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Legislative Assembly for the ACT: 2000 Week 9 Hansard (7 September) . . Page.. 3087 ..

MR STANHOPE (continuing):

It is invasive. It is an invasion of the body. I think that it is an intimate procedure and it should fall within the category of intimate procedures that are defined. I simply do not understand why the taking of a swab from the mouth cannot be included within the definition of intimate. It seems to me not to make any particularly great difference to the legislation and it is an attitude recommended by the model code. It was the model code position and it is a position that has been adopted in some other jurisdictions. So we will be moving an amendment seeking to move the taking of a buccal swab from the definition of "non-intimate" to the definition of "intimate".

An issue on which we disagree with the government's approach and endorse the approach adopted in Victoria is the circumstances in which an offender, a suspect or a victim of a crime will be advised of the results of a forensic analysis of a sample. We believe that there are significant issues here concerning the standard doctor/client relationship. We think that the issues surrounding that do need serious consideration. We have tremendous sympathy for the victims, particularly where there has been an exchange of blood or violence or where there is a sexual crime and there is great concern about the transmission of diseases.

There is a very significant need to balance the rights of all of those people to know the truth about an analysis of a sample that is taken as a result of a forensic procedure and the basic right to privacy of those people. It is an issue where we do need to balance the rights of the non-convicted individual and the victim. Certainly, if there is any danger to a person, the person should be advised, particularly the victim should be advised. A methodology should be adopted in relation to that and we are suggesting that it should be the Victorian classification that a result should be released to the alleged offender or to the victim only in circumstances of imminent risk to the life or the wellbeing of the offender, the victim or the person.

It is a sensitive issue. For instance, if a sample disclosed that a person was HIV positive, there is a whole range of protocols around how a person should be advised of the fact that, as a result of the taking of a sample, a forensic analysis has revealed that they are suffering either some genetic condition or a disease of some sort, whether fatal or otherwise. That does involve the need for us to be conscious of the protocols around that. (Extension of time granted) We are suggesting that the formulation in the Victorian legislation be adopted, that that information be disclosed in circumstances of imminent risk to the life or wellbeing of the offender or the victim.

A range of other issues should be considered and have been considered by us. Some of my amendments relate to those issues. They go to matters such as safeguards against general roundups of persons convicted of serious offences in the past for testing and inclusion on the database; safeguards against general calls for volunteers and the extreme moral pressure that might be put on reluctant persons; safeguards against the proliferation of information being exchanged by law enforcement agencies and recorded on unknown databases; and safeguards to ensure that the results of testing under the bill are not used for discriminatory purposes.

They go also to judicial oversighting of the testing of suspects who refuse to consent to the taking of samples; the destruction of samples when a suspect is not charged with an offence; avoidance of any language that might tend to dazzle juries with the certainty of DNA testing "proving" that a person committed an offence; public scrutiny of all

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