Limits on analysis
41.97 Australian forensic laboratories currently analyse only the non-coding section of the DNA molecule for law enforcement purposes. In his Second Reading Speech in relation to the Crimes Amendment (Forensic Procedure) Bill 2001 (Cth), the Commonwealth Attorney-General, the Hon Daryl Williams AM QC MP, commented on the limited information included in a DNA profile:
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.
41.98 However, advances in forensic science suggest two potential developments in forensic analysis. First, scientists have suggested that non-coding DNA may contain some information relevant to health. Second, it might be possible in future to obtain some information about physical, and possibly behavioural, traits from the coding section of DNA.
41.99 For example, the United Kingdom’s Forensic Science Service (FSS) is currently conducting research directed toward identifying common characteristics from bodily samples—such as race, skin, hair and eye colour, stature, weight, age and facial characteristics—so that in future crime scene samples could be analysed to create a ‘genetic photo-fit’ of the offender for use in criminal investigations. This might be extended to behavioural traits and other medical information. The Inquiry understands that similar research into physical characteristics is being conducted in Australia.
41.100 The FSS is also working on analysis of markers inherited from father to son on the Y chromosome. This information could be used in sexual assault cases in which the offender’s DNA has been contaminated with that of the female victim; it has also been suggested that this analysis might provide information about possible surnames and geographic origin. In addition, the FSS provides a ‘race identification service’, and a ‘red hair service’ that detects about 85% of redheads.
41.101 The Inquiry has heard concerns that the Australian community has accepted the forensic use of DNA on the understanding that only non-coding sections would be analysed, and only for the purposes of ascertaining an identification number. The analysis of coding DNA in future for law enforcement purposes to provide information about health and behavioural characteristics would have important privacy and other implications, and would require a fundamental review of the whole system.
Submissions and consultations
41.102 DP 66 proposed that forensic procedures legislation should provide that samples (including crime scene samples) collected or otherwise obtained for use in the law enforcement context may be subject to genetic testing and analysis only with respect to the non-coding sections of the DNA, and only for the purposes of creating a DNA profile, quality assurance or equipment validation.
41.103 The submissions generally supported the proposal, as did a number of persons consulted. In addition, the Commonwealth Attorney-General’s Department agreed that the proposal restates the current method of DNA analysis for law enforcement purposes, and stated that any proposed change to this current method would require detailed consideration.
41.104 The OFPC strongly supported the proposal in principle, commenting that:
The relative ease of access by law enforcement agencies to DNA database information is predicated on the understanding that no genotypical information about the subject, other than their sex, will be revealed. This understanding is explicit in the Second Reading Speech of the Crimes (Forensic Procedures) Bill 2001.
If, however, DNA-related research is conducted on the subject’s sample by the research arms of law enforcement agencies (with a view to developing more sophisticated DNA profiling methods) which involve genotypical information, then urgent consideration should be given to enacting legislation to regulate such activity. This legislation should be directed at limiting DNA collection and analysis for prescribed law-enforcement purposes and/or against the potentially harmful collection of sensitive genetic information for purposes other than that for which the sample was collected. Criminal sanctions may be appropriate in this context.
41.105 In his submission to the Victorian Parliament Law Reform Committee’s review of that jurisdiction’s forensic procedures legislation, Dr Jeremy Gans commented that:
The DNA molecule contains considerable personal information, in the form of the details of a person’s genetic make-up. Genetic privacy is an issue of considerable sensitivity to the public. Contemporary DNA identification does not—and ought not—involve any analysis of this information. To be useful to investigators, DNA profiles must be derived from the ‘non-coding’ portions of the DNA molecule. There is no reason why investigators should be permitted to analyze the coding portions of the molecule. If investigators were explicitly barred from doing so, then much public concern about DNA sampling would be alleviated.
41.106 The NSW Police Service submitted that it generally had no disagreement with the proposal, but noted that: the ‘valid purposes’ should cover inclusion in relevant databases (including databases of population statistics and internally maintained databases); some allowance should be made for access to, and comparisons with, DNA samples or information from medical records for the purpose of an investigation; and a sequence thought to be non-coding may be later found to influence a predisposition for a particular condition in a discreet section of the population.
