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Sections in this issue outline (in order):
1. What they said. 2 The issue at a glance. 3 Background. 4 Internet information links. 5 and 6 Arguments for / against. 7 Further implications on this issue. 8 Newspaper items used in the compilation of the outline.
Should DNA testing be conducted without the consent of the subject?
What they said ...
'This is a massive and unwarranted infringement of privacy'
Bernie Geary, the Criminal Justice Coalition Convener, commenting on Victorian laws that allow police to take blood samples by force from convicted felons who have served their sentences
'DNA is a revolution in fighting crime. It stacks the odds against the criminals'
Andre Haermeyer, the Victorian police minister commenting on the new Victorian laws and the effectiveness of DNA testing in criminal detection work
The issue at a glance
In September, 2002, Victoria Police began to be able to take DNA samples from ex-criminals, if necessary, without the subject's consent. This was the result of a change in Victorian law that had been sanctioned by the Victorian parliament in March 2000.
This development has been welcomed by Victoria Police but has caused concern among civil libertarians, and others.
Also in September, 2002, a Herald Sun columnist defended the right of men to take DNA samples from their supposed children, secretly, if necessary and without the consent of the children's mother, in order to have a paternity test conducted.
This defence was mounted because it was claimed that a recent Joint Inquiry report into the Protection of Human Genetic Information released by Australian Law Reform Commission (ALRC) and the Australian Health Ethics Committee would, if its recommendations were followed, have the effect of preventing 'fathers' from taking this action.
Interestingly, paternity testing and the circumstances under which it might be conducted were not a major concern of the inquiry. Its concerns were much more wide-ranging. It recommendations are an attempt to strike a balance between safeguarding the community, the conduct of medical research and legitimate commercial interests and protecting the rights of the individual.
Background
In March 2002 the Australian Law Reform Commission (ALRC) and the Australian Health Ethics Committee completed an 18-month inquiry and released their recommendations in a report titled a Joint Inquiry into the Protection of Human Genetic Information.
Among the inquiry's recommendations was one dealing with the regulation of commercial testing of genetic material. The report supports the current provisions of the Federal Privacy Act, including the National Privacy Principles, which, it argues, should make it illegal for any commercial body to use or disclose genetic information about an individual, without the knowledge or consent of that individual.
Some critics have complained that such an interpretation of the law would prohibit fathers taking tissue samples from their supposed children for the purpose of paternity testing without the consent of their sexual partner or the consent of the (legally adult) offspring.
Another area of contention has been the regulations surrounding the establishment of DNA databases for the detection of criminals. The inquiry addressed some of the issues surrounding this forensic use of DNA material. Among its concerns was the lack of a national standard for identification. The inquiry was also concerned about 'function creep', the gradual expansion of DNA-based forensic procedures beyond the purposes and scope originally intended.
Meanwhile, civil libertarians have expressed concerns about the manner in which DNA samples are to be taken by police, if necessary, without the consent of the subject. They too are worried about the uses to which this material might be put.
This issue has attracted some comment in Victoria, where, as of September 2002, police acquired the power to take tissue samples from those convicted of a range of serious crimes. This includes convicted felons who were not jailed as well as those whose sentences have been served. If the subject does not give consent, these samples can be taken by force.
Terms glossary
DNA (deoxyribonucleic acid): The molecule that encodes genetic information. DNA is a double stranded molecule held together by weak bonds between base pairs of nucleotides.
Nucleotide: A subunit of DNA consisting of a nitrogenous base (adenine, guanine, thymine, or cytosine), a phosphate molecule, and a sugar molecule - deoxyribose. Thousands of nucleotides are linked to form a DNA molecule.
Gene: The basic unit of heredity. A gene is an ordered sequence of nucleotides located in a particular position or locus on a particular chromosome that encodes specific information.
Chromosome: A rod-like structure of tightly coiled DNA found in the cell nucleus of plants and animals. Chromosomes are normally found in pairs, with each of the organism's parents having contributed one of the pairs. Human beings typically have 23 pairs of chromosomes. Genes are arranged in a linear manner within chromosomes.
