Crimes (Forensic Procedures) Bill
Debate resumed from an earlier hour.
The Hon. M. J. GALLACHER (Leader of the Opposition) [8.43 p.m.]: This bill is very significant legislation. Some of the matters that were being discussed prior to the dinner adjournment have prompted me to think further about the potential of this bill, and it is really a very exciting piece of legislation for law enforcement, which, if it is handled properly, could achieve some quite fantastic results for the people of New South Wales.
The statistical basis for DNA is compelling. However, the margin for error in the sample process needs to be acknowledged, albeit that it is an extremely remote possibility. And, in any event, that is not of itself an argument against this tool being available to police. Honourable members should bear in mind that in the United Kingdom 86 per cent of all sex offenders—the very offenders who would be tested under this scheme—had committed a prior offence. Wee Waa recently was the site of a real-life experiment in mass voluntary testing of a community following the horrific sexual assault of an elderly person there.
I take the opportunity to commend the honourable member for Barwon in another place for his longstanding support for this testing. I remember having a discussion with him at a community meeting of the Coalition in the western suburbs. We got into quite a discussion on the subject and I was very impressed at his depth of knowledge. I understand that the honourable member for Barwon does not have a law background, but he had a real depth of knowledge about DNA testing. More importantly, he was prepared to look at ways in which the perceived difficulties with regard to the introduction of DNA testing could be rectified to satisfy all concerns, especially those from his electorate of Barwon, which has its centre in the significant country town of Moree.
He referred to concerns raised by some who felt that DNA testing represented some difficulties and he was prepared to work with the local people to allay their fears. It is extremely important that all honourable members commit to do that following the passage of this legislation. People should not be concerned that they will be accused of offences or that technology will put them at the scene of a crime. The community and the Parliament need to be assured that no such thing can occur. We must ensure that the community understands and supports the process.
People in New South Wales overwhelmingly support DNA testing. That can be sheeted back to the work of the honourable member for Barwon and the entire community of Wee Waa in raising the level of public consciousness so that most adults in the State now know what DNA testing represents. They may not all necessarily agree with it but they all recognise its potential. I would say that well over 90 per cent of the community would be supportive of such a measure. It comes down to the people of Wee Waa having led the way to break down the barriers in country New South Wales. The people in that town are cognisant of the new technology, which has only been available to us for a short time, and how it helped identify the perpetrator of a quite horrific crime on an elderly member of their community.
I am cognisant of the relationship that exists between the people of Wee Waa and their local police service. My understanding is that what has occurred out there has brought the people and the police much closer together. They are now working together not only on this issue but on a number of community issues. A word that is used too often in debate is "empowerment". In this case the community was empowered with the tools and processes to fix a problem, and the results speak for themselves.
The Coalition believes that any person who has committed an offence that would justify arrest by police should certainly be subject to the fingerprinting process and DNA testing. The Leader of the Opposition in the other place advocates that view, and I do as well. If we do not keep pace with technology that is capable of identifying criminal activity, we are simply putting our heads in the sand. It is open to argument, but people who come under notice for lesser crimes could find that DNA testing stops them from going on to commit further criminal offences. They may realise that it is not simply a matter of wearing gloves and avoiding apprehension.
I have investigated many crimes and it is fairly common knowledge that criminals should wear gloves. However, most offenders do not carry gloves; before they enter the scene of their intended crime they simply put their socks over their hands, as if they were wearing gloves. Of course, DNA testing is another barrier for those who want to commit crimes and atrocities, such as that committed in Wee Waa, on the unsuspecting people of this fantastic state of New South Wales. Clearly, those who commit trivial offences—traffic offences, offences under corporate law or other aspects of law dealt with by summons—should not be subject to DNA testing. However, those who commit offences under criminal law that carry the sanction of imprisonment and are subject to arrest must be fingerprinted and should be subject to DNA testing.
The various processes laid down as community safeguards have been initiated by the Government. However, the Coalition does not necessarily find all of them satisfactory. We note that they will be subject to review by the Ombudsman after they have been in operation for 18 months. It is important that the Ombudsman take a proactive role in monitoring the procedures, the police use of those procedures and the general handling of complaints, and assessing and balancing the general effectiveness of these measures in terms of their intrusiveness on civil liberties. The Coalition would welcome a thorough review by the Ombudsman to ensure that the system is effective, and it expects the Government to ensure that the Ombudsman is properly resourced to carry out the review. It is important that members of the Committee on the Office of the Ombudsman and the Police Integrity Commission maintain a vigilant approach to ensure that the Ombudsman is fulfilling his review role in the time available prior to the expiration of the 18 months period.
The Federal Minister for Justice and Customs, the Hon. Amanda Vanstone, has indicated her support for DNA procedures. Of course, the Commonwealth has shown its strong support for these procedures not only in legislation but also through the establishment and financing of CrimTrac as the basis for comparisons of samples. Accordingly, the Coalition will not oppose or seek to amend the bill. We will ensure that implementation of these provisions is not in any way hampered. We do not believe that the best interests of the people of New South Wales would be served if this bill were delayed. However, we recognise that it is necessary to ensure that the passage of this bill does not result in the Parliament abrogating its responsibilities to the Ombudsman. We hope that when we receive the final report, in 18 months or two years, the bill will receive a satisfactory report.
We recognise the concerns expressed by crossbench members with respect to the role of the Standing Committee on Law and Justice. The Opposition has been supportive of the committee process in recent days during discussions with crossbench members. Like all members of this House, they know that we will not use the law and justice committee reference as a vehicle to stymie the passage of this bill. We move forward in debate knowing that the law and justice committee will conduct a thorough review of the implementation of the legislation in the ensuing weeks or, indeed, months. We look forward to the committee's report, and we hope it gives the legislation a clean bill of health.
The Hon. Dr A. CHESTERFIELD-EVANS [8.54 p.m.]: This is important legislation that is being rushed through the Parliament with indecent haste and without proper and thorough consultation. The Law Society in particular is concerned and would have preferred a draft bill to have been circulated. The Law Society argues, and we agree, that the bill differs so substantially from the Commonwealth (Model Criminal Code Officers Committee) Model Forensic Procedures Bill that the whole issue should be referred to a committee for public inquiry. The Ethnic Communities Council also supports referral to a committee.
That would be an appropriate course of action, given that crossbench members, including the Australian Democrats, will be moving about 80 amendments in Committee. Our amendments would bring the bill into line with the provisions of the model bill. A public inquiry could properly allow all interested parties time to examine the implications and intricacies of this complex and important issue. Concerns have been expressed by civil liberties groups, including Justice Action. They say that no civil liberties groups were consulted prior to the drafting of this bill. Indeed, the New South Wales Privacy Commissioner, Chris Puplick, in an article in the Sydney Morning Herald of 13 April this year, expressed his displeasure at not being consulted. He said:
Once again the police commissioner seems to be fuelling the law and order debate and is somehow able to exert enormous pressure on the police Minister to shape Government policy. The police commissioner says jump and the Minister asks how high. How many bills have we seen pass through this House recently that crank up police powers? I have lost count, even in the short time I have been in this Chamber. DNA testing of suspects appears to offer a great deal to law enforcement officers in the solving of crimes. The police Minister hailed DNA in another place as the "fingerprint of the twenty-first century". He has become a bit like Toad of Toad Hall when he first spied the motor car—poop, poop.
I find it alarming that during the debate the NSW Government has not sought any comments or advice from Privacy NSW, the body established by Parliament to protect the privacy rights of its citizens. This contempt for privacy considerations by the Government and the NSW Police Service should set alarm bells ringing. What have they got to hide? Perhaps it is the fact that the NSW Police Commissioner is pressuring the State Government to introduce a DNA database which had both inadequate privacy safeguards and which deliberately subverts privacy protections which have been developed by the Standing Committee of Attorneys General (SCAG).
The debate was put into better perspective by the Attorney, who said in his second reading speech that this bill and the DNA procedure are not a cure-all. Linking a sample of a person's DNA to a sample found at a crime scene does not necessarily prove guilt; nor does it necessarily prove that the person was present at the crime scene. The Attorney also said that DNA testing produces a statistical probability. Care must be taken not only in handling and analysing samples but also in presenting statistical evidence to a jury. He cited R v Dohney and R v Adams in the United Kingdom Court of Appeal, where it was held that it was wrong to confuse the match probability, say one in one million, with the likelihood ratio that the odds of a person other than the defendant leaving the crime scene is one in one million.
The Attorney also pointed out that DNA evidence will be part of a wide range of forensic and other evidence which will be produced at trial. The jury will decide what weight to attach to the DNA evidence, as it does with all evidence put forward. The implied claims that DNA procedures will solve all crimes committed in New South Wales are fanciful and unsubstantiated. It is an attempt to obscure and colour any rational debate about safeguards that need to be in place so that our civil liberties are not so curtailed that we find ourselves living in a totalitarian State.
