Privacy and respect for human dignity need not be abandoned when balancing civil liberties with community safety. In many ways, privacy principles will enhance the integrity and legitimacy of DNA profiling by limiting collection to the minimum necessary to achieve the legitimate aims of law enforcement agencies, requiring its use to be in accordance with these aims, demanding secure storage of DNA material, and requiring its destruction or de-identification when the information is no longer needed. . . . Transparency and accountability reassure the community that what is sacrificed for greater safety and security is done so legitimately.
—Office of the Victorian Privacy Commissioner,
August 8, 20021
Soon after DNA evidence was first introduced into the criminal justice system as an investigatory tool, the Australian government began a process to develop a comprehensive legislative scheme for collecting DNA for its use by law enforcement. In 1990 the Standing Committee of Attorneys-General established the Model Criminal Code Officers Committee, which was tasked with developing a Model Forensic Procedures Bill. After 10 years the committee produced a final draft of a model bill that gave authorization and specified procedures for the collection and use of DNA (as well as fingerprints, photographs, impressions, and other forensic materials) by law enforcement.
The Australian government recognized early on that it had limited capacity to influence state and territory laws on DNA collection because of the nature and structure of Australia’s commonwealth and criminal justice systems. At the same time, it was clear that national harmonization in forensic procedures would be essential both for the sharing of DNA and for ensuring the protection of individual rights across state and territorial jurisdictions.
It is important to note that the development of the Model Bill, particularly its provision concerning the exchange and matching of DNA samples between jurisdictions, was predicated on the expectation that it would be uniformly enacted by all States and Territories as well as the Commonwealth Government. Unless the Model Bill is adopted uniformly, the arrangements for the DNA system as a whole would allow an agency in one State to obtain information collected in another jurisdiction in circumstances that would not be allowed in its own State. This would be a diminution of the rights of the citizens of that State as established under that State’s laws.2
Therefore, the model bill was designed with the intention that it would legalize and regulate forensic DNA testing for law-enforcement purposes in a manner that could be adapted uniformly by all states and territories, as well as the commonwealth government.
The final model bill was agreed to in 2000. It provided the government with the power to request or require DNA from three groups of individuals (serious offenders, suspects, and volunteers), all subject to certain procedural rules and privacy protections. “Serious offenders” are those convicted of crimes that carry a penalty of five or more years in prison.3 Suspects could be asked to provide DNA if the individual was suspected of an indictable offense with a penalty of two or more years in prison. An important and noteworthy feature of the model bill was that it differentiated between intimate and nonintimate forensic procedures. The significance of this distinction in terms of the legislation relates primarily to the ordering of forensic procedures in cases where an individual does not consent; intimate procedures could not be performed on suspects or offenders without their consent unless a magistrate’s order was obtained. DNA collection from individuals, whether by way of blood drawing or buccal swabbing, was considered an intimate procedure.
The model bill also provided for the establishment of Australia’s national DNA database and a scheme (similar to the U.S. Combined DNA Index System [CODIS]) for the sharing of DNA profiles among jurisdictions. It was recommended that the DNA database have several separate indexes with guidelines that determined which indexes could be compared with one another. In addition to a serious-offenders index and a crime-scene index, the database was to have a separate suspect index and two indexes of volunteers’ DNA, one for those who had provided DNA for “limited purposes” and another for those who had provided it for “unlimited purposes.” DNA collected for “limited purposes” could be used only for a specific criminal justice purpose (i.e., for investigating a specific crime) and could not be compared with DNA profiles from other indexes.
