Johnson, Robert --- "Two steps forward, one big step back: Tasmania's new forensic procedures law and young people" [2001] AltLawJl 90; (2001) 26(5) Alternative Law Journal 236

• Two steps forward, one big step back: Tasmania’s new forensic procedures law and young people
• Key factors in comparing jurisdictions
• Procedural safeguards and provisions
• Whither national uniformity and global obligations?
• Concluding comments

Two steps forward, one big step back: Tasmania’s new forensic procedures law and young people

Robert Johnson^[*]

The Forensic Procedures Act 2000 (Tas) is out of line with moves towards a national criminal code.

For good reasons, the bipartisan support which saw the recent implementation of two parallel Acts in the Tasmanian youth protection and justice areas, was very welcome. The Youth Justice Act 1997 (proclaimed on 1 February 2000) and the Children, Young Persons and Their Families Act 1997 (proclaimed on 1 July 2000) introduced important improvements in this regard, including the introduction of diversionary options in the juvenile justice system and the appointment of an independent Commissioner for Children. Two steps forward.

The same cannot be said for the bipartisan support which saw the swift passage through the Tasmanian Parliament of the Forensic Procedures Bill in December 2000. The Forensic Procedures Act 2000 was proclaimed on 1 January 2001 and marks a grave departure from such progressive law reform in its provisions for DNA^[1] testing in relation to offences. The legislation follows the groundwork laid down by the Model Criminal Code Officers Committee (MCCOC), including the drafting of a ‘Model Forensic Procedures Bill’ (the Code),^[2] although it is barely recognisable in comparison.

This article considers the provisions of the Tasmanian Act with respect to the parallel provisions in the Code as well as in corresponding legislation in other Australian jurisdictions, particularly as they relate to young suspects. It will be clear to the reader that this represents but the tip of the iceberg in highlighting concerns and issues for other young people, especially those charged with an offence and/or in custody.

Key factors in comparing jurisdictions

Before proceeding to consider comparable provisions in parallel jurisdictions, it is necessary to mention primary factors considered important in making such comparisons. In looking at the DNA testing of young people suspected of committing an offence, the main factors are:

• the age of the young suspect;

• their capacity or otherwise to grant ‘informed consent’;

• the seriousness of the offence which warrants DNA testing;

• the issue of who may approve the taking of DNA; and

• the means by which their DNA may be taken, and associated safeguards.

The issue of the capacity of a child to give informed consent is a complex and contentious question. In this short article, it is simply noted that MCCOC explicitly provided in the Code that a person under 18 years ‘cannot consent to the carrying out of a forensic procedure’. With respect to the capacity of a child’s parent to grant such consent, MCCOC recognised ‘that parents or guardians will not always look after the best interests of the child (for example the parent may be a suspect in the investigation of an assault on the child)’.^[3]

MCCOC’s notion of a relevant offence was a serious offence, defined as one which carries a maximum term of imprisonment of at least two years. Some jurisdictions have wisely erred on the side of caution in these early stages of the application of DNA technology in the criminal justice system. For example, New South Wales defines a serious offence as one carrying a maximum of at least five years imprisonment (along with offences that may be specified in accompanying regulations). Pushing the range of testable offences well below a national standard will have implications for the integrity of the national DNA database and will result in net-widening which is inconsistent between jurisdictions. Also, embracing much lesser offences — with its associated labelling of a young person as a serious offender and their placement on a criminal database — runs a great risk of damaging the objectives of diversionary options in the juvenile justice system, with the focus on avoiding such labelling and the pursuit of strategies to reduce recidivism: a key objective of the Youth Justice Act 1997.

While DNA legislation provides for a fairly wide range of procedures in taking DNA, there are three methods which are likely to be most common (and are most common in forensic medicine): blood, saliva and buccal swabs.^[4] Consequently, this article focuses on those three procedures in comparing provisions.^[5] The important distinction made of procedures is to define them as either intimate or non-intimate, with the former carrying greater safeguard provisions, especially for young people.