There are a great many concerns associated with this bill. In regard to the period within which the procedure has to be completed, the bill seeks to add extra time for a suspect under arrest at the end of an investigation period in order to perform the DNA procedure. Since the procedure is quite simple, there seems to be no justification for this extension. Similarly, if the procedure is by consent or by order of a magistrate, there is a provision for it to take two hours, disregarding time-outs. This means that a person not under arrest could spend an almost unlimited amount of time at a police station before a sample is taken. In Committee I will propose that there be a real time limit of four hours within which the procedure must be performed.
Consent is of particular concern. Before 1995, under the common law persons were protected from the taking of bodily samples without consent. This was changed following amendments to section 353A of the Crimes Act, which allowed the taking of samples from those in lawful custody for a serious indictable offence. This bill will greatly enhance the powers of police to take samples with and without consent. It will be a familiar scenario of people "helping police with their inquiries". Pressure will be applied to people to consent, such as, "Listen mate, it takes no time and we can get you out of here." There is no provision in the bill to inform people that they do not have to say yes and that it is not an offence to say no. If a person consents of his or own free will, that is fine. However, as the bill stands, there is too much scope for police to exert undue pressure on a person. Police should also be required to inform the person of what happens to the sample after it is taken.
Part 1D of the Commonwealth Crimes Act requires that a number of matters be considered before consent is sought from the person or from a magistrate. This bill does not contain such a requirement. Matters to be considered should include the police and the court having to be satisfied that the procedure is justified and is not in essence a fishing expedition or only marginally related to an offence. I will move amendments to this effect in Committee. Terry O'Gorman from the Council of Civil Liberties has raised the question of the security of the samples, as have many others. Terry O'Gorman said:
The testing procedures are also not foolproof. Anyone who has been involved with scientific testing will be familiar with false positives and statistical errors. The profiling must go through a number of steps, and there is the possibility of errors in all the steps. There are conflicting guesses as to the chances of two DNA profiles being alike. CrimTrac suggests one in a billion. The Attorney put it at possibly one in a million. Other estimates put it at one in 40. This is a concern. It is a lottery one would not want to win. It seems that it is dependent on how particular and comprehensive the profiling is. It would be in the interests of police for the profiling to be as non-particular as possible to increase the chances of a match. There is also a question as to whether police officers are suitably trained to carry out such forensic procedures. Police officers generally do not have any training in sterile procedures. It would be a total waste of time and money if samples were not collected correctly.
There is the possibility of DNA samples being corrupted—either deliberately or inadvertently—so we need to know what sort of safeguards are going to be in place to ensure there are no wrongful convictions.
The bill provides for the testing of any serious indictable offender who is currently serving a prison sentence. The New South Wales Bar Association says this would mean that almost every man, woman and child in detention would be tested. The amendments I will move in Committee will ensure that such mass testing will not take place. The potential for harassment and intimidation will be reduced. The amendments will mean that procedures will only be carried out by consent or by court order. Also, the procedure will not be ordered unless it is warranted in circumstances that are relevant to both the offender and the offence of which he or she was convicted. People suspected of summary offences will also be subject to testing under this bill. This cannot be justified on any basis, as the offences are less serious and it is an unreasonable invasion of civil liberties. It would also mean an even larger cost blow-out than will be experienced.
If the taking and testing of samples is embraced as enthusiastically by the Police Service as the concept has been embraced by the Minister, we will have tens of thousands of samples to be tested. I wonder whether the Treasurer is aware of the potential cost blow-out that this bill will entail. He has just this week been asked to prise open the public purse to fund the Olympics to the tune of $140 million, and a bill has been introduced for that purpose. Three weeks ago we were told in the budget that the Olympics had been fully paid for up front. Will the Treasurer be able to find a lazy $20 million or so kicking around somewhere to make the police Minister and his commissioner happy? The bill as it stands cannot be supported. It deviates so substantially from the model bill as to be almost unrecognisable. The police Minister presents this bill as the universal panacea for solving crime and a chance to put Australia at the forefront of modern investigative techniques. DNA testing is only another tool in the gathering of forensic evidence. It is necessary that there be safeguards to protect civil liberties and ensure the integrity of testing procedures and results. Our amendments will provide the safeguards and move this bill closer to the model bill. Without these amendments the bill cannot be supported.
The Hon. HELEN SHAM-HO [9.05 p.m.]: I support the Crimes (Forensic Procedures) Bill, which seeks to introduce a regime for carrying out forensic procedures on suspects, serious indictable offenders and volunteers. The bill also provides for the storage, use and destruction of material derived from forensic procedures and for a national DNA database containing information derived from forensic material. For some time now there has been an obvious need for better criminal intelligence and closer co-ordination of investigators throughout the nation. This is the rationale behind the Federal Government's CrimTrac initiative, and DNA testing would obviously play an important role in that system. The need for legislation on this issue has also been highlighted as a result of the 1998 bashing and rape of a 90-year-old woman in Wee Waa, subsequent to which more than 500 male residents of the town were asked to undergo DNA testing. The Leader of the Opposition referred to that matter extensively in his contribution, so I will not refer to it further.
I support the use of DNA sampling as a criminal investigative tool because, if used in the proper manner and in the right circumstances, DNA testing is a valuable complement to criminal investigation and ultimately will assist in creating a safer society. For example, the New South Wales Minister for Police, Mr Whelan, has suggested that the new technology could assist in solving up to 80 per cent of previously unsolved crimes. In Britain, where a DNA database was established in 1995, it is claimed that the DNA testing of prisoners has led to about 60 per cent of major unsolved crimes being cleared up. The database currently contains more than 600,000 samples of individuals charged or convicted and 50,000 samples from crime scenes. In the year ending last April, the database drew matches on samples from 65 murders, 273 rapes and 76 sexual assaults.
There is also evidence to suggest that DNA sampling has a deterrent effect. For example, since the introduction of DNA sampling in Britain, burglaries have been reduced by 40 per cent. These are all very appealing statistics. DNA sampling may also work to establish the innocence of many people who might otherwise be implicated in a crime. As the Attorney General pointed out last night in his second reading speech, the bill covers suspects who are not necessarily under arrest or in lawful custody. This allows forensic procedures to be carried out for the elimination of innocent persons from suspicion without having to arrest them.
While I strongly support the use of forensic testing by law enforcement authorities, I believe that the proposed legislation would benefit from wider public debate. In early May this year a number of crossbenchers, including me, were approached by numerous organisations who had expressed disquiet with respect to the Government's announcement that it would move to introduce this bill. Those agencies included the New South Wales Law Society, the Ethnic Communities Council, the Sydney Regional Aboriginal Corporation Legal Service, the Positive Justice Centre, the Youth Action Policy Association, the Indigenous Social Justice Association, CRC Justice Support, the New South Wales Council for Civil Liberties and Justice Action. I have also received several individual representations on this matter from constituents, and have been briefed by the New South Wales Privacy Commissioner on some of the issues involved. The agencies I have referred to represent a wide cross-section of society, specialising in the representation and advocacy of vulnerable sections of the community.
Given the level of community concern about this issue, I believe that the Ombudsman's review and a full parliamentary inquiry into the matter are warranted. I will support an amendment to refer the bill to the Legislative Council Standing Committee on Law and Justice. Such an inquiry would enable the committee to carefully consider the proposed amendments to the legislation and would report back to Parliament after its consideration. I note that there is no obligation upon the Government to act on a committee's recommendation, but I think there are compelling reasons why the Government should do so.
I now discuss the substance of the proposed legislation and the scope of the proposed police powers under the bill, the use and supervision of this new investigative tool and the privacy and civil liberties safeguards which must be established. It is clear that the proposed legislation will result in a significant extension of the powers of police, which in turn raises the issue of possibly corrupt policing and the fabrication of evidence. Under the bill, there is scope for police to plant genetic evidence at crime scenes with samples such as fingerprints and hair samples being easily obtainable. It is worth noting that the most notorious miscarriages of justice in this country—such as those involving Tim Anderson, Lindy Chamberlain, Alexander McLeod-Lindsay and Leigh Leigh—can all be directly traced to police falsification and/or manipulation of evidence.
However, I am satisfied that the bill sufficiently addresses this potential problem in that it provides for the Ombudsman to monitor the exercise of police powers under the legislation for a period of 18 months and to prepare a report after that period to be tabled in each House of Parliament. I now examine that the civil liberties implications that arise from the legislation. As the bill currently stands, a person who is suspected of having committed an offence—as well as those who are currently incarcerated for committing a serious indictable offence—may have DNA samples taken without their consent. This form of compulsory DNA testing not only represents a breach of the individual's right to privacy but also constitutes a serious erosion of civil rights in this country. The notion of protecting privacy as a fundamental human right is reflected in a number of international instruments, most notably in the International Covenant on Civil and Political Rights.
On this point, I draw attention to the fact that the bill sets out a number of safeguards to protect the rights of suspects, offenders and volunteers but applies particularly to children, incapable persons, Aboriginal Australians and Torres Strait Islanders. I am aware that concerns have been expressed in relation to the power of senior police officers to compel a suspect to give a genetic sample. Clause 20 of the bill requires a senior police officer to be satisfied about various matters before ordering the carrying out of a non-intimate forensic examination under part 4. The police officer must be satisfied that there are reasonable grounds for believing that the person on whom it is proposed to carry out the procedure is a suspect who has committed an offence and that the carrying out of the procedure without consent is justified in all the circumstances.
