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  4. 13 March 2002

Standing Committee On Law And Justice

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SpeakersDyer The Hon Ron; Ryan The Hon John; Chesterfield-Evans The Hon Dr Arthur
BusinessCommittee, Report


    STANDING COMMITTEE ON LAW AND JUSTICE

Page: 298
    Report: Review of the Crimes (Forensic Procedures) Act 2000

    Debate resumed from 12 March.

    The Hon. RON DYER [2.30 p.m.]: When the Crimes (Forensic Procedures) Act 2000 was debated in this House an amendment was passed to require the Standing Committee on Law and Justice to review the Act 18 months after its proclamation. This report represents the results of that extensive consultative review, involving 26 submissions and nine public hearings throughout 2001. The focus of the inquiry was the reliability and effectiveness of DNA evidence, and the legal and social implications of its use in criminal investigations. The committee's report begins with a brief description of the process of DNA profiling. The committee heard that DNA analysis involves the creation of a profile of nine specific sites on the DNA molecule. It is important to note that it is not a profile of all of the 3.3 billion subunits of DNA. The DNA profile created by the analysis is a set of numbers which can be entered onto a database and compared with other profiles. A suspect's profile can thus be compared with a crime scene sample, and crime scene samples can be compared with each other.

    The committee was asked in its terms of reference to assess the reliability of DNA matching. Clearly, the committee is not qualified to determine the accuracy of the science of DNA profiling, so its assessment was based on expert opinions as found in case law, journal articles, and submissions and evidence to the committee. It was apparent from the sources examined by the committee that the scientific community considered DNA matching and the profiler plus system in use in New South Wales to be accurate and reliable, and this was reflected in the admissibility of the technology as evidence in the courts.

    However, the committee was made aware that DNA profiling has some limitations and is certainly not the infallible tool often presented in media reports. In particular, it is essential to note that a match between a suspect's DNA profile and a DNA profile from a crime scene stain does not lead to a conclusion that the suspect is the offender. Because of the possibility of laboratory errors, contamination and tampering, a DNA match does no more than indicate that the suspect could be the offender. Many witnesses and submissions expressed concern that fabrication of DNA evidence is relatively simple. The submission from the New South Wales Public Defenders Office, for example, quoted Terry O'Gorman, the President of the Australian Council for Civil Liberties, as follows:
        Royal Commissions and ongoing controversies over police fabrication of evidence have dotted the criminal justice landscape in every state and territory as well as the Australian Federal Police and the National Crime Authority for the past two decades.

        Are we seriously expected to believe that the sometimes significant minority of police who fabricate evidence won't do so with DNA samples?
    The planting of DNA evidence is particularly concerning, given the weight ascribed to such evidence. Fear of corrupt police using DNA samples to frame individuals was a theme in submissions from prisoners. In response, the Police Service agreed that DNA evidence could be used to manufacture a case, but stated that procedures were in place in an attempt to prevent it from occurring. Such procedures include tamper-evident DNA bags, tamper-resistant database systems, and the use of secure laboratory access for the storage of evidence items and data.

    Despite the high level of reliability of DNA technology, the committee considered that it would be risky for DNA evidence alone to be used to convict a defendant. DNA profiles are only one piece of evidence needed to make a case. When a profile match between a suspect and a crime scene is supported by other evidence—witnesses, motive, opportunity and so on—it can carry substantial weight. However, given the possibility of errors, chance matches, intentional tampering or innocent reasons for the presence of a defendant's profile at the crime scene, it is doubtful that the prosecution would meet the required standard of proof if it were based solely on a DNA match that is not corroborated by any other evidence. The committee expressed the opinion in the report that a conviction based solely on DNA evidence would be unsafe, and recommended that the Attorney General give consideration to requiring judges to warn juries of this risk.

    The committee's report noted that there can be little doubt that DNA technology has the potential to be of enormous benefit in investigating and prosecuting crime. DNA testing can be used to identify or confirm suspects by comparing their DNA profiles with profiles found at crime scenes. The committee was told that matches between suspects and crime scenes occurred on 35 occasions between January and June 2001 in New South Wales. The committee also heard that DNA technology can play a crucial role in exonerating wrongly accused and convicted individuals, and that DNA evidence has been used more often to eliminate people from investigations than to implicate them. Many cases of post-conviction exoneration have occurred in the United States of America, and there have also been instances here in Australia.

