Volunteer provisions

Definition of a ‘volunteer’

41.60 Part 1D of the Crimes Act does not specify each of the contexts in which a person might be asked to consent to a forensic procedure as a volunteer. The Model Bill also does not contain a comprehensive definition of volunteers.

41.61 MCCOC’s discussion paper noted that volunteers would include potential suspects (for example, where suspicion is based on a hunch rather than on reasonable grounds), persons in a large pool for comparison purposes (for example, persons involved in mass screening programs); and victims of crime.^[53] Volunteers might also include people whose DNA profiles were left at the crime scene innocently—for example, the victim’s flatmates in relation to a burglary; the victim’s sexual partner in relation to a sexual assault by another person; police officers and other persons whose DNA samples might have contaminated the crime scene; or relatives of missing or deceased persons.

41.62 DP 66 noted that the volunteers provisions of Part 1D of the Crimes Act need clarification. One way to do this would be to deal with each category of volunteer separately. For example, the Criminal Investigation (Identifying People) Act 2002 (WA) contains separate provisions dealing with volunteers (for example, potential suspects), deceased persons, police officers, victims and witnesses. This approach allows for the development of specific provisions for each particular category of person requested to undergo a forensic procedure.

41.63 In order to clarify which persons fall within the scope of Part 1D of the Crimes Act, and to better regulate the use of the forensic material and profiles obtained from each category, the Inquiry recommends that the Commonwealth should make separate provision for the collection, use, storage, index matching and destruction of forensic material, and profiles obtained from that material, for each main category of volunteer, whether by amending Part 1D of the Crimes Act or through regulations. These separate categories of volunteers may include potential suspects, victims, relatives of missing or deceased persons, police officers and other persons providing elimination samples for law enforcement purposes.

Victims of crime

41.64 Police investigators might need to conduct a forensic procedure on a victim of crime where, for example, the offender has left a bodily sample on or in the victim’s body during an assault. A DNA sample found at a crime scene might include the DNA of the victim only, or a mixture of samples from the offender and victim.

41.65 DP 66 noted that victims of crime fall within the volunteer provisions of Part 1D of the Crimes Act.^[54] Therefore, where a DNA sample is taken from a victim through a forensic procedure, the victim must be dealt with under these provisions. The victim should have a choice whether the resulting DNA profile will be stored in the volunteers (limited purposes) index or the volunteers (unlimited purposes) index of a DNA database system.^[55] If stored in the former index, strict index matching rules apply; if stored in the latter index, more general index matching is permitted.^[56] As a volunteer, the victim also should have the power to withdraw consent to retention of the forensic material or the DNA profile.^[57]

41.66 There is an issue whether, in practice, victims may not always be dealt with as volunteers. To the extent that a victim’s DNA cannot be removed from the offender’s sample, the victim’s profile could be stored in a volunteers index, or in the crime scene index of a DNA database system. In light of the varying index matching rules, there are potentially significant privacy implications for the victim, depending on the respective index in which his or her profile is stored.^[58]

Submissions and consultations

41.67 DP 66 proposed that forensic procedures legislation should be amended to specify that identified victims of crime should be treated as ‘volunteers’; to insert a new index for ‘identified victims’ profiles’ into the DNA database system, with limited index matching rules that exclude comparisons between this index and the crime scene index; and to provide specified information to be given to victims regarding the storage of their profiles.^[59]

41.68 Several submissions and consultations supported the proposal.^[60] The Institute of Actuaries of Australia summarised the divergent views on the issue:

It is possible that the attitudes of some members of the community towards persons who have committed crimes may be hardening. Some Australians might take the view that justice would be served if DNA provided by a victim of a crime also helped to convict that person of a crime they had previously committed. Proposal 36–5 might be seen by those citizens as providing too much protection to criminals. On the other hand, many others in the community are fearful of loss of privacy and of too much power being given to law enforcement agencies. Those citizens might support Proposal 36–5, as setting a desirable balance between police operations and personal privacy.^[61]

41.69 The Law Institute of Victoria generally endorsed the proposal, including the insertion of a new index in a DNA database system, but emphasised that victims’ material should only be stored until closure of the investigation into the relevant crime.

