Authorisation of forensic procedures

Crimes Act provisions on consent

41.3 Part 1D of the Crimes Act authorises the carrying out of a forensic procedure on a suspect, serious offender or volunteer with the ‘informed consent’ of that person.^[1]

41.4 The informed consent provisions regarding suspects and serious offenders are similar in nature. An Australian Federal Police (AFP) constable must ask a suspect or a serious offender (who is not a child or incapable person) to consent to a forensic procedure before making an order, or applying to a court for an order for a compulsory forensic procedure. The constable must give the suspect or serious offender the information specified in the legislation about the nature, purpose and consequences of the forensic procedure, and must give the person a reasonable opportunity to communicate (or attempt to do so) with a legal practitioner before consent is given.^[2]

41.5 Where a suspect or serious offender withholds consent to the carrying out of a forensic procedure, a specified decision maker may order that the procedure be carried out without consent, provided that the appropriate legislative test has been satisfied.^[3] Consistently with other areas of operational policing, these tests give the decision maker a broad discretion in deciding whether or not to order a compulsory forensic procedure.

41.6 The Inquiry heard concerns about the appropriateness of the term ‘informed consent’ in relation to a forensic procedure conducted in the context of a criminal investigation. The Inquiry understands that the consent provisions in forensic procedures legislation were borrowed from the medico-legal area with the intention of providing a procedural safeguard to protect personal autonomy. However, in virtually all clinical and medical research contexts, an individual’s refusal to (or withdrawal of) consent to a procedure is the end of the matter—individual autonomy is given precedence.^[4] By way of contrast, in the law enforcement context, an individual’s refusal of consent may be readily over-ruled by an AFP officer exercising a statutory discretion, or by a court.

41.7 The inherently coercive nature of a criminal investigation also challenges the free nature of any consent given to a forensic procedure. For example, where a suspect consents because he or she believes—correctly or otherwise—that a compulsory procedure will be ordered anyway, this may suggest the consent has not been freely given. Similarly, where a police officer suggests that a suspect should consent to a forensic procedure because this would exclude the person from suspicion, this also undermines the free nature of the consent given.

41.8 Dr Jeremy Gans has stated that some investigators might rely on a refusal to consent to a forensic procedure as a sign that the person has ‘something to hide’, arguing that this would constitute a breach of the privilege against self-incrimination.^[5]

41.9 In its submission to the independent review into Part 1D of the Crimes Act (Sherman review), the NSW Legal Aid Commission commented that:

There is some anecdotal evidence to suggest that some police officers are advising suspects that if they do not consent to the taking of a buccal swab, the police have the power to use reasonable force to take a sample of growing hairs. This is a misleading statement of the effect of the NSW Act, which mirrors Part 1D in this respect … Anecdotal evidence suggests that police officers may be … proceeding to take DNA samples from suspects on the basis of consent which does not fulfil the requirements of informed consent.^[6]

41.10 The Inquiry has not heard any allegations that a federal prisoner has felt pressured to consent to a forensic procedure under the Crimes Act.^[7]However, concerns have been raised that state prisoners might have felt such pressure. For example, in its review of the New South Wales forensic procedures legislation the New South Wales Legislative Council Standing Committee on Law and Justice (NSW Standing Committee) heard allegations that some New South Wales prisoners had been pressured into consenting to forensic procedures, and that some prisoners who had withheld consent had subsequently lost privileges or had been reclassified or transferred to higher security prisons. The NSW Standing Committee commented on the New South Wales situation as follows:

It appears to the Committee that offenders feel pressured to consent, whether or not pressure in fact is placed upon them. The Committee is concerned about the potential for courts to overturn consent given by prisoners in circumstances that could be interpreted to be coercive.^[8]

Submissions and consultations

41.11 DP 66 proposed that, in relation to suspects and serious offenders, the consent provisions should be removed from Part 1D of the Crimes Act, rendering compulsory procedures the only means by which a forensic procedure may be carried out on a suspect or serious offender.^[9]