    The effectiveness of mass DNA testing was disputed by some witnesses. Mass testing involves requesting a DNA sample from every member of a given group, usually based on geography, such as citizens of a particular town. Mass testing is an option when conventional investigative tools have failed to identify a suspect. At present such testing can be performed only with informed consent. The testing of the male population of the small New South Wales town of Wee Waa in April 2000 is the only mass screening conducted in New South Wales to date. The Police Service told the committee that it considers Wee Waa to be a case study of a successful use of mass testing in an investigation, and argued that the case may not have been solved if the mass testing had not been performed.

    Some witnesses, however, criticised the use of mass testing, claiming that it is an unnecessary intrusion that emphasises technology over traditional policing methods. In the case of Wee Waa, for example, witnesses questioned whether the mass screening was necessary, given that the man eventually charged and convicted was one of a small number of suspects at an early stage of the inquiry. People also questioned whether mass screenings are an efficient use of limited police resources. Witnesses were also concerned that mass screening could result in abuse or reprisals for non-consenting community members.

    Recognising the reservations of many witnesses about the use of mass screening, the committee proposed that mass screening should be used only as a last resort and that such screening should be targeted as narrowly as possible. The committee recommended that the Attorney consider amending the Crimes (Forensic Procedures) Act 2000 so that a court order is required before police can undertake voluntary mass screening. The committee was unable to obtain satisfactory quantitative or qualitative data supporting claims about effectiveness of DNA in solving crime either for New South Wales or for other jurisdictions. As the report notes, the statistics available overwhelmingly relate to activity rather than outcomes.

    If overseas experiences are repeated here, we can expect an exponential rise in the number of database matches. The committee heard that in the United Kingdom it was only after the third year of operation that sufficient samples were on the database to generate large numbers of hits. The committee noted the need for caution in considering DNA-matched statistics. A DNA match between a suspect and a crime scene indicates only that the suspect may have been, but not necessarily was, at the crime scene. It does not prove that the suspect is the offender.

    The absence of relevant statistics limited the committee's ability to form conclusions about the effectiveness of DNA profiling in investigations. The committee considered it important for public policy purposes that the role of DNA technology be evaluated. The committee therefore recommended that the Bureau of Crime Statistics and Research be funded to conduct research on the role of DNA in law enforcement success and the impact of DNA evidence on criminal trials and crime rates. Without the result of such research it will not be possible to meaningfully assess the effectiveness of DNA profiling.

    The authority to request or require a DNA sample from a suspect, offender or volunteer clearly represents a significant power of the State in relation to the individual. A number of social and legal implications arise, with DNA testing potentially affecting civil liberties such as the right to bodily integrity, the right to a fair trial and the right to privacy. As the committee's report details, the Act has attempted to protect these rights while still meeting society's law enforcement requirements. One concern raised by a number of participants in the inquiry was the potential breach of the individual's right to privacy. In particular, witnesses noted that privacy issues are far more significant in relation to DNA samples than to fingerprints because of information that can be obtained from DNA, including family relationships and the propensity to particular diseases.

    The committee expressed concern about the impact of DNA evidence on the right to a fair trial. Witnesses pointed out that because of the complexity of DNA evidence a high level of knowledge is needed by judicial officers and lawyers. The committee heard that the difficulty in understanding complex forensic evidence, particularly relating to match probability statistics, could lead to a miscarriage of justice. It sought to address this with recommendations for Judicial Commission training of judicial officers and continuing legal education courses for solicitors and barristers. The training would focus on explaining the forensic use of DNA, its accuracy and the interpretation of DNA evidence.

    Concerns were also raised about the ability of juries to cope with highly complicated and specialised evidence and the possibility that juries will not understand the limitations of DNA matches. The committee therefore recommended that the Attorney General seek to have guidelines for directions to juries about the interpretation of DNA evidence incorporated into the relevant judicial bench books. Directions should also include matters such as the potential for fabrication of DNA evidence, the possibility of match errors and the resultant need for corroboration.

    Because of the civil liberties implications arising from the forensic use of DNA, strong safeguards against its misuse are essential. The committee examined the protections provided in the Act. In several areas the committee felt that the safeguards could be improved and made recommendations accordingly. One area of contention was the threshold for requesting or ordering a DNA test. Many witnesses noted that the New South Wales threshold differs from that of the model bill that was developed by the Model Criminal Code Officers Committee. The model bill allowed a test to be requested or ordered when there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disapprove that the suspect committed an offence, and the request or order is justified in all of the circumstances. By contrast, the New South Wales standard is that the forensic procedure might produce evidence tending to confirm or disapprove the offence.