It is important to note that this extension of police powers is limited in the sense that the senior police officer's ability to order a non-intimate forensic procedure in the absence of consent applies only to suspects who are under arrest. Non-consensual procedures may only be carried out by a court order on suspects who are not under arrest. As is the case for currently incarcerated prisoners, the legislation will permit the taking of DNA samples without consent for cross-checking against crimes that are listed on a database. This measure is essential in order to clear up previously unsolved crimes and may even have a deterrent effect on repeat offenders. In relation to access, proposed part 11 of the bill regulates the recording, retention and use of information obtained from the carrying out of forensic procedures on a DNA database system.
Prior to the second reading of this bill, I had been concerned that the legislation did not sufficiently address the question of access to the system. For example, will all police officers have access to the database, or will access be restricted only to those who have express authorisation? What will stop police from using DNA to go fishing for suspects in the absence of any reasonable suspicion? I was also concerned that the bill does not go far enough to ensure that access to the DNA database is secure and controlled. Genetic material contained in a forensic sample holds far more intimate information about the subject than does a fingerprint. All the physical, racial and behavioural information about the subject will be available to the skilled geneticist of the near future, particularly upon completion of the human genome project.
The data available from such samples can be expected to become more and more valuable as genetic science progresses. For example, the information could be of obvious use to drug and insurance companies, a private investigator on a paternity case or even potential employers, especially if an indication is given that the subject had once been under suspicion of committing an offence. However, having heard the very thorough second reading last night, I understand that the offences of unlawfully supplying forensic material, improperly accessing information which is stored on the DNA database and improperly matching profiles will attract maximum penalties of two years imprisonment, a fine of $11,000 or both. In my view, those provisions to some extent will ensure that police officers exercise their powers under this legislation in an ethical manner.
In conclusion, I again voice my support for the use of DNA testing in criminal investigation. Violent crimes against persons—such as murder, rape and assaults—commonly involve the transfer or loss of biological material such as semen, saliva and hair. These biological materials can yield valuable incriminating evidence that can help to link a criminal to a crime. However, I reiterate my belief that this legislation will benefit from wider public debate and comment through a parliamentary inquiry. I support the bill. If this House wishes to refer the bill to a parliamentary committee, I would support that motion as well.
The Hon. I. COHEN [9.16 p.m.]: At the outset of my contribution to the debate on the Crimes (Forensic Procedures) Bill, I state that the Greens are not opposed to the use of DNA testing as a technique which may assist in law enforcement and reduce the incidence of crime in society. But we are concerned that the value of DNA testing as an investigative tool has been ridiculously glamorised in the lead-up to the bill being debated in this House. The view that DNA testing is a type of magic solution to crime became apparent at the time of the Wee Waa mass testing program that was conducted earlier this year. The media reports of comments made by police and some Government and Opposition members include almost no debate about the strengths and weaknesses of DNA testing and the need for the civil liberties safeguards to be incorporated in the legislation.
The honourable member for Barwon, Mr Ian Slack-Smith, was reported to have said that he would urge the Coalition not only to endorse the Government's DNA testing but also to seek widening of the testing to include people convicted of petty offences. It seems that the Government listened to the honourable member for Barwon and tried to become even tougher. The race between the Government and the Opposition to achieve the lowest common denominator in criminal justice policy has become a shameful aspect of New South Wales politics in recent years. The Police Minister was reported to have said that the "innocent have nothing to fear" from this bill. But the Greens believe that community fears in relation to the bill are completely justified. During the Wee Waa spectacle, when people in that community were vilified when they expressed civil liberties concerns, the issue was particularly shameful.
Many detailed concerns about this bill have been mentioned by my colleague Ms Lee Rhiannon. Those issues are canvassed in the Greens amendments and the amendments proposed by the Hon. Dr A. Chesterfield-Evans and I do not wish to repeat those concerns. Rather, I ask the House to consider the description of the Wee Waa mass testing program by the chairman of the New South Wales Law Society's human rights committee, Mr Michael Antrum, who referred to the mass testing as a "frightening glimpse of a future police state in New South Wales". The Greens suggest that the prediction that New South Wales is heading for an Orwellian future is not an exaggeration. The potential for DNA information to be made widely available as a result of this bill is indeed a frightening and a real possibility. I inform the House about an Internet site, CrimeNet. A journal produced by the New South Wales Council of Civil Liberties, Civil Liberty, contains an article, "Exposure on the Internet", in the June issue which states:
CrimeNet, the website blamed for the closure of a Victorian murder trial in May, describes itself as "the world first Internet-accessible crime and missing persons information service."
It is certainly a massive intrusion into privacy and personal life.
Apparently there are enough voyeurs and sneaks to support the website based in Perth, WA. At last count it was getting 100,000 hits a day.
The site managers claimed "Australians are sick of the level of crime in our society and want more information to protect themselves."
The managers say it provides Australians and others with a database of convicted criminals, cross referenced by name, type of crime and occupation of criminal, and a database of "con artists, frauds and scams."
The site also offers a "list of paedophiles", databases of stolen and lost property, a database of missing persons, details of persons wanted by law enforcement agencies, details of unsolved crimes, and "a list of rewards of up to $5 million for information regarding certain unsolved crimes and wanted persons."
The aim is claimed to be "to assist the police and public in preventing, reducing and solving crimes, and aiding the search for missing persons and property."
The site executives include a veteran of 17 years in the Victorian Police Force, including several years as a senior detective.
A statement by the site managers says they will list "all those who have pleaded guilty or been found guilty by a jury or judge in Australia's courts" with a starting list of 4,000 names, in all categories.
CrimeNet claims it is "designed to co-operate with law enforcement agencies."
The increasing intrusions of Internet entrepreneurs are becoming Orwellian. As the New York Times said recently: "The Internet is Orwellian in its reach, but there is no Big Brother. Instead there are a lot of Little Brothers. Beware of the Little Brothers. They are going to be the problem.
"The Internet empowers individuals, websites, corporations and even hotels, so they can amass huge amount of information outside of any government supervision.
"Some of these Little Brothers will use that personal data responsibly. Others will not."
Nothing in this bill will prevent genetic information about people, once obtained by the police, being sold to people such as the promoters of CrimeNet. The Privacy Commissioner, amongst others, was definitely of the view that the genetic material must be held by an independent authority and never left in the custody of the police. But the system created by this bill means that we must trust the police to do the right thing. Unfortunately, past experience has shown that too often the police have abused the trust placed in them by the community.
We know as a result of the Wood royal commission that corruption within the police force has resulted in some very serious criminal activity. For example, the royal commission revealed that police medical officers are subject to pressure from investigating officers to corruptly alter evidence. In 1997 the United States of America Justice Department investigation revealed that FBI DNA laboratories have engaged in systematic distortion of test results in order to favour the prosecution. By giving police medical officers custody of this material, without adequate supervision, it is therefore highly likely that some of the material will be misused. The bill creates offences in relation to the improper supply and use of genetic material, but this is likely to be an insufficient safeguard.
The real problem has been that this legislation has been drafted in such a rush. It has been pushed through the Parliament by a government that simply wants to bask in the immediate glory that comes to politicians who are tough on crime. But the Parliament needs to consider much more than tomorrow's headline. Minister Whelan's speech provides a completely inadequate explanation for the bill, and it verges on misleading Parliament. For example, Mr Whelan claimed the bill was largely based on the Model Criminal Code Officers Committee draft, but the bill differs in very significant respects from the Model Criminal Code Officers Committee draft.
The New South Wales Law Society expressed concern in relation to several provisions that are significantly different. It referred to those differences as "substantial departures". The New South Wales Attorney General now needs to explain why the bill differs so significantly from the model bill. He needs to explain why the Government has proceeded with a bill that does not contain the minimal safeguards recommended by Australia's most recognised group of experts in criminal law. These are not insignificant, trivial or obstructive questions. They go to the heart of the administration of justice in this State. Without proper answers to those questions, the bill should be seen for what it is—a dangerous and fundamentally flawed threat to the freedoms that are so important to the way of life in our community. In its present condition, the bill is condemned by the Greens.
The Hon. PATRICIA FORSYTHE [9.24 p.m.]: I want to make only a short contribution to debate on this bill. This is an interesting and important debate about crime prevention. I want to make the point that DNA testing is not an exact science. I am very interested in the issue of DNA, but from a particular point of view. I grew up believing that I was not an identical twin. I am, as a twin, on the register of twins and I, along with my sister, participate in medical research in the interests of broader issues of research. We, after believing for many years that we were not identical twins, and after many years living in separate households, are reasonably alike. There is some doubt whether we are identical or fraternal twins. We have done eight-part DNA as a consequence of medical research. It is not possible at this stage to determine whether we are identical or not identical because we have not done a full DNA test. I say this against a background of quite often seeing American television programs about twins separated at birth. We laugh and scoff at them as if those are things cannot happen here. The reality is that identical twins have identical DNA. I just want to put that on the record as part of this debate.
