Informal collection of genetic samples

41.197 Given the ubiquity of genetic samples in public and other spaces, the Inquiry has heard that police investigators might seek to use informal procedures to obtain these samples. This would result in a parallel system for the collection and use of genetic samples falling outside the formal regulatory framework established under Part 1D of the Crimes Act.

Methods of informal collection

Collection of discarded samples

41.198 If police investigators do not wish to alert a person to the fact that he or she is a suspect in an investigation, or do not have sufficient evidence to obtain an order for a non-consensual forensic procedure, they might seek to obtain the suspect’s genetic sample after it has been discarded or otherwise become detached from the suspect’s body. For example, in R v Nicola, New South Wales police obtained a genetic sample from a suspect’s used styrofoam cup after he threw the cup into a bin at the police station.^[181] In R v Phuc, police seized cigarette butts discarded by two suspects in relation to a Victorian offence during police interviews conducted outside Australia.^[182]

Non-forensic investigative powers

41.199 Similarly, police investigators might seek to obtain a sample by using non-forensic investigative powers such as search warrants, random breath tests or blood alcohol tests. For example, in R v Daley, New South Wales police had identified a suspect in relation to eight sexual assaults. The police sought to obtain the suspect’s DNA sample covertly and arranged for him to be stopped for a ‘random’ breath test. After the suspect exhaled into the tube the container was sealed and forwarded to the laboratory for DNA analysis. The police also searched the suspect’s house pursuant to a search warrant, asked him to remove his clothes, and subjected the clothes to DNA analysis.^[183]

41.200 Alternatively, police might seek to gain access to a suspect or other person’s stored genetic samples for use in law enforcement. For example, police might request access to a person’s newborn screening card (ie, Guthrie card) or other pathology samples for identification purposes.^[184]

Close genetic relatives

41.201 In light of the similar genetic makeup of close relatives, it is possible that police might seek to conduct a forensic procedure on a close relative of a suspect where the suspect is not available for testing. For example, if a suspect has left Australia, the police might ask his or her sibling to provide a DNA sample to determine whether the suspect should be excluded from suspicion, or whether there is a probability that the suspect may have left the DNA sample found at a crime scene.^[185]

41.202 This could have significant privacy implications for the family of any person who is identified as a suspect in an offence. In its submission to the Inquiry, the Office of the Victorian Privacy Commissioner expressed the concern that:

[f]orensic procedures provisions allowing forensic samples to be obtained from suspects and serious offenders (and any safeguards accompanying them) may be circumvented if DNA can be otherwise obtained from a ‘third party’, namely from suspects or serious offenders’ relatives. Consideration should be given to prohibiting the seeking or obtaining, without a court order, of DNA material from volunteers for the purpose of identifying suspects or serious offenders.^[186]

Limitations on police powers

41.203 Police investigators do not have any specific statutory power to obtain a genetic sample from an item or a public space once it has been discarded or has otherwise become detached from a person’s body; nor is there any specific prohibition on this activity. However, there are a number of possible existing limitations on these powers. First, if Australian law recognises a property right in a genetic sample, the taking of that sample without the consent of the person from the sample originates could constitute theft. However, as noted in Chapter 20, Australian law has not generally recognised this form of property right in genetic samples.

41.204 Second, in Chapter 8 the Inquiry recommends that the Commonwealth should amend the Privacy Act to extend the coverage of the IPPs and NPPs (or similar privacy principles) to identifiable genetic samples.^[187] Once implemented, the genetic samples collected in these circumstances could fall within the IPPs in the Privacy Act—however, the exceptions applying to law enforcement contexts would limit its applicability.

41.205 Third, as Part 1D of the Crimes Act provides a formal framework for collecting genetic samples from suspects, it is likely that Parliament intended that this legislation should be the sole authority by which police might collect such samples. Section 23YU(1) provides that Part 1D is not intended to limit or exclude the operation of another law of the Commonwealth or a law of a State or Territory relating to:

• the carrying out of forensic procedures, including procedures not referred to in Part 1D;
• the carrying out of breath analysis or a breath test or the production of samples of blood and urine to determine the level of alcohol or drugs present in a person’s body;
• the taking of forensic samples, including samples not included in Part 1D;
• the taking of identification evidence;
• the carrying out of searches of the person; or
• the retention or use of forensic material or information obtained as a result of activities described above.

