Australia

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DNA databases operate in each state/territory and CrimTrac's National Criminal Investigation DNA Database (NCIDD) allows the nine Australian jurisdictions to match profiles.

The 2008 Interpol survey reports that 97,705 crime scene DNA profiles and 276,237 individuals' profiles, plus 30 missing person and 15 unknown/deceased DNA profiles were held in Australia at the time of the survey. According to Interpol, these numbers grew to 160,715 crime scene DNA profiles, 418,672 reference DNA profiles from individuals, 103 missing persons' DNA profiles, plus 157 unidentified human remains DNA profiles in 2011.

South Australia, Western Australia and the Northern Territory allow DNA profiles taken from innocent people to be retained. Concerns have also been expressed in Queensland that poor practices mean DNA profiles from innocent people are not being removed.

Resources


Detailed analysis

In Australia, legislation operates on a commonwealth level across all states as well as on a state to state basis. On the commonwealth level, the Commonwealth Crimes Act of 1914 (as amended up to July 2008) regulates the taking, use and destruction of fingerprints and DNA samples.


With regard to DNA samples –

  • Part ID of the Act deals in detail with forensic procedures and provides for forensic procedures to be carried out on suspects in relation to indictable offences, offenders in relation to prescribed and serious offences and volunteers.
  • An intimate or non-intimate DNA sample can be collected from a suspect with his or her consent. If consent is not given then a non-intimate sample can be collected from a suspect in custody, by order of a senior constable. An intimate sample can only be collected without the suspect’s consent by order of a magistrate.
  • The Act makes provision for the taking of intimate and non-intimate samples from offenders convicted of serious (and other stipulated) offences.
  • The Act also provides for the taking of samples from volunteers and provides that if consent is withdrawn, by a volunteer, then the forensic procedure will not continue and the information obtained will be deleted. A magistrate can in exceptional circumstances order that forensic material obtained from a volunteer who has subsequently withdrawn his consent be retained for a specific period.
  • Samples taken from suspects must be destroyed after a period of 12 months has elapsed since the material was taken, unless a magistrate extends the period, and proceedings have not been instituted against the suspect or the suspect has been acquitted of the relevant offence.
  • Any forensic material obtained from a convicted offender must be destroyed, if such offender’s conviction is quashed.

Three states in Australia have adopted legislation to make provision for the retention of forensic samples (DNA and fingerprints), where a person is not convicted of an offence: South Australia, Western Australia and the Northern Territory. CrimTrac's DNA National Criminal Investigation DNA database (NCIDD) allows the nine Australian jurisdictions to match DNA profiles. It operates in accordance with relevant Commonwealth, State and Territory legislation governing the collection and matching of DNA profiles. DNA profiles will be removed from the database in accordance with destruction dates notified by the jurisdictions.


New South Wales (NSW)


The Crimes (Forensic Procedures) Act of 2000 No 59 came into operation in 2001 and regulates DNA sample collection, usage and destruction in NSW. The custodian of the database is CrimeTrac in Canberra.


Sample collection and entry criteria:

Forensic procedures may be performed on:

a.Suspects: before authorising a non-intimate procedure, the senior police officer must be satisfied that:

(i) The suspect is under arrest;

(ii) The suspect is not a child or incapable person;

(iii) There are reasonable grounds to believe that the suspect has committed an offence;

(iv) There are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect has committed an offence;

(v) Carrying out of such a procedure is justified under the circumstances.

b. All convicted serious indictable offenders serving sentences in New South Wales correctional centers, whether convicted before or after the legislation comes into force. A serious indictable offender is defined as a person convicted of an offence carrying a maximum penalty of five or more years of imprisonment.

c.On a volunteer, other than a child or incapable person, with the volunteer’s informed consent.

d. Unknown deceased persons.

e. Missing persons.


DNA samples may only be taken after obtaining a court order in the following circumstances:

a.DNA samples taken from children or incapable persons;

b.DNA samples taken from a suspect not under arrest who does not consent to a procedure; and

c.An intimate forensic procedure or buccal swab on a suspect under arrest who does not consent to such a procedure.


The criteria for a magistrate making a court order are similar to that for a senior police officer’s order. The magistrate must be satisfied that the person is a suspect, there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed a relevant offence, and that the carrying out of the procedure is justified in all the circumstances.


Sample retention: The Act provides for the destruction of forensic material obtained from a person who is acquitted or whose conviction is quashed. It also ensures that forensic material taken from a suspect is to be destroyed if proceedings against the suspect have not commenced within 12 months of the material being taken, unless a court is satisfied that there are special reasons for extending the 12 month period or where there is an outstanding warrant against the suspect. By contrast, DNA profiles taken from volunteers for limited purposes may only be matched against the crime scene in respect of which the volunteer has freely provided his or her DNA.


Removal of entries:

  • Twelve months from the day that the DNA profile was placed on the system.
  • If the DNA profile is derived from forensic material taken from a volunteer, the DNA profile must be removed from the database after the period agreed by the volunteer and the Chief Commissioner of Police.
  • The period will be determined by the Chief Commissioner of Police for unknown deceased persons.

The database does not contain the identities of persons who have supplied samples for DNA profiling. Identity fields are removed from records before they are transmitted to the national DNA database. Only State and Territory forensic laboratories supplying the DNA profiles will know the identities of the profiles' providers. The Act sets out the forensic procedures that may be carried out on suspects. There are two types of procedures: (a) A non-intimate forensic procedure (such as the taking of finger or palm prints, a sample of non-pubic hair or the taking of a sample from under a nail); (b) An intimate forensic procedure (such as a blood sample or dental impression).


South Australia


The Criminal Law (Forensic Procedures) Act 2007, provides for the carrying out of forensic procedures to obtain evidence relevant to the investigation of criminal offences and makes provision for a DNA database system:

  • The Act distinguishes between procedures to be followed depending on whether the person from whom a sample is to be taken is a volunteer, a suspect or a convicted offender.
  • Volunteers and victims procedures: Only carried out with the consent of the person involved. If consent is withdrawn any evidence obtained from the procedures is inadmissible. Material can be retained, where consent is withdrawn, if a senior police official makes an order authorizing such retention based on the fact that the person is a suspect in a serious offence.
  • Suspect procedures: May be carried out regardless of whether or not the suspect is in lawful custody, but is limited to the fact that the person is suspected to have committed a serious offence. Where consent is not given, reasonable force may be used to obtain the samples.
  • Offender’s procedures: The section applies regardless of whether a person was convicted before or after commencement of the Act.