Developments in DNA analysis and forensic procedures legislation: comparisons across Australian jurisdictions

ABSTRACT

Forensic procedures legislation guides the collection and analysis of forensic material, including DNA, and the establishment of DNA databases. It requires the balancing of several competing interests, such as identifying and convicting those who commit criminal offences, ensuring that individuals in Australian society are not subjected to unlawful or unfair treatment, and preserving individual privacy and civil liberties. With increased data-sharing arrangements across jurisdictions, harmonising forensic procedures legislation becomes pivotal. Reviews published in 2003 and 2010 established the existence of discrepancies and inadequacies in the forensic procedures legislation of Australian jurisdictions. Since then, jurisdictions have made amendments to their own legislation that may further reduce the extent to which harmonisation exists across jurisdictions. This study, therefore, aimed to examine the legislative amendments made between 2010 and 2022 to the forensic procedures legislation of Australia’s Commonwealth, States and Territories and compare current legislation with that of the Commonwealth. The findings from the comparative analysis highlight key elements of current legislation that represent a significant departure from the protection of individual rights to privacy and civil liberties. The article then discusses the potential implications of these departures and suggests some directions for further research, legislative review, and critical analysis.

KEYWORDS:

• advanced DNA technologies
• forensic procedures legislation
• individual rights
• police powers
• privacy and civil liberties

Introduction

With the routinisation of forensic DNA use, there have been increases in the capacity and capabilities of the Australia’s National Criminal Investigation DNA Database (NCIDD) (Australian Criminal Intelligence Commission; ACIC, 2021). Technological advances have allowed for more efficient use of DNA evidence (Taylor & Abarno, 2022). Police can now identify more suspects, using advanced capabilities to detect and analyse smaller trace DNA samples (Petrovick et al., 2020). Through techniques such as familial matching and investigative genetic genealogy, the possibility of detecting a suspect now exists even if the initial comparison on the criminal DNA database did not initially result in a match (Scudder et al., 2018).

DNA databases were established in Australian jurisdictions in the early 2000s and make possible both the identification of suspects from crime scene DNA and the exclusion of possible persons of interest. In Australia, each jurisdiction has a DNA database that was established in accordance with its respective forensic procedures legislation. In addition, the NCIDD was introduced in 2001 by the amended provisions of Part 1D of the Crimes Act 1914 (Cth) to allow the inter-jurisdictional sharing of DNA data. The NCIDD enables Australian law enforcement to compare DNA profiles. This database is a potent intelligence resource for Australian police and forensic experts, transcending geographical jurisdictional boundaries. It operates as a web-based platform, facilitating the identification of potential connections between DNA records at jurisdictional and inter-jurisdictional levels. As such, harmonising the forensic procedures legislation, which feeds into the NCIDD, becomes pivotal to ensure the continued balance of the competing interests of society and the individual (ACIC, 2021).

In developing the Model Bill, as well as the initial Australian Commonwealth forensic procedures legislation, previous legislators emphasised the establishment of a legislative regime that balances the needs of those using forensic procedures in conducting criminal investigations on the one hand and the rights and interests of the persons affected by such investigations on the other (Oosthuizen et al., 2023). The rights and interests of the individual are protected by numerous safeguards and by requiring magisterial oversight before carrying out most procedures where a person of interest refuses to consent to the forensic procedure (Commonwealth of Australia House of Representatives, 1995). This emphasis on safeguarding individual rights and interests was also reflected in the two statutory reviews where one of the two focal points was to inquire into ‘the safeguarding of civil liberties and privacy’ (Ford, 2010, p. 7). Some human rights relevant to forensic DNA use can include but are not limited to: freedom from arbitrary arrest and detention; the right to a fair and public trial; the right to dignity; and freedom from interference in privacy (Oosthuizen et al., 2023). The Australian Law Review Commission (ALRC, 2003) considered that DNA profiles, being information about an individual whose information can be reasonably ascertained from the DNA profile, fall within the definition of personal information, which should be subject to the Privacy Act 1988 (Cth).

Harmonisation is necessary for data-sharing across jurisdictions for the protection of civil liberties and privacy. In the absence of genuine harmonisation of the legislation, a jurisdiction that has loose controls—and allows for collection of DNA samples in broader circumstances and the retention of such samples and information for longer—could undermine the appropriate restrictions on the use of DNA data in another jurisdiction (ALRC, 2003; Oosthuizen et al., 2023). Since the inception of forensic procedures legislation and the NCIDD under Part 1D of the Crimes Act 1914 (Cth), there have been two mandated independent reviews of their implementation in Australian Commonwealth, State and Territory jurisdictions. The reviews aimed to evaluate the efficiency and effectiveness of forensic DNA analysis while ensuring the protection of civil liberties and privacy in the context of the NCIDD’s inter-jurisdictional utilisation (Ford, 2010). Without further statutory compelled reviews of forensic procedures legislation in Australian jurisdictions, there have been continuous changes to the Commonwealth, States and Territories’ legislation through legislative amendments over the years.