    The great majority of participants in the review considered the New South Wales threshold to be too low. This included the Privacy Commissioner, Mr Puplick, representatives from the Aboriginal Legal Service, the Law Society of New South Wales and Justice Action. The Police Service, however, supports the existing threshold. After carefully considering the opinions and evidence, the committee agreed that the higher threshold found in the model bill—which I note was adopted by the Federal Government—is preferable, and recommended that the Attorney General consider an amendment to raise the threshold. The committee considered that a higher threshold would better reflect the purpose of the Crimes (Forensic Procedures) Act, which is to authorise DNA profiling in cases where the benefits to society in obtaining the DNA outweigh the public interest in protecting a person's privacy and bodily integrity.

    Volunteers may be requested to undergo a forensic procedure according to part 8 of the Crimes (Forensic Procedures) Act 2000. The provisions require the volunteer to give informed consent in writing in the presence of an independent person. However, the committee was concerned to hear that part 8 of the Act has not yet been proclaimed and, as a result, currently there is no statutory regulation of DNA testing of volunteers. According to legal academic Dr Jeremy Gans the non-proclamation of part 8 raises questions about the legality of the procedures already performed on volunteers. The committee found this to be a very serious concern and recommended that it be rectified as a matter of priority.

    The committee noted that if part 8 were to be proclaimed the volunteer provisions would also, inappropriately, apply to victims of crime. As a result, victims would be read their rights as if they were suspects and complicated consent procedures that are not really necessary or appropriate for victims of crime would need to be applied. The committee therefore recommended amendments to incorporate specific provisions for forensic procedures on victims of crime. Problems were also raised with the informed consent provisions. Suspects, offenders and volunteers must first be requested to consent to a forensic procedure but must also be provided with information about the procedure for the consent to be valid.

    Three particular difficulties were evident with the consent procedures. First, the consent information was overwhelmingly considered to be excessively complicated and unlikely to be widely understood. Police officers found the information to be unwieldy and complex, and witnesses argued that most suspects and offenders do not understand the language used. Some doubt was raised about whether consents given to date in these circumstances are valid, since they may be considered not to be informed consent if there was no understanding. The committee recommended that a plain English version of the consent information be developed.

    Second, the consent by prisoners was a controversial issue. Each of them is given the opportunity to consent to a DNA test. However, if the offender does not consent a mandatory test is immediately ordered. The committee considered this to be a hollow consent process. The consent procedures for offenders also trigger additional problems. Prisoners report feeling coerced into consenting, fearing reprisals such as reclassification if they do not consent. This was denied by Corrective Services officers and the Police Service. However, the fact that prisoners feel pressure to consent—whether any such pressure exists—raises uncertainty about the legal validity of the consent, and it is possible that courts may overturn consent given by prisoners in such circumstances. As it is clearly the intention of the Police Service to obtain samples from every serious indictable offender, with or without consent, the committee determined that it would be preferable for the consent provisions for offenders—which, in any case, appear to be a mere procedural formality—to be removed. We have made recommendations accordingly.

    The third key problem with the consent provisions relates to access to legal advice. Several witnesses identified as a concern their lack of access to legal advice. Although the legislation provides the right to legal advice in most circumstances, the costs can be prohibitive. The committee considered that legal advice is an important part of informed consent and that all suspects, offenders and volunteers should be able to seek advice when being asked to consent to a forensic procedure. Therefore, the committee recommended the establishment and funding of a 24-hour telephone legal advice hotline, run by the Legal Aid Commission, for access by persons requested to consent to a forensic procedure.

    Another issue criticised by some witnesses were the provisions governing consent by child volunteers. The current rules in the unproclaimed part 8 do not allow a child to volunteer on his or her own behalf to give a sample; rather, the parent or guardian can volunteer the child. There is no requirement for the child to be consulted or to provide the child with information about the procedure. It is only by objecting or resisting that the child can prevent an unwanted voluntary procedure. The committee considered these child volunteer provisions to be unsatisfactory and out of step with current trends that recognise the rights of children to participate in decisions that impact on their lives. The committee believes that all children should be consulted about forensic procedures proposed to be performed on them.

