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Monday, 26 March 2001
Page: 25640


Mr KERR (8:35 PM) —Now it is the turn of the opposition. As is often the case in these things where there has been extensive consultation and the government has worked with all affected interest groups, the opposition is happy to support the thrust of the Crimes Amendment (Forensic Procedures) Bill 2001. Indeed, now the government has accepted the recommendations of the parliamentary committee which examined the detail of that legislation also. It is not to say that this legislation is not complex and likely to be regarded as groundbreaking and, indeed, resented and resisted by some in the community who believe that it might threaten hitherto important civil rights that people have held dear for a considerable period of time. But I think it would be naïve to say anything other than that both the opposition and the government have sought to find an effective and appropriate balance with respect to all the arguments that have been advanced and believe that this legislation in its current form is a framework which will in practice not give rise to the kind of concerns that some in its early days feared it would. By way of background, I will indicate also that the gestation period of this legislation is somewhat similar to that of the elephant—not a speedy birth. Its genesis is from the period in which I served as Minister for Justice in the former Keating government. We started a process which involved dialogue with the states and with various community groups that we knew would be significantly affected in relation to this legislation to see whether a common approach could be addressed.

As the Attorney-General correctly identifies, we have tools available to us which really are revolutionary in their capacity to identify criminals but also to eliminate suspects. The Attorney touched on an instance, that occurred I think in Britain, where the first use of this procedure saw a person hitherto in gaol—as a result of allegations that had been proceeded against them and a conviction obtained—but, as a result of DNA evidence that was found to be unsatisfactory, the conviction was quashed. I also understand that DNA evidence has had a similar effect in the United States. Indeed, a number of people on death row have had their convictions reviewed and quashed as a result of DNA testing which was sufficient to prove that they could not have been the person that was alleged to have committed the crimes for which they had been sentenced to death. So plainly this is a powerful forensic tool. It is a powerful forensic tool that can be used by the police to identify those suspected of crime, but it can also be important to those within the community who are entirely innocent of it to ensure that their innocence is affirmed if in fact forensic evidence of the kind that this bill covers is available.

With that in mind, I simply indicate that the opposition believes that this legislation is well-crafted. A number of procedural safeguards are included for the taking of forensic materials, in particular to ensure that the destruction of material is provided for in a way which would not infringe the rights of a person's privacy and to ensure that samples which are intrusive and involve procedures which the ordinary citizen might resist can only be undertaken with a judicial order and that the Privacy Commissioner is given full and proper remit to ensure that the system is not abused.

The forensic material that is drawn from the testing that will be allowed under the scheme will be used to establish a national DNA database, with the following indexes of DNA profiles: a crime scene index; a missing persons index; a serious offenders index; a statistical index; an unknown deceased persons index; a suspects index; a volunteers limited purposes index; and a volunteers unlimited purposes index. The DNA profiles in the indexes will be able to be matched with other profiles in other indexes according to a set of tabulated matching rules, and the rules are accompanied by criminal penalties of two years imprisonment for any breaches of those procedures.

The bill stipulates procedures about how the material is to be stored on the database, how the database can be interrogated, who can have access to the databases and when the information in the database may be disclosed. Each step in dealing with forensic material obtained from a forensic procedure is regulated and reinforced by a series of criminal offences targeting the supply of forensic material, the use of information stored on the national DNA database, the destruction of forensic material and the recording, retention and removal of DNA profiles on the national DNA database. To ensure that privacy concerns are properly recognised, all offences against those provisions carry maximum penalties of two years imprisonment.

The legislation makes a distinction between intimate and non-intimate forensic procedures. Where the intimate procedures involve the genital or anal area in some way or the taking of blood, saliva or pubic hair, the bill allows for a non-intimate procedure to be carried out on an offender with the informed consent of the offender or by order of a constable. An intimate forensic procedure on an offender, on the other hand, can only be carried out with informed consent or by order of a magistrate. That is a very important safeguard because I think that one of the principal concerns that many in the community had was that there would be a loss of dignity and some abuse were requests to be made for intimate samples and pursued without the requirement of an order of a magistrate if that consent were not forthcoming.

A forensic procedure can be carried out on a volunteer with the informed consent of that person or the parent or guardian of a volunteer who is a child or an incapable person. A magistrate can order the carrying out of a forensic procedure on a child or incapable person if consent cannot be reasonably obtained from the parent or guardian or if the parent or guardian is a suspect. Forensic material which is obtained by a warrant has to be destroyed as soon as the period for retention specified in the warrant expires, and all other forensic material must be destroyed within 12 months of its being collected, unless a warrant for apprehension of the suspect has been issued.

The form of the bill closely mirrors the February 2000 Model Criminal Code Officers Committee report on the Model Forensic Procedures Bill and the proposed national DNA database. That model was developed following a review of similar legislation in Canada, the United Kingdom, the United States of America, New Zealand and various European countries. It is a product of the model criminal code process commenced when Labor was in government. We regard this as a piece of legislation which has been drafted in good faith and with wide consultation.

We commend the Attorney and the Minister for Justice and Customs and their officers for the wide consultation that did occur, as it was imperative that the bill contain provisions to address the real concerns that many in the community would have had had proper account not been taken of civil liberties concerns—concerns which naturally were raised in relation to the taking, use and storage of forensic material. We do not blind ourselves to the fact that there are real concerns in the community relating to the concept of taking and storing forensic material, to the uses to which a DNA database may be put and to the adequacy of the protections. While we recognise that this is an invaluable investigative tool and its application and utilisation are necessary in the development of an effective modern law enforcement regime, it was imperative in introducing such a tool that we ensured that as much as possible was done to minimise the possibility of any abuse and to protect basic civil liberties.