In drafting the Code, MCCOC specifically defined saliva and buccal swabs as intimate because of the need to ensure ‘that the person from whom it is taken will have the right to have the procedure considered by a magistrate … Placing something inside someone’s mouth against the person’s consent is invasive’.^[6] MCCOC could not even imagine that blood specimens might be deemed as anything but ‘intimate’, and noted that its stance in this regard had also been supported by the 1995 Easteal Committee, which included senior police and prosecution representation from WA, Queensland, Tasmania and the Commonwealth. MCCOC simply said that ‘watering down a category of sample from being intimate to non-intimate cannot be justified’.^[7]

With these points in mind, it is clear from Table 1 that the Tasmanian Act is distinguished from the legislation elsewhere in Australia as follows:

Table 1: Forensic procedure provisions for young people (suspects only)

	Legislation	Definition of child	Can child give informed consent?	Type of offence (suspect)	Who approves DNA test?	Classification of primary tests (blood, buccal swabs, saliva)
Commonwealth	The Model Code	10≥child<18	No	Indictable	Magistrates order	All Intimate
	Crimes Act 1964	As for Code	No	As for Code	As for Code	As for Code
New South Wales	Crimes (Forensic Procedures) Act 2000	As for Code	No	As for Code	As for Code	As for Code (buccal swabs separately listed but treated the same)
Victoria	Crimes Act 1958	10≥child<17	No	As for Code	As for Code	As for Code
South Australia	Criminal Law (Forensic Procedures) Act 1998	As for Code	No	As for Code	As for Code	Non-intimate, but blood & buccal swabs appear to be ‘intrusive’
Queensland	Police Powers & Responsibilities Act 2000 (& Juvenile Justice Act 1992)	As for Code	Not if <14 years; 14+ can consent in presence of ‘support worker’	As for Code	10-13: Children’s Court order; 14-17: consent or Children’s Court order	Applies to hair sample or mouth swab only; swab to be taken by suspect
Australian Capital Territory	Crimes (Forensic Procedures) Act 2000	As for Code	No	As for Code	As for Code	Saliva & buccal swabs are non-intimate; blood is intimate
Northern Territory	Juvenile Justice Act	As for Code	No	Penalty of imprisonment if committed by adult	Approval of Magistrate or, if appears to be 14+, Police Superintendent (non-intimate only)	Saliva & buccal swabs are non-intimate; blood is intimate (Intimate tests can’t be performed on a child)
Tasmania	Forensic Procedures Act 2000	10≥child<15 (15+ years as per adult)	Yes 10-14 years if their parent also consents; 15+ as per adult	Indictable, plus specified non-indictable offences	10-14: consent (& of parent) or magistrates order; 15+: consent or police order (non-intimate) or magistrates order (intimate)	All non-intimate
Note: Western Australia was not included as no relevant legislation has been proclaimed (refer Criminal Investigation (Identifying People) Bill)

•

• Tasmania’s is the only Act which defines all three procedures (blood, saliva and buccal swab) as non-intimate (South Australia also does so, but adds some safeguards by further defining blood and buccal swabs as ‘intrusive’, and nevertheless requiring a magistrate’s order);

• Tasmania’s is the only Act to treat those aged between 15 and 17 years as adults (Victoria does so only for 17 year olds), with the associated removal of any such protections and rights for such young people as apply elsewhere in Australia;^[8]

• Tasmania’s is the only Act to presume that young people aged from ten years are capable of granting informed consent (for 10–14 year olds, so long as their parent also consents — despite the earlier-stated MCCOC concerns) (Queensland makes broadly similar provision for 14–17 year olds as Tasmania makes for 10–14 year olds, although for a more limited range of forensic procedures); and

• Tasmania’s is the only Act which permits such DNA to be taken from a young person as young as ten years without a magistrate’s order (the Northern Territory provides that saliva and buccal swabs may be taken from someone of at least 14 years, and this is similarly the case for a buccal swab in Queensland.

