Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Hansard source

It is nice on occasion to see that the government has the same difficulties that we in opposition do with the confusion sometimes of these matters between the houses. I rise to speak on the Crimes Act Amendment (Forensic Procedures) Bill (No. 1) 2006. This bill amends and clarifies part 1D of the Crimes Act to take account of concerns held by the state governments that they are currently not able to fully implement the NCIDD due to legal issues surrounding the sharing and transfer of data.

The bill will hopefully be one of the last planks in the creation of the national DNA database—or the National Criminal Investigation DNA Database, as NCIDD stands for—removing one of the remaining legal obstacles to the creation of the database. The bill inserts a new provision into the Crimes Act which provides for the creation of the database, as well as making a number of other amendments in order to clarify various points of law and amend drafting errors.

The database was one of several that CrimTrac was tasked with building when the agency was first established in 1998. The object was to create a new DNA database containing DNA profiles from all Australian jurisdictions and a database that could be accessed by Australian police across all jurisdictions. CrimTrac’s annual report describes the purpose of the database as providing:

... police with access to a national DNA database and the capability to conduct rapid, automated inter-jurisdiction and intra-jurisdiction DNA profile matching.

The database contains samples of DNA taken from crime scenes and samples of DNA taken from criminals. The object, very basically, was to allow a police officer in Queensland to take a DNA sample from a crime scene, perform a search on the database and then discover, for instance, that his or her profile of DNA matched a profile that had been entered onto the database in South Australia or Victoria.

The benefits of such a scheme are immediately obvious. More criminals will be caught, and that is of course a great comfort to the victims of crime and the family members who are left to support, care for and sometimes even grieve for them. Such schemes should deliver a better justice outcome as time goes by, in that fewer innocent people will be convicted of crimes they did not commit.

The Labor Party supports this scheme. We are very enthusiastic about it, as it clearly has the potential to be of enormous benefit in the fight against crime. Properly used, it can become a key tool for law enforcement. Unfortunately, as with most of CrimTrac’s databases, it has got off to a rocky start. To be fair, I will note that the ANAO report into CrimTrac from 2004-05 found that the problems were mainly legislative in nature. By virtue of the fact that it attempts to be a national DNA database, it also has to navigate a minefield of differing legislation, memorandums of understanding and other agreements.

Currently, it is used by states for varying purposes. New South Wales, the Commonwealth, the ACT and Tasmania use the database but only for intrajurisdictional matching—that is, matching only within their jurisdictions. Western Australia, the Northern Territory and Western Australia use, to various degrees, interjurisdictional matching. However, as I have already said, the vision of the database as a truly national database has not yet been realised.

The legislation before us today seeks to overcome one of the remaining legislative impediments to interjurisdictional data matching. A number of state governments currently hold reservations about the legality of the transfer of information from their databases to the national database—and vice versa—and whether information held by the states could be lawfully disclosed.

The legal question, as it was put in the Senate committee report, was based on the status of the national database. Is it a Commonwealth database? Is it an amalgam of state and territory databases? The legislation before us today seeks to answer that question and to remove, hopefully, the last or one of the last legislative impediments to cross-jurisdictional data matching. As noted above, the legislation itself makes a number of changes to the Crimes Act to clarify the legislation and to make one substantive change to allow the presence of a police officer at forensic examinations where samples are gathered.

The bill proposes to insert a new section 23YDACA—I can see a renumbering process having to be before us at some time in the future—into the Crimes Act. It is a provision which specifically allows for the creation of the national database, based on the integration of information resident on the Commonwealth DNA databases, either in whole or in part, and the state and territory DNA databases, again, either in whole or in part. The integration of the state, territory and Commonwealth databases and information contained on those databases is now specifically provided for in the legislation. The item also provides that the NCIDD may be accessed in part by state and Commonwealth oversight and by other authorities for the purpose of conducting an audit.

While Labor agrees with the sentiment of this section, a problem with it was noted in a submission from the Privacy Commissioner of New South Wales during the committee process in that the word ‘audit’ was not wide enough to encompass the full range of activities for which the NCIDD may need to be accessed. The commissioner identified that their access of the database would be for the purposes of conducting an investigation rather than an audit. This leads to some confusion about whether such entities will be able to access the database. To that end, the Senate Standing Committee on Legal and Constitutional Affairs has recommended an alteration to this section to ensure that it is clear that entities such as the privacy commissioner can access the database for reasons other than strictly to conduct audits.

The bill makes a number of alterations to existing sections. These are minor items which alter various sections of the act—for example, to alter the phrase ‘DNA database system’ to ‘Commonwealth DNA database system’ and to clarify the distinction between the Commonwealth DNA database and the state and territory DNA databases.

Finally, the bill proposes an amendment which would allow the presence of a prison officer while forensic samples are taken from a prisoner. Currently, the presence of constables, medical practitioners, dentists and, in certain cases, a legal representative is allowed. The move to allow for the presence of a prison officer during these procedures is sensible and, again, one that the Labor Party supports.

As this chamber might be aware, the bill has already been examined by the Senate Standing Committee on Legal and Constitutional Affairs, which, overall, endorsed the bill, stating in its report that the committee considered ‘the bill will successfully resolve any lingering legal impediments to the transfer of information to and from the database,’ subject of course to the enactment of complementary legislation by the state governments. Aside from supporting the bill, the legal and constitutional committee made only one further recommendation, which was to alter section 23YDACA(2). The problem with this section of the bill as it stood in the other place has already been touched upon in my speech:  there was confusion as to whether or not oversight bodies could access the database for reasons other than conducting audits. Oversight bodies may have legitimate reasons to wish to access the database for oversight purposes which are not necessarily audits. As such, the committee recommended that the proposed subsection be amended to clarify the access rights for investigating agencies. This was a technical recommendation to ensure that the bill operates as it was intended rather than to alter the operation of the bill. It was agreed to and the government moved amendments in the committee stage in the other place to give effect to this recommendation.

In conclusion, as I said at the start of my speech, the national database, when fully functional, will become an invaluable tool for law enforcement agencies across Australia. The Labor Party fully supports the creation of this database and looks forward to its full operation across all state and territory jurisdictions along with the Commonwealth. As such, Labor supports the bill and commends it to the House.

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