    The committee proposed amendments to the consent process that would reflect the different levels of maturity of children of different ages. This would enable children of 15 years and older to consent on their own behalf, while for children aged between 10 and 14 years consent should be required from both a parent and the child. The final issue I shall mention relates to the Act's prohibition on certain uses of DNA samples and profiles. The Act creates a number of offences relating to inappropriate collection, analysis and use of DNA samples and profiles. However, it was brought to the committee's attention that there may be significant loopholes as a result of poor drafting. For example, the way in which the database is defined in section 90 may inadvertently leave completely unregulated, but not prohibited, any database that does not meet the definition.

    Other sources of concern raised with the committee include sections 114 and 115, which allow the taking, retention and use of forensic material as governed by other Acts. According to one witness, this could allow the otherwise prohibited collection and analysis of samples, for example, by picking up and analysing cigarette butts discarded by a suspect. The Police Service disagreed that loopholes exist. However, the committee considered that the conflicting evidence received about this matter suggests that there is some ambiguity about the provisions relating to the database and prohibited matching and analysis.

    As these safeguards are essential to maintaining the protections of the Act, the committee recommended a more comprehensive approach to the regulation of database restrictions. The committee suggested a regulatory regime that would prohibit the collection of DNA samples other than pursuant to the Act, analysis of samples taken or retained in breach of the Act, profiling for non-database purposes, establishment of any database not fitting the definition in section 90, unauthorised access to the database, unauthorised matching and non-database matching, and non-database storage of profiles.

    As an investigative tool, DNA profiling can be extremely useful both in prosecuting offenders and in exculpating the wrongly accused. The use of DNA technology in law enforcement necessarily involves some interference with individual rights and liberties and with society's interest in maintaining the privacy and bodily integrity of its citizens. The Crimes (Forensic Procedures) Act 2000 attempts to find a balance between these competing public interests. I hope that the committee's report, in identifying weaknesses in the Act and proposing solutions, can improve the safeguards and protections while ensuring the continued effective use of this valuable law enforcement tool. I thank my fellow committee members for their constructive, bipartisan and unanimous approach to the inquiry and the report. I thank also the witnesses and the authors of submissions to this inquiry. Finally, and most especially, I convey my sincere thanks to Tanya Bosch for her research and drafting assistance, Christine Lloyd for organising the hearings and Bayne McKissock for proofreading the report.

    The Hon. JOHN RYAN [2.50 p.m.]: I suspect that many honourable members will find the Standing Committee on Law and Justice report on the review of the Crimes (Forensic Procedures) Act a rather dull read because it deals with a particularly complex legal matter and a technology that is not easy to understand or access. There is little doubt that the introduction of DNA evidence will make a dramatic difference to the way police investigate offences such as murders and assaults and in terms of court procedures. A little over 18 months ago the Government introduced the legislation enabling police to take DNA samples. The Standing Committee on Law and Justice review of the Crimes (Forensic Procedures) Act makes a strong case not only for the Government to introduce amendments to the Act, which has been in operation for some time, but also for legislation of this nature to be subject to parliamentary review routinely prior to its introduction and implementation.

    The review of the Act demonstrates the failure of parliamentary processes. Although the committee chairman used measured language to describe the committee's findings, the committee examined the legislation shortly after its introduction and then made some 56 recommendations, some of which would make significant changes to whole sections of the Act. That demonstrates that there was a critical need to examine some matters even prior to the introduction of the legislation. Examination of the legislation by a committee before its passage through the Parliament would have corrected many of the errors that are now evident in this flawed Act.

    Honourable members may be interested to know that the more colourful evidence given to the committee came from an academic, Dr Jeremy Gans, who said that he uses the Crimes (Forensic Procedures) Act as an exercise for students to find legislative flaws. He said that he remains forever intrigued by the fact that, no matter how many times he presents the Act to tutorial groups of law students, they seem to find more and more contradictions, difficulties and anomalies in the text of the legislation. So an urgent review of the Act is necessary.

    The committee chairman conducted the committee in a thorough and proper manner. Frankly, he should be commended for his courage. To be honest, if I were a Government member assigned the task of conducting this inquiry, no doubt by the time the inquiry concluded I would have had the difficult task of telling the Government, "You will not like this report. Our review of this legislation is not a pretty picture." Nevertheless, in a reasoned and statesmanlike manner, the Hon. Ron Dyer completed the investigation and produced an outstanding report, of which the Government should take some notice. I am a little worried that the Government will not take notice of this report.

