Forensic DNA analysis and legislative provisions: Balancing rights in a time of scientific advancement

Abstract

This article considers the historical development of DNA-related forensic procedures legislation in Australian jurisdictions from a critical forensic studies lens. It shows that the original intent of such legislation was to balance society’s need for effective crime control against certain rights of the individual, such as privacy and bodily integrity, and the rights of a suspect to due process. The article documents how the initial legislative intent has been eroded. This has occurred because, in conjunction with the continued development of DNA techniques, the use of forensic DNA data has been routinised. The current legislation focuses too much on crime control, while consideration of the suspect's right to privacy, dignity and honour, as required by the initial legislation, has decreased in relative importance.

The use and importance of forensic DNA analysis within the criminal justice system has increased dramatically in the last decade. This can be attributed to advancements in scientific knowledge and improved technical abilities to detect DNA, extract DNA, and compute DNA data. ¹ Forensic DNA analysis is important beyond its role as evidence in court; its potential for use as a tool in police investigations and as intelligence is increasingly being realised. Politicians and law enforcement agencies consider DNA evidence pivotal to the investigation of crime. ² Crime scene DNA is used not only to exclude suspects but also to generate leads. A profile developed from crime scene DNA that is linked to one held in the DNA database generates a possible suspect for further police investigation. However, when no matches are found and the case meets the jurisdictional threshold, police may use more advanced techniques to create new suspect lists. ³

In serious cases, the police may request that the database be searched for familial DNA matches. ⁴ Following a familial DNA search, a suspect list can be generated based on an apparent biological relationship between the unknown suspect (using the crime scene DNA) and a known person’s DNA profile (on a criminal investigation DNA database). ⁵ Additionally, the process of DNA phenotyping makes it possible to predict a person’s externally visible characteristics, such as eye, hair and skin colour (as well as other genetic traits), and to predict biogeographical ancestry. ⁶ In cold cases, genetic genealogy searches can be used to create new investigative leads. Investigative genetic genealogy (IGG) makes use of databases managed by private companies such as FamilyTreeDNA. ⁷ The scientific techniques used in familial matching, DNA phenotyping and genetic genealogy require analytic techniques that rely on ‘coding’ parts of the DNA containing more individual information than the arguably ‘non-coding’ parts of DNA used to develop the forensic DNA profiles that are stored in databases. ⁸

The legislation relating to forensic DNA in different Australian jurisdictions was initially developed in 2000. According to the explanatory notes to the Model Bill, the Bill aimed to harmonise legislation across jurisdictions in key areas – such as the collection, analysis, sharing, retention, storage and destruction of DNA samples and profiles – while balancing the social need for safety against a number of recognised human rights such as the rights of suspects to due process. However, not all jurisdictions adopted the Model Bill, resulting in different legislative provisions in some of the key areas of DNA procedures across jurisdictions. Since then, legislation has led to differences in the continual growth in forensic procedures across Australian jurisdictions. ⁹

This article considers the historical development of Australian forensic procedures legislation through a critical forensic studies lens, by analysing the initial legislation and subsequent changes. The article first discusses some human rights as relevant to forensic DNA use before showing that the original aim of the legislation was to balance the human rights of the suspect against the public interest. Focusing on consent to take a DNA sample from a suspect, the article shows how the changes made to legislation over time have eroded the initial legislative intent and no longer strike an appropriate balance. By routinising the use of DNA data and prioritising police powers that rank safety over other considerations, the current legislation focuses too much on safety and crime control, increasing its relative importance, while substantially eroding the explicit consideration of the suspect’s rights to privacy, dignity and honour.

There is a strong focus in recent literature on the scientific development of new technologies. In the absence of regulations, new technologies are seamlessly incorporated into crime investigation. However, comparatively little research has examined the human rights implications of using the new technologies. This article highlights the gap in the research and argues that the amendments to legislation have weakened the human rights protection included in the original legislation.

Human rights considerations

From the first application of forensic DNA analysis, there were debates around the desirability of such use within the criminal justice system. ¹⁰ At the heart of these debates was the consideration of human rights. These are the traditional rights aimed at protection of the citizen against arbitrary actions of the state. Human rights attach to people simply because they are people. ¹¹ This article argues that certain human rights relevant to forensic DNA use can include but are not limited to: freedom from discrimination; freedom from arbitrary arrest and detention; the right to a fair and public trial; the right to dignity; and freedom from interference in privacy.