This article reports the findings of a study analysing the legislative amendments made to the forensic procedures legislation of Australia’s Commonwealth, States and Territories between 2010 and 2022. The main aim of the study was to consider the extent to which current forensic procedures legislation has retained the initial intention of balancing the rights of the individual with those of the community. To explore this issue, the study aimed to: (1) note differences between forensic procedures legislation in Australian jurisdictions that may affect harmonisation; (2) identify potential issues or inconsistencies within the forensic procedures legislation of jurisdictions; and (3) examine any legislative provisions for new technologies and applications of forensic DNA. Criteria for the present review were established based on prior legislative review (Ford, 2010). The findings on the three areas above include illustrative examples from specific jurisdictions, and contribute to the overall conclusion on the balancing of rights as initially intended by the legislation. We conclude that both a thorough review of the Australian forensic procedures legislation, in light of international developments, and the introduction of uniform laws that consider both present and future DNA technologies and capabilities, are crucial.

DNA databases in Australia

The NCIDD is managed by the Australian Criminal Intelligence Commission (ACIC). Initially, the agency responsible for the management of NCIDD was CrimTrac (Ford, 2010); however, in 2016, CrimTrac and the Australian Crime Commission merged, and the ACIC was established under the Australian Crime Commissions Act, 2002 (Cth) (ACIC, 2021). The merger brought Australia’s national criminal intelligence and information capabilities under a single agency with coercive powers, similar to a Royal Commission (ACIC, 2021). The ACIC is responsible for hosting and developing systems and services that offer data storage and matching capabilities essential for law enforcement and community safety purposes, encompassing a wide range of initiatives such as the Australian Cybercrime Online Reporting Network, National Police Checking Service, National Police Reference System, Australian Criminal Intelligence Database, National Criminal Intelligence System pilot program, biometric matching (e.g., fingerprints and DNA), National Child Offender System, National Firearms Licensing and Registration System, as well as the National Missing Persons and Victim System (ACIC, 2021). In 2018, the NCIDD Integrated Forensic Analysis (NCIDD-IFA) was deployed to enable enhanced kinship matching, familial searching and advanced direct matching (Dutton, 2018). These advanced capabilities allow for the use of new technologies within police investigations.

The NCIDD is a national DNA database but not a Commonwealth database. Although it is managed by a Commonwealth agency and is governed by the Commonwealth legislation, the NCIDD contains the DNA databases of all the corresponding jurisdictions in one central DNA database, which is accessible by all corresponding jurisdictions. This means that the DNA profiles within jurisdictional databases are derived from DNA samples authorised according to the jurisdiction-specific forensic procedures legislation (Oosthuizen et al., 2023). Therefore, the NCIDD contains DNA profiles, each authorised under distinct legislative frameworks.

Forensic DNA samples derive from different sources such as crime scene DNA, suspect DNA, convicted criminal DNA, volunteer DNA, missing person’s DNA and unknown deceased DNA (Ford, 2010). Each jurisdiction stores the DNA profiles in separate indexes to accommodate the different samples. However, not all the indexes may be compared with one another. For example, a limited volunteer sample may be compared only for a specific purpose. Specifically, if a person provides a DNA sample for crime scene elimination purposes, its use is limited to excluding that specific crime scene. The volunteer DNA samples are divided into unlimited samples and limited samples. A limited sample is limited to the purpose it was provided for, and an unlimited sample is normally unlimited in its comparison of indexes and remains on the DNA database for an agreed period (Smith & Urbas, 2012). Most jurisdictions determine the matching schedules of indexes through their own forensic procedures legislation.

Statutory reviews of Part 1D of the Crimes Act 1914 (Cth)

Part 1D of the Crimes Act 1914 (Cth) was based on the model provisions developed in 1995 by the Model Code Officers Committee. For sharing in the national DNA database, Part 1D of the Crimes of Act 1914 (Cth) required the States and Territories to have corresponding forensic procedures legislation (Oosthuizen et al., 2023). To this extent, Section 23YV of the Crimes Act of 1914 (Cth) provided for an independent review of Part 1D of the Crimes Act 1914 (Cth) on the first anniversary of the commencement of the Crimes Amendment Forensic Procedure Act 2001 (Cth). The Section required a second independent review if the report identified discrepancies and inadequacies to ascertain whether the inadequacies had been dealt with effectively.

The first review, the Report of independent review of Part 1D of the Crimes Act 1914—Forensic procedures (Sherwood, 2003), observed that only two jurisdictions, New South Wales and the Australian Capital Territory, had participated in the national DNA database. It identified several discrepancies and inadequacies between the Model Bill and the forensic procedures legislation of different Australian jurisdictions. For example, the discrepancies included the matters to be considered when requesting or ordering a forensic procedure; the definition of intimate procedures in some jurisdictions, such that a buccal (cheek) swab was included while in other jurisdictions, a buccal swab was still considered a non-intimate procedure; the grounds for requesting and ordering the taking of a sample; the range of offences; the definitions of serious offenders, serious crime, and convicted offenders; the different approaches taken to children and incapable persons; and the destruction of DNA samples and profiles. Two key inadequacies were identified. First, there was a lack of progress in establishing the NCIDD, resulting in the inability to assess the effectiveness of the national DNA database system. Second, there was a lack of provisions for the use of DNA analysis for any purpose other than identification (Sherwood, 2003).