These characteristics are especially alarming when they are considered in combination. It is now possible in Tasmania for a ten year old whom the police suspect of committing an offence such as defacing a sign post, intimidating a public officer or damaging a streetlight, to have DNA taken by a blood sample and placed on the DNA criminal database, without court scrutiny. No other Australian jurisdiction comes close to such an erosion of juvenile justice standards and safeguards, and of associated net-widening and stigmatisation of its young people.

Procedural safeguards and provisions

The Commissioner for Children has noted that the Tasmanian Act contains a number of provisions which weaken those contained in the Criminal Process (Identification and Search Procedure) Act 1976 which it replaces in this regard. These include:

• reduction of the applicable age;

• lowering of the severity of offence;

• expansion of the powers of the police;

• broadening of the range of examinations;

• weakening of the requirement that procedures be conducted by a person of the child’s gender;

• reduction in the court’s role in authorising procedures;

• weaker requirements that a witness be present during a procedure; and

• extension (from one week to one year) in the period following the end of proceedings within which records must be destroyed.^[9]

In essence, the government’s original undertaking that the safeguards in place for the new forensic procedures provisions be no weaker than those in place for fingerprinting, has been achieved by weakening the safeguard provisions which had been applicable to fingerprinting. This is especially alarming given MCCOC’s own emphasis of the necessity for stronger safeguards and protections, as well as that these provisions also apply to suspects.

While there may be merit in changing such standards and provisions in order to achieve uniformity in national practice, this has clearly not been the case. Despite Tasmania’s active participation in MCCOC, its legislation effectively threatens national efforts to achieve such uniform national standards.

MCCOC itself urged the need for close attention to attendant safeguards and observance of a person’s rights. It stressed:

• the need for legislative protection of a person’s privacy from the illegitimate use of or tampering with DNA information;

• the need to ensure public confidence in strict adherence to the terms of usage of DNA;

• the counterproductive potential for consequential harassment of those convicted of serious offences due to DNA matching;

• the importance of proper accountability mechanisms ‘to deter rogue conduct’ given the number of people who will have official access to DNA records; and

• the need to maximise the perception of the DNA database as reliable evidence.^[10]

It is a feature of forensic procedures legislation that various safeguards be mandatory, primarily for young people. These include such provisions as:

• having an independent adult and/or legal representative present when seeking approval to conduct a DNA procedure;

• providing for the magistrate to take the best interests of the child into account; and

• specifying who may take the DNA sample and who the young person may have in attendance.

Table 2 compares the provisions within Australian jurisdictions.

Table 2: Protective provisions for the DNA testing of young suspects

	Provision for ‘interview friend’?	Who at application hearing?		‘Best interests’ of child?	Undertaking a forensic procedure			Videotaping of forensic procedure?
		Order	Interim Order		Blood	Saliva/buccal swabs	Who may suspect have present?
Code	Yes: ·Parent/guardian or other person of youth’s choice, &/or ·Legal rep, &/or ·Otherwise: other person (not Police)	·Suspect ·Interview friend (must) ·Legal rep (may)	·Suspect ·Interview friend or legal rep (must)	Yes ('best interests')	·Doctor ·Nurse ·‘Appropriately qualified person’	·Doctor ·Dentist ·Dental tech. ·Nurse ·‘Appropriately qualified person’	·Doctor ·Dentist (saliva/ buccal swabs only) of suspect’s choice. Interview friend &/or legal rep (must)	Yes, unless suspect objects or it’s impracticable (in which case, an independent person must be present)
Cth	As for Code, plus provisions if Aboriginal	As for Code	As for Code	Yes ('welfare')	As for Code	As for Code	As for Code	As for Code
NSW	As for Code, plus provisions if Aboriginal	As for Code	As for Code	No	As for Code	As for Code	As for Code (except ‘nil’ for Saliva)	As for Code
Vic	No	·Suspect ·Legal rep or, with leave of court, a parent (may)	No-one (Note: not applicable to blood samples)	No	·Doctor ·Nurse	·Doctor ·Nurse	·Doctor ·Nurse if suspect chooses. Parent/guardian or independent person (must)	As for Code (except no suspect right to veto taping of blood sample)
SA	‘Representative’: as for Code, but substitute nominated advocate for legal rep	As for Code	·Suspect ·Representative (if any, must)	Not explicit	·Doctor ·A person qualified by the regulations	·Doctor ·A person qualified by the regulations	·Doctor (of suspect’s choice) ·Representative (must)	As for Code
ACT	As for Code	As for Code	As for Code	As for Code	·Doctor ·Nurse	As for Code	As for Code	As for Code
NT	As for Code	No provision	Not applicable	No	Not applicable	‘Authorised officer’	No provision	No provision
Tas	10-14: No	·Suspect ·Legal rep (may)	No-one	No	·Doctor ·Nurse	·Doctor ·Dentist ·Police officer ·Nurse ·Person approved by Police Commissioner	No provision	No provision
	15-17: No	No provision (Police order)	Not applicable
Note: WA and Qld were not included as there is no similarly comparable legislation.

