Crimes Act provisions
42.4 Part 1D of the Crimes Act 1914 (Cth) (Crimes Act) regulates the conduct of forensic procedures on relatives of missing or deceased persons and the matching of their DNA profiles against the DNA obtained from unidentified human bodies or remains. This facilitates the identification of missing or deceased persons, and mass disaster victims, within the federal jurisdiction.
42.5 Blood relatives of missing or deceased persons fall within the ‘volunteers’ provisions of Part 1D of the Crimes Act. As a volunteer, a relative should:
- be given the information prescribed for volunteers prior to giving consent to a forensic procedure;
- have a choice whether his or her DNA profile will be stored in the volunteers (limited purposes) index or the volunteers (unlimited purposes) index of a DNA database system; and
- have the right to withdraw consent to retention of the forensic material or the DNA profile, subject to a magistrate’s order that it be retained.
42.6 In practice, blood relatives of missing or deceased persons are not always dealt with according to these provisions. While they are treated as ‘volunteers’ for the purpose of collecting a DNA sample, the Act provides for their profiles to be stored in the ‘missing persons’ index of a DNA database system rather than in a ‘volunteers’ index; and their profiles may not be destroyed until all relevant identifications have been made. For example, the AFP advised that all of the profiles stored on the DVI Database—including the bombing victims’ relatives’ profiles—would remain on the database until all of the matching was complete.
42.7 The index-matching table in Part 1D of the Crimes Act permits unrestricted matching between profiles held in the missing persons index and all other indexes on a DNA database system—including the crime scene index.
42.8 Where a mass disaster or other incident occurs outside Australia, the Commonwealth would have primary responsibility for identification of the victims; where an incident occurs within Australia, the matter is more likely to fall within the jurisdiction of the State or Territory in which the incident occurred.
42.9 Each Australian State and Territory has implemented forensic procedures legislation that permits the collection of DNA samples in the context of a criminal investigation. This legislation generally would extend to the use of DNA in identifying missing persons, and human bodies and remains.
42.10 In addition, each Australian jurisdiction has implemented coronial legislation providing for coronial inquests into ‘reportable deaths’. An individual death, or multiple deaths occurring out of a mass disaster or terrorist attack, could therefore be the subject of a coronial inquest.
Issues and problems
42.11 The Inquiry has identified two primary concerns with the current legislative framework for obtaining genetic samples from relatives of missing persons.
42.12 First, relatives of missing persons are treated as ‘volunteers’ for the purpose of collection of genetic samples, but not for the purpose of storage or matching their profiles on a DNA database system. Therefore, the prescribed information given to these persons before they consent to a forensic procedure would be inaccurate in advis-ing them that their profiles will be held in a volunteers index and, perhaps, in relation to withdrawing consent to retention of the forensic material or the DNA profile.
42.13 Second, if relatives’ profiles are held in the missing persons index of a DNA database system, they may be lawfully subjected to unrestricted matching against any other index on the system; for example, to obtain ‘cold hits’ with profiles obtained from unrelated crime scenes. This constitutes a use unrelated to the purpose for which the sample was collected and could, in future, deter relatives of mass disaster victims or other missing or deceased persons from assisting police investigators in their inquiries.
42.14 In practice, the latter concern has not arisen in relation to the DNA database system established to identify the Bali bombing victims (see below for more detail). As this database holds four indexes only, unrestricted matching within the database cannot generate ‘cold hits’ with unrelated crime scene profiles. During the Parliamentary debate on the Crimes Amendment Bill 2002 (Cth), it was said that the
new database has been created alongside the national CrimTrac criminal DNA database, but is an entirely separate database. We have been given absolute assurances by the government that the two will be quarantined from each other and that there will be no sharing of information between them.
42.15 However, as Part 1D of the Crimes Act permits unrestricted matching, it is at least technically possible—and lawful—to match a relative’s profile against an unrelated crime scene profile, irrespective of whether the profiles have been uploaded onto a computerised database.
Submissions and consultations
42.16 DP 66 proposed that Part 1D of the Crimes Act should be amended to delete reference to the DNA profiles of blood relatives of missing persons from the definition of the ‘missing persons index’.