During the introduction of Part 1D, there had been an assumption that the analysis of a DNA sample would be used only for the purpose for which it was taken and that the only section of the DNA molecule analysed was a non-coding section (Commonwealth of Australia, 2001; Oosthuizen et al., 2023). The first review (Sherwood, 2003) referred to the Victorian Privacy Commissioner’s contribution, which highlighted that when a DNA sample is collected for the purpose of identifying a person, more information is collected and that ‘the use of such information would result in function creep if the uses for such information were to be expanded without public debate and legislative authorisation’ (p. 102). To overcome this inadequacy, Recommendation 23 of the Sherwood review states that ‘Part 1D should be amended to specifically exclude testing for DNA for the purpose of detecting phenotypically expressed information including health or medical conditions’ (p. 104) and Recommendation 24 ‘Part 1D should contain a provision prohibiting linking the matching outside any database which is not regulated by statute for law enforcement purposes’ (p. 106).

The second independent review, DNA Forensic Procedures: Further independent review of Part 1D of the Crimes Act 1914, was finalised in 2010 (Ford, 2010) and determined that most of the discrepancies and inadequacies observed in the Sherwood review (2003) still existed. In fact, the only recommendation made by the Sherwood review (2003) that had been implemented was Recommendation 8, that Part 1D be amended to permit suspect-to-suspect matching and that of unknown deceased persons to unknown deceased persons (Ford, 2010). Many of the Sherwood review’s recommendations were again incorporated into the Ford review. A recurring theme of both reviews was that efforts should be made to reduce the complexities of the forensic procedures legislation while preserving the essential protection of privacy and civil liberties and enhancing accountability (Ford, 2010). To this extent, the 2010 review recommended a common approach to the definitions of ‘offender’, ‘suspect’ and ‘volunteer’; principal privacy protections relating to how information is collected, stored, maintained, shared, retained, and destroyed; standards in handling and interpreting genetic material; and provisions relating to children and incapable persons. In addition to affirming Sherwood’s Recommendations 23 and 24, regarding phenotypic information and non-law enforcement databases, the Ford review further recommended that ‘significant development in DNA technology or applications of it, such as familial matching, should only be adopted after exposure to public examination and assessment’ (2010, p. 21). Section 23VY of Part 1D of the Crimes Act 1914 (Cth) had made no provision for further reviews, and regardless of the Ford review’s recommendation for a further review to be held, the Section was repealed as obsolete in 2013.

Some researchers have discussed Australian forensic procedures legislation in light of new forensic DNA technology and techniques. For example, Smith and Urbas (2012) reviewed the regulation of new forms of forensic DNA profiling, such as familial matching and DNA phenotyping, under Australian legislation. Their review revealed that the Commonwealth legislation may provide for the use of familial matching, but not for DNA phenotyping. However, their review did not include consideration of the implementation of the recommendations of the Ford review. Additionally Scudder et al. (2020) considered the current legal considerations regarding the use of genetic genealogy in forensic investigations. While the authors suggested that exploiting unknown crime scene DNA through analytical techniques fell outside the regulatory regime, they did not explicitly consider how amendments to the forensic procedures legislation may deal with or impact the use of investigative genetic genealogy.

No further formal review of Part 1D was carried out to determine whether any of the recommendations of the Ford review had been implemented. Furthermore, in subsequent years, all States and Territories amended some sections of their forensic procedures legislation, which may further affect the harmonisation of the different legislation and, in some instances, may include provisions regarding the use of new technologies. Provisions to deal with new technologies such as familial matching, DNA phenotyping, and investigative genetic genealogy fall outside the legislation’s original scope. As cautioned by the Ford review, the inclusion of new technologies in forensic procedures legislation would require new public debate to balance civil liberties with society’s need for crime investigation (Ford, 2010).

The present study

Historically, achieving harmonisation of the different forensic procedures legislation throughout Australia has been a challenge, which is increased with the adoption of new DNA technologies and techniques. In recognition of these issues and in light of recommendations from key reviews, the present study analysed current Australian legislation for new discrepancies that may have arisen due to legislative amendments between 2010 and 2022. Specifically, the study aimed to address one main research question: To what extent has forensic procedures legislation retained the initial intention of balancing the rights of the individual with those of the community? In addressing the question, further questions are considered:

1. What potential issues exist between jurisdictions (e.g., for cross-jurisdictional data sharing)? and

2. What potential issues exist within the forensic procedures legislation of jurisdictions (e.g., contradictions within the legislation)?

3. What provisions currently exist for the use of new DNA technologies and applications?

Method

This study draws from critical forensic studies (Julian et al., 2022) to consider the extent to which current forensic procedures legislation has retained the initial intention of balancing the rights of the individual with those of the community. The study documents recent changes within the Australian forensic context and reports on how forensic science is used in society. According to Julian et al. (2022):

Critical forensic studies is not just about improving the use of forensic science in society; it is about doing so in particular ways that reflect the ideals of social justice and human rights for all people, and with particular regard to those most likely to be disadvantaged and vulnerable to mistreatment by the system. (p. 16)

Data sources

The data sources used were the forensic procedures legislation for each Australian jurisdiction as follows:

• – Part 1D Crimes Act 1914 (Cth)

• – Crimes (Forensic Procedures) Act 2000 (ACT)

• – Crimes (Forensic Procedures) Act 2000 (NSW)

• – Police Administration Act 1978 (NT)

• – Police Powers and Responsibilities Act 2000 (Qld)

• – Criminal Law (Forensic Procedures) Act 2007 (SA)

• – Forensic Procedures Act 2000 (TAS)

• – Crimes Act 1958 (VIC)

• – Criminal Investigation (Identifying People) Act 2002 (WA)

In addition, any relevant secondary legislation, such as that dealing exclusively with youth matters, was examined. The study also drew on jurisdictional regulations pertaining to forensic procedures, Hansard, reviews and other reports, academic journal articles and decided cases.