Locus (pl. loci): The position on a chromosome of a gene or other chromosome marker; also, the DNA at that position
Allele: Alternative form of a genetic locus; a single allele for each locus is inherited separately from each parent (for example, at a locus for eye colour the allele might result in blue or brown eyes).
Genetic profile: A collection of information about a person's genes.
DNA typing: The analysis of sections of DNA for purposes of identification.
How DNA evidence is used in criminal cases
First developed in England in 1985, DNA testing takes advantage of the fact that, with the exception of identical twins, the genetic material - DNA - of each person is unique.
Humans have twenty-three pairs of chromosomes containing the DNA blueprint that encodes all the components of each human body and how it will operate. This includes chromosomes that influence ageing and the development of certain diseases. One member of each chromosomal pair comes from the individual's mother, and the other from the father.
While most DNA doesn't differ from human to human, some three million base pairs of DNA (about 0.10 percent of the entire human genome or genetic code) vary from person to person. The nucleus of every human cell contains a copy of this DNA. This means that the unique DNA present in skin tissue, hair, blood or semen can establish that a particular individual was at a crime scene. The key to DNA evidence lies in comparing the DNA left at the scene of a crime with a suspect's DNA in those chromosomal regions that do differ.
Proving that a suspect's DNA matches a sample left at the scene of a crime requires two procedures.
Firstly, a DNA profile has to be created using basic molecular biology protocols. The basic procedure used to isolate the DNA 'fingerprint' left at a crime scene is called Restriction Fragment Length Polymorphism (RFLP) analysis. In this analysis investigators determine the number of variable number tandem repeats (VNTRs) at a number of distinctive loci on the chromosomal pairs to come up with an individual's DNA profile.
Some DNA has special variations that come from stretches of short, identical repeat sequences of genetic material. A particular sequence can be repeated anywhere from one to 30 times in a row. (These regions are called variable number tandem repeats.) The number of tandem repeats at particular loci is unique to a given individual. This means that these patterns of repeats give a DNA profile of the individual who left the genetic material at the crime scene. A tissue sample can then be taken from a suspect and an RFLP analysis of the patterns of VNTRs of the suspect can then be conducted to give that person's genetic profile.
Secondly, statistical calculations and the principles of population genetics have to be applied to prove the match mathematically. The results from just one VNTR locus by itself would not pinpoint a suspect. What makes DNA fingerprinting a powerful means of identification is the combined analysis of a number of VNTR loci located on different chromosomes. The final DNA profile is compiled from the results of four or five probes that are applied to a membrane sequentially. Each probe targets a different VNTR locus. Using four loci, the probability that a given allele combination would occur in the general population in another individual is approximately 1 in 5,000,000. In the United States, the FBI uses 13 sites when generating its DNA profiles. The odds of a match occurring with another individual who did not leave this genetic material at the crime scene are more than one in a hundred billion.
DNA and paternity testing
Paternity testing is possible because everyone has two copies of their genetic information, half from each parent. If a child has a gene that didn't come from the mother, then it must have come from that child's biological father. If the alleged father does not have that gene, the obligate gene, as it is called, then he cannot be the father and is excluded from the group of men who could be the father of the child. There is one exception. If a mutation has occurred, which means the gene changed when it was passed from the father to the child. These mutations rarely occur, but they occur often enough that statistical methods are available for dealing with them.
The other possible outcome is that the alleged father has the obligate gene and so is included in the group of men who could be the father of the child. Paternity testing then involves examining a series of genes until the group of men who could be the father of the child is narrowed down to the point where it appears certain that a particular man is the child's father. In DNA testing, this can be accomplished by testing as few as three highly variable genes.
The generally accepted minimum standard for a positive result is a Paternity Index (PI) of 100. This means that the alleged father has a 99 to 1 better chance of being the father than a random man. It does not mean that the test is only 99 percent accurate. The probability of the actual father being someone other than an alleged father with a PI of 100 is estimated at 1 in 10,000. Though this is much lower than the level of certainty required for crime related DNA testing, it is considered appropriate in paternity testing.