To store a victim’s DNA profile on a database for any longer than is necessary in the interests of the specific investigation is unwarranted … To learn that their genetic profile is to form part of an ongoing database, whether or not in a separate ‘victim’ index, must produce a sense of invasion and further victimisation in many cases … However its storage after the relevant investigation has closed serves no legitimate purpose … The same argument can be extended from victims to other volunteers and to those suspected but not convicted of an offence.^[62]

41.70 The Office of the Victorian Privacy Commissioner submitted that forensic procedures legislation should be reviewed to clarify the application of the volunteer provisions and to ensure that privacy safeguards apply relevantly to all forensic material obtained from volunteers, whenever and however it was obtained. However, the Office did not support the insertion of a new index for identified victims.

There is no clear justification for including innocent persons’ DNA profiles on a criminal DNA database that is directed at solving and deterring crime or identifying missing or deceased persons. Where a victim or volunteer’s sample contaminates a crime scene sample, the innocent person’s DNA ought to be excluded from the sample where practicable. As the Inquiry noted, including victims’ and innocent persons’ samples on the DNA database system may deter people from reporting crime or assisting in the investigation of crime.^[63]

41.71 The Queensland Government submitted that, according to Queensland Police Service policy:

[A] ‘known victim of crime’ is provided with the same election as a person involved in a mass screening (volunteer). That is, they are given a choice whether to provide their sample as a ‘volunteer–limited purpose’ or a ‘volunteer–unlimited purpose’. As a result, Queensland does not see the need for the creation of additional indexes.^[64]

Other approaches

41.72 As noted above, in Western Australia specific legislative provisions deal with obtaining DNA samples from victims of crime.^[65] The NSW Standing Committee commented on the treatment of victims of crime in its review of the New South Wales forensic procedures legislation as follows:

The Committee notes the need to develop separate provisions to deal with victims’ profiles. The Committee considers it to be inappropriate for victims’ profiles to be placed on the crime scene index. A victim’s profile should be used solely in an attempt to make a link with a suspect for that crime, and should not be more broadly matched.^[66]

41.73 The Committee recommended that the New South Wales Attorney-General develop provisions regulating the databasing of victims’ DNA profiles that ensure that matches are not attempted between victims’ profiles and any other crimes.^[67] The New South Wales Parliament subsequently amended the Crimes (Forensic Procedures) Act 2000 (NSW) to exclude victims of offences against the person from the operation of the Act.^[68] The Attorney-General announced that a protocol would be developed to deal with the carrying out of forensic procedures on such victims.^[69] The NSW Police Service submitted that:

A victim’s profile will not be placed on any index of the database but will simply be matched within the case itself. In the circumstances, the creation of a new index for ‘identified victims’ profiles’ will have limited, if any application, in the New South Wales context. The treatment of victim profiles is consistent with the treatment to be afforded to DNA samples provided by a volunteer for limited purposes.

The Victims’ Protocol will specify the information to be provided to a victim prior to him/her being requested to provide a buccal or hair sample. The information will, inter alia, include details of where the profile and any remaining DNA sample will be stored and when, and under what circumstances, the sample and profile can be destroyed.^[70]

Inquiry’s views

41.74 There is a public interest in protecting the privacy of victims of crime, but also in ensuring that real victims are not reluctant to report crime through fear of implicating themselves in other unrelated offences.

41.75 The Inquiry does not propose to remove crime victims from the scope of Part 1D of the Crimes Act. Instead, the Inquiry considers that it would be better to clarify the provisions in Part 1D of the Crimes Act in relation to victims of crime in order to greater protect their genetic privacy. Recommendation 41–4 provides that specific provisions should be inserted into the Act in relation to victims of crime.

41.76 The proposed new database index for ‘identified victims’ profiles’ received some criticism and the Inquiry has decided not to recommend this approach. As the AFP has advised that in practice all reasonable attempts are made to separate a victim from a mixed DNA sample, the Inquiry considers that it would be reasonable to give this practice legislative form.