41.12 The Inquiry received a number of submissions both supportive and critical of this proposal. Several submissions worried that removing the consent provisions would undermine an individual’s personal autonomy and human dignity.^[10] For example, Privacy NSW submitted:

The concept of the rule of law as it applies to criminal investigation implies that individuals have choices at each stage of the investigation/prosecution as to whether to cooperate or not … The consent provisions as they apply to taking samples from suspects reflect this process. They represent an important, if in some circumstances symbolic, recognition of the personal autonomy of suspects and convicted offenders … Requesting consent also serves an important if symbolic role where samples are taken from convicted offenders. It recognises that their rights to bodily integrity are not entirely overborne, and should act as a break on excessive collection of DNA samples where there is no clear probative case to support the practice.^[11]

41.13 Privacy NSW also was concerned that removing the consent provisions in relation to suspects might place pressure on the courts to make compulsory orders for forensic procedures:

If the only way to obtain a DNA sample from a suspect is by court order, there is a risk that courts may be less critical when asked to make orders, especially where they have no indication that the individual concerned has refused to provide a sample voluntarily. This would undermine the assumption inherent in forensic testing legislation that a suspect’s bodily integrity could only be interfered with where there was good and sufficient cause.^[12]

41.14 The Office of the Federal Privacy Commissioner (OFPC) acknowledged the ‘inherently coercive nature of criminal investigations’, but submitted that removing the consent provisions would not be the most effective means of remedying any procedural inadequacies. The OFPC noted that the requirement that consent be informed and voluntary provides a measure of restraint or control over the taking of samples and thus could, in practice, provide benchmarks for complaints, audits and other oversight measures. In addition, an emphasis on the voluntary nature of the consent can alleviate the sense of coercion inherent in most investigations.^[13]

41.15 The Victorian Bar submitted that the abolition of consent would simply shift the focus of litigation from the issue of ‘voluntariness’ to the issue of whether there was a valid basis to justify the making of an order.^[14]

41.16 The Commonwealth Attorney-General’s Department considered that the proposal raised a number of difficulties.

First, the ordering of a compulsory procedure under the existing provisions is not automatic. If a person does not consent to a forensic procedure, a senior police officer or a magistrate must still be satisfied of a number of matters before an order can be made. Requiring a magistrate to make an order for a DNA sample in relation to every suspect would involve unnecessary strain on resources of magistrates and increase the time in which a suspect … may be held in custody. Secondly, there is no evidence that the informed consent provisions are operating ineffectively. While it is too early to make an assessment of the provisions in Part 1D of the Crimes Act 1914 … provisions in Victoria have been working without any reports of major difficulties for a number of years.^[15]

41.17 Finally, the Victoria Police submitted that:

the suggested benefit that this proposal is a better reflection of the coercive nature of these forensic procedures and will result in removal of potential arguments of voluntary consent are far out-weighed by the negative influence in the timely, efficient and effective administration of justice.^[16]

41.18 By contrast, several submissions supported the proposal,^[17] as did the AFP in a consultation meeting.^[18] The New South Wales Police Service (NSW Police Service) supported the proposal on the basis that it would streamline the process of carrying out forensic procedures, but only provided that ‘in appropriate cases a New South Wales police officer could issue an order and that judicial officers be available to make orders at short notice if required’.^[19]

41.19 The Law Institute of Victoria agreed that removing the consent provisions would better reflect the coercive nature of the procedures in these circumstances, and would remove potential arguments that consent given by a suspect or serious offender was not a valid informed consent. In addition, as an unwilling suspect would not have to refuse consent, the suspect would not be subject to the risk of adverse inferences being drawn from such refusal. However, the Law Institute commented that:

while we agree that the carrying out of a forensic procedure on a suspect or serious offender should require an Order, we believe that should come from an appropriate judicial officer … It is essential that appropriate judicial scrutiny over police investi-gative activities be maintained. That is the only safeguard currently offered to protect civil liberties. The fact that judicial scrutiny makes it more inconvenient for police to obtain DNA samples simply takes account of the importance of this protective role.

