November 2000

Submission of the Office of the Privacy Commissioner

1.   The Crimes Amendment (Forensic Procedures) Bill 2000 (the Amendment Bill) will  enable Commonwealth law enforcement agencies to collect DNA samples from individuals in relation to Commonwealth offences.  One of the primary purposes of the Amendment Bill is to assist with the establishment of a national DNA database as part of the CrimTrac initiative.  Crimtrac is a national criminal investigation system being established by the Commonwealth Government, in co-operation with State and Territory Governments, which will facilitate the exchange of information between jurisdictions and the use of new investigative techniques such as DNA testing for the purpose of criminal investigation. 

2.   Because the Amendment Bill will only govern the Commonwealth component of the national DNA database, the adequacy of its privacy and accountability safeguards cannot be considered in isolation from the legislative and administrative framework of the DNA system as a whole.  In particular, the protection of individual rights in the national DNA system will depend on the enactment of nationally consistent forensic procedures legislation by all States and Territories.  The system will also need to be capable of independent third party oversight, including from a privacy perspective.  The CrimTrac Agency, which will manage the DNA database, is a Commonwealth agency that is subject to the Privacy Act 1988 (the Privacy Act). 

3.            This submission will consider the Amendment Bill within the context of legislative and administrative developments that have an impact on the operation of the wider DNA database system.

Model Forensic Procedures Bill and the National DNA Database System

4.   There will be no overarching legislative framework governing the national DNA database system due to the federal structure of Australia's criminal justice system.  As noted earlier, the Amendment Bill will only apply to the collection and use of DNA material by Commonwealth law enforcement agencies.  The forensic procedures legislation in each jurisdiction will govern the procedures for authorising and collecting DNA samples by police agencies but will not establish the database itself. 

5.   Under the auspices of the Standing Committee of Attorneys-General, the Model Criminal Code Officers' Committee developed the Model Forensic Procedures Bill (the Model Bill) during 1999.  The Model Bill seeks to provide safeguards to protect the rights and interests of individuals from whom DNA samples will be collected by specifying procedures for the authorisation, collection and matching of DNA profiles. 

6.    It is important to note that the development of the Model Bill, particularly its provisions 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.

7.   The Privacy Commissioner was one of the stakeholders consulted during the development of the Model Bill.  The Privacy Commissioner's view is that the Model Bill provides an adequate minimum standard for the authorisation and collection of DNA samples if it is enacted by all participating jurisdictions.  Arrangements that could compromise the minimum standards therefore require very careful scrutiny.

Jurisdictional differences in forensic procedures legislation

8.    Since the release of the final draft of the Model Bill in February 2000, some jurisdictions have enacted or introduced legislation that will diverge from the minimum standards provided by the Model Bill. In a number of instances, those changes will reduce the privacy protections incorporated into the Model Bill.  However, the DNA information collected in these jurisdictions will be included on the national DNA database system.

9.   Queensland and the ACT have passed legislation that substantially departs from the provisions of the Model Bill and provides less stringent procedures for the authorisation and collection of DNA samples.  For example, In June 2000, Queensland enacted the Police Powers and Responsibilities and Other Acts Amendments Act 2000 (Qld) which will enable Queensland police to carry out intimate forensic procedures on suspects who refuse consent, without requiring police to first obtain a magistrates order authorising the taking of a sample.  Under the Model Bill, police must obtain a magistrates order to carry out intimate forensic procedures when the individual refuses consent.

10.   The Amendment Bill under consideration closely follows the provisions of the Model Bill.  At the same time however, the Amendment Bill will allow Commonwealth agencies to use DNA profiles collected in another jurisdiction under legislation that does not meet the minimum standards set by the Model Bill.  This means that Commonwealth agencies would be permitted to use DNA profiles that were collected in circumstances that would have been unlawful under the provisions of the Amendment Bill. Proposed section 23YP of the Amendment Bill will permit the Commonwealth to use and retain forensic material collected under State and Territory legislation that would otherwise constitute a breach or failure to comply with the Amendment Bill. 

Independent and objective oversight

11.   The efficacy of privacy and accountability safeguards of the national DNA system depends on whether each element of the system, including the Commonwealth component governed by the Amendment Bill, is subject to independent third party oversight from a privacy perspective.  Just as importantly, the effectiveness of the safeguards in protecting the rights of individuals whose DNA profiles are held by CrimTrac depends on whether there is systemic oversight of the whole scheme. 

12.   It was noted above that the DNA database will be operated by the CrimTrac Agency that is subject to the Privacy Act.  CrimTrac is only one part of a wider criminal investigation system.  The Amendment Bill and Privacy Act will not apply to the collection of DNA samples by State and Territory police.  The Office is being consulted by the CrimTrac Agency in the development of arrangements for ensuring that there is independent, objective and comprehensive monitoring of the national DNA system.  However, jurisdictional differences in forensic procedures and privacy legislation pose serious obstacles. 

13.   There are a range of agencies at State, Territory and Commonwealth level that could assume a monitoring and investigatory function in relation to the DNA system including Privacy Commissioners, Ombudsmen, police disciplinary tribunals and anti-corruption bodies.  However, it is not clear at this stage whether the separate authorities would be able to provide comprehensive and consistent monitoring of the DNA database as a whole.  For example, an investigation into the matching of DNA profiles collected in two jurisdictions could be difficult and less than effective, due to the jurisdictional boundaries of oversight bodies and disparities in the relevant legislation. 

Conclusion

14.   The Privacy Commissioner makes the following recommendations:

• That the Committee urge the Government to continue negotiations with all States and Territories to adopt the Model Bill as the basis of forensic procedures legislation within their jurisdictions, without substantial erosion of its privacy and accountability safeguards. 
• That the Committee call for a systemic assessment of the adequacy of third party oversight of the national DNA database system as a whole.

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