The early debates around the inclusion of DNA analysis in the criminal justice process were described in terms such as the legal, and libertarian models, each with arguments for or against the continued use of forensic DNA analysis. ¹² The primary concern of the legal model is the conviction of the guilty; it suggests that any expansion of police powers to accommodate the new DNA technology is necessary to secure the safety of the public and protect people from crimes of violence in particular. ¹³ In contrast, the libertarian model weighs the potential benefits of DNA profiling against the potential impacts on traditional criminal justice principles and certain human rights of the suspect; it questions the ‘infallibility’ of the scientific method. ¹⁴ According to Donnelly, there needs to be a balance between public interest and private rights, and such a balance is a matter of fierce debate that includes ‘[f]orensic practices as instruments of public policy’, which are an increasingly contentious issue. ¹⁵

Australia has long been a party to the International Covenant on Civil and Political Rights, ¹⁶ which states, in Article 17 subsection 1, that ‘no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation’ and subsection 2 grants to everyone ‘the right to the protection of the law against such interference or attacks.’ However, this is not domestic law and therefore is not a strong source of protection of individual rights in Australia. While Australia does not have a human rights instrument at the Commonwealth level, Victoria, ¹⁷ the Australian Capital Territory (ACT) ¹⁸ and Queensland ¹⁹ have human rights legislation. The Victorian Charter and both Acts place a duty on public authorities to balance the rights of individuals against broader community needs and contain a set of human rights and freedoms, including, among others, a right to a fair hearing, a right to privacy and reputation, and a right to protection from discrimination. However, the Commonwealth and the other states and have not made such duties explicit in legislation. Therefore, human rights protection, in this regard, is inconsistent. Human rights discourse, treaties and legislation refer to state obligations toward their citizens. The extensive reach of state power into the everyday lives of individuals means that the state can significantly impact the degree to which individuals can enjoy their human rights. Denying human rights impacts disproportionately on individuals, which is why there is a need for close and careful monitoring and independent action regarding how precisely the state intervenes in the lives of citizens (and residents).

The need for forensic procedures legislation

Before the advent of forensic DNA in criminal investigations, the legislation of all Australian jurisdictions included the power for police officers to conduct searches and use reasonable force in their investigations. However, it was not always clear whether these police powers included the right to force medical examinations or collect intimate or non-intimate bodily samples to pursue an investigation. Early use of forensic DNA analyses depended on a volunteer’s willingness to provide a DNA sample. Law enforcement agencies could not compel any suspect to undergo non-consensual DNA sampling. In Fernando v Commissioner of Police (1995) 36 NSWLR 567, the New South Wales (NSW) Court of Appeal confirmed that there was no power to compel a suspect to provide a sample of his or her blood, saliva, or other body material at common law. Using unauthorised physical force to obtain such samples would amount to assault and the arbitrary and unlawful attack on the suspect’s privacy, honour, reputation and dignity.

By 1989, most jurisdictions had already enacted some relevant legislation to collect biological samples. ²⁰ The ACT, NSW and Western Australia (WA) had legislation that authorised a person in lawful custody to be examined by a medical practitioner if it was believed on reasonable grounds that such examination would afford evidence for the commission of the crime. ²¹ Victoria required that police officers obtain consent to collect forensic samples, except when limited statutory exemptions applied, as they did for collecting gunshot residue and hair samples. ²² In Tasmania, South Australia, Queensland and the Northern Territory (NT), legislation explicitly included the taking of biological samples such as blood, saliva and semen. ²³ According to the second reading of the Crimes Amendment (Forensic Procedures) Bill 1997 (Cth), these early amendments to allow for the taking of biological samples did not include adequate safeguards for the suspect. More was needed to ensure a balance between the civil liberties of the individual and the requirement for police to have adequate investigative powers. ²⁴

Introduction of specific legislation

The Australian forensic procedures legislation was introduced in three phases: first, the Model Bill was developed; second, federal legislation was introduced; and third, legislation in the states and territories was amended (or introduced).