42.17 Most of the submissions supported this proposal. The New South Wales Police Service supported the proposal, noting that in New South Wales
the DNA profiles of blood relatives of missing persons will be placed on the Volunteers (Limited Purposes) Index, not the Missing Persons Index. The only DNA profiles that will be placed on the Missing Persons Index are those of the missing persons themselves.
42.18 The Law Institute of Victoria commented that
for the reasons set out in the Discussion Paper, we believe there is a public interest in protecting the privacy of individuals who volunteer their bodily samples, for example following mass disasters or the disappearance of a relative. It is vital that relatives are not reluctant to notify police of a disappearance, or to assist in the identification process, due to concern about other uses to which their volunteered genetic information may be put.
42.19 The Office of the Federal Privacy Commissioner supported the proposal, commenting that:
The events in Bali in October 2002 have demonstrated the public interest in having access to DNA profiles to identify victims of catastrophic events. In the absence of uniform legislation across all jurisdictions, the Commonwealth Government found it necessary to enact urgent legislation providing for access to the national DNA database by law enforcement officers for identification purposes. Federal and state police officers collected DNA samples from the relatives of persons missing in Bali and, together with the victims’ samples, they were stored in a separate database to enable profile-matching. These measures demonstrated the importance placed on ensuring that, both legally and technologically, it would be extremely difficult to link this database with any other database. The community has a demonstrable interest in law enforcement agencies maintaining the integrity of these processes.
Careful thought and attention should continue to be given to those legal and technical measures, which will ensure that the DNA profiles of all volunteers collected for this, or any future, catastrophe are not included in an inappropriate index or used for any unrelated forensic purposes.
42.20 The Queensland Government suggested that further consideration be given to the adverse effect of the proposal on the ability to locate missing persons.
The deletion of blood relatives of missing persons from the definition of ‘missing persons index’ in Crimes Act (Cth) will adversely affect the Commonwealth’s ability to match DNA profiles to locate a missing person. For example, the Commonwealth’s Volunteers (unlimited purpose) index does not facilitate a match with suspects and other volunteers.
42.21 Finally, the Commonwealth Attorney-General’s Department commented that the Sherman review is currently considering this issue; and the Joint Standing Committee of Attorneys-General/Australasian Police Ministers Council Working Group is expected to consider improvements to the Model Forensic Procedures Bill in 2003.
New South Wales approach
42.22 The New South Wales Legislative Council’s Standing Committee on Law and Justice highlighted this issue in its review of the New South Wales forensic procedures legislation. The Committee recommended that the New South Wales Attorney-General seek to address the problem of matching crime scene and DNA profiles of relatives of missing persons.
42.23 The New South Wales Parliament subsequently passed the Crimes (Forensic Procedures) Amendment Act 2002 (NSW), which provided (among other things) that:
- a person giving a sample for the purposes of the missing persons index must first be told that his or her DNA profile may be matched against all of the other indexes on the database; and
- information about a match between the person’s profile and any other DNA profile on the database cannot be used in proceedings against that person. If a match implicates the person in the commission of another offence police must carry out a fresh forensic procedure in order to obtain an admissible sample.
42.24 The New South Wales approach permits unrestricted matching between profiles on the missing persons index and every other index on a DNA database system, but ensures that relatives of missing or deceased persons must be informed that such matching may be conducted. It appears to provide a safeguard for the relative by providing that evidence of any match is not admissible in proceedings against the person—however, this safeguard is more apparent than real. Having been alerted to the ‘cold hit’, police investigators need only obtain a second sample from the relative in accordance with the forensic procedures legislation. If evidence of the initial ‘cold hit’ is considered sufficient grounds to authorise the second sample, the apparent safeguard would have no real effect.
42.25 There is a strong public interest in the resolution of crime. However, this needs to be balanced against the public interest in ensuring that persons are not reluctant to notify the police of a disappearance, or to assist in identifying victims of mass disasters and other missing persons, through fear of implicating themselves in outstanding or future offences. The Inquiry considers that in circumstances where relatives volunteer their forensic material for the specific purpose of identifying a missing or deceased relative, the balance should be tipped in favour of protecting those persons from self-incrimination in outstanding offences.
42.26 Therefore, the Inquiry does not propose to adopt the New South Wales approach but instead recommends that the Commonwealth Parliament should amend Part 1D of the Crimes Act to delete reference to the DNA profiles of blood relatives of missing persons from the definition of the ‘missing persons index’. As noted above, this proposal was supported by most of the submissions.
