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Legislative Assembly for the ACT: 2000 Week 7 Hansard (29 June) . . Page.. 2200 ..

MR HUMPHRIES (continuing):

of the range, it makes sense to include on the DNA database the DNA profiles of offenders who are convicted of these "volume crimes". In practice, the Bill will enable samples to be collected from all ACT offenders who are convicted of offences for which the maximum penalty is imprisonment for 2 or more years.

Part 2.7 details the circumstances in which forensic samples may be taken from serious offenders. As the purpose of obtaining the samples is to include the results in the national DNA database and the national fingerprint database, this part only applies to certain types of forensic procedures. These are the taking of a blood sample, a non-pubic hair sample, a buccal swab and fingerprints-in essence, samples of material suitable for DNA analysis and fingerprinting.

The offender must be given an opportunity to give informed consent to the proposed procedure and the police officer requesting consent must be satisfied that the request for consent is justified. If the serious offender refuses consent to a non-intimate forensic procedure a police officer may order that the procedure be carried out. A magistrate's order will be necessary to authorise the carrying out of an intimate forensic procedure on a serious offender who refuses consent to that procedure. Clause 116 of the Bill enables persons convicted prior to the commencement of the Bill to be tested under Part 2.7.

The Bill envisages that during the course of an investigation, persons may wish to volunteer to give a forensic sample. The Bill therefore contains provisions dealing with the way in which samples may be taken from volunteers. It should be noted that there are no provisions in the Bill which allow the police to ask a person to volunteer a sample-the offer to be tested must be genuinely voluntary. Before the sample can be taken, the volunteer must be advised of certain matters so that it can be established that their consent to the procedure is fully informed. The volunteer can specify the purposes for which the sample may be used and once analysed, the results of the sample must be included only in the relevant index of the DNA database system. A volunteer may withdraw consent at any time, however, in certain limited circumstances an application may be made by law enforcement authorities to the court to permit the retention and use of a sample from a volunteer where consent was withdrawn.

The Bill enables the taking of forensic samples from children and people who are categorised under the Bill as "incapable persons" but only in very limited circumstances. In brief, the child or incapable person's parent or guardian may give consent on behalf of the child or incapable person. Nevertheless, if the child or incapable person objects or resists, the procedure cannot lawfully be carried out. Where the parent or guardian refuses to give consent on behalf of the child or incapable person, an application may be made to a magistrate for an order that the forensic be carried out.

Having briefly outlined the processes for taking forensic samples, I will briefly outline the provisions in the Bill which explain how material and information generated from forensic samples is to be used and protected. There are strict penalties for unlawful use or disclosure of material or information derived from forensic procedures.

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