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Legislative Assembly for the ACT: 2000 Week 7 Hansard (29 June) . . Page.. 2199 ..

MR HUMPHRIES (continuing):

fingerprints and other procedures that do not involve the anal or genital areas, the buttocks or the breast of women and transgender persons identifying as women.

The Bill contains specific provisions dealing with the taking of forensic samples from different categories of persons. Parts 2.2 to 2.5 deal with the way in which samples may be taken from suspects. These parts do not apply to suspects who are children or who are incapable of either giving consent or understanding the nature and purpose of a proposed forensic procedure.

The first step in the process is to request the suspect to give consent to the forensic procedure. The Bill requires that a suspect may only be requested to provide a forensic sample after the police officer making the request has considered specified matters and reached the view that the proposed is justified. The suspect must also be given information about the procedure itself and the potential use of any information generated by analysis of the sample. If the suspect refuses consent and is in custody, a police officer may order the carrying out of a non-intimate forensic procedure on that suspect. The police officer must, however, be satisfied about specified matters before making the order.

If the suspect refuses consent to an intimate forensic procedure, or the suspect is not in custody and the procedure is either an intimate or a non-intimate forensic procedure, it will be necessary for a magistrate's order to be obtained before the forensic procedure may lawfully be carried out. The Bill details the procedure for obtaining an order from a magistrate for a forensic procedure, including the matters about which a magistrate must be satisfied before making the order. There are provisions for obtaining interim orders in cases where there is a danger that a forensic sample may be irretrievably damaged or destroyed before a full hearing of the application can be held. The Bill also contains provisions to ensure that if an interim order is later set aside, any information obtained from a forensic sample obtained under that interim order is destroyed.

Part 2.6 explains in detail the way in which a forensic procedure is to be carried out. The provisions in this part are intended to ensure that, as far as practicable, the privacy and dignity of the person who is subject to the forensic procedure are respected. For example, proposed section 51 specifies that a forensic procedure is not to be carried out in a cruel, inhuman or degrading way. Proposed section 52 requires that where the forensic procedure involves taking hair, the person taking the sample must do so using the least painful technique available to that person. There are restrictions on the numbers of persons who may be present and requirements that, where practicable, procedures be carried out by a person of the same sex as the person on whom the forensic procedure is carried out.

The proposed national DNA database is to include an index consisting of DNA profiles derived from persons convicted of serious offences. The establishment of this index necessitates the inclusion of provisions to enable such samples to be taken from serious offenders. In the ACT, a serious offender is a person convicted of an indictable offence. The Bill will enable a wider range of serious offenders to be tested than would the Model Bill. The Government's view is that, given the comparatively high levels of repeat offending for certain indictable offences carrying sentences at the lower end

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