Internet information
In 2000, World Magazine published an article titled 'A Perfect Identifier' by Bob Jones. This article provides background information on the use of DNA for detecting criminals primarily in the United Kingdom. It also considers the situation in both New Zealand and the United States. Though it gives some of the reasons why this technology is used, the primary focus of the piece is to point out the dangers associated with the widespread use of DNA sampling and testing.
A full copy of this article can be found at http://www.leaderu.com/science/identifier.html
Also in 2000, the current affairs Internet magazine Index Online published an article titled 'The Privacy issue: private matters'. The article treats a wide range of surveillance and record-keeping practices currently employed around the world and considers their implications for individual privacy.
The article was written by Simon Davies, the director general of Privacy International, and a fellow at the London School of Economics.
Please note this is a pdf file and requires Adobe Acrobat reader.
It can be found at http://www.asc.upenn.edu/courses/comm334/Docs/daviespriv.pdf
On May 22, 2002, the British newspaper, The Guardian, printed an article calling for tighter control of DNA testing and the use of DNA databases. The article is titled 'Taking DNA by stealth "should be outlawed"'. The article was written by Steven Morris. It can be found at http://www.guardian.co.uk/Print/0,3858,4418476,00.html
In April 2000, the United States-based Communitarian Network published an article titled 'Balancing Privacy, Public Good'. The article was taken from USA Today (April 27, 2000). It gives an overview of a range of crime detection procedures, including DNA sampling and profiling, that are being used in different jurisdictions around the world. Its primary argument is that civil libertarians' concerns about privacy are frequently either exaggerated or inappropriate.
The article can be found at http://www.gwu.edu/~ccps/B326.html
The State Crime Laboratory of Arkansas has published a clear and simple glossary of terms relating to DNA testing. It is slightly more comprehensive than the one given in this issue outline.
It can be found at http://www.state.ar.us/crimelab/dnaglossary.html
An even more extensive glossary of terms relating to DNA testing can be found at http://www.clanlindsay.com/genetic_dna_glossary.htm
On August 29, 2002, The Age published an article titled 'Why the rules on DNA are being put to the test". It was written by Fergus Shiel and gives an overview of the findings of the Australian Law Reform Commission and Australian Health Ethics Committee report of their 'Joint Inquiry into the Protection of Human Genetic Information' that was released in March 2002.
A Google-cached copy of this article can be found at http://216.239.33.100/search?q=cache:x5kVsRJ1pFIC:www.theage.com.au/articles/2002/08/28/1030508072441.html+%2B%22Australian+law+reform+Commission%22+%2BDNA&hl=en&ie=UTF-8
The Australian Law Reform Commission and Australian Health Ethics Committee report of their 'Joint Inquiry into the Protection of Human Genetic Information' was released in March 2002.
This is a clear, detailed and very informative document. It is quite long, but it repays careful reading. Many of the arguments and concerns treated in this issue outline have been drawn from this report.
It can be found at http://www.privacy.gov.au/publications/genesub.doc
The Australian Law Commission's discussion paper No 66 is titled 'Protection of Human Genetic Information'.
This is an extremely valuable document giving a great deal of clear background information on the issue.
It can be found at http://www.austlii.edu.au/au/other/alrc/publications/dp/66/04Genetictesting.html#Heading89
The Australian Law Commission's Issues Paper 26 'Protection of Human Genetic Information' is another extremely valuable source of detailed information and argument on this issue. It complements the two sources just cited.
It can be found at http://www.austlii.edu.au/au/other/alrc/publications/issues/26/Ch04_Privacy.html#Heading4
Genelex is an American genetic testing commercial laboratory established in 1987. It is accredited to perform forensic DNA testing and DNA parentage testing.
In part of its site it gives an explanation of the technique employed to test paternity and explains the reliability of the tests.
This information can be found at http://www.genelex.com/paternitytesting/paternitybook4.html
The technical information site 'Howstuffworks' has a clear and detailed treatment of cellular biology, including the nature and role of DNA. The index page for this information can be found at http://www.howstuffworks.com/cell.htm
'Howstuffworks' also contains a detailed treatment of how DNA evidence is analysed. The index page for this information can be found at http://www.howstuffworks.com/dna-evidence.htm
Arguments against DNA testing being conducted without the consent of the subject
1. DNA material contains sensitive information unique to the individual from whom it is taken. It also contains information with implications for that person's family. Its unsanctioned use is a violation of privacy.