    I do not wish to be partisan about this matter in any way, but members of a group that made a submission to the committee reported to me that as a result of a discussion with the Minister for Police about a week after the report was tabled they believed the Minister was not inclined to accept the committee's report—that the Minister believed the committee had received the wrong advice and interviewed the wrong people. It was reported to me that the Minister was of the view that few of the committee's recommendations should be implemented. I hope that report is incorrect because I believe virtually none of the committee's recommendations should not be implemented and seriously considered.

    I do not wish to make a lengthy speech. However, I shall demonstrate to the House the sort of difficulties that already exist. I refer to the 2001 Supreme Court case of Kerr v Commissioner of Police & Ors. This is an important case because it demonstrates how, because of the complexity of the legislation affecting the collection of DNA samples, it is possible to lose vital evidence that would have quickly and properly brought a criminal to justice. The case involved the review of a DNA sample taken from a suspected murderer. I do not think the person sought an order for the evidence to be disallowed but the evidence was, to some extent, lost because it was critical to the admissibility of the sample that it was taken within a particular time frame. The person from whom the evidence had been taken was being interviewed as a suspect in the stabbing murder of a woman. The person had been brought to the police station and was taken through the process as required under the Act prior to a DNA sample being taken.

    A critical flaw occurred in the questioning of the person. The person was told, "If you don't consent to the taking of DNA samples and fingernail scrapings, and so on, we will seek an order from a magistrate and you will be forced to do it anyway." The very giving of that advice flawed the consent given by the person, who said, "Well, if that's the case, I'll agree." Presented in that fashion the consent was found to be flawed and the evidence was lost. The transcript of the judgment of the case provides interesting reading; the very difficulties that are currently inherent in the taking of DNA samples are referred to. I shall read to honourable members a part of the transcript of the conversation a police officer had with the suspect before the sample was taken. It will quickly make obvious the sorts of problems that are inherent in the Crimes (Forensic Procedures) Act. If I recall correctly, the suspect had a slight intellectual disability. The police officer said to the suspect:
        Q79 The forensic material obtained from the procedure is to be used to derive your D.N.A. profile. Information obtained from analysis of the forensic material may be placed in the D.N.A. database system. Only a person authorised may access information in the D.N.A. database system for one or more of the following purposes: forensic matching, making information available to you, administering the D.N.A. database system, under arrangement between New South Wales and other state or territory or the Commonwealth to provide access to other law enforcements officers or other prescribed persons. Four: and in accordance with the Mutual Assistance in Criminal Matters Act 1987 or Extradition Act 1988. For review of or inquiry into a conviction or sentence under part 13A of the Crimes Act 1900, investigating complaints about police conduct under part 8A of the Police Services Act 1900, a coronial inquest or inquiry, investigation of the complaint by the Privacy Commissioner or any other purpose which has been prescribed in the regulations. Persons … disclose information stored on the D.N.A. database for one or more of the following purposes: forensic comparison in the course of the criminal investigation by a police officer or other person prescribed by the regulations or to make it available to you, to administer the D.N.A. database system, under arrangements between New South Wales and other state or territory or the Commonwealth to provide access to other law enforcement officers or other prescribed persons, review of or inquiry into conviction or sentence under part 13A, of the Crimes Act 1900, investigation of a complaint by the privacy commissioner, any other person which has been prescribed by the regulations. A person may only disclose information revealed by the carrying out of the procedure on you to yourself, the information is already publicly known in accordance with any other provision of the Act in accord with the Mutual Assistance in Criminal Matters Act 1987, the Extradition Act 1988 to investigate any offence or offences generally, decide to institute proceedings for an offence or proceedings for any other offence or coronial inquest or inquiry, for civil proceedings relating to the way the procedure was carried out including part 9 of the Police Services Act 1990, your medical treatment, medical treatment of the victim of an offence that there are reasonable grounds to believe it was committed by you, if you consent in writing to disclosure, investigating complaints about the conduct of police officers under section part 8A, Police Services Act 1990, for scrutiny by the ombudsman under section 121 of the Act, for any other purpose which is prescribed in the regulations. If you do not consent to the procedure the consequences will be that an application may be made to a magistrate for an order authorising the taking of the sample by mucul swab or some other forensic procedure. That relates to the document that you were shown before that was granted by a magistrate, an order. Do you understand that?
    The answer given by the suspect was "Mmm." I have read the advice that police are required to give suspects before taking a buccal swab, that is, a swab of the contents of a suspect's mouth. I could not imagine a person with an intellectual disability or a person with limited education having the capacity to understand what on earth all that guff meant. The overwhelming message of the committee is that the legislation is far too complex and that it requires police to do things that are of dubious legal value. I make it abundantly clear that it is highly likely that if the changes recommended by the committee are not implemented—and I give this warning because I believe the Minister for Police is not inclined to do anything about this report—samples will be lost. The chairman of the committee, who is a member of the Government, may not be able to make this point as clearly as a member of the Opposition can. I predict that if the Government does not review and simplify this Act, important DNA that is collected will be lost, as occurred in this case, and criminals may go free because evidence against them has been lost.

