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Key recommendations

The Office of the Privacy Commissioner welcomes the opportunity to provide comments in relation to the review of Part 1D of the Crimes Act 1914 (the Crimes Act).

The Office makes the following recommendations:

i. Consideration be given to improving the manner and the quality of information provided to a person who has been asked to provide a DNA sample.

ii. The Crimes Act make provision for:

• the individual assessment of the decision making capacity of children; and
• how a person may be determined to be 'incapable', who is able to make that decision and how that decision applies in relation to future requests for DNA samples.

iii. Voluntary mass screenings should only be undertaken in cases where the public interest substantially outweighs the privacy impact on a large number of people. Guidelines for the conduct of mass screenings should also be developed to ensure a robust, accountable process is in place.

iv. Consideration be given to establishing a separate register specifically for victim profiles in order to effectively manage the sensitivities arising specifically in relation to victim profiles. Alternatively, at a minimum, provision could be made in the Crimes Act to provide stronger protection against victim profiles being included or placed on the crime scene register of the National Criminal Investigation DNA Database (NCIDD).

v. Processes be established to allow a convicted person access to relevant samples for the purpose of appealing the conviction. Any decision to refuse access must be supported by clear reasons and the ability to review such a decision should be available.

vi. The Crimes Act should make clear that the destruction of forensic material encompasses both the physical destruction of the sample and the permanent de-identification of the profile.

vii. The retention of the DNA profiles of convicted offenders on the NCIDD be commensurate with the limit specified in the spent convictions scheme for the relevant offence.

viii. The Crimes Act be amended to facilitate the matching of DNA profiles between Australia and foreign jurisdictions provided adequate safeguards are also enacted.

ix. Before being used in law enforcement investigations, further review and analysis, including a detailed assessment of the privacy impacts, should occur on the adoption of new technological advancements, such as familial matching and coded DNA matching.

x. Part 1D of the Crimes Act be subject to regular review to allow for the operation of the legislation over time to be effectively considered, and to take account of advances in genetic technology and changes in community attitudes towards the use of genetic information.

Office of the Privacy Commissioner

1. The Office of the Privacy Commissioner (the Office) is an independent statutory body whose purpose is to promote and protect privacy in Australia. The Office, established under the Privacy Act 1988 (Cth) (the Privacy Act), has responsibilities for overseeing the protection of individuals' personal information handled by Australian and ACT Government agencies, and personal information held by all large private sector organisations, health service providers and some small businesses. 

Background

2. Part ID of the Crimes Act 1914 (Cth) (the Crimes Act) regulates forensic procedures undertaken in relation to the investigation of crimes, missing persons and unknown deceased persons, including identifying disaster victims.

3. Section 23YV of the Crimes Act requires that the Minister cause an independent review of Part ID of the Crimes Act to be undertaken, further to the review conducted previously by MrTomShermanAO and reported on in March 2003 (the Sherman report).

4. The current review commenced on 28October2009. MrPeterFord has been appointed the chair of the review committee, which includes the Privacy Commissioner and representatives from Crimtrac, the Australian Federal Police, the Office of the Commonwealth Director of Public Prosecutions and the Office of the Ombudsman.[1]

5. Mr Ford published a discussion paper[2] on 25 November2009 identifying a number of issues on which the review committee sought comment from stakeholders and the public. This submission reflects the Office's consideration of those issues.

6. The National Criminal Investigation DNA Database (NCIDD), as referred to in section 23YDACA of the Crimes Act, only became fully operational in April 2009. The fact that the NCIDD was not operational at the time the Sherman report was issued was cited as a factor that limited the previous Review Committee's ability to assess the overall operation of Part ID of the Crimes Act.

7. The Office acknowledges that the limited period of time for which the NCIDD has been fully operational remains a factor in assessing the operation of Part ID of the Crimes Act.

Operation of Part ID of the Crimes Act

Informed consent

8. It is an important principle of good privacy practice to advise an individual about the purpose of collecting their personal information and what will happen to it when, or as soon as practicable after, it is collected.

9. The Office notes that the circumstances that generally give rise to the need to collect forensic DNA samples from individuals may be distressing to those individuals. This may mean that in some cases the donor has a reduced capacity to think clearly about the consequences of providing a sample.

10. On this basis, the Office considers that the information provided to individuals who have been asked for DNA samples should include written information that can be reviewed at a later time, including information about complaints avenues.

11. The Office suggests that consideration be given to establishing a 'layered' approach to providing information to donors. That is, a simplified version of the most important information at the initial point, with the opportunity for the donor to access more detailed information as needed.