This point was raised in the Australian Law Reform Commission's Issue Paper No.26 titled 'Protection of Human Genetic Information'.
The Issues Paper begins by noting that genetic material is sensitive and involves not only the individual tested. The paper states, 'Genetic information may allow inferences to be drawn about individuals other than the individual to whom the information most directly relates and, in particular, about genetic relatives. Genetic information is shared familial or collective information.' The paper continues, 'Genetic information is capable of revealing `family secrets', including information about paternity (or non-paternity), adoption, or the use of artificial reproductive technology.'
The paper also notes that genetic material may reveal 'hidden' information not just in the sense that this information is not generally known. Because of the predictive nature of genetic information (for example, its capacity to indicate a predisposition toward diseases not yet in evidence) it can reveal information currently not known even to the individual from whom the material was taken. The paper observes, 'Genetic information ... may be predictive of the future health of a person who has no current symptoms at the time the information is obtained.'
The paper concludes, 'The familial and predictive nature of genetic information raises issues about whether information should be disclosed to people other than the person to whom the information most directly relates - who else has a right to know?'
Critics of the non-consensual use of genetic information argue that for the reasons given above this is a gross violation of an individual's privacy.
Commenting on the new Victorian laws which allow police to take tissue samples by force from convicted felons who have served their sentences, the Criminal Justice Coalition Convener, Bernie Geary, has stated, 'This is a massive and unwarranted infringement of privacy.'
2. DNA material belongs to the person from whom it is taken. Its unsanctioned use is theft.
The recent Australian Law Commission's joint inquiry report suggested, 'A further issue was the consideration given by the U.K. Human Genetics Commission to the possible introduction of the crime of "DNA theft"'.
The inquiry concluded, 'It is certainly arguable that such "DNA theft" is a violation of an individual's bodily privacy - that is, there is an unauthorised interference with or violation of one's person, analogous to the offence of an assault, but which also has elements of the offence of robbery.'
These considerations could apply to the unsanctioned use of genetic material for paternity testing purposes, or by employers or health insurers seeking to vet potential employees or clients. It would be more difficult to have the concept of 'DNA theft" apply to the authorised collection and use, by police, of DNA material from ex-criminals, however, some critics maintain that even here the same principle should apply, so that what is taken without consent is regarded as having been stolen.
3. The forced taking of DNA material from an individual can constitute assault
It has been suggested that under some circumstances the non-consensual removal of tissue samples may involve assault against the person concerned.
Civil libertarians are particularly concerned about the manner in which tissue samples can now be legally taken by force from ex-criminals in Victoria who have refused permission to have the procedure performed upon them.
Under the provisions of the new law arrest warrants will be issued if convicted criminals fail to meet the four-week compliance period that follows the law coming into effect. Those arrested will be given a second chance to provide a sample. If the ex-criminal again refuses a specially trained police team - the cell extraction squad - can physically restrain the subject while a nurse takes a blood sample.
Those unhappy about the provisions of the new law argue that it effectively justifies assault, as police are sanctioned to restrain a presumably struggling subject while a blood sample is taken from that person against his or her will.
4. DNA material can be used in ways that are injurious to the individual from whom it is taken.
It has been argued that DNA material has the potential to be used in ways that can cause harm to the person from whom it is taken. This is one of the arguments presented against the use of DNA material to conduct paternity tests.
It is claimed that such testing, particularly if a negative result is given, can create a great deal of emotional distress and ill feeling between the supposed parents of a child. It has also been claimed that the child him- or herself may well be harmed by the sudden revelation that his or her biological father was someone other than had formerly been supposed. As Sarah Henderson notes in an opinion piece published in The Herald Sun on September 4, 2002, critics of paternity tests are concerned that 'they destroy families'.