41.206 MCCOC’s discussion paper explained the provision as follows:

Clause 87 preserves the right to [sic] for police or other officials to ask people to undergo forensic procedures for other purposes. So, for example, there might be separate legislation dealing with the reception of prisoners into prison where fingerprints are required for identification purposes. Clause 87 makes it clear that the Model Bill is not meant to over-ride legislation which performs other purposes. Another example is the taking of samples for blood alcohol analysis.^[188]

41.207 The Revised Explanatory Memorandum to the Crimes Amendment (Forensic Procedures) Bill 2001 commented on the section as follows:

This proposed amendment ensures that the operation of any Commonwealth, State or Territory laws allowing the carrying out of breath analysis or a breath test or the production of samples of blood and urine to determine the level of alcohol or drugs, if any, present in a persons blood is not limited or excluded by Part 1D.^[189]

Issues and problems

41.208 Part 1D of the Crimes Act establishes a legislative framework for police investigators to obtain a genetic sample from a suspect, serious offender or volunteer for law enforcement purposes. The intention of MCCOC and the Commonwealth Parliament appears to have been that this framework should provide the sole authority for the collection of genetic samples in these circumstances—however, s 23YU appears to permit police investigators to obtain samples by other lawful means. In addition, in the absence of any specific prohibition on the collection of discarded genetic samples, there currently appears to be no limitation on this practice.

41.209 Dr Jeremy Gans has argued that Part 1D of the Crimes Act should require that investigators must rely on ‘forensic procedures’ under the legislation rather than informal techniques, or tricks, to obtain a suspect’s genetic sample.

The use of informal methods for gathering DNA is invasive of people’s legitimate expectations of privacy (such as the freedom to drink, spit or blow their nose without incriminating themselves). Moreover, the continuing non-regulation of these methods is an invitation to investigators to avoid the inconveniences of following the formal procedures set out [in] Divisions 4 and 6. Further, the regular use of these methods will lend plausibility to fears that the police may plant a person’s DNA sample at a crime scene. If investigators have a genuine reason to seek DNA covertly … then they should have to obtain a warrant, akin to other covert surveillance operations.^[190]

Inquiry’s views

41.210 Part 1D of the Crimes Act provides a detailed regulatory framework for obtaining a genetic sample in this context, and the Inquiry considers that allowing police to obtain a sample outside this framework could significantly undermine not only adherence to the framework but also the procedural and other safeguards existing within it.

41.211 One approach is to rely on the existing provisions regarding admissibility of evidence obtained in Division 7 of Part 1D of the Crimes Act, or the Evidence Act 1995 (Cth). The Inquiry considers this would not provide sufficient safeguard against the informal collection of genetic samples. In practice, the police could obtain a suspect’s cigarette butt and have the sample analysed and compared with a crime scene sample. If the person is excluded as a suspect, or if the person is implicated but a formal sample is subsequently taken pursuant to the Crimes Act provisions, the admissibility of the covertly obtained sample would not arise as an issue in court proceedings.

41.212 The Inquiry considers there is a public interest in ensuring that Part 1D of the Crimes Act is not undermined by the use of informal means to collect genetic samples for law enforcement purposes. The Australian community has a right to expect that the private and sensitive information contained within their genetic samples is used only as specifically permitted by legislation or other court authority.

41.213 Therefore, the Inquiry recommends that the Commonwealth should amend the Crimes Act to provide that, with the exception of crime scene samples, law enforcement officers may collect genetic samples only from: (a) the individual concerned, pursuant to Part 1D; or (b) a stored sample, with the consent of the individual concerned (or someone authorised to consent on his or her behalf), or pursuant to a court order.