New South Wales prescribed all the other jurisdictions’ forensic procedures legislation as corresponding laws for the purpose of sharing information. Second, the Commonwealth Parliament amended the Crimes Act to authorise the use and disclosure of information on a DNA database system for the purpose of identifying the Bali bombing victims, and informing relatives. Privacy NSW suggested that these amendments ‘might be seen to make the goal of uniformity harder to achieve’, noting that:

Arguably each of these responses goes further than is necessary in response to the specific events which gave rise to them. We can appreciate the urgency which may inform a desire to share genetic data in some circumstances. However, the hurried passage of sweeping amendments to legislation whose function is essentially one of protecting individual rights does undermine confidence and make the prospect of harmonisation seem somewhat remote. Assuming that such situations are likely to recur there is a case for anticipating a more measured way of responding to them in the legislation itself.^[30]

40.33 Several submissions supported the need for greater harmonisation of forensic procedures legislation but considered that the public interest in resolving crime would justify the sharing of information in the interim.^[31] For example, the Victoria Police noted the desirability of harmonisation, but commented that:

considering the time it will take to achieve harmonisation of the legislation in Australia, and in the interest of public safety, it would be inappropriate to hinder current investigations by disallowing the exchange of information until complete harmony exists. An appropriate interim resolution could be found by agreements of each jurisdiction to use relevant information in compliance with the highest standards of commonality as set by the Commonwealth.^[32]

40.34 The New South Wales Police Service commented that the process of working to facilitate inter-jurisdictional matching on the NCIDD system has highlighted the differing philosophical and political views on the use of forensic evidence in criminal investigation that are held throughout Australia:

[I]f the exchange of information related to forensic material is only permitted after the harmonisation of the laws of all Australian jurisdictions is achieved then it is highly likely that only a couple of jurisdictions will ever achieve this goal and accordingly the inter-jurisdictional exchange of information will be extremely limited. This will prevent law enforcement agencies from having access to important evidence which in the past has been available to them. It may also result in the ridiculous situation where a criminal may avoid prosecution and conviction by entering a bordering jurisdiction after the commission of an offence.^[33]

40.35 The Law Institute of Victoria supported the need for uniformity, but stated that this should not be achieved without fully considering the views of each jurisdiction. The Law Institute suggested that there is a risk that a ‘lowest common denominator’ approach will mean that jurisdictions holding a minority view will be compelled to pass legislation to which there remain strong objections, in order to be eligible to participate in the national DNA database system.^[34]

40.36 The Queensland Government commented that harmonisation would not be achievable if it required conformity with the most restrictive jurisdiction’s legislation. Queensland would not support a ‘reduction’ in its forensic procedures legislation. While Queensland would be willing to amend its legislation in order to participate in the national system, the submission noted that Queensland would continue to operate outside that system—for example, by sharing information with the Northern Territory.^[35]

40.37 Adam Johnston suggested a new approach to the inter-jurisdictional sharing of information, by making sharing of data conditional on a court order:

To obtain such an order, authorities should have to show that they were unsuccessful in genuine attempts to obtain a sample from a suspect. As well, they should have to satisfy a judge that on the basis of other evidence collected there is probable cause to believe that a suspect has a case to answer and, that obtaining DNA evidence from another jurisdiction’s database is necessary to assist the case. Presuming the court agreed, this would not necessarily make the DNA evidence admissible at trial.^[36]

40.38 Finally, the South Australian Attorney-General’s Department commented in a consultation that when MCCOC was developing the Model Bill, DNA testing was very expensive, required a large sample and was not very accurate; therefore, it was only to be used in very serious cases. However, as the technology has changed the key issue has become whether DNA testing should be used more broadly, in the same way as other investigative tools—for example, fingerprinting and photography. The Department suggested that it would be impossible to harmonise legislation if there is no harmony in the policy underlying the use of DNA analysis in law enforcement.^[37]

An alternative approach

40.39 Dr Jeremy Gans has commented that ‘the most obvious danger of uniformity is that it will impose on all jurisdictions, not merely the strengths of a particular model, but also its weaknesses’.^[38] In order to prevent Australian laws from ‘sliding further towards the “lowest common denominator” of Queensland and the Northern Territory’, he has suggested ‘mutual recognition’ as an alternative approach.^[39]

40.40 Under this approach, each jurisdiction would be required to enact laws requiring its investigators to obey the matching, destruction, access and disclosure rules of the jurisdiction where those profiles were originally obtained. The adminis-trators of any cross-jurisdictional database—including the NCIDD system—would apply the jurisdictional rules on retention and disclosure applicable to each profile and could only compare profiles from two different jurisdictions if permitted to do so by the laws of both jurisdictions.^[40] Dr Gans suggested that this approach would avoid the ‘lowest common denominator’ effect without affecting how States and Territories deal with profiles obtained locally.^[41]

40.41 In order to achieve this result, Dr Gans has suggested that s 23YUD(2) of the Crimes Act should be expanded to cover matching, access and disclosure, and the Commonwealth should pass legislation prohibiting the sharing of information with other jurisdictions unless those other jurisdictions enact laws recognising the laws of the jurisdictions from which the profiles were first obtained.^[42]