12. The Office would support action to improve the clarity and simplicity of information provided when seeking a person's consent to a DNA procedure based on the following

• Use of plain English where appropriate
• Access to interpreter facilities for linguistically diverse and hearing impaired people, including the interpretation of written material.
• Use of age-appropriate material for children.

Children and 'incapable persons'

13. The Privacy Act makes no distinction between the privacy rights of adults and children. In addition, the capacity of individuals to make decisions about their personal information is only recognised in the Privacy Act within the context of the disclosure of health information in certain circumstances.[3]

14. Assessing the capacity of individuals to make decisions has a number of aspects. One relevant issue is the individual's capacity to give informed consent. For consent to be informed, the individual must know what they are agreeing to. This means that the individual is able to understand the implication of providing or withholding consent and that the information they need to make that decision has been provided in a way that is meaningful to them and appropriate in the circumstances.

15. If a child can demonstrate a capacity to participate meaningfully in the process, the Office considers that it would be good privacy practice to involve them in decision-making about their participation in DNA sampling for law enforcement purposes. The Office considers it better practice to assess a child's capacity to make decisions on an individual basis, rather than relying on an arbitrary age to determine their involvement.

16. The Office also notes that whilst the Crimes Act provides a definition of 'incapable person' under section 23WA, it does not make any provision for how a person is determined to be 'incapable', who makes this decision and whether this decision is made on a point-in-time basis or has effect over a period of time.

17. An individual may be incapable of providing informed consent due for a range of reasons, some of which may be episodic in nature. Therefore, in our view, assessments about capacity should take into consideration whether or not these assessments are a fixed assessment of the person's capacity.

18. Individuals presenting with a reduced capacity to make decisions may still be capable of making a decision about providing a DNA sample if they are provided with appropriate support. It is important not to declare a person 'incapable' unnecessarily, as this impacts upon their right to self-determination and may also unreasonably intrude upon their right to privacy.

19. The Office considers that it would be appropriate to include provision for how a person may be determined to be 'incapable', who is able to make that decision and how that decision applies in relation to future requests for DNA samples.

Voluntary mass screenings

20. The Office considers that voluntary mass screenings should be undertaken only in cases where the public interest substantially outweighs the privacy impact upon a large number of people.[4]

21. The Office agrees with recommendation 41-6 of the joint Australian Law Reform Commission/Australian Health Ethics Committee report Essentially yours: the protection of the human genome (the ALRC/AHEC report), regarding the establishment of guidelines for the conduct of mass screenings including the process for approving a mass screening to be undertaken. The Office recognises that such situations will be rare, but establishing guidelines before the event will ensure a robust, accountable process is in place should the need arise.

22. The Office considers that these guidelines could, at a minimum, include the following requirements that:

• such screenings are undertaken as a last resort
• individuals who do not consent to participate in a mass screening program must not be identified or identifiable to other members of the community, and
• the information provided to volunteers include information about what may happen if they become a suspect on the basis of the sample they have provided.

Establishing a separate victims register

23. In rape and serious assault cases the victim's body may be considered part of the 'crime scene' - this potentially leads to the victim's DNA profile being placed on the crime scene register of the NCIDD.

24. Further, in cases where suspect DNA evidence is removed from the victim's body, this can result in the victim's DNA also being sampled and, again, their profile being placed on the crime scene register of the NCIDD.

25. There are documented cases where this has led to a victim of crime being implicated in other, unrelated, offences. In some cases there may be an explanation for this - such as where the perpetrator has transferred their DNA to the second site. In other cases the match seems to be adventitious[5] and there is no explanation[6].

26. The Office considers it imperative that a victim providing a forensic DNA sample should be able to stipulate the uses to which their sample is put. In circumstances where the victim is not able to do so, their DNA profile must only be used for the purposes of investigating the crime for which they are recognised as a victim.

27. Similarly, it is important that in situations where it is recognised that a victim's DNA profile is likely to be placed on the crime scene register of the NCIDD as a result of evidence-gathering, every effort be made to identify and remove it.

28. The Office notes that at present, the Crimes Act does not stipulate that steps should be taken to prevent victim profiles being included on the crime scene register. The Office considers that, at a minimum, the Crimes Act should be amended to provide stronger protection against victim profiles being included or maintained on the crime scene register.

29. On balance, the Office suggests it may be reasonable to establish a separate register specifically for victim profiles, in order to effectively manage the sensitivities arising specifically in relation to victim profiles.

Methods of collection of samples

30. The Office supports the view of the Victorian Parliamentary Law Reform Committee in its 2004 report Forensic sampling and DNA databases in criminal investigations that 'a donor should have the right to choose the method by which a DNA sample is taken'[7].

31. The Office considers that it is appropriate to ensure that in taking a DNA sample, the least intrusive method of collection is used. In determining which method is the least intrusive, the views of the donor will be relevant.