Adoption of the Model Bill: Inconsistencies in Police Powers
A version of the model bill was ultimately adopted by the commonwealth, as well as all the states and territories, as planned. However, there were a few key differences in each case. The commonwealth’s legislation—the Crimes (Forensic Procedures) Act 1998 and subsequent amendments in 2000, 2001, and 2006—was closest to the model bill. Under Australian commonwealth law a senior constable, or a person authorized by a senior constable, of the Australian Federal Police (AFP) may ask a suspect (other than a child or an incapable person) to consent to yield a biological sample. A suspect is defined in the national legislation as a person whom a constable suspects or has reasonable grounds of suspecting has committed an indictable offense, is charged with an indictable offense, or has been asked to appear in court in relationship to an indictable offense. The commonwealth defines an “indictable offense” as an offense punishable by imprisonment for a period exceeding 12 months. This language gives the police broader powers to request DNA profiles from suspects than did the model bill, which limited such requests to those who were convicted of offenses with a penalty of two or more years in prison. As in the model bill, DNA testing is considered an intimate forensic procedure.
Consistent with the model bill, serious incarcerated offenders could be required by court order to give a DNA sample in cases where consent was not granted. But while the model bill was written to be applied retroactively, the commonwealth’s legislation limited this provision to convicted offenders in prison or on parole; those with past convictions but no longer in the system could not be ordered to provide a sample. A serious offender is a person either under sentence or who has been sentenced for an offense punishable by a maximum penalty of five or more years of imprisonment. Destruction of DNA is required where proceedings are not instituted against the suspect within 12 months or are discontinued, the suspect is acquitted, or the conviction is overturned.4 Improperly obtained samples or samples that should have been destroyed but were not are inadmissible.
More significant departures from the model bill occurred in laws enacted by the states and territories. For example, the laws differed largely over the question whether buccal swabs should be classified as “intimate procedures.” Tasmania, the Australian Capital Territory (ACT), and the Northern Territory classify buccal swabs as “nonintimate procedures.” Victoria’s legislation was consistent with the model bill in classifying buccal swabs as “intimate,” and South Australia went further in categorizing them as both “intimate” and “intrusive.” New South Wales determined that buccal swabs were neither intimate nor nonintimate and placed them in a separate category entirely. Classifying buccal swabs as “nonintimate” generally provided law enforcement with substantially more power in DNA collection by enabling police to take samples from suspects or offenders without having to obtain a court order. For example, the Tasmanian Forensic Procedures Act 2000 allows a senior police officer to order a nonintimate procedure on a charged person who is aged 15 or over and who is in custody, as well as a suspect or charged person not in custody if the officer is satisfied that there are reasonable grounds to believe that the procedure may produce evidence.5 A similar provision was enacted in New South Wales and Queensland.6 In contrast, Victorian legislation did not provide police with any power to compel bodily samples from either suspects or convicted persons; samples could be obtained only with consent or by order of a magistrate, or a children’s court in the case of a juvenile.7
Amendments have been considered among states and territories for destroying samples if a person is not charged within a fixed period of time (e.g., 6 months) from the time of taking of the sample or if a person is acquitted of the charges.8 New South Wales and Queensland adopted a provision similar to that of the commonwealth legislation; DNA samples must be destroyed if a person is acquitted or a conviction is quashed, or where proceedings against the individual are not initiated within 12 months.9
Database Operations
In or around August 2002 the commonwealth government started approaching serious offenders convicted of murder, rape, and sexual offenses against children to collect DNA samples. Routine DNA collection was initiated in some states and territories before this; Victoria began collecting DNA from individuals convicted of serious sex offenses in 1996. A year later Victoria expanded collection to those found guilty of drug trafficking, arson causing death, and aggravated burglary.10 Over time sample collection expanded throughout the states and territories to include “high-volume” crimes, such as breaking and entering.