Again, it is clear that the Tasmanian Act most consistently fails to incorporate the safeguards and standards embraced in other jurisdictions. (This is not to argue that the provisions in other jurisdictions are satisfactory.) It is noted that:

• only Tasmania makes no provision for an ‘interview friend’ or similar to be present when a forensic procedure is ordered;^[11]

• only Tasmania and the Northern Territory make no provision for a young suspect to have an independent (medical or personal) witness present for the specified forensic procedure;^[12] and

• only Tasmania and the Northern Territory make no provision for the videotaping (with suspect power of veto)^[13] of the procedure

With respect to the magistrate taking into account the best interests of the child, such provision was specifically deleted from the Tasmanian Bill prior to its passage through the House of Assembly. Of course, some of the weaknesses in the Tasmanian Act as noted in Table 2 stem largely from the problems with the Act shown in Table 1. But others do not, such as the omission of provision for an interview friend and of specific provisions for Aboriginal people, and that the best interests of the child be a consideration of the magistrate in making an order. The latter is likely to be doubly important in view of early anecdotal interstate experience which suggests that it is proving difficult to successfully contest applications to a magistrate for the testing of a young person.

Whither national uniformity and global obligations?

Tasmania has sometimes had a negative reputation as backward or slow in law reform, and the present Labor government has consciously sought to combat that view: note, for example, well-regarded new legislation in anti-discrimination, de facto relationships, residential tenancy, and (as mentioned at the outset) youth justice and the protection of children. That negative reputation is usually explained in such terms as:

• invoking ‘state’s rights’ arguments;

• citing the conservative nature of the Legislative Council; or

• pointing out that belated action has at least enabled the adoption of ‘best practice’ legislation.

None of these explanations is applicable in this instance. The first could only be seen as valid to the extent that Tasmania’s participation in MCCOC’s efforts to develop a uniform national criminal code falls somewhere between cynicism and double standards. The second doesn’t apply as Labor initiated the legislation and the non-Labor Councillors were divided on the passage of the legislation. The third is far from the case, in the absence of either any attempt by the government to explain deviations from the Code or in fulfilling its earlier commitment to public consultations on the Bill.^[14]

Given the lack of substantive consultation and debate which both preceded and accompanied the passage of this legislation, it is difficult to understand why Tasmania’s Act falls so far short of the standards and provisions embraced in the national Code, as well as of every other jurisdiction in Australia.

With the diminished safeguards in the Tasmanian legislation, there is a serious risk — as MCCOC warned — of national public and judicial confidence in such forensic procedures being weakened by the lower standards. A further risk emerges in the associated exponential increase in problems arising from platform-interface between computerised databases, especially with the increasing importance given to DNA data in other areas, such as employment, insurance, superannuation, and credit and lending practices.

The Tasmanian Act therefore appears to risk jeopardising the integrity of the national intergovernmental pursuit of uniform legislative standards in the criminal justice sphere. Furthermore, that legislation’s provisions for, at the very least, young suspects, makes it essential that attention be given to the extent to which Tasmania’s Act may place Australia in breach of its obligations under UN treaties and, in particular, the Convention on the Rights of the Child.