Development of the Model Bill

The inconsistencies in legislation across Australian jurisdictions led to the idea of a national criminal code for the conduct of forensic procedures. In 1990, a committee, first named the Criminal Law Officers Committee and consisting of a delegate from each jurisdiction, was formed. From 1993 the committee was named the Model Criminal Code Officer Committee then, later, the Model Criminal Law Officers Committee. ²⁵ The Committee developed the Model Bill, circulated the first draft for comments in 1994, and then redrafted it in 1995 and 1999, before finalising the Model Bill in 2000. ²⁶ The Bill drew on the recommendations of Victoria’s Report on Body Samples and Examinations (‘Coldrey Report’). ²⁷ The Model Bill was developed after two rounds of public consultations. ²⁸ One of the main aims of this Bill was to provide a template for state and territory forensic procedures legislation. ²⁹

The Commonwealth’s Crimes Amendment (Forensic Procedures) Bill 1995 followed and was based on the first version (1995) of the Model Bill. It proposed the insertion of Part 1D Forensic Procedures into the Crimes Act 1914 (Cth). The explanatory memorandum to the Bill outlined its purpose as follows:

The Bill lays down a principled and balanced regime for carrying out forensic procedures during the investigation of Commonwealth offences and for the storage, use and destruction of material derived from those procedures. The Bill carefully balances the rights of the suspect against the public interest in gathering evidence of serious offences. The rights and interests of suspects are protected by providing numerous safeguards, and by requiring scrutiny of magistrates before the carrying out of most procedures where a suspect does not or cannot provide consent. Further safeguards have been built in to protect those under 18, persons who are ‘incapable’, and Aboriginal persons and Torres Strait Islanders, as those groups may be particularly vulnerable in the circumstances contemplated by the Bill. ³⁰

Both the Model Bill, and the Crimes Amendment (Forensic Procedures) Bill 1995, were introduced and debated in Parliament in 1995. However, it was not until 1998 that the Crimes Act 1914 (Cth) was amended through the insertion of Part 1D.

The introduction of Commonwealth legislation

The Crimes Amendment (Forensic Procedures) Act 2001 (Cth) brought the Commonwealth legislation mostly in line with the Model Bill 2000, setting the standard to be followed by states and territories to achieve harmonisation of forensic procedures legislation. It added provisions for the conduct of forensic procedures on certain convicted offenders and volunteers (non-suspects), and the establishment of a national DNA database, and it can be argued that this marked the start of increased state powers and a move away from the initial aim of compelling forensic samples, including DNA, from a person who was reasonably suspected of committing a crime. ³¹

The introduction of the National Criminal Investigation DNA Database (NCIDD) – for the comparison of DNA profiles across jurisdictions – required states and territories to have corresponding laws relating to the conduct of forensic procedures and DNA databases. Legislation in the states and territories had to correspond substantially with Part 1D (Forensic Procedures) of the Crimes Act 1914 (Cth) or for a jurisdiction without substantially corresponding legislation, regulation can prescribe that the jurisdiction’s legislation is substantially corresponding with Part 1D for the purpose of comparison of DNA profiles across jurisdictions. ³²

Amendment or introduction of state and territory legislation

Although most states and territories introduced or amended legislation to provide for the use of forensic DNA analysis in criminal cases, not all jurisdictions followed the Model Bill 2000. This resulted in a delay in implementing a national criminal database because the states and territories did not have corresponding legislation. Several legislative reviews followed the initial forensic procedures enactments in the different jurisdictions. ³³ In the 2003 inquiry, Protection of human genetic information, the Australian Law Reform Commission (ALRC) and the Australian Health Ethics Committee found an absence of harmonisation of forensic procedures legislation throughout Australia. ³⁴ This finding led to several amendments to state and territory legislation. For example, in 2002 NSW introduced an amendment, Crimes (Forensic Procedures) Amendment (Corresponding Laws) Regulation 2002 (NSW), deeming that any other Australian jurisdiction’s forensic procedures legislation complied with NSW legislation. This would enable the inter-jurisdictional sharing of DNA profiles between NSW and any other jurisdiction. Similar amendments followed in other jurisdictions, including the Commonwealth.

The initial intent of the Model Bill,1994 was to enable law enforcement officers to compel the taking of a DNA sample from a suspect, for analysis and comparison with a DNA profile developed from DNA found at a crime scene. Further amendments resulted in a gradual move away from this intent; they led to an increase in police powers. For example, the Model Criminal Code Officers Committee ³⁵ had considered whether a buccal swab should be an intimate or a non-intimate procedure. It had classified the procedure as an intimate procedure in the Model Bill and, as such, a buccal swab was initially defined as an intimate procedure in the Commonwealth legislation. As an intimate procedure, the police required a court order to administer a buccal swab without consent. The rationale for its inclusion as an intimate procedure was that inserting a swab inside the mouth of a person who does not consent is invasive and requires the independent consideration of the court to justify the invasion of bodily integrity. ³⁶ In considering an application for an order to carry out a procedure not consented to by the suspect, the court must, on a balance of probabilities, be satisfied that the procedure is justified in all circumstances. In making the order, the magistrate must balance the public interest in obtaining the evidence and therefore ensuring public safety against the public interest of upholding the physical integrity of the suspect. In non-intimate procedures, a senior police officer authorises the procedure on the same terms as the court. For an intimate procedure, a suspect has the right to be heard and to appeal a decision by the magistrate, but this is not the case for a decision by senior police for a non-intimate procedure. ³⁷