41.77 The Inquiry recommends that, where a known victim’s DNA sample is found at a crime scene or is mixed with an offender’s DNA sample, all reasonable measures must be taken to:

• separate the DNA belonging to a victim of crime from a crime scene sample where the latter contains mixed samples;
• ensure that a victim’s DNA profile is not stored on the crime scene index of a DNA database system; and
• ensure that a victim’s DNA profile is not matched against the crime scene index of a DNA database system.

Potential suspects and mass screenings

41.78 The volunteer provisions of Part 1D of the Crimes Act allow police investigators to ask a potential suspect to submit to a forensic procedure for the purpose of eliminating him or herself from suspicion. Police might ask a small number of potential suspects to volunteer in the context of a criminal investigation, or they might conduct a mass screening program in which they ask a section of a workplace, neighbourhood or town to submit to a forensic procedure.

41.79 The world’s first mass screening is believed to have occurred in Britain in 1987 in the context of a murder investigation. Four thousand men in Leicestershire were tested before the offender was caught after convincing another man to submit a DNA sample for him. Reportedly the largest mass screening to date occurred in northern Germany in 1998 where 16,400 people were tested in relation to a rape-murder.^[71]

41.80 The Inquiry has heard that the first Australian mass screening program occurred in Western Australia in 1997, when many of Perth’s 3,500 taxi rivers voluntarily provided DNA samples as part of the investigation into the Claremont serial killings. More recently, large mass screenings have been held in Wee Waa, NSW in relation to a sexual assault, and in several Queensland towns in relation to murder and rape investigations.^[72]

41.81 In its submission to the Inquiry, the Office of the Victorian Privacy Commissioner outlined the following concerns in relation to mass screenings:

a. potential for less intrusive methods of investigation to be overlooked, with consequent risk that time will be lost and resources needlessly expended on DNA collection and screening;

b. social (or police) pressure being exerted to coerce consent;

c. potential for collection to be excessive (both in the number of persons tested and the possibility for additional personal information to be collected, such as photographs and interview statements); and

d. potential for the understandable shock and concern felt by any community after a serious crime to be used to obtain from volunteers consents of wider scope than necessary in the circumstances—in particular, consent to retain samples and/or data and/or photographs for any future purpose.^[73]

41.82 The Inquiry has heard concerns that members of the community might feel pressure to submit to a forensic procedure as a volunteer in order to eliminate themselves from potential suspicion in a criminal investigation. It has been suggested that such requests might be used as an intelligence tool known as ‘DNA request surveillance’, where a person requested to submit to a forensic procedure as a volunteer becomes a suspect in the investigation solely as a result of refusing to provide a sample.^[74]

41.83 For example, in June 2002, Queensland police investigating the death of an English backpacker who was believed to have fallen, or to have been pushed, from a bridge in the town of Bundaberg announced a mass screening program to identify the male whose DNA sample was found on the bridge. It was reported that close to 2,500 men and boys in north Bundaberg would be asked to submit to DNA testing and that police would record the name of any person who refused to do so.^[75]

41.84 The NSW Legal Aid Commission raised the following concerns about the use of mass screening programs in its initial submission to the Inquiry:

This process places great pressure on affected individuals to consent. People who decline to participate may come under unreasonable suspicion. Innocent people may decline to participate for a number of reasons, including a concern to retain the privacy of their genetic information, or concerns about how the samples may be used. There is also a problem associated with the media coverage that such mass screenings receive. This coverage could have a prejudicial effect on any suspect charged following the screening program. The cost and time expended on the screening program could create a strong impression on the public that the person identified through the screening is the offender, even though the DNA evidence is not conclusive evidence of guilt.^[76]

41.85 In practice, the delineation between a suspect and a potential suspect is often fuzzy. For example, it might be explained to a potential suspect that, if he or she submits to a forensic procedure as a volunteer, the person may decide in which volunteer index the profile will be stored^[77] and the retention period of the forensic material and profile. However, if the person will not consent as a volunteer, he or she may be considered a suspect, in which case the police might seek a compulsory order for a forensic procedure. If the order is given, the resulting profile could be stored in the suspects index for a period of 12 months, during which time it could be matched against all outstanding crime scene profiles.

