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Privacy fears surround Victoria’s new DNA laws, which would allow police to take samples from suspects before they are charged with any crime. By Denham Sadler.

Wider laws to allow Victoria Police to take DNA samples

New laws in Victoria that will allow police to obtain DNA from suspects as young as 15 without a court order are “overkill”, according to crossbenchers and legal groups who warn they could have “disastrous unintended consequences”.

The new powers are included in the Justice Legislation Amendment (Police and Other Matters) Bill 2019, which was passed by the Victorian upper house this month.

The legislation gives police the power to collect a DNA sample from a suspect without the need for a court order. Under the new scheme, a senior police officer will be able to authorise the collection of DNA from a non-consenting individual, if that person is “suspected on reasonable grounds of having committed the indictable offence, or has been charged or summonsed”.

If a minor aged 15 to 17 years old is suspected to have committed a “DNA sample offence” – which includes carjacking, dangerous driving causing death, and stalking – a DNA sample can be taken from them with only the authorisation of a senior police officer.

Previously, an oral DNA swab could only be taken from a suspect following a court order or once someone was charged with a criminal offence.

There are laws in place around the use and destruction of DNA samples that remain unchanged by the new legislation.

Only four members of the Victorian Legislative Council voted against the legislation – Sustainable Australia’s Clifford Hayes, Liberal Democrats Tim Quilty and David Limbrick and Fiona Patten of the Reason Party.

“It’s a very low bar, and I think it could be misused,” Patten told The Saturday Paper. “The DNA may never be destroyed, and we are still in relatively early stages of using DNA in criminal procedures. We don’t think there are adequate safeguards on the destruction of the DNA.”

While Patten attempted to amend the legislation to require judicial oversight for the taking of DNA from minors, this was rejected by both the government and the opposition.

“I think it is a very dangerous step if we are allowing police to take children’s DNA when they are just suspected of a crime,” Patten says. “You’ve got to balance human rights and civil liberties alongside our judicial system. There is a right of presumed innocence, and we can’t let this law and order campaign trample on our human rights and our civil liberties.”

The two Liberal Democrats upper house members also attempted to amend the bill to require that a suspect be charged before DNA can be taken. However, this was decisively voted down. The government considered this amendment in the original bill but in the end decided
it could lead to suspects being charged at a “much earlier stage in the investigation”.

The new powers were first announced by the state government in late 2016 and were eventually presented to parliament mid-2018. But the legislation stalled and was not passed before the November state election.

Premier Daniel Andrews has said the laws were formulated after discussions with Victoria Police about what was needed to solve crimes faster. However, it’s believed that potential costs and concerns over the accuracy of DNA samples contributed to the delays.

During the consultation period, several legal and civil liberties groups made submissions about the potential impact on privacy and the presumption of innocence.

Liberty Victoria senior vice-president Michael Stanton says taking the oversight away from the courts will lead to a “slackening” of the conditions needed for DNA to be taken from a suspect.

“The test under the bill would be that the taking of the sample is justified in all the circumstances – that’s a very broad test, and there is no list of factors for the police to consider,” he tells The Saturday Paper. “We think the courts have an important role in making sure these samples are only being taken where it’s justified.”

The extension of these new DNA-collecting powers to minors aged 15 to 17 has also sparked fears of profiling and infringements on a child’s right to privacy.

“It’s quite an intrusive process, and it’s quite different from being fingerprinted,” Youthlaw policy officer Tiffany Overall tells The Saturday Paper. “A DNA sample is much more personal, it’s private information and we don’t know the potential use or misuse of it sitting on a database.

“We’re concerned there could be the potential with technology for some sort of profiling of young people based on where they live or their background. It does seem like overkill.”

According to the state government, the new laws will help Victoria Police “crack thousands of unsolved crimes”, with more than 55,000 DNA profiles currently held that don’t match any profiles. Victoria Police also claims the new powers will reduce reoffending.

“We’re giving police the DNA powers they need to quickly and most effectively identify and prosecute offenders – this is about cracking down on recidivist offenders and ensuring victims can get the justice they deserve,” Victorian police minister Lisa Neville told The Saturday Paper in a statement.

While about 8000 DNA samples are currently taken by Victoria Police each year, under the new legislation this number is expected to jump to more than 70,000.

The government has also said the “overarching purpose” of the legislation is to “reduce the administrative burden on police and the courts”.

But Michael Stanton says this is a misguided approach. “That’s an argument to make sure the courts are properly resourced,” he says, “not one to take away the oversight role.”

And according to the Law Institute of Victoria, the expected increase in DNA samples being held by the state could balance out any potential savings made from bypassing the courts.

“We raise some concerns regarding the administrative burden this expedited approach may have on the justice system, given suggestions that there will be an increase of DNA samples taken,” the institute said in its submission. “Considerable resources will need to be allocated to collecting, storing, analysing and destroying this increase.”

Legal groups are also concerned about the impact of the new powers on Victorians’ right to privacy and a presumption of innocence.

The government has argued that the new powers do not affect the right to a presumption of innocence, as the collection of DNA may actually clear a suspect from any wrongdoing.

“But that’s not a proper way of conceptualising the freedom from self-incrimination,” says Stanton. “You don’t just tar people with the brush of criminality and say, ‘Well, if you’ve got nothing to hide then there’s nothing to fear.’ To make someone the subject of an invasive procedure is invariably a form of stigmatic shaming of that person.

“It makes the person feel like they are a criminal even if they have done nothing wrong. That’s just not the way our system works.”

The state government has argued that the new law is just bringing Victoria into line with other Australian states and territories. Michael Stanton says this is irrelevant.

“Just because other states do things differently that doesn’t mean that we should,” he says. “Recent events in Victoria have shown that there should be oversight of Victoria Police’s procedures and policies, and we don’t think it’s a good argument just because other states do things different, that we should follow them.”

The new Victoria Police powers are similar to those existing in New South Wales, South Australia, Western Australia and the Northern Territory, though laws do vary surrounding the destruction of DNA samples. In Tasmania, police are still required to obtain an order from a magistrate to obtain a DNA sample from a suspect.

There are also fears that having a much larger pool of DNA samples in the state will increase the risk of a breach. Tiffany Overall says the oversight of the destruction of these samples is not adequate.

“There’s no process to inform the person who had the sample taken that it has been destroyed,” she says. “We’re cautious about having such a large pool or warehouse of DNA just sitting there. It has to be very carefully regulated and we need to be very alert to particular vulnerabilities.”

Recent privacy breaches involving private DNA testing and genealogy companies – including 92 million MyHeritage accounts being accessed in June last year – have heightened concerns around the mass collection of DNA, which is potentially lucrative for hackers, and insurers, among others.

The new law does not change the rules around how police can use DNA and how long it can be retained, with the same privacy and security requirements applying.

For many in the legal and civil liberties community, the new laws also signal that the Andrews government’s focus on being “tough on crime” wasn’t merely a front for last year’s election campaign.

“It’s one thing to be tough on crime, it’s completely another to be smart on crime,” Fiona Patten says. “And this is not being smart on crime.”

This article was first published in the print edition of The Saturday Paper on Mar 23, 2019 as "Shades of DNA". Subscribe here.

Denham Sadler
is a freelance writer based in Melbourne.