Review criteria

The following review criteria, based on the recommendations of the review by Ford (2010), were used in the analysis of current cross-jurisdictional legislation to determine any discrepancies between jurisdictions in the:

1. definitions of ‘suspect’, ‘serious offender’, ‘volunteer’, ‘serious offence’, ‘child’, ‘incapable person’ and ‘non-intimate procedure’;

2. procedures for collecting DNA from suspects, serious offenders and volunteers;

3. provisions regarding database upload and sharing of DNA samples, DNA profiles and identification particulars;

4. provisions for the destruction of DNA samples and removal of DNA profiles from the database;

5. amendments made after 2012 and impacts on any of the above criteria; and

6. provisions for familial matching, DNA phenotyping and genetic genealogy searches.

In assessing the criteria for review, Part 1D of the Criminal Law 1914 (Cth) was used as a baseline for comparison to determine the harmonisation of jurisdictional legislation.

Data analysis procedure

LawOne, a legal database for Australia, was used to search for the current forensic procedures legislation, the historical amendments of the current legislation, and any secondary sources relating to the legislation for the Australian Commonwealth, States and Territories. Each jurisdiction was considered, in turn, by reading the legislation to understand its layout and the provisions pertaining to forensic DNA, and to consider how these provisions align with Part 1D of the Crimes Act 1914 (Cth). Once the legislative layout, historical amendments, and amendments made after 2012 were understood, the analysis began.

First, Attachment D of the Ford review (2010) was used as a starting point for the analysis. It comprises comparison tables of forensic procedures legislation across Australia for key points regarding the harmonisation of the legislation. This analysis focused on the current definitions for a ‘suspect’, ‘serious offender’, ‘volunteer’, ‘serious offence’, ‘child’, and an ‘incapable person’, comparing it with the tables, as well as the procedures for collecting DNA from a suspect, serious offender and volunteers.

Second, each jurisdiction’s legislation was analysed to establish the provisions regarding database upload and sharing of DNA profiles, DNA samples and identification particulars, and the provisions regarding the destruction of DNA samples and removal of DNA profiles from the database. This included any secondary legislation that may include regulations concerning forensic DNA databases and their uses.

Third, the table of amendments to legislation found in LawOne was checked for each State and Territory, and each indicated amendment made after 2012 was accessed via LawOne and read in relation to the review criteria stated above. Any amendments that affected the harmonisation or the balancing of rights were further researched using Hansard, reviews and reports found within the secondary sources for LawOne. If LawOne did not provide the necessary secondary sources, alternative databases such as Lexis Advance, Lawlex and Westlaw AU were used to search for additional relevant secondary materials. In respect of Queensland legislation, LawOne was initially used; however, it did not set out the history of amendments to the legislation. Therefore, the Queensland Government’s Queensland Legislation website (Police Powers and Responsibilities Act 2000) was used.

Fourth, throughout the analysis, close attention was paid to any sections indicating a current authorisation for using new technologies such as familial matching, DNA phenotyping and investigative genetic genealogy.

Cases found in LawOne relating to the legislation were examined for relevance to the review criteria and, if relevant, noted in the findings. Any discrepancies found throughout the analysis process were documented in notebooks for further consideration of relevance to the review criteria, the harmonisation of the legislation or the impact on civil liberties.

Findings

The findings on forensic procedures legislation are presented below for potential issues between jurisdictions, potential issues within jurisdictions, and provisions for new technologies and applications. In each section, the overall findings are presented along with illustrative examples of the legislative changes, which may impact the balancing of the rights of the individual with those of the community.

1. Potential issues between jurisdictions

Generally, the analysis of the current cross-jurisdictional legislation determined that the definitions of (a) ‘suspect’, ‘volunteer’, ‘serious offender’, ‘child’ and ‘incapable person’, and (b) the procedures in respect of collecting DNA from a suspect, serious offenders and volunteers, had not changed significantly since the Ford review (2010) of Part 1D of the Crimes Act 1914 as shown in Table 1.

Table 1. Key definitions in Part 1D of Crimes Act 1914 (Cth) and correspondence with the definitions in other Australia jurisdictions.

Commonwealth term and definition	NSW	Qld	SA	Tas	Vic	WA	ACT	NT
Suspect A person reasonably suspected of committing an indictable offence	✕	✕	✕	✕	✕	✕	✕	✕
Serious offence Punishable by a maximum penalty of life imprisonment or 5 or more years	✓	✕	✕	✕	✕	✕	✕	✕
Volunteer A person who volunteers to undergo a forensic procedure	✕	✕	✕	✓	✓	✕	✓	✕
Serious offender A person who is under sentence for serious offence;	✕	✕	✕	✓	✕	✕	✓	✕
Child^a,b,c A person at least 10 but under 18 years	✓	✕	✕✓	✕	✓ ✕	✕✓	✕✓	✕✓
Incapable person (a) An adult incapable of understanding the general nature and effect of, and purposes of carrying out, a forensic procedure; or (b) is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out	✓✕	✕	✕	✕	✕	✕	✓	✕
Non-intimate procedures^d (include the use of a buccal swab)	✕✓	✓	✕✓	✓	✕✓	✓	✓	✓

^a In SA, WA, ACT, and the NT, a child is described as a person under 18 years of age (but not as above 10 years of age).