41.107 The Victoria Police opposed the proposal on the basis that it would
restrict the development of new DNA markers such as physical characteristics that are currently subject to increasing research worldwide. Such markers may assist in the early identification of an offender through eyewitness accounts and specifically where no DNA profile matches against the established crime indexes. A more appropriate approach would be to prohibit the use of sample collected for criminal investigations to only criminal investigations.
41.108 The Inquiry is concerned about the potential extension of forensic analysis of DNA samples to physical and behavioural characteristics. While information about an unknown offender’s eye or hair colour or other features might be useful in identifying that individual, this form of analysis represents a fundamentally different use of the DNA molecule from that contemplated when the Model Bill was being developed.
41.109 If sensitive information as to a suspect, offender or volunteer’s behavioural characteristics were to be obtained from a DNA sample and inserted into the DNA database system—for example, where the individual has a predisposition to a particular medical or mental condition—this could undermine the individual’s own (and his or her genetic relatives’) privacy in a way that is not directly necessary for the purpose of physical identification.
41.110 In the United Kingdom, the Human Genetics Commission has commented on this form of research, stating that it foresees a danger that the current DNA profiles will be supplemented on the national DNA database by additional personal genetic information that might be considered to be private and sensitive:
It appears to us that there is a clear distinction between using DNA for comparison or identification purposes (which the public broadly accepts) and using it to predict the characteristics of a person. We take the view that the public might have concerns about such uses and that it should be subject to a wider debate.
41.111 The Inquiry has not proceeded to a firm recommendation on the basis that the science in this area is still in an early phase and will develop rapidly in coming years. If in future law enforcement authorities wish to go beyond mere DNA identification number construction to utilise genetic technology to determine health status or behavioural traits, this would require considerable public consultation and fresh community agreement.
 Except in so far as the laboratories analyse the chromosomes to determine the person’s sex.
 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 26 March 2001, 25635 (The Hon Daryl Williams – Attorney General).
 D Concar, Fingerprint Fear, New Scientist, <www.newscientist.com/news/news.jsp?id=ns9999694>, 19 February 2003, cited in Office of the Federal Privacy Commissioner, Submission G143, 22 March 2002.
 See R van Oorschot and others, ‘Beyond DNA Databases: Physical Identification Using DNA’ (Paper presented at DNA Evidence: Prosecuting Under the Microscope International Conference, Adelaide, 10 September 2001).
 Human Genetics Commission, Inside Information: Balancing Interests in the Use of Personal Genetic Data (2002), London, 155.
 For example, by the Queensland University of Technology’s Research Centre for Diagnostics.
 Human Genetics Commission, Inside Information: Balancing Interests in the Use of Personal Genetic Data (2002), London, 156.
 Advisory Committee members, Advisory Committee meeting, 29 November 2001.
 Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposal 36–8.
 Office of the Privacy Commissioner (NSW), Submission G257, 20 December 2002; Institute of Actuaries of Australia, Submission G224, 29 November 2002; Centre for Genetics Education, Submission G232, 18 December 2002; Human Genetics Society of Australasia, Submission G050, 14 January 2002; New South Wales Health Department, Submission G092, 25 January 2002; Liberty Victoria, Consultation, Melbourne, 23 October 2002; Centre for Law and Genetics, Submission G255, 21 December 2002; National Legal Aid, Submission G314, 19 February 2003; Office of the Federal Privacy Commissioner, Submission G294, 6 January 2003; Law Institute of Victoria, Submission G275, 19 December 2002; Association of Genetic Support of Australasia, Submission G284, 25 December 2002.
 Commonwealth Attorney-General’s Department, Submission G228, 12 December 2002.
 Office of the Federal Privacy Commissioner, Submission G294, 6 January 2003.
 J Gans, Submission to the Victorian Parliament Law Reform Committee’s Inquiry into Forensic Sampling and the Use of DNA Databases in Criminal Investigations (2002), 5.
 NSW Police Service, Submission G306, 22 January 2003.
 Victoria Police, Submission G203, 29 November 2002.
 Human Genetics Commission, Inside Information: Balancing Interests in the Use of Personal Genetic Data (2002), London, 156–157.