It has further been argued that the compulsory DNA testing of ex-criminals can cause significant harm to subjects. According to this point of view, once a felon has served his or her prison term that person should be able to resume a place in society without the expectation that they are likely to re-offend. It is in part for this reason that a defendant's previous criminal record is generally not admissible as evidence when a charge against that person is being tried in court.
It is argued that that compulsory DNA testing of offenders who have served their sentences suggests they have not been rehabilitated. This point was made in a Wilcox cartoon published in The Age on September 2, 2002. The cartoon is headed, 'DNA sampling for ex-cons' and has a police officer holding a mouth swab and saying to a former prison inmate, 'Hi. Now that we have successfully rehabilitated you, we'd just like to re-open some old wounds.'
It has further been claimed that DNA testing by employers or insurance companies has the potential to harm those tested. Obviously, test findings might jeopardise the subjects' chances of employment or their likelihood of receiving insurance cover. However, a further cause of distress to the subject is that the predictive nature of the tests could make the subject aware of possible future health problems that have not yet manifest themselves through symptoms.
5. DNA material can be contaminated, misinterpreted or tampered with.
Critics of a heavy reliance on DNA testing procedures have argued that their supposed scientific infallibility may blind both police investigators and juries to the possibility that they may be inaccurate.
This point was made in an editorial published in The Age on September 3, 2002. The editorial states, 'The scientific aura surrounding this new kind of evidence has fostered a belief that it is incontrovertible, a belief perhaps even more likely to be held by jurors than by criminals. Yet experience in some jurisdictions indicates that reliance on DNA evidence can result in a serious miscarriage of justice if the evidence becomes contaminated or is tampered with.'
The editorial concludes, 'Failure to impose strict controls on the police use of DNA samples would pose a far graver threat to civil liberties than mandatory collection does.'
The Australian Law Reform Commission has expressed a similar concern. In its discussion paper No 66, titled 'Protection of Human Genetic Information', it noted, 'Some genetic tests are not entirely reliable for a number of reasons, both technical and non-technical. When a genetic test is not completely reliable, the effect of stigmatisation and discrimination becomes particularly acute.'
The same paper also notes, 'The scientific reliability of a genetic test may be affected by a number of factors including sample contamination, incorrect laboratory testing procedures, mislabelling, and transcription errors. Although there has been considerable attention paid in recent years to developing policies in relation to the ethical and lawful use of genetic information, there has been less discussion about the impact of erroneous information.'
It further observes, 'Every laboratory testing procedure, no matter how well established, involves the possibility of error. This is equally true of genetic testing.' It gives the example of one method of DNA amplification, which, it claims, results in the danger that 'the sample may be contaminated with extraneous genetic material, such as from previously amplified products or from the operator, which could generate copies of irrelevant DNA.'
The possibility of error hangs over the use of DNA material by police for forensic purposes, by fathers for paternity testing and by insurance companies and employers as screening procedures for potential clients or employees.
Arguments in favour of DNA testing being conducted without the consent of the subject
1. Innocent people have nothing to fear from DNA testing
This point is made both with regard to those who are required to donate DNA material as part of a criminal investigation and also with regard to paternity testing.
The Victorian police minister, Andre Haermeyer, has noted that it is only the guilty that have anything to fear from DNA samples taken as part of a criminal investigation. The minister has stated, 'DNA is a revolution in fighting crime. It stacks the odds against the criminals.' The minister has further noted that habitual criminals were the most likely to be detected by DNA testing and the establishment of DNA databases. Mr Haermeyer has claimed, 'About 85 per cent of crime is committed by between 5 and 10 per cent of offenders.'
The assumption behind the compulsory and potentially forcible collection of genetic material from ex-criminals is that these people have demonstrated themselves to be a potential threat to society and so the same rights and privileges as may apply to other citizens do not always apply to them.
It is further noted that ex-criminals only have grounds for concern re DNA testing if they have in fact committed a crime since their previous conviction or release from prison.
In regard to paternity testing, in a letter published in the Herald Sun on September 10, 2002, P. Heffernan stated, '... the law should not protect women who prosper financially and emotionally from deception about the parentage of their children.'
The same letter writer also comments, 'These women are guilty of lying in statements, in legal affidavits and other documents.'