41.86 The NSW Standing Committee considered the use of mass screening programs in its review of the New South Wales forensic procedures legislation. The Committee recommended that the Attorney-General consider amending the legislation to require a court order before police can undertake a voluntary mass screening.^[78]

Submissions and consultations

41.87 DP 66 proposed that regulations or police guidelines should be developed in every jurisdiction on the conduct of mass screening programs, both in relation to the approval process for initiation as well as the manner in which such programs are conducted.^[79]

41.88 Many submissions and several consultation meetings supported the proposal.^[80]The Office of the Victorian Privacy Commissioner commented that a clear written protocol on how mass screenings should be conducted would appropriately balance the competing public interests of law enforcement and privacy. The Office emphasised that the guidelines should have legislative force, and also suggested that police should be required to seek a court order before undertaking any mass screening.^[81]

41.89 The NSW Police Service supported the proposal, but noted that the regulations or guidelines would need to be sufficiently flexible to accommodate the circumstances of individual cases.^[82] The Queensland Government submitted that its Police Service’s Operational Procedures Manual already contains a policy for determining the necessity for, and scope of, a mass screening to assist in an investigation. This policy provides that the investigating officer is to liaise with the DNA Coordination Unit in relation to the management and administration of the mass screening.^[83]

41.90 The Human Genetics Society of Australasia noted that it supported the proposal for police guidelines or regulations, but remained concerned about how these would be monitored to ensure compliance by law enforcement authorities.^[84]

41.91 The OFPC supported the proposal in principle, but noted that:

It may prove difficult … to formulate ‘universal’ regulations or guidelines with any degree of precision. A screening program and its implementation may be devised to achieve a certain forensic goal. The local circumstances and the nature of the investigation may influence the conduct of the screening processes … much will often depend upon the maintenance of the integrity of the procedure by the investigating officers and of their respect for the participating subjects. Objective data, obtained by appropriate means of ‘field-testing’ or monitoring the conduct of the program will be critical. Ultimately, the effectiveness of such programs may depend upon dispelling perceptions that they are privacy-intrusive for the participating individuals.^[85]

41.92 Finally, several submissions suggested the use of a GeneTrustee system to protect the privacy of volunteers’ genetic information.^[86] The Institute of Actuaries of Australia submitted that:

The guidelines should cover the use of a ‘gene trustee’ to hold the samples volunteered by the persons screened. The gene trustee will be charged with keeping the samples secure and protecting the privacy of all volunteers, except for that one (or more) volunteer(s) whose DNA is found to match the DNA left at the crime scene by the suspect or suspects.^[87]

Inquiry’s views

41.93 The Inquiry considers that some form of oversight is important in light of the absence of any legislative guidance regarding the definition of a volunteer, or the circumstances in which a person may be asked to consent to a forensic procedure. The intention is not to inhibit people from volunteering for a forensic procedure where this would be of real value to a criminal investigation. However, the Inquiry considers it necessary to ensure that individuals who would not otherwise be considered suspects in a criminal investigation do not feel undue pressure to ‘volunteer’ for a forensic procedure in order to eliminate themselves from potential suspicion.

41.94 Some form of oversight of police actions is currently provided through existing complaints mechanisms. Complaints can be made about the actions of AFP employees to either the AFP or the Commonwealth Ombudsman.^[88]

41.95 The Inquiry has heard the suggestion that mass screenings should be permitted only where police investigators have obtained a court order to do so. This would provide external judicial scrutiny of proposed mass screening programs, and would be consistent with the approach taken by the NSW Standing Committee in its review of the New South Wales forensic procedures legislation.

41.96 The Inquiry has decided against adopting this approach. Instead, the Inquiry recommends the development of guidelines for the conduct of mass screening programs, both in relation to the approval process for initiation as well as the manner in which such programs are conducted. These guidelines could be inserted into Part 1D of the Crimes Act or regulations made thereunder, or they could be located within police operational guidelines—provided they are published in the Government Gazette or some other accessible form.