^b In Victoria, a child is defined in Section 464U as a person older than 10 but under 18 years; however, in Section 464(2), a ‘DNA person’ is described as a child if above 15 years but under 18 years.

^c In NT the Youth Justice Act 2005 defines youth as under 18 years however for non-intimate procedure a senior police officer may approve the procedure if the youth is 14 years or above.

^d In NSW, only a self-administered buccal swab is included as a non-intimate procedure; in SA, the definition of invasive forensic procedures include the mouth as intimate, but a ‘simple identification procedure’ includes a buccal swab; in Victoria a buccal swab is classified as an intimate procedure, but a ‘DNA procedure’ includes a buccal swab.

(a) Definitions

To move closer to harmonisation of the different jurisdictional legislation, the Ford review (2010) recommended that key concepts such as ‘suspect’, ‘serious offender’, ‘volunteer’, ‘serious offence’, ‘child’, ‘incapable person’ and ‘non-intimate procedure’ should share a similar definition across jurisdictions. However, the present study found that most of these concepts do not share similar definitions across jurisdictions, as shown in Table 1.

Some issues for cross-jurisdictional data-sharing exist because of the differences in these key definitions, and an example of such difference can be found in the definition of a suspect. New South Wales defines a ‘suspect’ as ‘a person suspected on reasonable grounds to have committed an offence, be charged with an offence, or be summonsed to appear before a court regarding an offence’. This means that a person in New South Wales suspected of committing any offence, not just an indictable offence, may be a suspect, and police may request the person’s consent to give a forensic DNA sample. Likewise, if the suspect has been arrested for an offence, and a DNA sample has been requested but refused, a senior police officer may order a non-intimate procedure. If the person is not under arrest, the court may order the non-intimate sample. New South Wales’s legislation classifies a self-administered buccal swab as a non-intimate procedure and a buccal swab administered by another person as an intimate procedure. In addition, a hair sample is classified as a non-intimate procedure. This means that in New South Wales, a DNA sample can be obtained for any offence where there is a reasonable belief that the procedure might produce evidence to confirm or disprove that the suspect committed an offence. Therefore, the suspect index for New South Wales may include more persons than other jurisdictions, some of whom may have committed only minor offences. Similarly, South Australia defines a suspect procedure in relation to a serious offence, which is defined as ‘an indictable offence or a summary offence punishable by imprisonment’. Including summary offences punishable by imprisonment with serious offences extends the number of crimes for which a DNA sample may be requested compared with Part 1D, which only applies to an indictable offence.

Although the Police Powers and Responsibilities Act 2000 (Qld) complies with certain core aspects of Part 1D of the Crimes Act 1914, some significant differences exist. Because Queensland did not follow the Model Bill but instead followed a UK model, it enacted legislation that aims to incorporate the potential use of forensic data both for intelligence and evidentiary purposes (Queensland Legislative Council, 2003). The general layout of the legislation differs from that of other Australian jurisdictions, making it ambiguous in parts and difficult to compare with Part 1D. It fails to define the key concepts such as a ‘suspect’, ‘offender’, ‘volunteer’ or ‘incapable person’. Furthermore, except for distinguishing between children over and under 14 years of age when requesting consent for a forensic procedure, the legislation lacks a definition of ‘child’. The failure to define key concepts creates uncertainty when interpreting critical sections within the legislation, especially when the legislation is compared with that of other jurisdictions. Similar differences exist in the Police Administration Act 1978 (NT).

(b) Collection, storage, destruction of DNA samples

The provisions for destroying DNA samples and removing DNA profiles from the database remained relatively unchanged, as shown in Table 2.

Table 2. Provisions for the destruction of DNA samples and the removal of DNA profiles from the database.

DNA sample /profile	Cth	NSW	Qld	SA	Tas	Vic	WA	ACT	NT
Adult suspect not charged/ convicted	After 12 months	After 12 months	Within Reasonable time	Within 21 days of a request for destruction	After 12 months	After 12 months unless court order otherwise	The suspect needs to apply for destruction after 2 years	The suspect needs to apply after 12 months	Indefinite
Child	Specified by court	Specified by court	Within Reasonable time	Within 21 days of a request for destruction	As soon as possible after taken and no longer required	After 12 months unless court order otherwise	Needs to apply for destruction after 2 years	If on court order, specified by the court order	Indefinite
Unlimited volunteer	End of the specified period	End of the specified period	Indefinite	Within 21 days of a request for destruction	End of the specified period	Within 28 days of a request for destruction	Indefinite	End of the specified period	Indefinite
Limited volunteer	End of the specified period	End of the specified period	End of the specified period	End of the specified period	End of the specified period	End of the specified period	End of the specified period	End of the specified period	Indefinite

The intention of some amendments was to clarify and strengthen certain individual rights through simplification. For example, an amendment to Commonwealth legislation (Section 23XWR(2)(b) of Part 1D of the Crimes Act 1914 (Cth)) clarifies that volunteers have the option of storing information from a volunteer sample in a limited or unlimited index. This means that now a profile is stored in a limited index unless the volunteer explicitly agrees that it can be stored in an unlimited index. However, changes made to clarify or strengthen certain individual rights were not the most prominent type of change.