Article 1 of the Convention provides that a child is aged under 18 years, while the Tasmanian Act explicitly treats children from 15 years as adults. Article 3 provides that the best interests of the child be a primary consideration in all actions concerning children, while also taking into account the rights and duties of those with their legal responsibilities. Article 12(2) requires that the child or their representative have the opportunity to be heard in relevant judicial and administrative proceedings. Article 40(1) and (2) also may be pertinent in this context, especially with respect to the importance of positive reintegrative measures and guarantees of natural justice.

It is arguable that the specific absence of reference to the child’s best interest in a magistrate’s deliberation, the absence of scrutiny of applications by a magistrate in so many instances (for suspects as young as ten years), and the absence of provisions for the child’s representative to be present at important stages of either the judicial or administrative forensic approval and testing process, places the Tasmanian Act in breach of Articles 3 and 12(2) and, perhaps, Article 40 (especially when the Tasmanian Act’s application to a range of minor offences is considered). This issue certainly requires scrutiny, preferably well before Australia’s next report to the UN on compliance with the Convention.

Other UN instruments may be similarly in danger of being breached.^[15] However, the primary concern here for young people is whether or not the provisions of the Tasmanian Act jeopardise Australia’s obligations under the Convention on the Rights of the Child. That the Tasmanian Police have developed procedures which don’t (yet) implement the full extent of the provisions of the Act is cold comfort indeed, as this effectively reduces children’s rights to being dependent on the good grace of the government (via the police) — a privilege rather than a right.

Concluding comments

The Tasmanian Act thus presents a number of risks to the integrity of the adoption of forensic procedures within the Australian criminal justice system, as well as to the specific observance of the rights of young people. The potential of the Act to place Australia in breach of its obligations under the UN Convention on the Rights of the Child has been noted. In addition, the very wide range of offences subject to DNA testing in Tasmania will result in extensive net-widening, including with respect to Tasmanian inclusion on CrimTrac, and associated labelling of young people which may offset the inherent objectives of diversionary measures. This appears to be at odds with the reintegrative policy foundations of Tasmania’s Youth Justice Act 1997, which had been in operation for some months at the time of the Tasmanian Attorney-General’s introduction of the Bill into the Parliament. There was no discussion of such matters in the Tasmanian Parliament’s debate on the Bill, despite bodies such as the Hobart Community Legal Service, the Office of the Commissioner for Children and the Bar Association of Tasmania expressing serious concerns about such issues at that time.

It is important to note that, for all of the recent well- warranted criticism of the Northern Territory government’s juvenile justice laws, Tasmania’s Forensic Procedures Act 2000 falls well below the corresponding Northern Territory legislation. Even compared to that jurisdiction — which has correctly attracted its own condemnation against UN standards applicable to young people — Tasmania’s legislation treats 15-17 year olds as adults, assumes the capacity of children as young as ten years to grant informed consent, substantially broadens the range of eligible offences, classifies invasive DNA procedures as non-intimate, extends blood-based DNA samples to children, sanctions the DNA- testing of under-15 year olds without court scrutiny, and makes no provision for the mandatory presence of an ‘interview friend’.

And this is simply in terms of the treatment of under 18 year old suspects — similar examination is required with respect to young people charged with and/or sentenced for an offence and/or in detention, as well as to their adult counterparts. This is especially important if we value the benefits of DNA technology in its application to the criminal justice system and want to see such reforms implemented with public and judicial confidence.

For community legal services and others concerned with law reform and human rights, there is a strong and urgent need to closely scrutinise such legislation and to monitor its application. This monitoring should include attention to the adoption across jurisdictions of provisions which are both uniform and appropriate. There may currently be a real risk that, in pursuit of uniformity, other jurisdictions may pursue Tasmanian ‘standards’ of substantially widened police powers and diminished roles of the courts and rights for people suspected of committing increasingly more minor offences.