32. The Office also considers that donors should be offered the option of self-administering the sampling procedure where possible, as this will generally be less intrusive than a process administered by another.

Sharing of DNA samples with individuals

33. It is an important principle of good privacy management to allow individuals access to their personal information.

34. The Office notes t the Sherman Report refers to difficulties commonly experienced with sharing such material and the view expressed by some stakeholders that 'individuals could always obtain their own DNA sample and have it analysed at any time they wished'[8]. On this basis the Office suggests that it may be of more value to donors to be provided with a copy of the forensic analysis of the sample and any accompanying demographic or other information, rather than the sample itself.

Sharing of information with foreign jurisdictions

35. The Office acknowledges that the operation of Part ID of the Crimes Act is generally held to be too restrictive in enabling Australian jurisdictions to undertake matching of DNA profiles with foreign jurisdictions. The Office recognises that law enforcement is operating on an increasingly global scale and so facilitating matching between Australian and foreign jurisdictions is both reasonable and within community expectations.

36. The Office considers that it would be appropriate to allow for matching of DNA profiles between Australian and foreign jurisdictions, provided adequate safeguards were in place. These safeguards could include the following:

• Restrictions on which type of profile may be matched. For example, it is unlikely that it will be appropriate to match against volunteer profiles.
• Matching should only be permitted in cases where the foreign jurisdiction is investigating a crime that would be considered a serious or indictable offence in Australia.
• Initial matching activity should provide a 'Yes/No' type match response, with further detail sought through appropriate processes.
• Information from the NCIDD should only be disclosed to foreign jurisdictions that are able to demonstrate data protection regimes of a similar standard to Australia's.
• Restrictions should be placed on the period for which exchanged profiles may be stored both in Australia and in any participating foreign jurisdiction.

Matching of profiles on the NCIDD with other databases or registers

37. It is important to remember that many of the DNA profiles contained on the NCIDD are those of individuals who are not necessarily presumed to be involved in criminal activity. For example, missing persons, unknown deceased persons and volunteers, which includes victims of crime.

38. Currently DNA profiles are stored on the NCIDD in unidentified form. In order to receive information about the identity of the donor, a request must be made to the jurisdiction 'owning' the profile. To further protect the privacy of individuals whose profile is listed on the NCIDD, the Crimes Act sets out strict rules regarding which category of profile may be matched against other categories. It is an offence under the Crimes Act to breach these rules.

39. The Office notes the examples provided in the Sherman report of instances of law enforcement agencies matching profiles obtained in the course of investigating a crime or missing persons case with genetic information contained on registers established for other, non-law enforcement purposes[9] (in these examples, Guthrie card[10] registers maintained for medical diagnosis purposes).

40. It is an important principle of good privacy practice that an individual's information will not be used for purposes other than those for which it was collected. On this basis, the Office considers that it would be inappropriate to allow general access by law enforcement agencies to non-law enforcement genetic registers, given the sensitivities around the collection and use of genetic material generally.

41. The Office agrees with Sherman recommendation 24, that the Crimes Act should contain a provision prohibiting the matching of DNA profiles stored on the NCIDD with profiles stored on non-law enforcement related registers.

42. However, the Office acknowledges the views of the AFP and other law enforcement agencies, that in some exceptional circumstances it may be appropriate to confirm an individual's identity using other genetic registers. For example, for the purposes of identifying unknown deceased persons, such as in disaster victim identification.

43. The Office considers that this should be appropriately allowed for by providing exemptions to the prohibition on outside matching, provided that such exemptions are tightly framed both in terms of when and how such matching may occur.

Innocence testing

44. It is an important principle of good privacy practice that individuals should have access to information about them that is held in the records of agencies, and that they should be given the opportunity to correct information that is inaccurate, misleading, out of date or otherwise incorrect.

45. The Office considers it is appropriate that a process be established by which a convicted person may apply for access to the relevant person samples and crime scene samples, for the purposes of appealing their conviction (known as 'innocence testing').

46. The Office is of the view that clear reasons must be provided to support decisions to refuse access, and that defendants should be given a right to seek review of such decisions.

Destruction and de-identification

47. The Office agrees with the ALRC/AHEC report's recommendation that the Crimes Act should provide a definition for the destruction of forensic material that encompasses the physical destruction of the sample and the permanent de-identification of the profile.

48. The Office is aware that collecting samples from convicted offenders can be useful in establishing new links to unsolved crimes. However, the Office considers that the DNA profiles of convicted offenders should be retained on the NCIDD no longer than the period of time specified in the spent convictions scheme for the relevant offence.