Since 2012 most of the states and the federal legislation had amendments that impacted individual rights in respect of the collection of DNA samples. Mostly, such amendments reduced or removed previous rights of protections. For example, having a buccal swab reclassified as a non-intimate procedure removes the court’s oversight when the suspect refuses to provide consent for the DNA sample. For a non-intimate procedure, a senior police officer may authorise it, and in the case of Queensland, the requirement for authorisation has been removed. In practice, removing the need to apply for the court’s consent removes the accused’s right to be heard in the application process; it removes their procedural rights.

The different provisions regarding the destruction of DNA profiles and samples further create an imbalance with respect to protection of the suspect’s rights and criminal justice intervention. In Queensland and the Northern Territory, a suspect’s data can remain on the database indefinitely. If this is considered along with the recent changes to Queensland’s legislation regarding the collection of the DNA sample after the procedure has started, all suspects would remain indefinitely on the DNA database regardless of the outcome of the criminal trial.

2. Potential issues within jurisdictions

The legislation of each jurisdiction was analysed for inconsistencies. Although issues within a jurisdiction’s legislation may exist due to lack of operational definitions or inadequate legislative layout, many potential issues relate to changes made to the core legislation over time. Two examples of such changes made over time are evident in the Police Powers and Responsibilities Act 2000 (Qld) and the Crimes Act 1958 (Vic).

Police Powers and Responsibilities Act 2000 (Qld)

The Police Powers and Responsibilities Act 2000 (Qld) is often ambiguous; it provides an example of a lack of definitions and an inadequate legislative layout. Chapter 17 deals with forensic procedures, which are set out in 11 parts. Although Part 5 is labelled DNA procedures, sections in other parts also make specific references to DNA samples. For example, Section 445 in Part 1 describes a ‘DNA sampler’ as a qualified person for taking DNA samples, and Section 448 (1)(b) found in Part 2 deals with obtaining forensic procedure consent that relates only to the taking of a DNA sample.

Section 447 of the Police Powers and Responsibilities Act 2000 (Qld) authorises when forensic procedures may be performed on a person under the Act. Within this section, taking forensic procedures is authorised through consent, under a forensic procedure order or if a person qualified to perform the procedure is otherwise authorised to take the sample. Section 448(b)(i) allows police to conduct intelligence-led DNA screening to determine whether a person should be a suspect, which means that a person may be requested to provide a DNA sample even though they are not a current suspect. The Police Powers and Responsibilities Act 2000 (Qld) underwent two significant amendments since 2012.

The Police Powers and Responsibilities and Other Legislation Amendment Act 2014 substantially amended Sections 481 and 482 in the Police Powers and Responsibilities Act 2000 (Qld). Section 481 makes provisions for taking a DNA sample from an adult person if the proceedings have started or continued through an arrest, a notice to appear or a summons being issued. Before the amendment, a police officer had to obtain the approval of a senior officer to take a DNA sample. Subsection 4 required the senior officer to regard the rights and liberties of the person and the public interest, and Subsection 5 authorised the DNA sampler to take a DNA sample from the person detained upon receiving approval from a senior officer. The amendment removed the requirement to obtain approval from a senior officer—and the associated requirement to have regard for the rights and liberties of a person and the public interest. The amended Section 481 allows a police officer to detain a person for a reasonable time to take a DNA sample, and a DNA sampler to take a DNA sample. A ‘DNA sampler’ is defined in Section 476 as a police officer authorised by the Commissioner to take a DNA sample based on the police officer’s experience or after the police officer completes a training course approved by the Commissioner.

However, the authority to take the DNA sample is unclear. Chapter 2 of The Operational Manual (Queensland Police Services, 2023) sets out the criteria for officers to lawfully conduct forensic procedures with consent or under orders from a relevant person as outlined in legislation. Before the amendment, a senior officer ordered the taking of the DNA sample. After the amendment, the police retained the power to detain the person to take the DNA sample, and the section retained the provisions that a DNA sampler may take the DNA sample. Nevertheless, explicit authorisation for the police officer and the DNA sampler is elusive. Without explicit authorisation in either the title of the section, a court order, the order of a senior police officer or the explicit granting of the power to the police officer, it is unclear where the authorisation to take the DNA sample without consent arises from, and it could be argued that specific authorisation was removed and not replaced. If authorisation is assumed, it should be assumed that the DNA sampler is authorised and not the police officer because the police officer is only authorised to detain the person until the DNA sampler can take the DNA sample. This assumption of authorisation is confirmed in the Operational Manual (Queensland Police Services, 2023), which states that the officer is to obtain the DNA sample and that the DNA sampler must take the sample if the police officer is not a DNA sampler. This implies that if the police officer who is not a DNA sampler was to take the DNA sample, it would be unlawfully obtained. Furthermore, this section implies that a person’s DNA is taken because proceedings for an indictable offence have started and not because the DNA sample is necessary as evidence in the criminal proceedings that have already started, making the collection of DNA samples routine, moving DNA analysis away from identifying a person of interest in a specific crime to developing the DNA database for future crime investigation.