DNA dragnets have also been conducted in Australia. The first took place in Wee Waa, New South Wales, in 2000 in response to the rape of a 91-year-old woman. Nearly the entire male population of the village (aged 18 to 45) was tested, totaling over 400 samples. Stephen Boney confessed to the crime shortly after his DNA was collected, but before it was processed. Following resolution of the case, all the samples collected from volunteers were destroyed, as required by law.11 Although the dragnet did help resolve the crime, some have pointed out that the individual ultimately convicted was well known to the police, had a history of aggravated rape, and had moved to the neighborhood just before the crime. Therefore, they argue that the individual should have been caught using conventional policing techniques and without having to subject many innocent individuals to testing.12 In addition, the dragnet resulted in significant upset to the community. Those who refused to provide a sample or who expressed concerns were singled out and stigmatized. As a result, the Green Party of New South Wales proposed an amendment to the Crimes (Forensic Procedures) Act 2000 that would have required the police to seek the approval of a magistrate before carrying out a dragnet.13
By early 2003 Australia had established its National Criminal Investigation DNA Database (NCIDD) and its Disaster Victim Identification Database. Both national databases are operated by CrimTrac, an executive agency and a prescribed agency of the commonwealth government. CrimTrac enters into agreements with each state and territory—the participating jurisdictions. These agreements determine the procedures of interjurisdictional access to and sharing of DNA profiles. Amendments to the commonwealth legislation adopted in 2006 stipulated the legal status of the NCIDD as being an “amalgam of state and territory databases.”14
Although the NCIDD went live in 2001, it did not become fully operational until 2007. The delay was primarily due to the need for each state and territory to have passed its own legislation and reach an agreement with the commonwealth government.15 Inconsistencies between the federal legislation and each of the state laws created further obstacles to implementation.
In contrast to the United States, which uses 13 loci for DNA profiles, the Australian forensic units analyze DNA at 9 loci. Police typically obtain buccal swabs, hair and root samples, or blood samples. By June 30, 2007, the NCIDD had a total of 300,624 profiles, of which 111,404 were classified as suspects, 52,963 were serious offenders, 31,446 were offenders, 15,868 were from volunteers for unlimited purposes, and 63,327 were from crime scenes.
Privacy and Other Public Concerns
The creation of the national DNA database, along with several other developments in biotechnology and the life sciences, raised considerable question among the public whether Australia’s regulatory agencies were equipped to deal with the broad social and ethical impacts of genetic technologies.16 In response, the Australian government initiated the most extensive undertaking worldwide to examine the uses of genetic information.17 Conducted jointly by the Australian Law Reform Commission (ALRC) and the Australian Health Ethics Committee (AHEC) of the National Health and Medical Research Council (NHMRC), the two-year inquiry culminated in a final report, Essentially Yours: The Protection of Human Genetic Information in Australia, that contained 144 recommendations for how to best protect genetic privacy, guard against discrimination, and ensure the highest ethical standards in research and practice.18 Among the recommendations were several that called for significant changes to the DNA-collection and retention provisions in the Crimes Act. These can be summarized as follows:
- DNA collection from individuals: The report recommended removing the consent provisions in relation to suspects and serious offenders so that a court order is required before the conduct of any forensic procedure. In addition, it recommended strengthening protections for victims of crime by specifying that a known victim must be treated as a volunteer and that steps must be taken to ensure that the victim’s DNA is separated from that of a crime-scene sample and not stored in the crime-scene index of the database system or compared against the crime-scene index. The report also called for the development and publication of formal guidelines for carrying out DNA dragnets.
- Destruction of DNA samples and profiles: The report called for the destruction of DNA samples collected from suspects or offenders after profiles have been generated. In addition, it recommended that forensic material taken from a suspect, and any information obtained from its analysis, be destroyed “as soon as practicable”—and no later than 12 months following collection—after the person has been eliminated from suspicion, or police investigators have decided not to proceed with a prosecution against that person. It further recommended that “the destruction of forensic material, and information obtained from it” be defined in terms of “physical destruction of samples and permanent and irreversible de-identification of profiles.” Finally, the report called for the assignment of ultimate responsibility for managing the destruction of forensic material, as well as the establishment of formal policies and procedures to enable persons to obtain confirmation that such destruction has occurred.
- System oversight: The report recommended the creation of a Human Genetics Commission (modeled after that of the United Kingdom) to provide advice to the government about the social, legal, and ethical implications of human genetics. The commission was to be created to encourage public engagement and was to operate in an open and transparent manner. In regard specifically to forensic DNA, the report recommended that all DNA testing be performed by accredited laboratories; that CrimTrac’s board of management be expanded to include independent members; and that requirements be instituted for periodic public auditing and annual reporting to Parliament about the number and category of samples obtained, the authority under which they were obtained, and compliance with destruction requirements and dates.19 It also called for nationally consistent rules protecting genetic samples and information that ensured that disclosure occur only with the consent of the sampled individual or pursuant to a court order.
