DNA database laws: lack of action on forensic testing delays

Hansard: 20 June 2007 ASSEMBLY

Mr CLARK (Box Hill) — The Crimes Amendment (DNA Database) Bill is a bill that has two main purposes: the first is to enable Victoria to participate fully in the national criminal investigation DNA database (NCIDD); the second is to broaden the range of matching of DNA samples which are permitted under Victorian legislation, both within Victoria and in Victoria’s participation within the national scheme.

To implement these purposes the provisions of the bill fall into four main headings. The first is to recognise the NCIDD as a separate entity.

The second is to change the matching table that governs what types of DNA samples may be compared with other DNA samples. The existing legislation and the bill itself classify DNA samples into categories from crime scenes, from suspects, from limited volunteers, from volunteers providing samples for unlimited purposes, from serious offenders, from missing persons or from unknown deceased persons. The third main set of provisions gives the minister broader powers to enter into agreements with other jurisdictions and with the commonwealth body, CrimTrac, for the sharing of DNA data. The fourth set of provisions authorises the disclosure of DNA information for the purposes of investigation of a complaint by the director, police integrity, or by an interstate authority that would be allowed to access the information on its own jurisdiction’s database.

DNA testing has proved a remarkably successful instrument in fighting crime in Australia and around the world, and the use of DNA for crime fighting as well as for identifying unidentified deceased persons and for finding missing persons is something that has been strongly supported by the Liberal Party over many years. Indeed Victoria was the first jurisdiction in Australia to enact legislation regulating the use of a DNA database during the term of the Kennett government, and Victoria Police obtained the first cold hit from a state DNA database in 1999 when the DNA profile of convicted thief Wallid Haggag was matched to blood found in a car used in a burglary for which he was not previously a suspect.

As the use of DNA has developed there has clearly been a need for a national interchange of data, and the commonwealth government in conjunction with the states established an agency called CrimTrac to facilitate information sharing across Australian jurisdictions.

In 2001 CrimTrac launched the national criminal investigation DNA database (NCIDD) to achieve that very purpose, and it has been remarkably successful in the few short years that it has been operational. The CrimTrac website gives a number of examples of its successes, particularly those of Queensland and Western Australian police, where various offences occurred and crime scene samples were placed onto the NCIDD. Links were then made with profiles stored in other jurisdictions, enabling extradition to occur and the law to take its course. It has been a remarkably successful regime and has been progressing further over recent years.

What is perhaps regrettable is that Victoria has in many respects been a laggard in its participation in CrimTrac and the NCIDD under the Bracks government.

Profile matching under the NCIDD commenced in 2005 between Queensland and Western Australia and between Queensland and the Northern Territory; in 2006 profile matching commenced between Western Australia and the Northern Territory and between Queensland and the commonwealth; earlier this year profile matching commenced between Western Australia and the commonwealth, between New South Wales and the commonwealth and between the Northern Territory and the commonwealth; and now at last we have legislation to allow similar matching involving Victoria.

As I said, it is regrettable that the Bracks government has been slow in becoming fully involved in participating in the national database. It has been restrictive in the range of DNA sample matching that it has allowed up to date. There has been a series of piecemeal moves forward in Victoria to slowly extend the provisions for the taking of samples, and on top of all that there have been severe resourcing constraints in Victoria that have led to substantial delays in the analysis of DNA samples. You can have all the legislation you like, but if samples are not being analysed and results are not being made available from the labs in a timely manner, then the regime is not going to work effectively to identify criminal activity and bring criminals to justice or to identify deceased persons or track down missing persons.
The legislative history in Victoria, as I said, commenced under the Kennett government with pioneering legislation relating to the regulation of the use of a DNA database. That was upgraded by the Kennett government in 1998, as acknowledged by our present Attorney-General in a contribution to debate made in this place in 2001.

There has been a series of amendments to DNA legislation under the Bracks government, and on each of those occasions the Liberal Party has pressed the government to extend the law to allow more effective use of DNA sampling, but on each occasion the government has lagged in that process and been tardy in catching up. As I have said, it has been tardy in particular with the legislation that we have before us today.

Of course some concerns have been raised, and some issues involving the use of DNA profiles need to be addressed. I express my appreciation to the Law Institute of Victoria for a very comprehensive letter it wrote to me setting out a range of concerns it has about various aspects of the bill. Although it does not say so explicitly, I think it is fair to say from its letter that the institute is opposed to a number of the measures contained in the bill and that it believes there need to be further safeguards on the use of DNA.

I suspect that the Liberal Party probably does not see eye to eye with the law institute on many of the specific matters that it raises, but we do accept that there need to be adequate protections in place in the use of DNA sampling. However, we have on repeated occasions drawn the analogy between the use of fingerprints and the use of those forms of DNA samples that can be obtained without imposing any material burden on the giver of the sample. Several Liberal Party spokespersons in previous debates relating to DNA have made the point that the taking of a swab sample from the mouth is a relatively non-intrusive, non-invasive procedure and there is no reason why the laws that have applied for a long time in relation to taking a fingerprint should not be applied equally to the taking of DNA samples such as that.

There certainly do need to be safeguards in how the data is used in order to protect individual citizens from improper access to their data.