42.27 As a result of this recommendation, relatives of missing or deceased persons should be treated as volunteers in relation to the collection, use, storage and destruction of their forensic material and DNA profiles under Part 1D of the Crimes Act. The missing persons index of a DNA database system should contain only profiles derived from the forensic material of persons who are missing or presumed dead, while their relatives’ profiles should be stored in the volunteers (limited purposes) index to restrict the index matching to the specific purpose for which the sample was collected.
42.28 As volunteers, relatives also should have the right to withdraw consent to the retention of their forensic material or any information obtained from it. The Inquiry considers that in most cases a relative would agree to an open-ended retention period—for example, until the human remains found at a mass disaster site have been identified to the extent that it is reasonably possible to do so. However, where a relative requests the destruction of his or her forensic material, investigators would still have the option of requesting the victim’s own personal item or newborn screening card (if available) for the purpose of DNA comparison.
42.29 While the Queensland Government expressed concern that this proposal might adversely affect the Commonwealth’s ability to match profiles to locate a missing person, the Inquiry does not consider that this is the case. For example, if an unidentified blood sample is found at a crime scene that could belong to an unknown victim of crime, the profile obtained from the sample could be stored in the crime scene index, the missing persons index, or the unknown deceased persons index of a DNA database system.
Recommendation 42–1 The Commonwealth should amend the Crimes Act 1914 (Cth) (Crimes Act) to delete reference to the DNA profiles of genetic relatives of missing persons from the definition of the ‘missing persons index’.
Crimes Act 1914 (Cth) ss 23XWR, 23XWV.
 The ‘missing persons index’ means an index of DNA profiles obtained from the forensic material of missing persons and volunteers who are blood relatives of missing persons. The missing person’s forensic material may be obtained from his or her personal effects, such as a hairbrush, comb or toothbrush: Ibid s 23YDAC.
 Australian Federal Police, Consultation, Canberra, 7 November 2002.
Crimes Act 1914 (Cth) s 23YDAF(1).
Crimes (Forensic Procedures) Act 2000 (NSW); Crimes (Forensic Procedures) Act 2000 (ACT); Criminal Law (Forensic Procedures) Act 1998 (SA); Crimes Act 1958 (Vic); Criminal Investigation (Identifying People) Act 2002 (WA); Police Powers and Responsibilities Act 2000 (Qld); Police Adminis-tration Act 1978 (NT); Forensic Procedures Act 2000 (Tas).
 See Ch 39 for more detail.
 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 22 October 2002, 8047 (The Hon Daryl Melham MP).
 Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposal 36–7.
 Victoria Police, Submission G203, 29 November 2002; Office of the Privacy Commissioner (NSW), Submission G257, 20 December 2002; Centre for Genetics Education, Submission G232, 18 December 2002; Human Genetics Society of Australasia, Submission G267, 20 December 2002; Institute of Actuaries of Australia, Submission G224, 29 November 2002; Centre for Law and Genetics, Submission G255, 21 December 2002; Association of Genetic Support of Australasia, Submission G284, 25 December 2002; National Legal Aid, Submission G314, 19 February 2003; Office of the Federal Privacy Commissioner, Submission G294, 6 January 2003; NSW Police Service, Submission G306, 22 January 2003; Law Institute of Victoria, Submission G275, 19 December 2002.
 NSW Police Service, Submission G306, 22 January 2003.
 Law Institute of Victoria, Submission G275, 19 December 2002.
 Office of the Federal Privacy Commissioner, Submission G294, 6 January 2003.
 Queensland Government, Submission G274, 18 December 2002.
 The Sherman review is the independent review into Pt 1D of the Crimes Act 1914 (Cth), which is chaired by Mr Tom Sherman. See Ch 39 for more detail.
 Commonwealth Attorney-General’s Department, Submission G228, 12 December 2002.
 Legislative Council Standing Committee on Law and Justice, Review of the Crimes (Forensic Procedures) Act 2000, Report No 18 (2002), Parliament of NSW, Sydney [6.18]–[6.20], Rec 44.
 The Act received Assent in June 2002, and is due to commence operation on 1 June 2003.
 For example, DNA profiles created from bodily samples found on the missing or deceased person’s personal effects, such as a toothbrush, hairbrush or other items.