The final report of the inquiry was tabled in the Australian Parliament in May 2003, and as a result a few of the recommendations have found their way into other sources of legislation but have not been adopted in their original form. For example, instead of a Human Genetics Commission, the government established a Human Genetics Advisory Committee that is made up of health and genetics experts and lacks community representation.
In contrast to the sentiments of the recommendations laid out in Essentially Yours, the Australian government has taken the position, similar to that of the U.S. Department of Justice, that the DNA profiles used in forensic investigations are not “personal information” and therefore fall outside the legal bounds of the Commonwealth’s Privacy Act 1988. As a consequence, the Australian government has no obligation to remove DNA profiles, for example, where convictions are overturned. CrimTrac’s goal is to make the database as comprehensive as possible, while the jurisdiction contributing the information holds the personal data. There are variations among jurisdictions in how they handle personal information.20
According to the 2006–2007 annual report of CrimTrac,
The [NCIDD] database does not contain personal information as defined in the Commonwealth Privacy Act 1988. The profile associated with an index is set out in legislation—for example, crime scene, offender or suspect. Only the forensic laboratory in the police agency that supplied the identifier can discern names and circumstances associated with the profiles.21
The DNA profiles can be automatically removed from NCIDD if a predetermined sunset date is specified in the system. If the profile is so removed, no trace of the profile remains other than a security audit log. According to Crimtrac, the DNA profiles held in NCIDD do not reveal personal details such as physical identity, age, ethnicity, race, appearance, or medical conditions. Users of the NCIDD are not able to ascertain from the DNA any medical conditions of an individual.
Research by Richard Hindmarsh has shown that the failure of the Australian government to respond to public concerns about forensic DNA databanking and genetic privacy, combined with a general technocratic policy approach to decision making about genetics issues, has resulted in increasing public distrust in the operation of forensic DNA databases in Australia.22 Failure to enact the recommendations stemming from the public inquiry and enduring coordination problems between state and federal laws have fueled this distrust. Furthermore, the discovery in 2006 that police in South Australia had been illegally retaining and using DNA samples that were supposed to have been destroyed pointed further to the need for greater oversight of the system.23
Australia has had significant problems with backlogs in DNA testing. A 2006 New South Wales ombudsman’s report showed that demands for testing in New South Wales increased nearly ten-fold from 2000 to 2004, creating a backlog of 7,000 cases. The same report identified 13 cases where errors had occurred.24
Overall, the Australian system has built in more privacy protections than that of the United States. Forcible collection of DNA can occur only from those convicted and only in cases where a court order has been obtained. It is possible that these greater protections can be attributed to Australia having developed its system after the United Kingdom and the United States had theirs up and running. During deliberation of the Crimes (Forensic Procedures) Act 2000 the advocacy group Justice Action was active in highlighting for the government the pitfalls of the U.S. and U.K. systems, along with the limitations of DNA evidence. For example, the group applauded the drafters of the bill for placing more responsibility on police and magistrates to justify the ordering of forensic tests, since this would “reduce the number of spurious or trivial tests performed under the Act and help avoid the US experience of rampant overtesting and massive test backlogs which led to the US Justice Department’s 1998 ‘Inquiry Into the Future of DNA Evidence.’” 25
Because of its strong federalist system, consisting of independent state and territorial laws, the Australian government recognized the importance of a harmonized network of forensic DNA data banks. The challenge for the commonwealth government was to protect individual rights while ensuring that all regional and national police authorities could share and check DNA profiles. Despite the commonwealth’s best efforts at uniform criteria, there remain differences in the way states and territories exchange, retain, and manage forensic DNA information. Each jurisdiction legislates its own criteria for matching forensic DNA profiles with those maintained by other jurisdictions (see table 11.1). Each jurisdiction establishes its own restrictions regarding the retention period for certain samples or DNA profiles and the matching that is permissible for their data banks.