The potential for abuse through improper access to data has unfortunately been seen in Victoria in recent years in another context. It should be said that what is uploaded to the national database is a digital specification of the DNA sample that has been taken, coupled with an identification number, so within the national database itself there is no personally identifying information. There is another layer of protections to ensure that the database only generates matches that comply with what the laws of the different participating jurisdictions allow. When a match is generated the relevant authorities are notified, and it is then up to those authorities to make a handover of further details, including further identifying information, between one relevant authority and another. That is the way in which there is security of individual data in relation to uploading to the national database.

However, as I said earlier, one of the key issues that needs to be addressed in the use of DNA material is not just what you put in the legislation but how it actually operates in practice. I should make it clear that the opposition supports this legislation. We believe it should have been up and running as soon as possible, and we are concerned that Victoria has been tardy in bringing it to this chamber, but we do urge on the government, as we have for a long time been pointing out, that it is vital to overcome the very serious delays in DNA testing that have occurred in Victoria. The honourable member for Kew in his contribution to debate on the Victims’ Charter Bill in this house on 8 August last year spelt out some of the delays that were occurring when he spoke about cases that were being adjourned for many months because of delays in the undertaking of DNA testing that was necessary for the cases to proceed.

These delays not only are intrinsically unjust to all of those concerned — the accused, the witnesses and the victims, if the victims have not been killed as a result of the crimes — but very much impede the effective working of our police force. In my local area a senior police officer has made clear to me and to others his frustration at the inability he and his staff have to pursue criminals, particularly in the context of burglaries, where it can take months and months to get DNA samples analysed. He makes the point that, if those samples had been available much earlier, the relevant offenders could have been identified and many burglaries and other offences could have been prevented as a result.

There is a further consequence of these delays, and this is when bail applications come before courts, be it the Magistrates Court or a higher court. The judiciary is understandably very concerned to see that a person who has up to that point not been found guilty should not continue to be incarcerated for a long time awaiting trial while these DNA samples are sitting on some desk or waiting in some queue to be analysed. The result of the delay is that a magistrate or a judge can reach the point where they believe that, balancing the considerations involved, the alleged offender should be released on bail even though, if the trial had been capable of being brought on much earlier, the offender would have remained incarcerated up to the start of the trial. There have of course been a number of well-publicised incidents in recent times where alleged offenders have been released on bail and have fled the country.

The government has attempted to implicitly point the finger at the courts for the decisions that were made to release those offenders, whereas in fact the blame needs to fall squarely on the government for failing to provide a regime for DNA testing so that samples are tested in a timely manner and these delays to trials do not occur.

This is something that our side of politics has been making clear for some considerable time. We made a number of commitments on that score last year. That culminated in a substantial commitment by the Liberal Party during the course of the last election campaign to provide increased funding — both recurrent and capital funding — for DNA testing. In the end the government was forced to also make some commitments in that area, which have now been incorporated into the budget.

Whether those commitments are going to be adequate enough to make substantial inroads into the backlog remains to be seen, but I make the point that, if those inroads are not made, then every effort needs to be made to inject whatever resources and whatever other reforms are necessary into that area in order to get delays down to a reasonable level. It seems absurd and unjust, as well as potentially having very serious consequences, if such a vital aspect of police operations is being hampered due to the delays that have been occurring.

There is one further matter which I want to raise during the course of my remarks in relation to the bill. As I have said, the opposition supports the bill, and we wish Victoria’s participation in the national database had been up and running earlier. But I raise a query about the drafting of one provision in the bill and whether it is going to be effective in achieving its objectives. I refer to the provision that broadens the range of parties to whom database information may be disclosed.

In this bill it is proposed to insert into section 464ZGK(2)(g) of the Crimes Act 1958 new subparagraphs (iv) and (v) to allow Victorian information to be disclosed for the purpose of an investigation of a complaint by the Office of Police Integrity, referred to as the director, police integrity, within the meaning of the Police Regulation Act 1958, or, in subparagraph (v):

an authority of a participating jurisdiction, but only if the authority would be entitled to the information if it were held on the participating jurisdiction’s DNA database.

The query I raise is whether it is adequate that the information can be disclosed to those bodies for the purposes of an investigation of a complaint, or whether these bodies may well have a legitimate need for access to this data for purposes other than the investigation of a complaint.

In other words, are they undertaking proactive investigations of possible breaches of police integrity or other possible breaches of the law that are not triggered by complaints? Are they, by virtue of the way this provision has been drafted, unable to be provided with information from the DNA database in those circumstances?

However, subject to that concern, we are pleased that Victoria is at last going to be participating in the national database. We are also pleased that the matching table contained in the Crimes Act is going to be broadened so that in effect a DNA sample obtained from any classification can be matched with DNA obtained from any other classification, subject simply to the restriction that if a volunteer has provided a sample for a limited purpose, there can only be a matching of that sample if it is for the purpose which is within the limits for which the volunteer gave the sample.

Subject to that, there can be a general matching of samples for all purposes, and we understand that this is similar to the table that applies in Queensland and another jurisdiction. We believe that the broadening of the matching is very sensible, subject always to the other protections that are built into the legislation. On that basis the opposition is pleased to support this bill.