    Not only is it important to address the very important civil libertarian issues that were raised with the committee—we have made some recommendations to the effect that they, too, need to be addressed—it is also important that the Act is cleaned up otherwise police will be in the position of giving unbelievably convoluted and complex legal advice that neither they nor suspects will understand. Suspects can then take the matter to the Supreme Court to argue that they gave consent without understanding what they were doing. If they are deemed not to have understood what they were doing, their consent will be deemed to be invalid, and samples may be lost and evidence gone. I cannot make the point any stronger: This Act must be cleaned up.

    If, as has been rumoured, anyone in the Government is not inclined to read this report carefully and implement its findings, the result will not be that civil liberties will be comprised—although there is no doubt that is happening; the very legitimate purpose to which DNA profiling can be put will be lost and police will lose cases. Without revealing any evidence that I should not, I will say that it was made very clear to the committee in evidence given by a very senior police officer that police are extremely concerned about the current status of the Act if it is not reviewed. Taking the hawk position with regard to law and order issues, among other things the committee was asked to make recommendations to simplify the testing of people held in gaol for serious indictable offences. At the moment people who are convicted and sent to gaol for a serious indictable offence can have a DNA sample taken from them. Police are required to go through a convoluted and difficult consent procedure which appears to have resulted in the making of compromises to get people to consent willingly to the taking of samples. However, if that consent is not obtained, a court order can be obtained. Why not make it simpler when people have been convicted, are in gaol and the community regard them as serious offenders?

    I do not think anybody would be concerned about being sampled, merely because over a period of time, as a suspect, he or she would be sampled anyway. So to some extent this problem will not exist for a long time. There were reports to the committee that, for example, prisoners required physical constraint in order for samples to be taken. Another prisoner, who in my view gave very believable evidence, said that he had been penalised by a reclassification for not giving consent in the first place. Other information given to the committee was that the Department of Corrective Services produced a brochure to distribute to prisoners giving them information about procedures for the taking of DNA profiles. Evidence was given to the committee that the first version of the flyer given to prisoners inferred that if a prisoner did not consent to the procedure, he or she might in fact be subjected to a further 12 months imprisonment.

    That flyer was withdrawn and changed, I believe. That goes to show the sorts of complexities that arise from the legislation and the types of mistakes that have been made. Those are the types of matters that will be taken before a court and tested judicially. It may well be that the Government will not get the answer that it wants. The review of the legislation by the committee was very thorough. I believe the committee asked the right people the right questions. It has not simply returned to the Parliament a report that asks that the legislation be watered down, except that the committee recommended one particular modification, which I believe is reasonable. Oddly enough, the House considered it and voted it down, with both the Government and the Opposition voting together.

    The modification involves just a couple of provisions of the Act. It has been suggested that the test for taking a DNA profile from a suspect should be, as it currently is, one whereby police may use a forensic procedure to take a DNA profile if the procedure might produce evidence tending to confirm or disprove that the suspect committed a prescribed offence. I can think of no circumstance in which such a test would not be applicable. One cannot imagine that the taking of a test might not produce evidence. The committee has suggested using what is called the model bill, that of the Model Criminal Code Officers Committee. That is meant to be template legislation to ensure that DNA legislation is consistent throughout the Commonwealth. Instead of using the words "might produce" we should use the term "likely to produce". That is a more than reasonable test under which police should operate. It will not unduly constrain police in the carrying out of this procedure.