Accountability

Collecting samples from serious offenders

49. The Office notes Sherman recommendation 9 recognises that any arrangements for collecting DNA samples from prisoners must include appropriate training, accountability and oversight mechanisms. The Office recommends that specific reference should also be made to complying with applicable privacy law. For example, where a state-based correctional services agency is responsible for collecting samples on behalf of a Commonwealth agency, both state and federal privacy law may be applicable. A similar situation may arise if a private contractor is engaged to undertake collection of samples from prisoners.

Accreditation of Laboratories

50. The Office considers that it is important, both in the interests of ensuring the analysis of DNA samples is correct and accurate and in building public confidence in the forensic DNA system, that DNA analysis only be undertaken by appropriately accredited laboratories. The current Australian standard is set by the National Association of Testing Authorities (NATA) in accordance with international standards. The Office notes that this accords with the recommendation made by the ALRC/AHEC report[11].

The future of forensic DNA analysis

The adoption of new advanced technologies in the analysis of DNA

51. As genetics technology advances, it is reasonable to assume that our ability to glean information about individuals from DNA samples will increase. This will necessarily provide increased opportunities to law enforcement agencies for the investigation of crimes and other relevant incidents through genetic forensic evidence.

52. In particular, the areas of familial matching (discerning whether individuals may be related) and the analysis of coded DNA (that is, the analysis of identifiable traits such as ethnicity or hair colour) have been raised as providing possibilities in the area of law enforcement investigation.

53. The Office acknowledges the benefits that such technologies offer, for example, in the field of disaster victim identification. These technologies will significantly expand the current scope of forensic DNA analysis and the Office is of the view that there should be close analysis (including a detailed assessment of the privacy impacts), public consultation and parliamentary scrutiny before being used in law enforcement investigations.

54. The Office believes that such analysis and assessment should be the subject of further separate review.

Further review of Part 1D of the Crimes Act

55. The Sherman Review commented that it was difficult to properly assess the operation of Part 1D of the Crimes Act at that time because not enough progress had been made towards achieving participation in the NCIDD from all the various jurisdictions. As full participation has only been achieved as of April 2009, there is still very little data or experience on which to base an assessment. Should the recommendations from this review be acted upon in a timely manner, it is likely that the need for further review will arise in relation to these changes.

56. Additionally, advances in the study of human genetics and related technology continue to occur at a rapid rate. It is likely that in the future there will be further developments that will need to be considered for the purposes of law enforcement. Community attitudes may also change and develop as new technology, and new uses for this technology, become available.

57. On this basis, the Office recommends that Part 1D of the Crimes Act be subject to regular review to allow for the operation of the legislation over time to be effectively considered, and to take account of advances in genetic technology and changes in community attitudes towards the use of genetic information.

Recommendations arising from this review

58. The Office notes that to date there has been no formal response to the Sherman report, and that very few of the recommendations have been adopted. In order to simplify the process of considering and implementing recommendations arising from this review, it would be helpful if the panel were to prioritise its recommendations and suggest an agency or organisation responsible for implementing each recommendation.

[1] More information on the review can be found at the Attorney-General's Department's website.

[2] See Ford, Peter - Further independent review of Part 1D of the Crimes Act 1914 - Forensic procedures, available on the Attorney-General's Department's website.

[3] National Privacy Principle (NPP) 2.4 specifically permits a health service provider to disclose health information about an individual if they are physically or legally incapable of giving their consent and the disclosure is necessary to provide appropriate care of treatment or is for compassionate reasons.

[4]  The Privacy Act applies such a public interest test in certain circumstances. For example, section 95A(5) of the Privacy Act  provides that the Privacy Commissioner may only approve guidelines relating to the collection of health information for research or monitoring  purposes if satisfied that the public interest in the collection of the health information substantially outweighs the public interest in maintaining the level of privacy protection afforded by the NPPs.

[5] The Office understands the term 'adventitious' is used by law enforcement agencies, such as the Australian Federal Police and CrimTrac, to describe a match that happens purely by chance and does not appear to have an explanation (for example, when it matches an existing profile on the system but that person was never at the crime scene).

[6] See Gans, Jeremy - "DNA Identification and Rape Victims" [2005] UNSWLawJl 16; (2005) 28(1) University of New South Wales Law Journal 272

[7] Victorian Parliamentary Law Reform Committee, Forensic sampling and DNA databases in criminal investigations, Executive Summary p.xxxiv, Rec 4.8 pp.156-148

[8] Sherman Report, chapter 3, para 3.105 p. 40

[9] Sherman report, paragraphs 7.28-7.29.

[10] Guthrie cards contain samples of blood collected from newborn babies to test for certain genetic conditions.

[11] ALRC/AHEC report, paragraph 41.142.