The Hon. D. J. Gay: What about fraternal twins?
The Hon. PATRICIA FORSYTHE: Fraternal twins will have differences in DNA. That is the point about identical twins. I raise the point because there is that difficulty about establishing DNA matches as an absolute guarantee of proving identity for the purposes of solving a crime. This may not be an important issue for many in our community, but I have a twin sister—identical or fraternal, not yet determined—and obviously there are many others in our community in a similar position. I suspect that neither my sister nor I would have too much concern about matching of our DNA in the context of a criminal issue.
The Hon. R. S. L. Jones: You never know what your sister is getting up to!
The Hon. PATRICIA FORSYTHE: I figure, given her calling in life, I should have little worry about what she might get up to. But unless you are a twin thinking about DNA in that context, it might be right outside the focus of the bill. I do not want to detract from the bill, which I know is important and has the support of the Opposition. However, this being a House of review, it is an issue that needs to be aired. I suspect there should be an acknowledgment by the Government that the circumstance that I raise is not a flaw but an issue that needs to be considered. I place the fact on record because it needs to be borne in mind when considering some of the relevant issues and in particular the exactness of the science of DNA. There is in the community a group for whom this would be a relevant and important issue. Some day, someone could be wrongly accused. It is an issue of DNA and having the identical print of another person. I leave it at that. I look forward to the Attorney General's response.
The Hon. R. S. L. JONES [9.28 p.m.]: In early May this year members of the crossbench raised concerns regarding the proposed DNA legislation with the Premier, Mr Carr. Although there was no bill before the House at that time, the DNA testing of virtually the entire male population of Wee Waa led to concerns being expressed by a number of community organisations and individuals. For example, the New South Wales Privacy Commission flagged a major concern about privacy incursions, particularly given the lack of consultation with the commission prior to the Wee Waa experiment. In April the Privacy Commissioner, Chris Puplick, commented publicly:
I find it alarming that during the debate the New South Wales Government has not sought any comment or advice from Privacy New South Wales, the body established by Parliament to protect the privacy rights of its citizens ... This should set alarm bells ringing. What have they got to hide?
The New South Wales Law Society and the Bar Association raised serious procedural issues that they perceived could have the potential to extend trials and subject the courts to time-consuming and expensive legal challenges, with the spectre of miscarriages of justice or challenges to voluntariness of confessions. Problems with the process were echoed by the Sydney Aboriginal Regional Legal Service, which stated:
Given the over representation of indigenous people in the criminal justice system and the focus on rural communities with large indigenous populations, this issue has particular relevance to the indigenous population.
The Legal Corporation stated that the issues surrounding the collection, storage and disposal of DNA samples were so complex as to require careful scrutiny and detailed public comment. The Indigenous Social Justice Centre also raised concerns that Aboriginal people could be adversely affected by this legislation and they would certainly be impacted upon if the Wee Waa precedent was followed without undue parliamentary consideration. The Ethnic Communities Council voiced its concerns regarding the privacy and human rights issues that would impact adversely on people from a non-English speaking background. The Youth Action Policy Association expressed dissatisfaction with the Wee Waa process and the potential for this legislation to impact on young people and children.
The Public Interest Advocacy Centre seconded calls for appropriate procedural safeguards particularly surrounding the collection and disposal of DNA samples, while CRC Justice Support raised the issue of the Federal model bill that this bill will gazump. What is significant is that, despite highlighting these serious flaws in the proposed legislation, none of the groups that I referred to earlier absolutely oppose the proposed DNA testing and the creation of a database. Contrary to some media reports, no-one has said that DNA testing would not be a useful tool in itself. However, each organisation has expressed concern about the Wee Waa precedent with its pre-empting of legislation through this House. Despite the fact that crossbench members raised community concerns with the Government, this bill does not resolve those concerns.
The bill does not overcome original fears about undue privacy encroachments and the potential procedural difficulties with the taking and maintaining of DNA samples. It does not adequately address fears about the impact on vulnerable communities—indigenous populations, youth or people from a non-English speaking background. We have not been given any information that could possibly satisfy the community that this bill will help to reduce crime. DNA stand-alone testing will achieve little. The diversion of police resources from the front line to this new, untried technology leaves great scope for new problems. We do not know how much has been budgeted for the cost of this legislation, if enacted. How much will this legislation cost the State in its first five years of operation? How many front-line police who are solving crime will be taken away because of the cost of this legislation?
Concerns have also been expressed that pre-empting the Federal Model Forensic Procedures Bill could cause difficulties in the establishment of a consistent Australian approach to this complex issue. If this bill mirrored the procedural safeguards contained in the Federal bill, community anxiety would be assuaged. That is not so. The Government claimed that there was very little difference between this bill and the Federal Model Forensic Procedures Bill currently awaiting implementation. Yet, according to the Law Society and the New South Wales Bar Association, which have examined the bill and the Government briefing which accompanied it, there are fundamental differences between the two pieces of legislation. The New South Wales bill is the worst possible proposal.
A considerable number of agencies have been involved in drafting and consulting on all aspects of the Federal bill. This process has taken place over three years. This is not the case with the New South Wales bill as revealed in the letters from the agencies I referred to earlier. There are so many problems with this bill; so many things that we do not know. For example, when and how often will laboratories be tested for calibration of results and operating standards by an external and independent body? What body has the capacity to even carry out this task? Will records be kept identifying which laboratory staff member tested individual and identifiable samples or batches of samples? We are not even sure whether private laboratories will not be used to process DNA samples. What a range of problematic issues that prospect raises.
We should also ask: What controls will be placed on the sharing of DNA material, or data extracted from DNA, with other organisations, bodies and jurisdictions? We do not know the answer to that question. The possibility that DNA profiles of New South Wales citizens could be shared with other jurisdictions with weaker privacy legislation than New South Wales is extremely problematic. It is a matter of grave concern to groups such as the Privacy Commission and it should be a matter of the greatest concern to members of this House. Under this bill that is possible. This bill also has unacceptably lax protocols for removing key identifying information from all record-keeping mechanisms. Volunteers and those found not guilty or pardoned of a crime will still have their DNA profile retained. Any questions about their possible involvement in a crime would have been removed, so why keep the actual profile from which much information can be gleaned? Why keep it? What is the point?
My amendment will remove the possibility of this happening by including the removal of the DNA profile with the bill's provision to remove identifying material for this class of people. I will also seek to remove the public concern that police are the ones responsible for the collection of DNA samples by amending the legislation to allow only non-police officers to collect samples from volunteer suspects or those convicted of an offence who are already in our gaols. This will remove the understandable public apprehension that individual police officers might be in a position to adversely affect the crime scene or contaminate DNA evidence. As it is only four years after the Royal Commission into the New South Wales Police Service it might be wise for honourable members to remember that justice must not only be done, it must be seen to be done.
The perception of bias or the merest hint of wrongdoing that could attach to the collection of samples by police could bring potential harmful allegations against the collection process and the integrity of the system. Rather than cast the slightest aspersion on the Police Service, it would be better to ensure, by removing the power of police to take the samples in the first place, that such allegations could never be made. The civilianisation of the service has a precedent—trained forensic civilians take samples from convicted peoples in the United Kingdom. My amendment seeks to do no more than parallel the safeguard that the United Kingdom has already embraced in its DNA legislation. As I have tried to show, the issues surrounding the collection, storage, use and disposal of DNA samples are extremely complex. I have, therefore, proposed that this bill be referred to the Standing Committee on Law and Justice to properly assess all the issues associated with the legislation and to reassure the community that it is the best and most welcome legislation that we could have. I understand that both the Government and the Opposition will be supporting that move. I urge my colleagues on both sides of the House to support the amendments in Committee.
The Hon. J. HATZISTERGOS [9.36 p.m.]: DNA profiling is a major breakthrough in police investigation techniques. Genetic information contained in the cells of any part of human tissue can be used to assist in ascertaining the guilt or innocence of suspected criminals. This technology should be seen as an enhancement of traditional police detection methods, but not as a substitute for those methods. DNA evidence is only one element of a criminal investigation. DNA technology can find the answers for police but it also poses questions for society. Once these questions have been addressed satisfactorily we have to consider the context in which that evidence is to be used ultimately when it comes to determining the guilt or innocence of an accused.
The enormous potential which DNA testing has for solving crimes is not disputed. However, in a discussion about whether or not to introduce this technology as part of New South Wales police practice, the forensic and technical value of DNA testing has to be put into context. Most important is the overriding concern that there be adequate safeguards to prevent the misuse of genetic information. This concern extends beyond the realm of crime detection into general issues regarding the proper role of genetic technology in our society. The proposed legislation will enable the establishment of a New South Wales DNA database and enable police to compel suspects and, in certain instances, some prisoners to provide samples. The taking of samples by police, how and from whom, is an issue which has to be considered.