CrimTrac was set up in 2000 as an agency of the Australian government to provide solutions to the states and territories for sharing forensic DNA information across law-enforcement jurisdictions. Each jurisdiction enters into a memorandum of understanding (MOU) with each other jurisdiction on the conditions (called “matching tables” criteria) under which DNA samples can be matched. Interjurisdictional index matching across all jurisdictions and with the commonwealth’s DNA database was not finalized until 2009 when all the MOUs were signed. Protecting individuals from the unlawful retention of DNA samples is a high priority of the Australian system.
1989: Desmond Applebee is the first individual in Australia to be convicted on the basis of DNA evidence. The federal government and several states and territories initiate a process to develop regulatory standards for DNA collection and use by law enforcement.
1990: The federal government establishes the Model Criminal Code Officers Committee, tasked with developing a Model Forensic Procedures Bill.
1992: The National Institute of Forensic Science commences operations. Among its roles are the development of national standards of quality control and accreditation of forensic laboratories throughout Australia.
1996: Victoria begins collecting DNA from persons found guilty of a serious sexual offense.
1997: Police services endorse the establishment of a national criminal DNA database; forensic agencies from each jurisdiction adopt a commercially available multiplex polymerase chain reaction (PCR) system for routine use in their labs; Victoria enacts legislation regulating the use of its database and expands collection to include those convicted of drug trafficking, arson causing death, and aggravated burglary.
1998: Australian forensic laboratories agree to a common national standard for obtaining DNA profiles.
1998: The Australian Federal Government commits $50 million to establish CrimTrac, with a national DNA database as a central element.
1999: Victorian police obtain the first cold hit from the state DNA database when the DNA profile of convicted thief Wallid Haggag is matched to blood found in a car used in a burglary.
2000: The first DNA dragnet in Australia is carried out in Wee Waa, New South Wales. Samples are “voluntarily” collected from approximately 500 men. Stephen Boney confesses to the crime shortly after his DNA is collected and before it is processed.
2000: The Model Forensic Procedures Bill and the Proposed National DNA Database are introduced in the federal legislature; the CrimTrac agency is formed to facilitate sharing within and between jurisdictions.
2001: CrimTrac launches the National Criminal Investigation DNA Database (NCIDD) to allow the nine Australian jurisdictions to match DNA profiles. The jurisdictions begin to prepare legislation and ministerial arrangements to allow their participation in NCIDD. The Australian attorney-general and the minister for health and aged care initiate an inquiry conducted jointly by the Australian Law Reform Commission (ALRC) and the Australian Health Ethics Committee (AHEC) of the National Health and Medical Research Council (NHMRC) on how to best protect genetic privacy and guard against discrimination in health, employment, and law-enforcement contexts.
2003: The final report of the joint inquiry initiated in 2001, Essentially Yours: The Protection of Human Genetic Information in Australia, which includes 144 recommendations pertaining to human genetic databases, is tabled in the Australian Parliament.
2005: NCIDD DNA profile matching commences between Queensland and Western Australia and between Queensland and the Northern Territory.
2006: A North Queensland member of Parliament calls for DNA samples to be taken from all Australians and entered into a national database. A South Australian judge rules that police regularly broke laws controlling the state’s DNA database and illegally retained DNA from suspects cleared of crimes. NCIDD DNA profile matching commences between Western Australia and the Northern Territory and between Queensland and the commonwealth.
2007: The commonwealth reaches agreement with and incorporates Western Australia, New South Wales, and the Northern Territory into the NCIDD system. Seven jurisdictions sign a single ministerial arrangement to share DNA data through CrimTrac, removing the last obstacle to a truly national DNA system. Victoria and New South Wales have committed to signing when their legislation allows.
2008: New South Wales initiates Forensic DNA database matching agreements with Saskatchewan and Queensland.
2009: Forensic DNA database matching agreements are worked out between Victoria and the Northern Territory and between New South Wales and Queensland. The NCIDD becomes a national network with agreements for matching DNA profiles among all states and territories.