Crimes (Forensic Procedures) Act 2000 - NSW Ombudsman - NSW ...

In mid 2005, Queensland and Western Australia uploaded data onto NCIDD, and can now search each other’s data
for possible links. Since the data was amalgamated, over a hundred links have been made. 108
3.3. DNA sampling in other Australian jurisdictions
There are now laws in every Australian state and territory governing DNA sampling and other types of forensic
procedures. While they differ to varying degrees from the model bill, none are vastly different from the New South
Wales Act. Rather than provide a comprehensive explanation of each jurisdiction we have outlined the key provisions
of the relevant legislation, and noted any significant differences from New South Wales’ position. We also focus
on provisions affecting suspects and volunteers, as we have already reported on the DNA sampling of convicted
offenders. 109
Each jurisdiction adopts the distinction between “intimate” and “non-intimate” forensic procedures, 110 but there are
some differences in how certain procedures are categorised. For example, some jurisdictions treat buccal swabs as
intimate procedures, while others treat them as non-intimate or separately (as in New South Wales). The distinction
is important, as there are greater limitations on when intimate procedures can be conducted than when non-intimate
procedures can be conducted.
Each jurisdiction’s police service uses a particular laboratory to conduct the bulk of its forensic work, including DNA
analysis. About half the laboratories are controlled by the relevant police service, and the other half are part of the
state or territory’s health department. As well as the government laboratories, there are also several private and
academic forensic service providers. 111
3.3.1. Commonwealth
Part 1D of the Crimes Act 1914 (Cth) sets out a comprehensive regime for forensic procedures in the federal
jurisdiction. It is largely the same as the New South Wales Act, as both closely follow the model bill. The types of
forensic procedures covered are the same, and may be carried out on suspects, volunteers and certain convicted
offenders. Part 1D sets out how forensic procedures must be carried out, when forensic material must be destroyed,
and also provides for the establishment of a DNA database. As in the New South Wales Act, there are specific
legislative safeguards for Aboriginal and Torres Strait Islander suspects and volunteers.
There are some differences between the Commonwealth and New South Wales legislation:
• Under the New South Wales Act, police must consider whether requesting or ordering a forensic procedure
is “justified in all the circumstances”, before asking for consent or making the order. 112 The Commonwealth
legislation goes further, by requiring police to balance the public interest in obtaining evidence against the
public interest in upholding the physical integrity of the suspect. It also specifies a number of factors the
officer must consider in conducting this balancing exercise, including the seriousness of the offence, the
circumstances surrounding its commission, the degree of the suspect’s alleged participation, personal
characteristics of the suspect (including age, health, cultural background), whether evidence of the suspect’s
involvement in the offence can be gained in a less intrusive way, any reasons given for refusing consent, and
other relevant matters. 113 Magistrates hearing applications for orders authorising forensic procedures receive
similar guidance under the Commonwealth Act, but not under the New South Wales Act. 114
• The Commonwealth legislation only provides for forensic procedures to be conducted in relation to indictable
offences. Under the New South Wales Act, certain forensic procedures (although generally not DNA sampling)
can be conducted in relation to summary offences as well as indictable offences. 115
• Time limits for conducting forensic procedures are longer under the Commonwealth Act – generally a
procedure must be conducted within four hours. Under the New South Wales Act, the time limit is generally two
hours. 116
• Under the Commonwealth legislation, buccal swabs are classified as intimate procedures. Under the New
South Wales Act, they are categorised separately. 117
Part 1D was reviewed in March 2003. The main deficiency identified by the review was that because CrimTrac is not
operational, there was very little experience of the operation of Part 1D to review. However, the review emphasised the
need for improved accountability arrangements both within and across Australian jurisdictions. 118
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 21