There have been a number of changes, which the government has conceded, which are a result of opposition suggestions that were made in the process of the bill being examined by the Senate Legal and Constitutional Legislation Committee. The fact that the bill went to that committee and was the subject of quite extensive submissions allowed all concerned groups to raise their concerns with the committee and for detailed scrutiny of the drafting of the bill. The committee produced a unanimous report which made a number of recommendations relating to drafting amendments and to strengthening of the oversight role of the federal Privacy Commissioner. The government accepted those recommendations and, with Labor's support, amended the bill in the Senate so as to address those recommendations. The most significant concern identified by the committee was the lack of uniform legislation governing the collection, use, storage and destruction of forensic material in participating state jurisdictions. This was identified as having the potential to undermine the safeguards which are included in the Commonwealth legislation and guaranteed in the Commonwealth jurisdiction. At the present time, the only jurisdictions which have legislation not consistent with the Commonwealth are Queensland and the Northern Territory.

One of the key elements that has been included in the bill is provision for a review of the legislation after it is in operation. Part of that review will be to take into account the effect, if any, of the existence of state legislation which is not consistent with the Commonwealth's legislation. The bill will therefore mandate us to look at that. The opposition's basic view is that any significant deviation from the national code will undermine community acceptance of this legislation and may lead to calls for the national parliament to take a more proactive stand in relation to seeking to apply a more comprehensive national mandate, but we trust this will not be required. It is of no benefit to the Australian community if we continue to have diverging responses to the capacity to address the criminal law.

Both the government and the opposition remain committed to the principle that there should be a common code of evidence that applies in courts across the whole of the Commonwealth's jurisdictions, the states and the territories. So too do we believe that, in these areas where the community is having to come to terms with new investigative procedures for which there is some degree of concern amongst not just a handful of people but a significant body within the community, it would be quite unthinkable if the Commonwealth were to allow a significant divergence to occur in ways which would suggest that there was a lack of concern about privacy, a lack of concern about the dignity of those persons who are subject to search or a lack of commonality about the destruction of records and the like. So those are important points or markers to lay down and the review will take those into account.

The other point about the changes that were made in the Senate is that they increase the oversight role of the federal Privacy Commissioner and make certain, as those of us in the parliament believe, that this legislation has an appropriate degree of balance to ensure the protection of individual rights. It is one thing to say that, but it is important that there is an independent and external auditor of that process. The community must be assured that the common principles that have led to the government and to the opposition supporting this legislation will not be given a Nelson salute and the blind eye but will actually be followed in practice.

I note, and I am particularly pleased by the fact, that the government has made commitments to continue to push for consistent legislation across the states. I think the Attorney indicated that also in his second reading speech, and I add what I can by way of moral suasion at this stage to urge those state governments that are not yet entirely in line with this approach to see whether it is within the capacity of their legislative agendas to bring forward legislation that will make certain that those kinds of potential difficulties are addressed as soon as possible. As the Attorney indicated, the bill also contains a number of minor procedural amendments to the Crimes Act which do not relate to the DNA database. They also have our support.

In conclusion, the use of DNA in areas outside formal law enforcement is also of increasing community concern. I saw the other night a television program, whose name I regret I cannot recall, which was examining a service offered by a company of which I understand Dr Edelstein is a senior partner or at least a sponsor. That service offers the opportunity of quick paternity checks being done for those who might fear that a particular young person is not their child. I felt great discomfort, particularly when it was disclosed that some of the samples which were being supplied for analysis had apparently been obtained by deceit and that those who had obtained those samples had not sought consent to take a saliva swab or other sample of DNA, whatever the technique is, for its submission to the laboratories that are undertaking these practices. This is part of a larger agenda which ought to be addressed by this parliament. I certainly do not criticise the government for not addressing it in this legislation, because this legislation goes particularly to the criminal law.

Not all investigative tasks are undertaken by formal law enforcement. A considerable number of private investigative agencies exist. We have seen the privatisation of much of what was hitherto regarded as central law enforcement activities—security services and the like. The idea that those kinds of techniques might be used by private institutions, operating without the kinds of constraints that apply to law enforcement officials employed by the state, raises some real concerns for people concerned about civil liberties and also about the kind of society we may evolve into if we do not find a proper and effective regulatory framework to deal with the use of DNA profiling beyond that of the criminal law.

It was quite salutary for me to realise that these practices are now going on for commercial advantage in Australia and that they are plainly ones for which there is a market. We are moving away from a circumstance where almost all of these intrusive processes could only have been conceptualised as occurring within formal law enforcement to one where the private sector is increasingly being used in areas where the public sector was alone. We now have detention facilities operated by private sector organisations, we have large security firms providing private security for gated communities, we have large corporations that employ firms which offer perimeter security and also security services against internal crime.

All of these things are relatively little regulated because, in the past, people have not given much thought to the need for that kind of regulation. This bill is a timely reminder that, whilst we focus on those things which the law enforcement officials can undertake under the authority of the state, we may be letting the stable door stand wide open while the private sector horse bolts. One can be equally damaged by abuse of these processes at the hands of a company run by Dr Edelsten as by the Commissioner of the Australian Federal Police. We should bear such thoughts in mind as we move towards our consideration of other agendas in the future.

For this piece of legislation, the opposition are content with the amendments that the government has itself incorporated within the bill. We think it is worth giving it a fair go. It is very important that we urge all states to find common ground with the Commonwealth to have this uniform scheme. We very much look forward to the review that will be conducted. This will ensure that all of those issues which were canvassed as requiring a second and hindsight examination once this is in practice will be considered. Then we can assure the community that they will have better law enforcement and also proper respect for their individual rights and for the principles that we as citizens would expect by way of regard for our dignity and our civil liberties in our dealings with the state.