The Law Institute maintains the view that the many competing aims of our criminal justice system must each be taken into account. Efficiency and reliability should not be achieved at the expense of access to justice and the protection of the rights of all individuals, including the accused.^[20]

41.20 The Australian Privacy Charter Council submitted that:

it is entirely inappropriate to pretend that consent is being obtained in situations where suspects or convicts have no real choice. It may however be appropriate for magistrates or judges being asked to issue a warrant in such cases to be informed as to the individual’s degree of reluctance.^[21]

41.21 The submissions generally agreed that, if the consent provisions were removed, the existing prescribed information nevertheless should be retained in the Crimes Act.^[22]

Removal of consent provisions?

41.22 The ‘informed consent’ provisions contained in the Crimes Act appear to be based on notions of ‘policing by consent’ and a concern to protect an individual’s personal autonomy by allowing the person to give or withhold consent to a procedure involving some invasion of bodily and information privacy.

41.23 Several submissions expressed the concern that removing the consent provisions from the Crimes Act would undermine an individual’s personal autonomy. The Inquiry recognises the importance of free choice in maintaining human dignity but considers that the coercive nature of a criminal investigation and prison life already seriously weakens an individual’s capacity for free choice. In practice, it is likely that a suspect or serious offender would feel considerable pressure to ‘consent’ to a forensic procedure whether or not a police officer intended to apply such pressure. An individual’s consent as a result of such real or perceived pressure does not amount to an exercise of free choice or the preservation of personal autonomy.

41.24 An alternative approach would be to retain the consent provisions in the legislation and improve the safeguard through greater access to legal or other independent advice prior to the giving of consent. However, the NSW Legal Aid Commission has commented that:

There are practical limitations to a suspect’s capacity to obtain legal advice. No Australian State or Territory provides a duty solicitor scheme on the model used in the United Kingdom where publicly funded lawyers are available to provide advice to suspects in police custody. In the absence of such a service the right to legal advice before consenting to provide a sample is an illusory right.^[23]

Compulsory orders

41.25 The Inquiry considers that removing the consent provisions in relation to suspects and serious offenders would better reflect the coercive nature of the procedures in these circumstances, and would remove potential arguments that consent given by a suspect or serious offender was not a valid informed consent. However, due to existing legislative provisions, the removal of the consent provisions from the Crimes Act could have significant practical implications for individuals undergoing a forensic procedure.

41.26 The two primary means of conducting a forensic procedure are: (a) the buccal swab method; and (b) removal of hair samples by the root.^[24] Buccal swabs are defined as an ‘intimate’ forensic procedure, while the removal of hair samples are defined as a ‘non-intimate’ procedure.^[25] While a buccal swab is a relatively simple and painless procedure, and in most cases would be preferable to the removal of hair samples by the roots, the Model Criminal Code Officers Committee (MCCOC) classified the former as an ‘intimate’ procedure when drafting the Model Forensic Procedures Bill 2000 (Model Bill). MCCOC explained that:

where the person from whom the sample is being taken agrees to the procedure it can be very simple and is not invasive. However, where a person does not consent and resists the procedure, the procedure would not fairly be described as being non-intimate. Placing something inside someone’s mouth against the person’s consent is invasive.^[26]

41.27 Where a suspect in custody or a serious offender (who is not a child or incapable person) withholds consent to the conduct of a forensic procedure, an authorised AFP officer can order the conduct of a non-intimate forensic procedure (for example, a hair sample) on that person provided the legislative test for such authorisation is satisfied.^[27] An AFP officer cannot order an intimate forensic procedure (for example, a buccal swab) in any circumstances.