However, not all jurisdictions followed the Model Bill 2000 in defining a buccal swab as an intimate procedure, with Queensland, Tasmania, WA, the ACT and NT all defining it as a non-intimate procedure. Following the 2010 review of Part 1D of the Crimes Act 1914 (Cth), the Commonwealth legislation was changed to define a buccal swab as a non-intimate procedure, allowing a senior police officer to authorise the procedure in the absence of consent from the person. The Police Powers and Responsibilities Act 2000 (Qld) was amended in 2014 to remove the requirement for a police officer to obtain the approval of a senior police officer before collecting a DNA sample from a suspect who did not consent to the procedure, after the criminal proceedings started. This amendment made the taking of DNA samples similar to other procedures involving the taking of identifying particulars. The example of this type of amendment clearly shows how the consideration of the right to the physical integrity of the suspect has been systematically eroded in favour of crime control.

More recently, the Law Institute of Victoria submitted a formal submission to the Legal and Social Issues Committee’s Inquiry into Victoria’s Criminal Justice System, ³⁸ raising concerns regarding the wide police powers under the Crimes Act 1958 (Vic) concerning the collection of DNA that may unfairly impact an offender, particularly due to the removal of court oversight.

This brief overview illustrates the complexity of enacting the original legislation to ensure a balance between the rights of suspects against the public interest in gathering evidence in serious offences.

Adequacy of current legislation and advances in DNA analysis

It has been argued – and we agree – that the current legislation in Australia relating to forensic biometrics, which includes DNA, is complex, ambiguous and, in some instances, inconsistent and unclear. ³⁹

It has now been more than 20 years since the introduction of forensic procedures legislation in Australian jurisdictions. By 2007, DNA identification was considered routine in criminal investigation processes. ⁴⁰ At the same time, DNA technologies continue to advance, with the potential to continue to introduce new forensic capabilities. DNA profiling is now capable of providing information that goes beyond the identification of a person. Unlike the development of DNA profiles, which use arguably ‘non-coding’ parts of a person’s DNA, these new techniques involve the use of ‘coding’ parts of DNA and far greater access to personal information about family relationships, bio-geographical ancestry, appearance and even potentially health information. Familial searching requires re-amplification of the original DNA sample using different DNA software and techniques such as Y-STR analysis. ⁴¹ Investigative genetic genealogy makes use of high-density single nucleotide polymorphism (SNP) profiles. ⁴² SNPs are the differences in the DNA sequence between people at a single position in the genome. ⁴³

As new techniques are developed, the debates about the use of DNA have continued to prioritise the expansion of police powers rather than human rights considerations. ⁴⁴ In the absence of legislative provisions that address new capabilities explicitly, the new techniques can be – and in some instances already have been – seamlessly incorporated into the use of forensic DNA analysis for the investigation of crime. DNA profiles are now shared more regularly across national and international jurisdictional boundaries. ⁴⁵ However, various sources of risk exist as forensic scientists, police investigators, prosecutors, lawyers, and judges may understand, interpret, or apply the current legislation differently in their roles in the criminal justice process. ⁴⁶

In addition to these capabilities, Rapid DNA technology has allowed for the development of devices that combine several DNA laboratory analysis processes into one process that can be used in the field by non-specialists. ⁴⁷ Whole-genome sequencing capabilities will generate a more complete genetic picture of a person, and make possible increasingly detailed genetic surveillance within criminal justice systems. ⁴⁸ The use of whole-genome sequencing capabilities will have significant ethical and legal implications. These include the impacts of reduced personal privacy, the viability and value of the de-identification of genetic data, and increased potential for police profiling. ⁴⁹

In short, DNA profiling as a criminal investigative tool is developing rapidly and raising ethical and legal questions that are not being addressed. ⁵⁰ These new applications and techniques may lie outside the scope of the current provisions of forensic procedures legislation. ⁵¹ Several authors have reviewed legislation in relation to the use of new forensic DNA applications. For example, Smith and Urbas examined Australian legislation with a focus on Part 1D of the Crimes Act 1914 (Cth). ⁵² They concluded that ‘familial matching appears to be permissible under this legislation’. However, they noted that some jurisdictions might have constraints. For example, the NT legislation contains provisions that the DNA must be analysed using a method prescribed by the regulations. In respect of DNA phenotyping, they found that it is ‘not currently regulated under Part 1D of the Crimes Act 1914 (Cth)’.