The legislation attempts to strike some balance in relation to the various interests that exist. DNA testing is much more than an upmarket system of fingerprinting. Even if a criminal has not touched something with his bare hands, an analysis of saliva on a cigarette that he has left behind can often place an identified person at the scene of a crime. Fingerprints, if any are left behind, can be used similarly to establish identity by cross-checking on an existing database. A sample of human tissue, such as blood, semen or hair, can yield far more information. A DNA molecule can be used to examine the entire genetic make-up of an individual. Hence DNA testing has the potential to go far beyond mere identification. From the perspective of juries the sanctifying effect of science can lend scientific evidence an air of certainty and accuracy.
It should be remembered that scientific evidence also carries the possibility of inaccuracy. For this reason, defence lawyers have to be able to appropriately scrutinise that evidence. I note with interest that, in a number of cases which have already dealt with the question of DNA evidence in the courts, it has not been accepted. I refer in particular to the Pantaja case, which was decided in the Court of Appeal. The court ultimately reversed a decision which was taken by a jury in the first instance because of misinstructions in relation to the probabilities involved in determining whether a DNA sample was sufficient. In that case insufficient evidence was led as to the material from which the profile was derived. Accordingly, on that basis the conviction was set aside. In the case of Crown v Elliott the admission of DNA evidence did not guarantee a conviction. The jury in that case acquitted the accused.
Similarly, in Britain the context of DNA evidence was put in the case of The Crown v Adams. In that case the Court of Appeal in England also set aside a conviction notwithstanding that reliance was placed on DNA evidence. The facts of the matter are that DNA evidence has to be put in its particular context. All it can indicate if it is taken properly and assessed properly is that some aspect belonging to an accused was at a particular location. Much more than that has to be adduced in order to actually link the accused with the commission of a crime at the particular time.
The questions that this bill raises, however, are not so much in relation to admissibility but more on the question of procedures. Some of the issues that arise in the context of DNA legislation are, for example, the database, the records that will make up the database, who has access to the database and the circumstances in which that information may be exchanged either interstate or overseas. One of the concerns that I have had with this legislation has always gone beyond the question of the DNA profile to the question of the actual sample.
As members would be aware, what will happen in relation to DNA is that a profile will be formed from the sample which is taken, and in an appropriate case, particularly where the accused is convicted, the sample will ultimately be kept. If the accused is acquitted the sample will be destroyed. The reason why the sample, however, has to be kept is because technology is improving as we speak. A simple profile that may be regarded as accurate and appropriate today may become out of date with time, but improved technology should bring greater accuracy and therefore reduce the probability of an inappropriate match, ascertained on the basis of a further profile being taken from the sample. For that reason, I suppose I am reassured in the interests of crime prevention that it is appropriate, in those cases that I have identified where conviction results, that the sample should be kept.
I noticed with interest when I followed this issue that different jurisdictions have addressed this problem in different ways. In some jurisdictions, both interstate and overseas, I note that different approaches are taken to the circumstances of, and indeed the people who may be responsible for, keeping the samples. Our legislation tries to strike an appropriate balance. Time will tell—in the context of the amendments which I understand the Government proposes to accept in relation to a review of this legislation by the Ombudsman and also by a standing committee of the Parliament—whether that appropriate balance needs some further refinement as time goes by.
However, I think the fact that ongoing monitoring has been recommended in the legislation by the Ombudsman's office and that appropriate resources will be given to the Ombudsman's office for the purposes of conducting that analysis means that some reassurance can be given on that issue. In addition to that, of course, heavy penalties are provided in relation to misuse of this particular information. Let us not for one moment forget that in jurisdictions such as in the United States of America, where originally some of this DNA material was derived ostensibly for purposes of criminal investigations, ultimately legislation has permitted it to be used for purposes other than criminal investigations, such as medical research.
I would have some concerns about that being the case because certain conclusions may be able to be drawn, particularly on the basis of particular ethnic groups and whether they are predisposed, for example, to committing criminal offences or whether people who have a particular colour or other identifying feature are more prone to committing criminal offences. To some extent, having a database that will have profiles of people of a particular genetic make-up leads one to say that potentially the database could be used for that particular purpose. One has to be very careful about those issues to avoid broad generalisations that criminal offences are the province of a particular part of the community. This legislation has to be approached with caution. I believe the legislation does that. For that reason I have no hesitation in supporting it. There are some other matters that I will address, but I can perhaps more appropriately do that in the context of the Committee debate.
Reverend the Hon. F. J. NILE [9.44 p.m.]: The Christian Democratic Party is very pleased to support the Crimes (Forensic Procedures) Bill. We congratulate the Government on having the courage to introduce this bill, and we also congratulate the Premier and the Minister for Police, who have been criticised by people who are not enthusiastic about the bill. If the Premier and the Minister have played a role in the bill coming to this House, they deserve our thanks and the thanks of the community. Rather than criticise the Government for introducing the bill, I would ask why it has taken so long to introduce it and give the police the opportunity to use this innovative DNA technology to identify criminals and declare others innocent of crimes.
There seems to be an undercurrent in this debate—which seems to be present in debates on other legislation dealing with crime—in regard to whether emphasis is placed on the victim or the criminal. Rape victims, and the bereaved relatives of murder victims, often want the criminal to be identified. That may only be possible with DNA testing. The murder victim cries from the grave for the offender to be brought to justice, but the bereaved family—the children, the husband or wife, and other relatives—grieve. The grieving process is assisted if the person who commits a shocking crime is found, identified and convicted.
DNA testing can be used to meet the needs of victims of crime in our society and those who are victims through their relationship to a murdered person. We are pleased to support this bill. I should like to mention a paper presented to the Sydney Forensic Science Society in May 1999 entitled "A National DNA Database—The United Kingdom Experience". That very informative paper was presented by Detective Superintendent Robin Napper from the United Kingdom, who has spent 29 years in police activity. As head of operations at the National Crime Faculty he has worked extensively on major investigations that incorporated DNA technology.
According to the paper, this officer is currently seconded to the New South Wales Police Service at the request of the Commissioner, Mr Peter Ryan, to assist as a member of the team developing an integrated crime management system for New South Wales that will hopefully have DNA as a core forensic tool available to investigators. The paper was presented on 13 May 1999, and I am sure that Detective Superintendent Napper will be very pleased that the legislation will, we hope, go through this House when we come to the final process of voting for it. If some of the proposed amendments do not weaken or destroy it, he will be very pleased to have what he called a core forensic tool available to investigators. I seek leave to table that paper.
The legislation will introduce a regime for carrying out forensic procedures on suspects, serious indictable offenders, and volunteers. It provides for the storage, use and destruction of material derived from forensic procedures and provides for a national DNA database containing information derived from forensic procedures. As honourable members know, in 1999 the Model Criminal Code Officers Committee released a discussion paper entitled "Model Forensic Procedures Bill and the proposed National DNA Database." In February the committee released its final report containing a revised model bill based on submissions received in response to the discussion paper.
The report from the Model Criminal Code Officers Committee referred to the United Kingdom experience, which has been extensive and very promising. The Model Criminal Code Officers Committee stated in its report that the information it had been able to secure concerning the United Kingdom national database for DNA had been operating since 1995. It had been used to make over 10,000 matches between crime scenes and suspects. It had been used in clearing up, on average, 333 crimes per month. There is a cold hit rate of 18 per cent of matches arising from comparing whole indexes—for example, comparing the whole crime scene index against the whole of the serious offenders index. This is better than using fingerprints, which give a hit rate of 10 per cent.
More than 600,000 samples have been submitted for analysis. Of these, just over 500,000 have been profiled and included on the database. From April 1998 to the end of January 1999 there have been the following person to crime matches: murder-manslaughter, 35; rape, 112; sexual assault, 41; grievous bodily harm, 40; serious robbery, 88; aggravated burglary, 51; and arson, 46. I am sure that would be encouraging to all honourable members. It shows that the bill will make a huge difference to policing in the State of New South Wales and, hopefully, it will assist other States and even be of assistance on a national level as we co-operate with the Federal Government.
The bill sets out the procedures that may be carried out on suspects, volunteers and serious indictable offenders. The procedures are categorised as either intimate forensic procedures, non-intimate forensic procedures or buccal swabs, that is, mouth swabs, one of the common methods of getting DNA from volunteers or suspects. An intimate procedural swab can only be carried out on a person suspected of a prescribed offence, defined as an indictable offence, and any other offence prescribed in the regulations. A forensic procedure may be carried out on a suspect either with the suspect's informed consent or by order of a senior police officer or a court. Before requesting consent to a procedure, a police officer must be satisfied that the suspect is not a child or an incapable person; that there are reasonable grounds to believe the procedure might produce evidence tending to confirm or disprove—and that is important, as I said earlier—that a suspect committed an offence; or that the request is justified in all the circumstances.
The bill also provides for the testing of volunteers and sets out preconditions for seeking consent and safeguards for carrying out the procedures. It provides also for the testing of serious indictable offenders, those serving terms of imprisonment for offences attracting a maximum penalty of five years imprisonment or more. The bill also establishes a DNA database and provides for the recording, retention and removal of identifying material from the database and sets out rules regarding the matching of DNA profiles. Evidence obtained from the carrying out of DNA procedures may be inadmissible in proceedings against the person if the procedures are not carried out in accordance with the provisions. Profiles taken from suspects and serious indictable offenders may be matched against profiles contained in the crime scenes index. Finally, if the procedures are not carried out in accordance with the Act the evidence may be inadmissible.