41.28 A court may order the conduct of a forensic procedure on a suspect who is, or is not, in custody, including a child or incapable person;^[28] an intimate forensic procedure on a serious offender;^[29] or a non-intimate forensic procedure on a serious offender who is a child or incapable person.^[30]

41.29 The provision of independent court oversight for children and incapable persons, and for suspects who are not in custody, safeguards the bodily privacy of persons who are considered to be more ‘vulnerable’ in the context of a criminal investigation. In practice, if the consent provisions were removed from the Crimes Act, police investigators seeking forensic material from a suspect who is not in custody would need to obtain a court order to do so. This would involve additional time and resources, but may be justified by virtue of the serious nature and implications of taking a genetic sample from a person in the law enforcement context.

41.30 However, for suspects in custody and serious offenders, the safeguard of court oversight would only be triggered if the AFP sought to conduct an intimate forensic procedure on that person. For example, an adult suspect in custody could be subject to either an authorised AFP officer’s order for a non-intimate forensic procedure, or to a court’s order for an intimate forensic procedure. In practice, it would be faster and easier for the AFP officer to order to removal of hair samples than to apply for a court order to conduct a buccal swab procedure. Therefore, it could become rare for a court to be asked to consider an application to order a forensic procedure on an adult suspect in custody or serious offender.

Inquiry’s views

41.31 The Inquiry believes the existing legislative provisions are unsatisfactory, particularly in relation to the authorisation of buccal swab procedures. While removing the consent provisions in relation to suspects and serious offenders would better reflect the coercive nature of the procedures in these circumstances—and would remove potential arguments that consent given by a suspect or serious offender was not a valid informed consent—the practical consequence likely would be that more suspects and serious offenders would be subject to a more painful method of forensic procedure, without any additional oversight by the courts.

41.32 The Inquiry considers that where a suspect is not in custody, or where a suspect or serious offender is a child or incapable person, only a court should be authorised to make a compulsory order. In relation to a suspect in custody, or to a serious offender, an authorised AFP officer should make a compulsory order (provided the legislative test has been satisfied). However, the type of the procedure conducted should not be dependent upon whether it is an AFP officer or a court making the order.

41.33 One option for reform would be to remove the consent provisions from the Crimes Act and amend the existing provisions so that once the appropriate authority has made an order for a compulsory ‘forensic procedure’, the person who is the subject of the order should have the right to choose either a buccal swab procedure or the removal of hair samples.^[31]

41.34 This could be accomplished in a number of ways. First, the Crimes Act could be amended to remove the distinction between an ‘intimate’ and a ‘non-intimate’ forensic procedure, and insert provisions regarding the categories of suspect or serious offender upon whom an authorised AFP officer, or a court, could order a forensic procedure. However, this could have flow-on effects for the other procedures included within these legislative definitions—for example, in relation to the authorisation of fingerprints and other procedures.

41.35 Another approach would be to retain the existing distinction, but insert a legislative provision stating that where a non-intimate forensic procedure has been ordered, the person who is subject to the order has the right to self-administer a buccal swab. This might require some consequential amendments to the legislation in relation to the carrying out of the forensic procedure but otherwise would not undermine the existing legislative framework.

41.36 In any case, the Inquiry considers this matter would benefit from further consideration and practical experience in the conduct of forensic procedures. Therefore, the Inquiry recommends that the Commonwealth Attorney-General should consider amending the Crimes Act to: (a) remove the consent provisions in relation to suspects and serious offenders, so that a forensic procedure only may be conducted on these persons pursuant to an order made by a judicial officer or an authorised police officer in accordance with the Crimes Act; and (b) provide that, once the appropriate authority has made an order for a compulsory forensic procedure, the person who is the subject of the order should be able to choose the method by which the sample is taken.

Provision of prescribed information

41.37 Chapter 39 outlines the prescribed information which must be given to a suspect, serious offender or volunteer before being asked to consent to a forensic procedure. Briefly, this information outlines the nature, purpose and consequences of a forensic procedure.