    That is the only suggestion the committee has made that might enhance civil liberties. In fairness, it is a sensible reform. It will not inhibit police, but it will fairly protect people from undergoing unnecessary procedures. In most instances it is a matter of clarifying the procedure on the taking of DNA samples. The suggested amendments will result in this testing procedure serving the people of New South Wales well. The committee has not recommended, for example, that DNA profiling should be discontinued or that there is no role for DNA profiling in New South Wales. It would have been nonsense for the committee to have so recommended. The committee has endorsed DNA profiling as a procedure, but has suggested important changes to the Crimes (Forensic Procedures) Act that are necessary to protect such evidence and make it worthwhile.

    I pay tribute to the chairman of the committee, who had a very difficult job to do. When reviews of legislation carried out by a committee are chaired by a Government member, it is usual for the chair to be in the position of having to defend the Government's position, almost to the death. In this instance the chairman has in fact defended the Government's position, I believe, in a very honourable way. Nevertheless, to his credit, he has had the courage to act as a parliamentarian, enabling the committee to give an accurate report, albeit not a provocative one. In no way is the report provocative. It is responsible and measured; it makes sensible suggestions. I do not want to make it the subject of partisan debate. I believe if the Government considers the report fairly and reasonably, New South Wales will have better procedures for DNA profiling, and not procedures that are likely to be subject to judicial examination, with a consequence that important evidence is lost.

    I commend the report to the House. In particular, I commend the report to the Government. I thank the staff involved for their outstanding efforts in getting together the right witnesses and for preparing what might otherwise have been a difficult report to prepare for the consideration of the Parliament and the Government. The draft was prepared almost to the point where the committee needed to make almost no modification to it.

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.10 p.m.]: I congratulate the Chair of the committee, the Hon. Ron Dyer, on the work he did on the committee. This is a good and thorough committee report; it has integrity. I must confess that I felt that the bill had been pushed through in bully-boy fashion, and too quickly. I was not alone in that opinion. Many of the amendments suggested by a large number of groups were voted down almost out of hand. On 11 May 2000 eight crossbench members wrote to the Premier stating that the New South Wales Law Society, the Ethnic Communities Council, Sydney Regional Aboriginal Corporation Legal Service, Positive Justice Centre, Youth Policy Action Association, Indigenous Social Justice Association, CRC Justice Support, New South Wales Council for Civil Liberties and Justice Action, as well as some individuals, wanted an investigation into this matter. The Government consented to that course. This report is the result of that investigation.

    Far be it for me to say that things should have been put together a bit more carefully in the first instance, but I think that really is the fact. Now that the report has been prepared—and overall it is a good report—we have to hope that the Government will not be impervious to change. The Government was persuaded to have this necessary inquiry, which has now reported and suggested a number of changes. I hope that the Government will not be impervious to those changes and that it will not merely adopt the same bully-boy approach that it took when putting the legislation through.

    One problem was that part 8, which relates to volunteers, had not been proclaimed. Evidence was given to the committee by Justice Action and others that the lack of clear guidelines for so-called volunteer sampling was a problem, and that at least part 8 dealt with that issue to some extent. The concept of volunteering, when there is a massive imbalance in the powers of those who want a subject to do something and the powers of the subject, presents a perennial problem. The suggestion was: If you do not give a sample we will get a court order to get a sample anyway, so you might as well volunteer. That, of course, certainly involves some duress; it does not involve volunteering to give consent to the taking of a sample. Evidence was also given that prisoners who had not volunteered to give samples were reclassified and sent to other places within the prison system, away from their families, or that they were given fewer privileges within the correction system.

    The changes that have been recommended by the report take the procedure closer to the model bill. As was pointed out at the time by me and a number of other members, this bill took a much harder line than the model bill that had been suggested. The report acknowledges that even suggestions by Justice Action—which might previously have been thought of as a radical group in the sense that it represented prisoners—had been taken up and championed by the report. Obviously, the effect on prisoners has to be considered. It is nice that their voice is being heard. Recommendations like the training of judicial officers in order to obtain a realistic assessment of what DNA technology can do seem a good idea, as is the simplification of the Act, which seems to be very complex in regard to procedures and therefore more likely to lead to miscarriages of justice.

    The key recommendation is the first one set out in the report—another matter mentioned by me at the second reading of the legislation—that is, that an independent group should do the testing. The idea of a State Institute of Forensic Sciences, which should be separate from the Police Service testing body, is a good start to justice being done by an independent body. There will obviously always be scope for tampering, or for submitting test samples that have been improperly obtained. Of course, no matter how expertly those samples were analysed, the result would be what the prosecution wanted. But at least an independent body would allow a defendant scope to have independent tests or an unbiased approach taken to testing. The lack of a protocol for the destruction of materials has been flagged as a problem by Justice Action in particular because the de-identification of material that is retained may be a problem.