The bill provides for the monitoring of the Act by the Ombudsman, who will report after 18 months of operation of the Act. For that reason I find it puzzling that there is support for referring the bill to the Standing Committee on Law and Justice and for it to report in 18 months. I would have thought the Ombudsman could adequately monitor the Act and report after three months of its operation. The committee could overlap the work of the Ombudsman in monitoring the operation of the Act. The Ombudsman would normally indicate where amendments are needed to fine tune the legislation, which happens quite often. No legislation is perfect in every detail. Some of these changes may show up only through activity carried out following the passing of the bill and when DNA testing is being used by the New South Wales Police Service. Even the police, through the Commissioner of Police or the Minister for Police, may suggest amendments to the legislation after 18 months. That would appear to me to be adequate.
It would be a pity if the Standing Committee on Law and Justice—and I have great faith in the chairman, the Hon. R. D. Dyer—were used for headlines or publicity stunts that undermine public confidence in the DNA legislation. Quite often newspaper headlines can give the wrong impression. One example was the headline, "Volunteers forced to give DNA swabs", which referred to what happened at Wee Waa. That can cause a negative reaction within the community and reduce co-operation. I hope publicity about DNA testing will be played down after the bill is passed.
It is very important that there is no publicity about the crimes and the use of DNA testing, because it may alert criminals that the net is closing and they may leave the country, as happened in a very prominent case involving a person with Australian and Greek citizenship. That person has been able to evade police here and seems to be successfully evading the courts in Greece. It would be a pity if police got close to identifying the murderer of a child and, because of publicity and other misguided statements, was able to escape the law. I urge all honourable members to co-operate, and I trust that the media will co-operate by not using sensational headlines but taking a businesslike approach to assist police in carrying out their investigations. An article by Rachel Morris, State political reporter, in the Daily Telegraph on 5 June stated:
The article goes on to say:
When new DNA laws are passed by State Parliament this week, scientists at the Government's forensic laboratories believe contents of this fridge could solve at least three murders and catch a serial rapist.
I do not know who gave approval for a Daily Telegraph photographer to take these photographs. The report then refers to a number of murders, including that of Rebecca, an 18-year-old prostitute, Donna, a 40-year-old mother of three, and Rachel, a 29-year-old mother.
The Daily Telegraph has been given an exclusive look at the process by which the samples are stored in massive industrial freezes at the Institute of Clinical Pathology and Medical Research at Lidcombe.
Inside, the samples include human tissue, saliva, cigarette butts, lipsticks, toothbrushes, hairbrushes, carpet and bloodstains collected from NSW crime scenes since 1985.
The freezer also holds samples of semen, hair, dandruff, skin, knives, fingerprints, bedsheets, pillowcases, tea-towels, clothing and even pieces of wood which could all contain DNA samples valuable in solving crimes from murders and rapes to armed robberies and burglaries.
The DNA collected from these specimens will be cross-matched with the samples taken from prisoners and others who will be tested under the new powers.
The person who committed those crimes, unaware that the evidence was stored in this cupboard, may have read the article. He may leave the country, making it more difficult to apprehend him. This bill could result in the net being closed on that individual. I do not think there is any security control at Mascot airport, judging by those who have left the country easily. If a person who is not a suspect for those murders believes that his DNA is in that cupboard I suggest that he would be fairly keen to leave Australia and perhaps go to a country without an extradition process available to return him to Australia. I hope that does not happen. Someone with good intentions may have thought that such publicity would help the bill to go through the House, but it may have indirectly alerted the murderers, as potential suspects to be questioned and tested.
I do not know whether other honourable members are aware of this, but it seems coincidental that the Australian Women's Weekly of June 2000 published a very good article entitled "Silent witness". The article is about Helena Greenwood, a scientist who spent most of her time researching DNA to see how testing procedures could be refined. She was one of a few biochemists who were working on techniques that would allow forensic pathologists to isolate and examine tiny samples of human DNA found at the scenes of crimes and match them with samples taken from suspects. Tragically, Helena Greenwood was at home alone one evening when David Frediani, then aged 30 years, broke into her home. He sexually assaulted her and threatened to rob and kill her. She had seen his face and was convinced that he intended to kill her.
For almost three hours Helena Greenwood fought for her life with words, and finally persuaded David Frediani to leave. After he left she gave the police information and he was arrested. Sadly, against serious objections by the local district attorney and the police, Frediani was granted bail, and then disappeared. The scientist knew she was a potential murder victim because she was the only person who could give evidence against him. For many months she lived in great fear. She moved house, changed her phone number and took a number of other measures; and for nearly six months life became normal and she felt she was no longer at risk. The fear left her. Then one day in August 1985 Helena did not show up for work. Her husband, Roger, rushed home, where he found his wife lying in the back yard, dead. She had been beaten and strangled.
The police then detained David Frediani but they were not sure how to prove that he had committed the murder. DNA was not being used so extensively in 1985; it was still in its infancy. Although police did not have evidence to convict the man, they found under Helena's broken nails, as a matter of routine, tiny skin scrapings which they removed and stored. As greater expertise with DNA testing developed, the police conducted a DNA test and matched the skin scrapings to David Frediani. He has now been charged with her murder and with a special offence of killing a witness to a crime, because he intended to murder a witness who saw him commit an earlier burglary, sexual assault and robbery. If he is found guilty he will probably face the death penalty.
Although there was no living person to give evidence against him—the DNA scientist was dead—the evidence from Helena's hands and a message in genetic code stored in the police station, and forgotten for 15 years, were a helpful witness for the prosecution. It is almost ironic that a DNA scientist was murdered and DNA was used to identify her murderer. The Christian Democratic Party is pleased to support the bill before the House. We believe that such legislation has shown to be remarkably successful in the United Kingdom. The United Kingdom police force is a conservative police force. It is different from the American police force, which uses DNA testing. I am not being critical of the American police force. However, I believe we can follow the example of the United Kingdom, where DNA has been used carefully, responsibly and successfully. We should see the same results in New South Wales, so we are pleased to support this bill.
The Hon. D. E. OLDFIELD [10.07 p.m.]: First, I congratulate the Government on this bill. I wholeheartedly support what it is doing. In particular, I congratulate the Government and the police on the tremendous result achieved in Wee Waa recently. The voluntary DNA testing of Wee Waa residents produced a swift result. I have one minor concern about this bill. I will not dwell on it but it needs to be mentioned. Sadly, the bill provides special arrangements for people of Aboriginal descent. As a result of DNA testing in Wee Waa, the accused has turned out to be a person of Aboriginal descent. Therefore, there does not seem to be any impediment to catching people of that persuasion. I will not dwell on that matter, but it needed to be mentioned from the point of view of One Nation's consideration of all things being equal in the way people are treated. I do not see it as an impediment, and it should not detract from the fact that I wholeheartedly support the bill. Once again I congratulate the Government, as no doubt I will congratulate the Government several times in the next couple of minutes.
One Nation supports the Government's plans in regard to the testing of inmates in gaols. Clearly, that is very important. We also support the concept that victims have rights beyond those of convicted persons. We do not in any way support the concept that criminals are victims of society. While there may be circumstances that can be taken into account, we must not overlook the crimes that people commit and simply rub those off as being circumstantial. So One Nation strongly supports victims' rights being considered over the rights of criminals. In the past victims have not had the same rights extended to them. In particular, the relatives and friends of victims have not had the same rights extended to them.
In the Wee Waa community, which comprises around 2,000 people, about 500 people voluntarily had themselves tested. According to media reports, only four or five complaints were made locally about the fact that the tests were taking place. It is almost amusing but it seems that the accused, who was ultimately caught by virtue of the tests, does not seem to have been among those complainants. From that result we can almost conclude that even accused persons seem to support DNA testing, because clearly they do not complain about it and in fact put themselves forward to be tested and thereby run the risk of being caught.
I again congratulate the Government. Considering the tremendous result of DNA testing in England, I would consider an amendment to extend the provision for testing beyond just convicts serving terms of imprisonment of five years or more to any convict who is a repeat offender with a history of more serious crimes but currently only serving a term of less than five years. A person who may be serving a term of imprisonment of only one or two years may be a recidivist who in the past has raped a person, or been involved in a similarly atrocious crime or even something simpler, such as armed robbery. Serious consideration should be given—I will certainly seriously consider it—to what action may be taken in respect of those who are clearly dangerous to society. That danger, though not apparent from the current term that that person may be serving, may be more apparent from an examination of the person's record and the years that he or she has previously served for much more serious crimes, particularly rape and other very serious crimes.
The Hon. J. F. RYAN [10.11 p.m.]: The Opposition supports the bill, which is a reasonable framework for initiating what is a new approach in criminal detection. There is no doubt that DNA profiling has had remarkable success in solving crime. In our enthusiasm for a new scientific method, it is necessary to observe a reasonable balance in its implementation. When we investigate this I suspect we will find that the legal framework we are introducing this evening is quite sound. Most of the concerns that arise about DNA testing have to do with laboratory practices, sampling techniques, and matters of that nature.