41.38 A child or incapable person is a volunteer under Part 1D of the Crimes Act if his or her parent or guardian volunteers on his or her behalf to the conduct of a forensic procedure. The parent or guardian must be given specified information about the nature, purpose and implications of carrying out the forensic procedure before giving consent to it.^[32] There is no provision, however, for informing the child or incapable person about these matters, even though the child or incapable person is the subject of the proposed procedure. The Inquiry understands that this resulted from an oversight by MCCOC in drafting the Model Bill rather than a policy decision to exclude these persons from the information-giving process.^[33]

41.39 In addition, there appears to be no legislative requirement to inform a child or an incapable person who is a suspect or serious offender, and who is subject to a compulsory order for the carrying out of a forensic procedure, about the nature, purpose and implications of that procedure.^[34]

41.40 DP 66 proposed that forensic procedures legislation should provide that volunteers who are children or incapable persons also should be given the prescribed information about the nature, purpose and implications of a forensic procedure prior to it being carried out.^[35]

41.41 The submissions and consultations generally supported this proposal.^[36] Privacy NSW stated that this proposal (and the proposal in relation to child volunteers’ consent) represents:

a sensible and currently appropriate balance between the contrasting views about the privacy status of children referred to in the Discussion Paper. They recognise that the views of children should be given weight even where there may be some doubt as to their capacity for fully informed consent.^[37]

41.42 Several groups emphasised the need for the prescribed information to be given in a form that can be understood by the child or incapable person.^[38] The Inquiry heard concerns that the prescribed information for adult suspects, serious offenders and volunteers may be overly complicated—and therefore not easily understood.^[39]

41.43 The Inquiry recognises that some children may not fully comprehend the prescribed information due to their youth or immaturity, and that some incapable persons may not fully comprehend this information due to their particular circumstances. However, exclusion from the information-giving process could cause confusion or distress to a child of any age and to some incapable persons.

41.44 As a result, the Inquiry considers that volunteers who are children and incapable persons should be entitled to receive the prescribed information at the same time as the parent or guardian. In addition, although suspects and serious offenders who are children or incapable persons cannot consent to a forensic procedure, they should be given the prescribed information prior to the forensic procedure being carried out. For all children and incapable persons—and, indeed, for all adult suspects, serious offenders and volunteers—this information should be given in a form that is capable of being easily understood.

41.45 The Inquiry recommends that theCommonwealth should amend the Crimes Act to provide that: (a) the prescribed information about the nature, purpose and consequences of a forensic procedure should be given to a suspect, serious offender or volunteer in a form that is capable of being easily understood by the person receiving the information; (b) a child or incapable person who is a volunteer, suspect or serious offender should be given the prescribed information in a form that is capable of being easily understood by that child or incapable person, as far as circumstances permit; and (c) in addition to information provided to a parent or guardian, the prescribed information also should be given to a child or incapable person who is a volunteer.

Consent by mature child volunteers^[40]

41.46 Chapter 39 outlines the consent procedures in relation to children or incapable persons who are volunteers under Part 1D of the Crimes Act. A child or incapable person cannot consent to a forensic procedure.^[41] Instead, a parent or guardian can give consent on behalf of a child or incapable person in accordance with the volunteer provisions. Where such consent has been given, the forensic procedure may be carried out unless the child or incapable person objects or resists.^[42]

41.47 DP 66 noted that a parent or guardian might not always act in a child’s best interests when giving informed consent to a forensic procedure. For example, where a child is a potential suspect in a criminal investigation, the parent or guardian might consent to the carrying out of a forensic procedure on the child as a volunteer in the mistaken belief that this will exclude the child from suspicion. If the forensic procedure incriminates the child in the offence, this may not have been in the child’s best interests.^[43]

41.48 In addition, conflicts of interest might arise for parents or guardians where the child is accused of assault in relation to another family member, or theft or destruction of family properly, or simply where there is a history of antagonistic relations.^[44]

Submissions and consultations

41.49 DP 66 proposed that forensic procedures legislation should provide that a forensic procedure may be carried out on a child volunteer of 12 years or above only with the consent of a parent or guardian and the child.^[45]

41.50 Most submissions and consultations on this topic supported this proposal.^[46] The OFPC supported the proposal in principle, commenting that:

