Part J. Law Enforcement and Evidence

40. Harmonisation of Forensic Procedures Legislation

40–1 In order to facilitate an effective national approach to sharing genetic information for law enforcement purposes, the Commonwealth, States and Territories should collaborate to develop adequate 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.

40–2 The Commonwealth, States and Territories should not engage in inter-jurisdictional sharing of genetic information—whether on a bilateral basis or through a national DNA database system—unless there is legislation requiring that any information transferred to that jurisdiction will be treated in accordance with the national minimum standards developed under Recommendation 40–1.

40–3 In order to facilitate an effective national approach to sharing genetic information the States and Territories should amend their forensic procedures legislation in a manner consistent with the recommendations made in this Report in relation to the Crimes Act 1914 (Cth).

40–4 For the purpose of achieving greater transparency, the Commonwealth, States and Territories should publish all ministerial agreements for sharing genetic information, as well as protocols for inter-jurisdictional matching.

41. Criminal Investigations

41–1 The Commonwealth should consider amending the Crimes Act 1914 (Cth) (Crimes Act) to:

1. remove the consent provisions in relation to suspects and serious offenders so that a forensic procedure only can 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
2. 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.

41–2 TheCommonwealth should amend the Crimes Act to provide that:

1. 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;
2. 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
3. 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.

41–3 TheCommonwealth should amend the Crimes Act to provide that a forensic procedure may be carried out on a child volunteer of 12 years or more only: (a) with the consent of the child and his or her parent or guardian; or (b) pursuant to a magistrate’s order under s 23XWU of the Crimes Act.

41–4 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.

41–5 TheCommonwealth should amend the Crimes Act to specify that a known victim of crime must be treated as a volunteer, and to require that all reasonable measures be taken to:

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

41–6 The Commonwealth should develop and publish guidelines for the conduct of mass screening programs in relation to both the process for approving the initiation of programs and the manner in which they are conducted.

41–7 TheCommonwealth should amend the Crimes Act, or regulations made thereunder, to provide that forensic analysis of genetic samples for use by law enforcement authorities should be conducted only by laboratories accredited by National Association of Testing Authorities, Australia (NATA) in the field of forensic science.

41–8 TheCommonwealth should amend the Crimes Act to provide that forensic material obtained pursuant to Part 1D must be destroyed as soon as practicable after a DNA profile has been obtained from the material.

41–9 TheCommonwealth should amend the Crimes Act so that the provisions limiting use and disclosure of information held on a DNA database system also apply to forensic material.

41–10 The Commonwealth should amend the Crimes Act to define the destruction of forensic material and information obtained from it in terms of physical destruction of samples and permanent and irreversible de-identification of profiles.

41–11 The Commonwealth should amend the Crimes Act to assign ultimate responsibility for managing the destruction of forensic material and any information obtained from it.

41–12 The Commonwealth should develop formal policies and procedures to:

1. enable a volunteer (or parent or guardian) to specify, from a range of options, the retention period for his or her forensic material and any information obtained from it; and
2. establish a process for persons to obtain confirmation that their forensic material, and any information obtained from it, has been destroyed.

41–13 TheCommonwealth 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.

42. Identification of Deceased Persons

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’.

42–2 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 from a genetic relative of a missing or deceased person).

42–3 The Commonwealth should amend Division 11A of Part 1D of the Crimes Act to provide that where information stored on a DNA database system is accessed by, or disclosed to, a person for a ‘permitted purpose’, the information may be used only for that purpose.

42–4 The Commonwealth should amend s 23YUD of the Crimes Act, which regulates inter-jurisdictional sharing, to extend its coverage beyond criminal investigations to include the identification of missing or deceased persons.

42–5 Where information stored on a DNA database system is disclosed to Interpol or any 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 the national minimum standards established in accordance with Recommendation 40–1.

43. DNA Database Systems

43–1 TheCommonwealth should amend the Crimes Act 1914 (Cth) (Crimes Act) to provide that forensic material taken from a suspect, and any information obtained from its analysis, must be destroyed as soon as practicable after the person has been eliminated from suspicion, or police investigators have decided not to proceed with a prosecution against that person in relation to that investigation. However, in any event, the forensic material and information must be destroyed no later than: (a) 12 months after the material was taken or the information obtained; or (b) the period stipulated in an order made under s 23YD of the Crimes Act.

43–2 The Commonwealth should amend the definition of a ‘DNA database system’ in the Crimes Act to mean a database (whether in computerised or other form and however described) containing identifiable DNA profiles maintained for law enforcement purposes.

43–3 The Commonwealth should expand CrimTrac’s board of management to include independent members, such as nominees of the Office of the Federal Privacy Commissioner and the Commonwealth Ombudsman, legal academics and ethicists.

43–4 The Commonwealth should amend the Crimes Act to provide for a periodic audit, by an independent body, of the operation of all DNA database systems operating pursuant to the Act. The audit should include the forensic laboratories participating in the DNA database system and the audit report should be made publicly available.

43–5 In its annual report to Parliament, the Australian Federal Police should provide information on the number and category of samples obtained pursuant to Part 1D of the Crimes Act in that year; the authority under which these samples were obtained; and compliance with the required destruction dates for those samples and profiles.

44. Criminal Proceedings

44–1 The National Judicial College of Australia and the Law Council of Australia (through its constituent professional associations) should develop and promote continuing legal education programs for judges and legal practitioners, respectively, in relation to the use of genetic information in criminal proceedings.

44–2 In order to provide better guidance for judges and juries, the judiciary should develop a model jury direction for use where DNA evidence has been admitted in criminal proceedings.

44–3 The National Institute of Forensic Science, in consultation with members of the criminal justice and science communities, should provide ongoing guidance to forensic scientists and legal practitioners regarding reliable methods of DNA analysis, statistical calculation, and presentation of evidence in criminal proceedings.

44–4 TheCommonwealth should amend the Crimes Act 1914 (Cth) to specify that the prosecution has a duty to provide defendants withreasonable pre-trial notice of all relevant crime scene samples in order to give them an opportunity to have such samples independently analysed.

45. Post-Conviction Use of DNA Evidence

45–1 TheCommonwealth should amend the Crimes Act 1914 (Cth) to require the long-term retention of forensic material found at the scene of serious crimes to facilitate post-conviction analysis.

45–2 The Commonwealth should establish a process to consider applications for post-conviction review from any person who alleges that DNA evidence may exist that calls his or her conviction into question.

46. Civil Proceedings

46–1 The National Judicial College of Australia and the Law Council of Australia (through its constituent professional associations) should develop and promote continuing legal education programs for judges and legal practitioners, respectively, in relation to the use of genetic information in civil proceedings.