Legislative Assembly for the ACT: 1996 Week 8 Hansard (25 June) . . Page.. 2053 ..
Debate resumed from 18 June 1996, on motion by Mr Humphries:
That this Bill be agreed to in principle.
MS FOLLETT (11.49): Mr Speaker, the Opposition will be supporting this Bill, although not without some hesitation, at least on my part. The Bill will give legislative authority for the taking of samples of blood, saliva or hair, for example, for DNA testing in a rape case. At present, unless a person charged with an offence consents, there is apparently no legislative authority for the taking of such samples. In a New South Wales court, late in 1995, this action was ruled as unlawful. It seems very likely that the ACT courts will follow that ruling unless the current Bill is passed. New South Wales has amended its laws to make the taking of samples lawful. The Bill before us is intended, therefore, to mirror the arrangements now put in place in New South Wales to counteract the court ruling of late last year.
Mr Speaker, my hesitation over this Bill is related to civil liberties questions. The Bill provides that samples may be taken without consent. In other words, a procedure which is invasive may be carried out on the person who has not agreed to that procedure. Furthermore, the results of the procedure, the sample of blood or hair or saliva, may be used to charge and/or to convict that person of a crime. The civil liberties implications of both of these scenarios are immediately apparent and ought to be considered very carefully.
Perhaps in recognition of those implications, the Government's Bill provides additional protections and protocols to apply where a sample is to be obtained without consent. I commend these additional provisions. The first of these is that the sample procedures can be authorised only by a magistrate. This is a very sensible precaution and it provides some protection for a person suspected of a crime. The second provision is the protocol for protecting the privacy and the human dignity of people compelled to give a sample. This is a considerable advance, as I understand it, on the current arrangement. Mr Speaker, given the extreme importance of forensic evidence in the modern criminal justice system, I consider that the protections for a suspect which are contained in this Bill significantly address the civil liberties problems inherent in any scheme whereby samples are taken without consent.
There is a further minor issue to which I would like to draw the Assembly's attention, and it is a matter which has been reported on by the Scrutiny of Bills Committee. I refer to the fact that there is an element of retrospectivity in the Bill in that it will apply to people who are already on a charge or in custody. Mr Speaker, the committee draws attention to all instances of retrospectivity as a matter of correct procedure. In this particular case, I do not believe that the issue is of such significance as to warrant an amendment even if such an amendment were feasible.
Finally, Mr Speaker, I repeat that the Opposition will support the Bill, which, I understand, is an interim measure. I look forward to the eventual production of the now long awaited model criminal code which will deal with all aspects of forensic procedures.