The over-riding concern should be the protection of children of any age, the promotion of their well-being and respect for their interests … There should be wide-spread community consultation on this issue. It will be important to take into account the relevant recommendations of the Review and the forthcoming Commonwealth Attorney-General’s Department’s issues paper on Protecting children’s privacy.^[47]

41.51 Privacy NSW submitted that:

The legal climate in relation to children’s rights generally is still in a process of evolution from the traditional view which treated children as the property of their parents to the assumption that parental rights are held in trust to be exercised in the best interests of the child, having regard to his or her growing capacity for personal autonomy. The safeguards for children when DNA is collected should be flexible enough to reflect this evolving approach.^[48]

41.52 The Office of the Victorian Privacy Commissioner submitted that:

Any consent provisions allowing for collection of DNA from children must recognise the right of children to participate in decisions that impact on their lives. A decision to take a DNA sample that will become part of a national database has considerable potential impact on a life. Genetic knowledge will grow alongside today’s children (and just as fast) so it seems. Forensic procedures ought not be performed on child ‘volunteers’ without their consent if they have sufficient maturity and understanding to give consent.

Where a child does not have sufficient capacity to consent, the decision will be for the parent or guardian. But, depending on age, the child should nevertheless be consulted about having the procedure so that their views can be taken into account and they are given the opportunity to object and for that objection to be recorded.^[49]

41.53 Finally, the Institute of Actuaries of Australia submitted that the proposal was inconsistent with the Inquiry’s proposal in relation to children’s consent to participation in DNA parentage testing:

We feel that both circumstances would be equally stressful for the child and could have equally profound implications for the child’s future well being. We suggest the Inquiry might care to reconsider if Proposals 31–8 and 36–4 should be brought into line.^[50]

Conclusions on child consent

41.54 The Inquiry recognises that circumstances of conflict of interest are not the norm, and the requirement of parental consent is usually an important safeguard of children’s rights. However, the current provisions may be out of step with other areas of law that increasingly recognise children’s right to participate in decisions that impact on their lives.

41.55 The Inquiry’s proposal in this context is consistent with the position in relation to children’s consent to participation in research. The National Health and Medical Research Council’s National Statement on Ethical Conduct in Research Involving Humans provides that consent to a child or young person’s participation in research must be obtained from the child or young person where he or she has sufficient competence to make this decision, and from the parents or guardian in all but exceptional circumstances (or any organisation or person required by law). Unlike the common law position, where a child has such capacity, the consent of both parents remains necessary (absent exceptional circumstances).^[51]

41.56 This approach is not entirely consistent with Recommendation 35–7, which provides that where a child of 12 years or over is assessed to have sufficient understanding and maturity to decide whether to participate in DNA parentage, the child may give or withhold valid consent to that procedure—and in these circumstances, parental consent is unnecessary.

41.57 The Inquiry has chosen a different approach in relation to forensic procedures for two reasons. First, while a child might have sufficient understanding and maturity to decide whether to consent to a forensic procedure as a volunteer, the child might—due to the inherently coercive nature of any criminal investigation^[52]—feel a pressure to consent to the procedure due to his or her youth or inexperience. In these circumstances, the child should have the additional safeguard of parental decision making.

41.58 Second, while it might be preferable to conduct an independent assessment of each child volunteer to determine his or her capacity to consent in each case, this would require substantial additional training and resources. In the absence of such resourcing, and in light of the fact that a parent must also give or withhold consent, the Inquiry considers that the age of 12 years would be an appropriate minimum age at which a child volunteer should be presumed to have such capacity.

41.59 Consequently, it is recommended that the Commonwealth should amend the Crimes Act to provide that valid consent to the carrying out of a forensic procedure on a child of 12 years or above may be given only by the child and his or her parent or guardian. In the event of a dispute between the parent and child, the forensic procedure should not proceed—unless pursuant to a magistrate’s order under Part 1D of the Crimes Act.