DNA matching is a probabilistic science dependent in the end for the role it plays in criminal investigation on human interpretation, analysis and judgment. It is almost certainly not a complete panacea for crime detection, nor an infallible evidentiary tool. DNA evidence is not infallible; all laboratory work is subject to error. Given current population databanks and laboratory protocols, a witness or prosecutor will seldom be justified in stating that the probability that a reported DNA match involves a person other than the suspect is so low as to make that possibility entirely implausible. Claims that treat DNA identifications as though they are as reliable as fingerprint identifications in the typical rape or murder case are unjustified, and until technology and databanks improve, they are likely to remain so.
Questions are frequently raised about the adequacy of the population databases on which frequency estimates are based, and about the role of racial and ethnic origin in frequency estimation. Some methods based on simple counting produce modest frequencies, whereas some matters based on assumptions about population structure can produce extreme frequencies. For example, in one Manhattan murder investigation the reported frequency estimates ranged from a one in 500 to one in 739 billion, depending on how the statistical calculations were performed. Contrary to popular belief based on difference in skin colour and hair form, studies have shown that the genetic diversity between subgroups within races is often greater than the genetic variation between races.
From time to time DNA cases have gone horribly wrong. I should like to refer to a couple of instances in the United States of America and in New Zealand where there have been difficulties. Last year in New Zealand an innocent man was implicated in two murder investigations on the strength of DNA tests. He was later cleared on the grounds of an accidental contamination at the laboratory. In response, the New Zealand Minister of Justice, the Hon Phil Goff, said in a press release of 9 March 2000 that, "DNA analysis is not infallible. It is only one piece of evidence that any jury must consider, albeit an increasingly persuasive one." I regard that as a very sensible approach to this new technology.
In People v Castro a New York trial court concluded that the technique as applied in the particular case was so flawed that evidence of a match was inadmissible. In that instance the difficulty was the laboratory tests. Castro determined that there were serious flaws in the laboratory's declaration of a match between two samples. Again, in State v Schwartz, the Supreme Court of Minnesota rejected the use of DNA evidence analysed by a forensic laboratory. It held that "because the laboratory in this case did not comport with these guidelines, the test results lack foundational adequacy". In State v Pennell the court refused to add the probability statistics. The court expressed concern over testimony that the measurements of allele—one of two or more alternative forms of a gene—size can depend on who is doing the measuring. The court concluded that the State's evidence did not sufficiently support the probability calculation.
In January 1991 the Supreme Court of Massachusetts found a "lack of inherent rationality" in the process by which the testing laboratory concluded that one Caucasian in 59 million would have the DNA pattern represented by the semen stain and the defendant's blood. It was unsupported by the laboratories reference databank, which raised the possibility of calculation errors due to ignorance of population substructure. I am attempting to demonstrate that arguments about the reliability of DNA testing are phenomenally complex and often are extremely difficult for juries or people such as ourselves—lay persons who are not scientists—to comprehend.
Two aspects of DNA typing technology contribute to the likelihood of its raising inappropriate expectations in the minds of jurors. The first is the jury's perception of an extraordinarily high probability of enabling a definitive identification of a criminal suspect. The second is the scientific complexity of the technology, which results in a laypersons' inadequate understanding of its capabilities and failings. Taken together, those two aspects can lead to the jury ignoring other evidence that it should consider. I should like to refer to a quote which I found to be quite a useful guide from Thomas Curran's Science and Technology Division of the Government of Canada September 1997. He said:
For those reasons the Opposition in the other place made various amendments to this bill. I am pleased that the Government accepted those amendments. I am pleased also that there will be some level of monitoring by not only the Opposition but also this House through the Standing Committee on Law and Justice, simply to ensure that we get the legislation right. Our responsibility as legislators is to monitor complex legislation, particularly with regard to new technologies. The intent is not to interfere with the role of police but to ensure that adequate safeguards are maintained. Additionally, DNA testing allows us to enter yet another complex area of law making. Legal sanctions might need to be established to test for the unauthorised dissemination or procurement of DNA information that was obtained for forensic purposes. DNA profile databanks should avoid the use of loci associated with traits or diseases. Such information could lead to discrimination by insurance companies, employers or others against people with particular traits. It is fair to remember that DNA databanks have the ability to point not just to individuals but to entire families, including relatives who have committed no crime.
While a positive forensic-DNA match is persuasive evidence of a suspect's association with a crime, it is not absolute proof. There is always a chance, however slight, that the match might be a random one … Additional evidence and information is usually required to obtain a conviction.
Computer storage of DNA information increases the possibilities for misuse. In America several private laboratories already offer a DNA banking service to physicians, genetic counsellors and, in some cases, anyone who pays for the service. Typically, such information as name, address, birth date, diagnosis, family history, physician's name and address, and genetic counsellor's name and address are stored with the samples. We need to ensure that there is legislation to control these new users of DNA information. With those remarks, and whilst there is reason for caution, the Opposition supports the bill.
Ms LEE RHIANNON [10.20 p.m.]: The Greens have very serious concerns in relation to the Crimes (Forensic Procedures) Bill and about DNA testing generally. While the Greens acknowledge that DNA testing will be implemented, clearly some inalienable safeguards need to be established, because they certainly do not exist at present. The Greens' concerns are derived from our longstanding commitment to protect the rights of all members of society and to ensure that legal safeguards are always sufficient to prevent abuses of power by the relevant authorities. The Greens will be moving a series of amendments that seek to enhance safeguards and reduce police discretionary powers that may be open to abuse—and when one has regard to the history of police conduct in this State, it is obvious that those safeguards need to be well and truly in place.
The inception of broad-based DNA testing, including a centralised DNA database, represents potentially revolutionary changes to law enforcement in New South Wales. DNA testing, in due course, may well change law enforcement in the same way as law enforcement was altered by the introduction of fingerprinting. Unfortunately the momentous changes that DNA testing involve have not been accompanied by a commensurate level of public debate and scrutiny. It is a matter of considerable concern to the Greens that this House has had such a short period in which to consider this bill, which is a substantial piece of proposed legislation that covers aspects of DNA testing in some detail.
The brevity of the consideration period for this bill has effectively limited the participation of several interest groups whose input would have been most valuable because they would have helped to build in the essential safeguards to which I have referred. The brevity of the consideration period has effectively limited the ability of the crossbench and the Opposition to respond in depth to this bill. The Government is rushing through legislation that proposes to lay the basis for revolutionary changes to law enforcement in New South Wales without proper consideration, proper public debate and scrutiny, and input from the relevant interest groups who have a stake in this issue.
In due course the proposed scheme for DNA testing will exert a considerable influence over the exercise of justice in this State. Criminal trials are not to be taken lightly. Many people—potentially, many thousands of people—will face considerable periods in gaol after being convicted on DNA evidence. When the stakes are so high, and when the potential impacts on human lives are so great, the utmost care should be taken. There are significant limits to DNA testing. Samples can very easily become contaminated. Much has been heard, but it bears repeating, that minute amounts of genetic material—a stray hair, a stray flake of dandruff and even some tiny amounts of shed skin—can be sufficient to contaminate a sample. Honourable members should recall the tragic case in New Zealand in which, thankfully, a person who had been wrongly convicted was able to be released.
Nothing in the bill indicates that the Government takes those risks seriously or has any plans to manage the risk. Often, the risks associated with DNA testing are not presented during debate or by police when administering tests. Fantastic figures are produced indicating that a DNA match is a one in a million event—or even a one in a 10 million event, it is sometimes said. However, the real figures and the real accuracy rate are often much lower—perhaps one in 30. When this is considered in association with the problems of contamination, it is clear that the picture is much murkier than we have been led to believe. But the Government and its police force present DNA testing as a panacea for all evil. It is presented as the magic cure that can solve any outstanding crime. This approach is dishonest, and deliberately so.
The Greens foreshadow a series of amendments that correspond to several areas that have been identified as deficient in the bill as presented. One of the key issues identified by the Greens is the taking of bodily samples without consent. The bill allows police officers to authorise compulsory forensic procedures in certain circumstances. The Greens believe that this provision gives too much discretionary power to police and that those powers are open to abuse. It should be noted that taking bodily materials without consent was regarded as an assault and trespass against the person in New South Wales until 1995. That is another individual right that has been lost as this Government continues to push its law and order agenda. The Greens will seek to delete all provisions of the bill that empower anyone other than a magistrate to authorise a compulsory forensic procedure.
The Greens are also concerned about the definitions "a serious indictable offence" and "serious indictable offender" that are contained in the bill. The Greens believe that the current definitions are far too broad and, in their operation, would catch many people who do not deserve to be included in that category. The bill allows the most draconian penalty of another State to be used as a benchmark for a serious indictable offence—for example, mandatory sentencing laws in Western Australia and the Northern Territory. Similarly, under the current bill a conviction for an offence that may exist in another State but does not exist in New South Wales will nevertheless result in compulsory DNA testing. There may well be excellent reasons why the New South Wales Parliament has decided that the offence should not exist in this State—for example, I instance homosexual practices, which until recently were illegal in Tasmania.