Crimes Act 1958 (Vic)

Recent changes to the forensic procedures sections of the Crimes Act 1958 (Vic), which received significant amendments through the Justice Legislation Amendment (Police and Other Matters) Act 2019 (Vic), cause ambiguity within the legislation. The 2019 amendments introduced novel terminology, including ‘DNA person’, ‘DNA profile sample’, ‘DNA sample offence’, and ‘forensic sample offence’, which contradict the definitions of ‘child’, ‘suspect’, and ‘intimate’ and ‘non-intimate procedures’. Additionally, while the definition of ‘serious offence’ was not initially provided, it is notable that the definitions of ‘DNA sample offence’ and ‘forensic sample offence’ differ.

Section 464(2) of the Crimes Act 1958 (Vic) defines a DNA sample offence as ‘any indictable offence specified in Schedule 9’. Section 464FAC defines a DNA offence as ‘an indictable offence or any offence specified in Schedule 8’, and Section 464ZF defines a forensic sample offence as ‘an indictable offence or any offence specified in Schedule 8’. These different definitions for the same or similar concepts create ambiguity within the legislation. A further example of ambiguity is found with DNA profile samples, non-intimate and intimate procedures. A mouth scraping and saliva sample is defined as an intimate procedure, and taking a hair sample is a non-intimate procedure; however, a DNA profile sample is defined as ‘taking any blood, hair, or saliva samples or scraping from the mouth’. According to Section 464R, a non-consensual intimate forensic sample can only be obtained by court order. However, regarding the newly included Section 464SC, a senior police officer may authorise taking the DNA profile sample without consent. Thus, the amendments have introduced inconsistencies within the legislation.

3. Provisions for new technologies and applications

Most Australian jurisdictions’ legislation does not have provisions in respect of new technologies as shown in Table 3.

Table 3. Jurisdictions with provisions that support the possible use of familial matching, DNA phenotyping and genetic genealogy.

	Cth	NSW	Qld	SA	Tas	Vic	WA	ACT	NT
Familial matching	Unclear	Unclear	✓	Unclear	Unclear	Unclear	✓	Unclear	✓
DNA phenotyping	Unclear	Unclear	✓	Unclear	Unclear	Unclear	✓	Unclear	✓
Genetic Genealogy	Unclear	Unclear	Unclear	✓	Unclear	✓	✓	Unclear	✓

However, in Western Australia, legislation was amended in 2012 to make provisions for new technologies and future changes. The changes allow identification information to be compared with any other information, whether on a forensic DNA database or elsewhere and provide that the DNA sample may be used to obtain any identifying particulars of the suspect. This amendment therefore makes provisions for using DNA familial matching, DNA phenotyping, and genetic genealogy.

The Police Administration Act 1978 (NT) determines that the DNA analysis of a DNA sample must be a type or method of analysis prescribed by the regulations. The current regulations allow for analytic methods that accommodate familial matching and DNA phenotyping. Furthermore, the regulations allow for the sample, which in Section 147C means anything obtained from carrying out a forensic procedure, to be analysed for information to compare with any DNA profiles to obtain a person’s identification, determine gender or to link a person with another person, a place or a thing. Any information from the analysis of a sample may be recorded in databases maintained under the Act. This is wide enough to record a covert sample for comparison on the databases controlled by the Northern Territory in a genetic genealogy search.

Discussion

This study aimed to analyse the legislative amendments made to the forensic procedures legislation of Australia’s Commonwealth, States and Territories between 2010 and 2022. The intention was to consider the extent to which this legislation has retained the initial intent of balancing the rights of the individual with the intervention preferences of criminal justice system official (as defined in criminal justice terms by the state and specifically, through reference to notions of investigative and prosecutorial necessity). Although some amendments have aimed to enhance individual rights through simplification and clarity (e.g., explicit consent from volunteers to store their sample in an unlimited index), the overall findings of this study suggest a departure from the balance between individual rights and the state interests. There has been a gradual shift away from safeguarding individual rights in favour of police investigation. This is evidenced by seemingly insignificant legislative amendments that nonetheless have far-reaching implications. These changes, such as the removal of magisterial oversight and the extension of police powers, potentially undermine fundamental principles of criminal jurisprudence, civil liberties and individual privacy.

Potentially conflicting emphases within a jurisdiction’s forensic procedures legislation also contribute to confusion and ambiguity within the jurisdiction. Unclear provisions and inconsistent definitions can lead to disparities and inequities in the application of the law across different jurisdictions, particularly when cross-jurisdictional data-sharing is involved. Furthermore, the lack of specific regulations for new technologies raises concerns about the granting of disproportionate powers to law enforcement without adequate safeguards for civil liberties, and individual rights should law enforcement use the new technologies. These developments run counter to the recommendations of statutory reviews, which emphasise public scrutiny and restrictions on how certain technologies are to be used. Overall, the findings suggest a movement away from protecting the rights of the individual in the course of criminal justice interventions. The Model Bill for forensic procedures legislation, the initial Commonwealth legislation and the statutory review by Sherwood (2003) and Ford (2010) emphasised the need for safeguarding of individual rights and interests. However, the findings from this study provide evidence of a gradual move away from safeguarding the rights and interests of individuals in favour of police investigation through several undebated and seemingly unimportant legislative amendments in most jurisdictions. Several specific issues revealed by this study are discussed below.