    A problem the committee did not discuss was the shortening of the time-out procedures, namely, two hours plus time out. My amendment suggested that the time allowed should be four hours so that any time out was limited to two hours. If a procedure for taking non-invasive DNA samples takes only a minute or two, the idea of providing a lengthy period during which suspects may be held needs to be addressed. Although the period is only two hours plus time out, the time out is a highly flexible benchmark. That matter has been referred to the Attorney General. Perhaps it would have been better if that matter had been the subject of a conclusion, but if evidence did not exist to support a conclusion, the committee was honest not to have gone beyond the evidence presented to it. Overall I think the report is good and that its recommendations are steps in the right direction. I concur with the sentiments expressed by my colleague the Hon. John Ryan and hope that the recommendations in the report are implemented.

    The Hon. RON DYER [3.21 p.m.], in reply: I thank the Deputy Chair of the Standing Committee on Law and Justice, the Hon. John Ryan, and the Hon. Dr Arthur Chesterfield-Evans for their contributions to this take-note debate on the report of the Standing Committee on Law and Justice following its review of the Crimes (Forensic Procedures) Act 2000. I agree with the point made by the Hon. John Ryan that in the legislation reviewed by the committee there is a complexity of language that makes it difficult for street police, if I may use that expression, to apply the legislation in practice. I do not know the view of the Minister for Police regarding the committee's report because I have not had a conversation with him about it, but listening to what the Hon. John Ryan had to say I was reminded that the recommendations contained in the report do not flow entirely in one direction, that is, the civil liberties direction. They also flow in the other direction, that is, the law enforcement interests of the State. In particular the committee has recommended a review of the language used in the legislation and its manner of expression so that it can be simplified for use by police officers who are enforcing the legislation literally on the streets.

    Chapter 7 of the committee's report, headed "Drafting Matters", deals with the issue of the manner in which the legislation is expressed. In particular the committee draws attention, among other things, to the drafting of sections 12, 20 and 25 of the Act. Time does not permit me to read the entirety of those provisions, but any honourable member who refers to those provisions may be quite stunned to see how lengthy and complex they are. I take the view that it is difficult enough for a lawyer such as I or for any other lawyer to understand what those provisions mean, let alone an ordinary police officer who is seeking to enforce these provisions on the street. That is hardly satisfactory. Police officers should be able to readily enforce and understand legislation. I make the point that in reviewing this legislation the committee certainly did not have as its objective some desire to frustrate the police. The committee wants to make sure that the legislation is there but equally wants to make sure that the legislation is clearly expressed in such a manner that it is easily understood by all those who have to use it, including the police. Particularly in that respect, the committee report goes in the direction and the interests of the Police Service of New South Wales.

    A moment ago I said that I do not know what the attitude of the Minister for Police is to the committee's report, and that is true because I have not had a conversation with him concerning the report. The Minister for Police is not the only Minister who has an interest in the legislation and the outcome of the committee's report. It is true to say that the Minister responsible for this legislation—the Crimes (Forensic Procedures) Act 2000—and its administration is not the Minister for Police but the Attorney General. That being the case, there clearly has to be a detailed consideration of the committee's report by both the Minister for Police and the Attorney General, and for that matter by the Government as a whole in Cabinet. There has to be a consideration of what the Government regards as reasonable within the committee's report.

    I regard the committee's report as being reasonable overall. I do not think that I or any other member of the committee has a history of taking extreme positions. Committee members listened to all of the witnesses and carefully assessed all the evidence, and arising out of a detailed treatment of the subject matter we have put forward what we regard as practical and reasonable suggestions for improvement of the legislation. Again I thank the Hon. John Ryan, with whom I have worked on many inquiries. He has always adopted a constructive approach and I thank him for his participation. I also thank my other committee members. Earlier I mentioned the staff but I would particularly like to thank Ms Tanya Bosch for the drafting of the report. Since Tanya has been the director of the Standing Committee on Law and Justice I have been absolutely delighted with the work that she has done. This report is a particularly good example of what that officer is capable of, and I look forward to continuing to work with her during the remainder of my parliamentary service in this House.

    Report noted.

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