Former lawyer and journalist, Sarah Henderson, made a similar point in an opinion piece published in The Herald Sun on September 4, 2002. Ms Henderson states that denying supposed fathers the right to have paternity tests conducted on children claimed to be their offspring only serves to protect 'Women who have lied and cheated. Women who hide a terrible truth. Women who look into the eyes of their children each day knowing they are not the eyes of the man they married.'
2. The disclosing of DNA material is often in the public interest.
It has been argued that there are circumstances in which the public good takes precedence over the privacy of the individual. Protecting the public against criminals is one occasion on which it is claimed that the community interest should be put before the rights of particular individuals.
The Law Reform Commission raised this issue in its joint inquiry. Its report states, 'Individual freedom and privacy are important facets of modern Australian life, as is protecting the community through effective law enforcement. An appropriate balance must be struck to ensure that the benefits of these differing public interests are maintained and promoted.'
The same joint inquiry report notes, 'People want to be protected and to have their property protected.' The implication would appear to be that in the name of securing improved public safety the community may be prepared to relinquish some rights to privacy and freedom from restraint. Thus, supporters of the compulsory and, if necessary, forcible, mass collection of genetic material from ex-criminals argue that this is an area where the public interest in crime resolution takes precedence over privacy issues.
Supporters of this use of DNA technology to protect the community note that it has resulted in the solving of a large number of crimes. A report published in USA Today on April 27, 2000, stated, 'In England, more than 70,000 suspects have been linked to crimes through their DNA. In the United States, where the national DNA database is new, the FBI already reports that 200 cases have been solved this way.'
In Victoria it has been claimed that police have already gathered samples from 3,775 prisoners while held in the state's jails and have linked 178 inmates with 431 unsolved crimes, including murders, rapes and abductions.
3. DNA testing can serve to prove the innocence of suspects
Supporters of DNA testing for crime suspects argue that it has the advantage of eliminating innocent suspects from police inquiries. This point has been made by Police Minister Andre Haermeyer who has stated of DNA testing that it 'helps clear people who may have been [wrongfully] under suspicion of committing a crime.'
The same point has been made in an Age editorial published on September 3, 2002. The editorial states, 'The use of fingerprint evidence has helped to clear the innocent as well as convict the guilty, and the same is true of DNA evidence.'
Supporters of compulsory DNA testing for forensic purposes argue that it is at least as powerful an instrument for suggesting innocence as it is for determining probable guilt. It is noted, for example, that of the some 3,700 Victorian prison inmates who have had DNA samples taken, fewer than 100 have been linked to crimes through these samples. It would therefore appear that the vast majority of prisoners tested in this way have been found to have no connection with another crime on the basis of DNA evidence left at the crime scene.
Similarly it has been argued that paternity testing will not simply serve to indicate that a particular child is not the biological offspring of his or her supposed father, it will also serve to confirm that many children have in fact been sired by the men who live with them as their fathers. Paternity testing would give to such men the peace of mind of knowing that their children are in fact biologically theirs and that their partners have been faithful to them.
4. The standards used for establishing a match between two DNA samples are very high
It has been argued that the probability of a chance match occurring between DNA taken from a suspect and DNA evidence left at a crime scene is so slight as to be all but statistically impossible.
It has been noted that for forensic purposes a match is not simply established between variable number tandem repeats (VNTRs) at one distinctive locus on the chromosomal pairs. To reduce the possibility of a chance match, VNTRs are compared at a number of loci on the chromosomal pairs in the suspect's DNA and that found at the crime scene.
It has been estimated that using four loci, the probability that a given allele combination would occur in the general population in another individual is approximately 1 in 5,000,000. In the United States, the FBI uses 13 sites when generating its DNA profiles. The odds of a match occurring with another individual who did not leave this genetic material at the crime scene are more than one in a hundred billion.
Similarly, it has been argued that the chance of a man being given a Paternity Index of 99 for a child that it not his is 1 in 10,000.
Defenders of DNA testing stress the expertise of those who conduct the tests, the care with which they conduct their procedures, the protocols they observe and the high degree of correspondence which must to achieved before it is decided that two DNA samples come from the same source.