In their 2019 article, Scudder et al also found that the current Australian forensic procedures legislation does not regulate forensic DNA phenotyping; it is silent on the issue. ⁵³ The forensic procedures legislation in Australia mainly provides for the collection, analysis, storage and use of the DNA of suspects, convicted persons and volunteers. Consequently, Scudder, Daniel, Raymond and Sears argued in 2020 that DNA samples found at the crime scene from an unknown source can be subjected to advanced techniques of analysis, such as the techniques used in familial matching, DNA phenotyping and genetic genealogy searches. ⁵⁴ Rapid DNA technology was developed to be used outside the laboratory environment, such as at a police station or crime scene. In their analysis of current Australian forensic procedures legislation, Wilson-Wilde and Pitman ⁵⁵ concluded that, under the current legislative regimes, not all jurisdictions allow the use of Rapid DNA and the Commonwealth, NSW and WA legislation would require amendments to allow for its use outside an accredited laboratory.

The latest developments within Australian forensic DNA analysis are the introduction of new database capabilities and the interoperability of such data with other police systems to increase police intelligence. ⁵⁶ A new national intelligence agency, the Australian Criminal Intelligence Commission (ACIC), was formed in 2016 through a merger of CrimTrac (which held the NCIDD) with the Australian Crime Commission (ACC). This move was intended to improve Australian forensic identification through biometrics and forensic services. The ACIC provides core biometric matching services to policing services across Australia and other national and international bodies. ⁵⁷ The Australian government has enhanced the NCIDD capabilities with integrated forensic analysis (IFA), and:

[t]he NCIDD-IFA functionality provides … police partners and related agencies with a new forensic software to enable familial searching, kinship matching and advanced direct matching across Australia’s state and territory borders for law enforcement purposes. ⁵⁸

Forensic DNA analysis is a powerful tool in the face of rapidly expanding technologies. In the European Union, only France, Germany and the Netherlands regulate familial searches of criminal DNA databases, ⁵⁹ and the Netherlands regulates DNA phenotyping through legislation. ⁶⁰ In 2021, the US state of Maryland became the first jurisdiction in the world to enact legislation that comprehensively regulates the use of forensic genetic genealogy by law enforcement, requiring judicial authorisation before the technology can be used. ⁶¹ New Zealand’s Law Commission report recommends that familial searching, DNA phenotyping and genetic genealogy be regulated through new legislation and, further, that the use of DNA analysis techniques to infer ancestry should be prohibited. ⁶² The privacy risk incurred in uploading a DNA sample to a database has not been fully understood and explored; therefore, the use of new technologies must be regulated. ⁶³

Conclusion

DNA analysis will continue to develop into the future. This article has shown that, at present, the provisions in the legislation of Australian jurisdictions do not adequately consider recent advances in forensic DNA analysis and the potential for negative impacts such as the invasion of privacy, threats to individual dignity and honour, discrimination based on biogeographical heritage and unnecessary surveillance. In particular, the legislation is silent on new developments such as familial searching, DNA phenotyping, genetic genealogy searches, the use of Rapid DNA devices and the use of whole-genome sequencing. The potential for the application of these advanced techniques to DNA samples collected under current legislation is problematic. Such applications fall outside the original intention as stated in the explanatory memorandum to the Crimes Amendment (Forensic Procedures) Bill 1995 (Cth), which was to balance the rights of suspects against the public interest in gathering evidence of serious offences.

Without explicit guidance in the legislation, the potential exists not only for the unchecked and increased use of these DNA analysis techniques in the investigation of crime, but also for the associated risks to human rights. If unregulated, the scientific and technical capabilities to move beyond the arguably ‘non-coding’ areas of the DNA to whole-genome analysis will have profound future implications in respect of human rights. The use of forensic DNA analysis, like other forensic science, is an instrument of public policy, and its use must be appropriately balanced between the public interest and private rights. What is needed, first, is a comprehensive review of the current legislation to evaluate its suitability to continue to protect human rights and, second, a critical assessment of procedural protections and substantive rights that currently appear under threat.