A legislative amendment to reclassify the buccal swab from intimate procedure to non-intimate procedure, bringing the Commonwealth legislation in line with other jurisdictions seems like a reasonable and unimportant change; however, the impact of the change is that it removes the requirement of magisterial oversight when a suspect refuses to consent to the forensic procedure. This directly contrasts with the original legislation that regarded the magisterial oversight as an important safeguard of individual rights (Commonwealth of Australia House of Representatives, 1995). Other jurisdictions had similar superficially insignificant changes with far-reaching effects. For example, Queensland’s amendment to Sections 481 and 482, which removed the requirement of authorisation for the taking of the DNA sample by a senior police officer where proceedings have started against a suspect and Victoria’s addition of ‘DNA sample person’, ‘DNA sample procedure’ and ‘DNA sample offence’ extended the police powers to request DNA samples without previously necessary oversight.

In New South Wales, a DNA sample may be requested and authorised for any offence if the procedure is a non-intimate procedure, such as a self-administered buccal swab or removal of a hair. Obtaining a DNA sample for any criminal offence expands the authority of law enforcement and tilts the scale of public safety towards state intervention, potentially overshadowing the rights of individuals (Oosthuizen et al., 2022). This supports the argument made by Corns (1992; Oosthuizen & Howes, 2022) that the expansion of police authority has eroded the longstanding foundations of English criminal jurisprudence, including the principles of safeguarding against self-incrimination, the right to maintain silence, and the presumption of innocence with the burden of proof resting on the prosecution.

Differences in key definitions across jurisdictions, along with the absence of definitions in certain jurisdictions like Queensland and the Northern Territory, introduce uncertainties when interpreting legislative provisions. These inconsistencies can result in inequalities, particularly when variations exist in the definitions of terms such as ‘suspect’, ‘child’, ‘volunteer’, or ‘serious offence’. For instance, in Tasmania, individuals aged 15–18 years might be considered suspects in relatively minor offences, leading to their DNA profiles being included in the NCIDD. However, this inclusion may conflict with Part 1D of the Crimes Act 1914 (Cth), which could pose challenges. Additionally, discrepancies regarding the timeframe for removing a suspect’s DNA profile from the NCIDD after their release may lead to differing outcomes across jurisdictions. For instance, in the Northern Territory, a suspect who has been released without further pending charges may remain on the DNA database indefinitely, unlike in other jurisdictions where removal may occur sooner.

Presently, Western Australia is the only jurisdiction that has amended its legislation explicitly to accommodate new technologies. However, this amendment has adopted a broad approach, permitting the utilisation of current and future technologies without well-defined regulations or parameters. The amendment was enacted without prior consultation or public debate. Furthermore, the expansive powers granted to police investigators under this amendment may be considered disproportionate to safeguarding civil liberties and individual rights. Furthermore, the amendment directly contrasts with the recommendations of both statutory reviews regarding new technologies. The Sherwood report (2003) recommended that DNA phenotyping be prohibited. The Ford Review (2010) recommended that any significant new techniques and technologies should not be employed until after having been subjected to public scrutiny, and both reviews recommended that Part 1D of the Crimes Act 1914 (Cth) should contain provisions prohibiting the matching of samples with profiles from other databases that have been constructed for non-law enforcement purposes, effectively recommending against the use of genetic genealogy.

The present study explored the differences in legislation across jurisdictions in the Australian context. The findings showed seemingly small differences with potentially larger disparities in police powers and implications for individual rights when data are shared across jurisdictions. The findings reflect similar issues in differences across countries in the European context (Hufnagel, 2012), where data sharing provisions such as the Prüm Agreement apply (Amankwaa & McCartney, 2021). The findings highlight a need for debate and discussion to work toward consensus and harmonisation.

Limitations of the study

Any comparative analysis of legislation is fraught with complexity. Direct word-for-word comparison is not possible because legislation is structured in unique and sometimes intricate ways. Comparison is necessarily an interpretive exercise. Nevertheless, this study provides insights on the current state of affairs of forensic procedures legislation across Australian jurisdictions. It would be worthwhile for further research to draw comparisons between Australian legislation and that of other jurisdictions that are at the forefront of change in forensic procedures internationally (Amankwaa & McCartney, 2021; Hufnagel, 2012). It is likely that such research would add weight to the findings of the current study, that there is an urgent need for comprehensive reform of the forensic procedures legislation in Australia to safeguard protections. Although the present paper focuses on the forensic procedures legislation of Australian jurisdictions, these considerations are of international relevance given the increased need for cross-jurisdictional data sharing and the advances in technology that necessitate legislative guidance.

Conclusion

The main aim of the study was to consider the extent to which forensic procedures legislation has retained the initial intention of balancing the current rights of the individual with those of criminal justice agencies tasked with dealing with matters of crime and justice. In doing so, the study noted differences between jurisdictions’ forensic procedures legislation that may affect harmonisation; identified potential issues or inconsistencies within the forensic procedures legislation of jurisdictions; and examined any legislative provisions for new technologies and applications of forensic DNA.

While this study has revealed discrepancies and provided examples from different jurisdictions, a more detailed exploration of the implications of these findings is necessary in order to contribute to the public debate about necessary and/or preferred legislative changes. The Sherwood (2003) and Ford (2010) reviews identified problems within the legislation of the Commonwealth, States and Territories, which have not yet been rectified. For instance, rapidly advancing technologies and increased inter-jurisdictional sharing of DNA profiles require harmonised legislation. Fundamentally, this simultaneously requires urgent consideration of the rights of individuals in light of recent developments, including the use of current and future technology in policing and security more broadly.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by Australian Government Research Training Program Scholarship.