5. There are safeguards in place to protect the physical safety of the individual
Defenders of the Victorian legislation allowing DNA samples to be taken by force from those who have been convicted of a crime note that there are significant safeguards in place to ensure that police do not abuse their authority when taking such samples.
Under the new laws all police are banned from forcibly taking mouth swabs. This is presumably because this is an inexpert procedure, which any layperson could potentially undertake and which allows for the possibility of injury to the subject's lips, mouth, teeth or tongue. (Another factor effecting the decision to disallow non-voluntary mouth swabs is the possibility that the subject might bite the person taking the sample.)
What the law does allow is that a specially trained group of police, the cell extraction team, can physically restrain a subject while a nurse takes a blood sample. This means that the sample is taken with due care by a medically trained person and that those officers who restrain the subject have also had appropriate training.
As a further safeguard the new laws require that all efforts to forcibly take a blood sample must be videotaped. This obviously serves to protect the police against unwarranted accusations of undue force. It also serves to protect the subject, as, if excessive force has been used, the videotape will supply evidence of this. It is also the case that the videotaping of the restraining and the sample collection should also ensure that the police officers involved are mindful of the need to use only the appropriate level of force.
Further implications
There is an argument to be put that the new laws allowing Victoria Police to compel ex-criminals to give DNA samples only closes a loophole. Previous legislation had allowed the compulsory taking of samples from those imprisoned for an offence. However, this did not operative retrospectively and so did not allow the police to sample those who had already committed an offence and completed their prison term. The supporters of this legislation argue that it does no more than catch in the DNA database net those who had been allowed to get away before their samples could be taken.
It has also been noted that there is little practical difference between the police having the power to compulsorily take fingerprints (which the police force has been authorised to do for some time) and having the power to compulsorily take DNA samples. Both procedures are conducted to enable the investigating officers to link evidence left at the crime scene with possible perpetrators of the crime.
Critics of this new development note, however, that there are significant differences between DNA samples and fingerprints. One of the concerns with regard to DNA samples is that they can be used to do more than place a suspect at a crime scene. Currently DNA material can be used to extract a range of information about the present and future health of an individual. DNA analysis can also suggest similar possibilities about that individual's immediate family.
The Australian Law Reform Commission (ALRC) and the Australian Health Ethics Committee were concerned about 'function creep', the gradual expansion of DNA-based forensic procedures beyond the purposes and scope originally intended. It is argued that while these DNA samples remain on record there is the opportunity for them to be used for other purposes, including purposes not yet devised, and by agencies and individuals other than Victoria Police. It is also argued that there is the potential for this expanded use of DNA material to take place without the consent of the subjects from whom the samples were taken.
The Australian Law Reform Commission (ALRC) and the Australian Health Ethics Committee were also concerned about more than privacy issues. They were uneasy about the prospect of DNA identifications being faulted for a variety of reasons and argued that DNA analysis protocols may have to be tightened. The same point was made in an Age editorial published on September 3, 2002.
The editorial states, 'The procedures for collecting, testing and storage of DNA evidence must be subject to independent review, so that defence lawyers can, where necessary, challenge the manner in which the evidence has been handled. Failure to impose strict controls on the police use of DNA samples would pose a far graver threat to civil liberty than mandatory collection does.'
Sources
The Age
2/9/02 page 1 news item by John Silvester, 'Criminals forced to give DNA samples'
2/9/02 page 1 cartoon by Wilcox, 'DNA sampling for ex-con'
3/9/02 page 14 editorial, 'DNA, liberty and the law'
4/9/02 page 4 news item by Fergus Shiel, 'Police DNA powers raise concerns'
The Australian
3/9/02 page 3 news item by Amanda Keenan, 'DNA test loophole amended'
23/9/02 page16 news item by Jonathan Leake, 'When you will die for $1m'
The Herald Sun
4/9/02 page 19 comment by Sarah Henderson, 'Sex, lies and DNA'
10/9/02 page 18 letter to the editor from P.A.R. Heffernan, 'Take away protection'