The Greens also seek to remove the capacity to compulsorily DNA test all serious indictable offenders who have been convicted and who are serving sentences of imprisonment before the passage of this bill. Such a proposal would represent retrospective application of a penalty that was not intended by the sentencing magistrate. Informed consent is another area in which the Greens believe this bill is deficient. The Greens believe that the bill provides insufficient guarantees that someone who may be requested by police to give consent for a forensic procedure to be carried out received enough information to enable an informed decision to be made. It is not adequate to leave it to police to properly inform individuals in the exercise of police discretion. It is necessary to prescribe the information that is supplied.
In similar vein, the Greens have concerns that the bill includes multiple clauses providing loopholes whereby police might effectively fish for evidence in the absence of any reasonable suspicion of an offence. One clause of the bill in particular would allow police to request a DNA test to provide evidence that would tend to disprove that the suspect committed any given crime. In other words, police will have the power to DNA test pretty well anybody at all if they wish. The tests are so broad as to be largely non-existent. This is another example of too much discretion being given to police—a discretion that is clearly open to abuse. Given the track record of police in this State to the present time, we should be very worried about those possibilities.
As it stands, the bill allows only certain categories of forensic material to be destroyed after a conviction is quashed. This raises a serious issue of DNA material continuing to exist even after the quashing of a conviction, and that would be plainly unfair. If a conviction is quashed or found to have been incorrect or wrongful, clearly there is a basis for keeping DNA material that was collected when the individual was a suspect. The Greens amendment will broaden the categories of material to be destroyed to include all categories of forensic material.
Another problem area in the bill is the testing of people suspected of summary offences, which, as honourable members well know, are relatively trivial matters, such as using offensive language or committing certain driving offences. Summary offences are rarely, if ever, serious enough to warrant this invasion of privacy, which will allow police abuses of civil liberties. It has been well established over a number of years that the operation of many summary offences laws affects indigenous Australians disproportionately. That certainly will be so when this bill, if not amended as the Greens suggest, comes into effect. It is also highly questionable whether the cost of DNA testing people suspected of summary offences is justified. The Greens seek to replace all instances of "indictable or summary offences" in the bill with "indictable offences". In other words, with the Greens amendment, police will not be able to DNA test those suspected of a summary offence. That is a most reasonable suggestion, and one that the Government should be able to support.
The Greens have enormous concerns about the wholesale DNA testing of communities by police, such as recently occurred at Wee Waa and is proposed to occur at Darlinghurst. Police should not be able to subject communities to mass DNA screening simply on their own initiative. If inability to solve a crime has driven police to such an invasive and expensive act that can so divide communities, the approval of a magistrate should surely be required. The voluntary DNA testing of people who are not suspects in a crime is no more than an enormous fishing expedition, and it is an unprecedented and dangerous move. Once again, we come back to the theme of police discretionary powers—powers that are excessive and dangerously open to abuse. The Greens will seek to amend the bill so that police must seek the approval of a magistrate before carrying out voluntary testing. In giving approval, a magistrate must take into account the expense and community disruption involved.
A final issue that the Greens are concerned about is that the bill does not make specific provision for any independent bodies to implement the provisions of this bill. Such bodies are essential if proper safeguards are to exist and the bill is to function correctly. Those bodies are essential also to maintain public faith in the DNA database and the procedure of DNA testing generally. The Greens believe that at least two independent bodies are acquired: one to carry out the testing, store samples and maintain records, and a second to establish and enforce standards for laboratories, technicians and computer databases.
The issues that the Greens have covered are far from an exhaustive list of the respects in which this bill is flawed. This is clearly a bill that is driven by the police ministry, a law and order bill, a bill that fails to adequately protect the rights of individuals. It is a most disappointing bill. The Greens urge the House to support the amendments that will be moved by both the Greens and other members of the crossbench. If the House does see its way clear to adopt such amendments, it will be a sorry day when the legislation is passed, and it will continue to cause serious abuses of the human rights of the people of this State.
The Hon. Dr P. WONG [10.32 p.m.]: I will make only brief comment on the Crimes (Forensic Procedures) Bill. I support the bill in principle, but I also have many concerns, most of which have been mentioned in this debate by other honourable members. I do not oppose DNA testing, but there are core principles to be considered and established before these tests are applied. Those principles are privacy and civil rights; police powers, an upgrading of facilities to conduct these tests, and knowledge of how these DNA tests apply to different racial, ethnic and cultural populations.
As a doctor, I can say from a scientific point of view that genetic testing can be excellent, and that given perfect laboratory conditions the tests will give good results. However, if conducted in forensic laboratories that have limited facilities and unsatisfactory working conditions, the tests can be less than perfect. False results and contaminated samples are two concerns that have been mentioned already in this debate. Also, there is the danger that a very high reliance will be placed on DNA testing to prove innocence and guilt beyond reasonable doubt. DNA tests must not be taken as the sole evidence or be given higher weight than other evidence. In all circumstances when medical and legal considerations are mixed, there are complex issues to be resolved, and we should not jump at a new form of testing before we know all the facts and circumstances. I would like to quote from a letter from the Public Interest Advocacy Centre. It states:
In conclusion, I quote the Law Society of New South Wales, which stated:
Public Interest Advocacy Centre believes that DNA testing is a valuable law enforcement tool in the right circumstances. However, we are aware of the concerns expressed by Aboriginal groups, ethnic communities and those representing prisoners and former prisoners about the potential for abuse of such powers if there are not proper procedural safeguards. We have also been told of concerns raised by medical experts.
I fully endorse the Law Society's opinion on this matter.
The Crimes (Forensic Procedures) Bill 2000 departs sufficiently from the MCCOC Model Forensic Procedures Bill to warrant referrals to the Legislative Council Standing Committee on Law and Justice for a public inquiry.
The Hon. M. I. JONES [10.35 p.m.]: I support the Crimes (Forensic Procedures) Bill. I wish to re-emphasise the point that has already been made: DNA testing, as another form of fingerprinting, has the potential to assist police with charging and prosecuting criminals, and is obviously quite marvellous. Marvellous is not a word that I would usually use in terms of crime, but this tool is marvellous because it will identify criminals and help to put them away. It is marvellous because, in the medium to long term, fewer women and children will be raped. It is marvellous because all forms of crime will have a much higher rate of being solved.
Some members on the crossbench have foreshadowed amendments. I believe those amendments are designed to divert the impact of the bill or to make it unworkable. Some have suggested that the bill will enable police to go on so-called fishing expeditions. Well, I think fishing expeditions are wonderful if they net a catch of criminals who can be put away thereby protecting our society. Some crossbench members would argue frequently that they are the champions of the cause of women. Either they want women to be safer, or they do not. This is simple stuff. Or are the amendments simply an attempt to water down the impact of the bill or to impress or recruit the votes of criminals or supporters of crime and criminals?
During briefing sessions Chris Puplick likened this bill to the Spanish Inquisition. I thought that was somewhat over the top. Allow me to point out how this bill will not only help solve crime but also prevent it. Criminals do not expect to get caught. That is why excessive punishment does not necessarily deter crime. However, if the expectation of detection is to be so enhanced by this measure, that will be a real deterrent to crime in general, but especially the offence of rape. Reverend the Hon. F. J. Nile listed a number of solved crimes that prove the point. DNA testing of all prison inmates will result in many outstanding crimes being solved. This will be not only marvellous for protecting society in the future, but it will assist the victims of crimes to have a closure for their ongoing trauma—a point not mentioned by the crossbench members who will offer amendments. My crossbench colleagues spoke of the police with such distrust and scorn that I think they have forgotten who gets to do the dirty jobs in our society. Who looks after us on a day-to-day basis? Who faces the violent criminals on our behalf? My attitude is: Give them the appropriate tools to look after us, especially the most vulnerable in our society. I support the bill without amendment.
The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [10.38 p.m.], in reply: I thank all honourable members for their valuable contributions to this debate. The Crimes (Forensic Procedures) Bill moves police investigations into a new era that facilitates the use of the latest scientific techniques to assist in solving crime. As I earlier argued, the bill merely facilitates crime solving; it does not represent a change in the culture of policing per se. It is an essential tool being implemented in a timely manner to coincide with the establishment of the national DNA database, a tool that includes a number of safeguards to protect the community from any overzealous implementation.
The Ombudsman will review and monitor the legislation. The courts will have an oversight role either during the taking of samples, where specified in the bill, or at the trial stage. While some members have expressed well-thought-out concerns, the Government, too, has considered those concerns. It believes that this bill represents the best mix of police responsibility with community safeguards and protections. I indicate at this stage that the Government will not support the great majority of the proposed amendments to the bill. This is not a sign of hubris or dogmatism on the part of the Government. We are always happy to consider amendments to government legislation, and we have done so in this case. However, many of the foreshadowed amendments reflect issues that the Government has already profoundly considered in significant detail in drafting this bill. Obviously, I will make some observations about those amendments in Committee. But at this stage I commend the bill to the House.
Motion agreed to.
Bill read a second time.