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Legislative Assembly for the ACT: 2001 Week 1 Hansard (15 February) . . Page.. 282 ..

MR STEFANIAK (continuing):

My advice, Mr Speaker, is that there is no loophole as claimed by Mr Stanhope and that he is wrong in claiming that the law makes it possible for police to take samples from people against their will even when those people are suspected of committing only minor offences. He is wrong. He was wrong last year and I am advised that he is wrong now.

It is obvious that he failed to read all the relevant provisions of the act. I think there is a danger that he is only looking at subsections 29 (1), (2) and (3) in isolation. The legislative provisions have to be read in context and subsection 29 (1) (b) makes it clear that the police officer who proposes to make an order for a buccal swab must first be satisfied that "the offence for which the person is a suspect is a serious offence". Therefore, unless the police officer is satisfied that the person is a suspect for a serious offence, the sample cannot be taken. There is simply no way in which a person who is suspected of committing only minor offences can be forced to give a DNA sample by buccal swab.

The remainder of section 29 goes on to explain that once the police officer is satisfied that the person is a suspect in relation to a serious offence, he or she must also have reasonable grounds to believe that the suspect committed that offence or another offence and that the forensic procedure will be relevant to proving or disproving that person's involvement in that offence or that other offence. The amendment suggested by Mr Stanhope does not affect the basic requirement in the first part of subsection 29 (1) (b) that the person must be suspected of committing a serious offence. It only affects the second part of that paragraph. The government does not consider that the amendment is necessary, but it has no practical effect and it is of no particular concern whether or not it is included.

I am a bit concerned that Mr Stanhope again seems to have misinterpreted the legislation. I would point out to him and anyone else in this place that you do need to read section 29 totally. I am going to come back to some of the worries that Mr Stanhope has because some of the comments he made do concern me in relation to some of the examples he has given, and they show a certain attitude. I will come back to that.

I want to go through this. Section 29 is divided up into a number of subsections. On page 17 of the act, at the end of subsection (1), there is a note which says:

Section 107 (Proof of belief) states that the burden lies on the prosecution to prove on the balance of probabilities that a police officer had a belief on reasonable grounds.

There are two very crucial subsections in section 29 to protect the rights of persons who might be subject to that section, and they are subsections (2) and (3). Subsection (2) says:

In deciding whether the carrying out of the forensic procedure without consent is justified in all the circumstances, the police officer must balance the public interest in obtaining evidence tending to confirm or disprove that-

Mr Stanhope: Gary's ego is not worth embarrassing-

MR STEFANIAK: I heard you in silence, Jon. Would you let me finish, please. I will read that again. Subsection (2) says:

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