Ministerial agreements

40.53 As noted above, s 23YUD(1) of the Crimes Act provides that the Minister may enter into arrangements with participating jurisdictions for the sharing of information on a DNA database system for the purpose of criminal investigations and prosecutions.[45] In addition, each participating jurisdiction would need to enter into arrangements with each other jurisdiction for the sharing of information.

40.54 DP 66 noted that while these ministerial agreements are expected to make some provision for privacy and other protections, they do not have the same status as legislation or regulations, and there are sometimes problems with gaining public access to them. The Inquiry considers that in order to afford greater transparency, ministerial agreements for the sharing of information and inter-jurisdictional matching protocols should be prescribed in regulations.[46]

40.55 Most of the submissions supported this proposal.[47] The Commonwealth Attorney-General’s Department advised that ‘the arrangements will be public documents and will not impact on the safeguards that are in the statute’.[48]

40.56 The New South Wales Police commented that:

there may be a number of practical difficulties. It is unlikely that all the agreements between the jurisdictions will be signed off at the same time [with the proposal]. Accordingly, the agreements may need to be prescribed by the regulations in an ad hoc fashion. Additionally, at least in the initial stages there may be the need to amend the agreements several times at short notice. This process is made far more difficult and time consuming if the agreements are prescribed in the regulation.

However, on a positive note prescribing the agreements in the regulation would add strength to the argument that the agreements are lawful which would provide police with greater certainty when acting under the agreement.[49]

40.57 The Office of the Federal Privacy Commissioner commented that:

Without any experience of the functioning of [the] national DNA database system and of the operation of Part 1D, it may be advisable for this proposal to be evaluated at a later date, with the benefit of experience. In the event of the statutory provisions requiring a further Review of Part 1D being invoked by the current Review, the opportunity will arise for further consideration of this issue.[50]

40.58 The Inquiry considers that for the purpose of achieving greater transparency, Commonwealth, state and territory governments should publish all ministerial agreements for the sharing of information, as well as protocols for inter-jurisdictional matching. In practice, these agreements need not be prescribed in regulations under the relevant forensic procedures legislation but they should be made easily available to the public—for example, by gazettal.

Recommendation 40–4 For the purpose of achieving greater transparency, the Commonwealth, States and Territories should publish all ministerial agreements for sharing genetic information, as well as protocols for inter-jurisdictional matching.

[45] The form or content of these arrangements is not detailed in the legislation but the Explanatory Memorandum refers to ministerial ‘agreements’: Revised Explanatory Memorandum to the Crimes Amendment (Forensic Procedures) Bill 2001 (Cth) [224].

[46] Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposal 35–2.

[47] For example, Victoria Police, Submission G203, 29 November 2002; Institute of Actuaries of Australia, Submission G224, 29 November 2002; Centre for Law and Genetics, Submission G255, 21 December 2002; Office of the Privacy Commissioner (NSW), Submission G257, 20 December 2002; Victorian Bar, Submission G261, 20 December 2002; Law Institute of Victoria, Submission G275, 19 December 2002; Association of Genetic Support of Australasia, Submission G284, 25 December 2002; Human Genetics Society of Australasia, Submission G267, 20 December 2002.

[48] Commonwealth Attorney-General’s Department, Submission G228, 12 December 2002. See also Centre for Law and Genetics, Submission G255, 21 December 2002.

[49] NSW Police Service, Submission G306, 22 January 2003.

[50] Office of the Federal Privacy Commissioner, Submission G294, 6 January 2003.