Part J deals with the use of genetic testing and information in criminal investigations, the identification of deceased persons and in criminal and civil proceedings. DNA profiling already is a major tool for Australian law enforcement authorities. Contrary to the practice of DNA testing in the clinical and research contexts, forensic testing is performed on the non-coding section of DNA, at a number of agreed sites (‘loci’), in order to construct an alpha-numeric DNA profile for identification purposes.
Chapter 39 discusses the current and potential uses of DNA profiling in criminal investigations and provides an overview and analysis of forensic procedures legislation in Australia, especially Part 1D of the Crimes Act 1914 (Cth) (Crimes Act).
Chapter 40 focuses on concerns arising from the lack of harmonisation among Commonwealth, state and territory forensic procedures laws and practices. The Inquiry recommends that, in order to facilitate an effective national approach to sharing genetic information, the Commonwealth, States and Territories should develop national minimum standards in Australian forensic procedures legislation with respect to the collection, use, storage, destruction and index matching of forensic material (and the DNA profiles created from such material). No inter-jurisdictional sharing of information should be permitted except in accordance with these national minimum standards.
Chapter 41 discusses specific issues arising from the regulatory framework for forensic procedures. The Inquiry recommends that the legislative definition of ‘destruction’—(for genetic samples and profiles) should provide for physical destruction of genetic samples or permanent and irreversible de-identification of profiles. The Inquiry also recommends that the Commonwealth develop and publish guidelines for the conduct of ‘mass DNA screening’ programs which are conducted as part of a criminal investigation—both in relation to the authorisation process for such programs, as well as the manner in which they are conducted.
The Inquiry also asks the Commonwealth to review ‘consent’ provisions in the Crimes Act that apply to suspects and serious offenders so that a forensic procedure could be conducted only pursuant to an order made by a judicial officer or an authorised police officer, in accordance with existing provisions for ordering a forensic procedure. This would better reflect the inherently 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.
Chapter 42 considers the use of DNA testing and information for the purpose of identification of missing and deceased persons. Subsequent to the Bali terrorist bombings in October 2002, the Commonwealth amended the Crimes Act to facilitate the identification of the victims. The Inquiry recommends that the Commonwealth, States and Territories should clarify the arrangements under which police officers of one jurisdiction are authorised to act on behalf of another jurisdiction in collecting, using, storing or destroying forensic material from a missing or deceased person, or a genetic relative of a missing or deceased person.
In addition, the Inquiry recommends that where information stored on a DNA database system is disclosed to Interpol or any other foreign agency, the Commonwealth must take reasonable steps to ensure that the information transferred will not be held, used or disclosed by the recipient inconsistently with Australian minimum standards.
Chapter 43 discusses issues arising from the regulation and operation of DNA database systems in the law enforcement context. To date, the Commonwealth has established two national DNA database systems—the National Criminal Investigation DNA Database (NCIDD) and the Disaster Victim Identification (DVI) Database—for the storage and matching of DNA profiles and the inter-jurisdictional sharing of information for law enforcement purposes. In order to ensure that all DNA databases established for law enforcement purposes are subject to Part 1D of the Crimes Act, the Inquiry recommends that the Commonwealth should amend the definition of a ‘DNA database system’.
To promote public confidence in the integrity of the national DNA database systems, the Inquiry recommends that the Commonwealth should add independent members (that is, members not affiliated with a police agency) to CrimTrac’s board of management, and provide for periodic, independent audits of the operation of all DNA database systems operating pursuant to the Act.
In Chapter 44, the Inquiry calls for better education about the use of DNA evidence for those lawyers and judges involved in criminal proceedings. The Inquiry also recommends that the judiciary develop a model jury direction regarding the need for caution in evaluating DNA evidence and the statistical calculations relating to that evidence. It is also recommended that the National Institute for Forensic Science should play a key role in providing ongoing guidance to forensic scientists and legal practitioners regarding reliable methods of DNA analysis, statistical calculation, and presentation of evidence in criminal proceedings. Similarly, in Chapter 46, it is recommended that continuing judicial and legal education programs be developed in relation to the use of DNA evidence in civil proceedings.
The ‘Innocence Project’ in the United States has demonstrated the power of DNA evidence as a tool for challenging miscarriages of justice through post-conviction review—by the end of February 2002, 123 convicted offenders had been exonerated in this way, including a number on ‘death row’. In Chapter 45, the Inquiry recommends that the Crimes Act be amended to require the long-term retention of forensic material found at the scene of serious crimes to facilitate post-conviction analysis, and that a process be established to consider applications for post-conviction review from any person who alleges that DNA evidence may exist that would call into question his or her conviction.