On the other hand, it is to be hoped that those in other jurisdictions will recognise the extent to which the Tasmanian legislation may jeopardise the integrity of not only their own efforts, but also the pursuit of a uniform national code, and accordingly exert influence to bring the Tasmanian legislation into line. The current temptation for the major political parties to be populist on law and order issues in response to resurgent conservative political pressures is no excuse for breaching the rights of young people.

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^[*] Robert Johnson, until May, was Manager, Hobart Community Legal Service, and a member of the University of Tasmania’s Human Research Ethics Committee. He is presently residing in Central America.email: [e-mail]©2001 Robert Johnson

^[1] DNA (deoxyribonucleic acid) is contained in the nucleus of our body cells and is described as the ‘blueprint of life’. Each person’s DNA is unique (no two people have the same DNA, except for identical twins).

^[2] Refer to Report: Model Forensic Procedures Bill and the Proposed National DNA Database, Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, May 1999 (the Report).

^[3] The Report, above, p 65.

^[4] Confirmed to the author in a conversation with a medical specialist in the field (Menzies Centre for Population Health Research). A buccal swab normally involves the wiping of a foam pad against the inner wall of the mouth to collect skin cells. Some jurisdictions make provision for the taking of a buccal swab or saliva specimen by the subject, under supervision.

^[5] To the author’s knowledge, the preferred forensic procedure with Tasmanian prisoners and juvenile detainees has been buccal swabs and, if necessary, the taking of hair samples. It is also noted that the DNA sampling of those populations was completed in May 2001 and that, according to the Tasmanian Attorney-General (House of Assembly, 31 May 2001), Tasmania is the only state in Australia where force has not been used to achieve compliance in that sampling process: <www.parliament.tas.gov.au:8000/ISYSquery/IRL1191.tmp/1/doc>.

^[6] The Report, ref 2, above, p.11.

^[7] The Report, ref 2, above, p.15.

^[8] Instrumental in securing bipartisan support for this provision was the Attorney-General’s response to an opposition question, in which he advised the House of Assembly that, whilst the Model Code used 18 years of age as the age limit for treatment as an adult, on advice from the Minister for Police who had seen ‘a checklist’, ‘most’ jurisdictions use 15. In fact, none do. See Hansard, House of Assembly, Tasmania, 29 November 2000: <www.parliament.tas.gov.au:8000/ISYSquery/ IRL1186.tmp/2/doc>.

^[9] Tasmanian Commissioner for Children’s Monthly Report, January 2001.

^[10] The Report, ref 2, above, pp.3-4. Reference to a DNA database mainly concerns the establishment of CrimTrac, a national police information system established by the Commonwealth Government, as well as to corresponding state-based police registers. Refer to <www.crimtrac. gov.au/dna.htm>.

^[11] Although Victoria only provides that a parent or guardian may represent the child in lieu of a lawyer, with the court’s agreement.

^[12] There is provision that a young suspect may request a doctor to be present for the taking of a blood specimen. There is no such provision for saliva or buccal swab specimens. (Blood specimens cannot be taken from young suspects in the Northern Territory.)

^[13] The Victorian legislation does not provide for that power of veto by the suspect.

^[14] The small number of bodies invited to comment on the Bill were generally provided barely two weeks to do so.

^[15] In response to a specific question in the Tasmanian Parliament, the government declined to give an undertaking that the then imminent Bill would comply with the International Covenant on Civil and Political Rights (which is not to say that it didn’t seek to do so). See comments by the Premier in the House of Assembly, 23 November 2000: <www.parliament.tas.gov.au:8000/ISYSquery/IRL118E.tmp/2/doc>. With general reference to the Australian context, attention has been drawn to the provisions of the Universal Declaration on Human Rights and the Human Genome with respect to the adoption in Australia of DNA technology in the area of forensic profiling and law enforcement. See Kellie, Deborah L, ‘Justice in the Age of Technology: DNA and the Criminal Trial’, (2001) 4 Alternative Law Journal 174.