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CRIMINAL INVESTIGATION (IDENTIFYING PEOPLE) BILL 2001
Introduction and First Reading


Bill introduced, on motion by Mrs Roberts (Minister for Police and Emergency Services), and read a first time.

Second Reading

MRS ROBERTS (Midland - Minister for Police and Emergency Services) [10.22 am]: I move -

That the Bill be now read a second time.

This Bill provides procedures for obtaining, using and destroying identifying particulars, including deoxyribonucleic acid - DNA - profiles of volunteers, protected people, deceased people, police officers, involved people, uncharged suspects, charged suspects, and people in our offender management system. Fundamentally, the Bill modernises and enhances police powers pertaining to the use of identifying particulars in investigations and will enable Western Australia to participate, at long last, in the national DNA database, known as CrimTrac.
The introduction of appropriate DNA legislation was an election commitment of the Gallop Government. This is worthy of note, because such a commitment should not have been necessary. For more years than I care to remember, I beseeched my predecessor to move more quickly to introduce DNA legislation into the Parliament.

DNA profiling is one of the most important weapons available in the fight against crime. It has the potential to have a profound effect on the level of offending and clearance rates. Participation in a proper and legitimate DNA database will also have the capacity to protect and assist the innocent. Primarily because of the absence of appropriate legislation, Western Australia currently lags behind other Australian States in its uptake of DNA technology. Without appropriate legislation -


technological resources available to our police will not be fully utilised;
the investigative process may be prolonged unnecessarily;

our police will not be able to access DNA information available in other States, nor contribute specific WA-based information to the national DNA database;

the inherent deterrent value of the national database will be lost; and

our police will not able to fully use DNA technology as a tool to resolve previously unsolved cases.


The former Government talked a lot about the need for DNA legislation. However, it did not deliver. It introduced its DNA Bill in the last two weeks of Parliament before the election. As a result, there was no opportunity for debate in the Legislative Council. I am optimistic that members opposite will now seize the opportunity provided to pass this legislation without unnecessary delay and provide our police with the investigative tools they need.
As a new Government we sought to move quickly to introduce this significant piece of legislation. Early on we consulted with the Western Australia Police Service to ascertain whether any changes should be made to the 2000 Bill that would assist operational policing. The Police Service identified several matters, which we have taken on board. I am sure members on this side of the House can well imagine my surprise and dismay, when I received a letter from the federal Attorney General indicating his concerns about the former Government's 2000 Bill and intimating that his concerns were of such magnitude that Western Australia might be prevented from participating in CrimTrac. Of particular concern to the federal Attorney General was the degree of divergence by the 2000 Bill from the national model Bill. On that basis, it was necessary to comprehensively review our own proposed legislation which, in order to ensure the Bill's expeditious introduction into Parliament, had been based essentially on the 2000 Bill.

In reviewing the Bill, we examined legislation in other Australian jurisdictions and from overseas, the model forensic procedures Bill developed by the criminal code officers committee of the Standing Committee of Attorneys General and the recommendations of the Donaldson report. My colleague, the Attorney General, provided invaluable assistance in assessing the necessary revisions. The final product, being the Criminal Investigation (Identifying People) Bill 2001, achieves a greater degree of national consistency and preserves the differences that are fundamental to the Bill's effective operation in a State as vast and varied as Western Australia. I am confident that this Bill and the $22 million we have allocated to implementing this legislation will ensure that Western Australian police officers have access to the latest crime fighting forensic tools available. Advancements, particularly in the science of DNA profiling, herald a new approach to how police investigate offences.
DNA is considered the most significant development in the deterrence and investigation of crime since the introduction of fingerprint classification by Sir Edward Henry in the late nineteenth century. Currently police can obtain the identifying particulars of photographs, measurements, fingerprints and palm prints under section 50AA of the Police Act 1892, when a person has been arrested and is in custody. In addition, section 236 of the Criminal Code allows the police to examine a person in lawful custody. This enables police to search, examine and sample persons arrested and in custody for things that will assist in the prosecution of the offence for which they are arrested. This is the limited power police currently use to collect DNA in Western Australia. This Bill will expand upon those provisions to enable

police to more effectively utilise modern forensic techniques, particularly DNA, to identify people and thereby enhance the early solution of crime and improve clearance rates. The current ability for police to take fingerprints and photographs for identification purposes will be expanded to include the ability to take dental impressions, foot and ear prints, and samples for DNA profiling. Crucially, the proposed legislation will enable police to obtain information that will include or exclude suspects, and, in so doing, will ensure that valuable police resources are not wasted.

I turn now to the specific provision of the Bill. The Bill prescribes procedures that can be used to obtain identifying particulars. Identifying particulars include handprints - including palm prints and finger prints - ear prints, foot prints, photographs, hair, DNA profiles and impressions such as dental impressions. The procedures to obtain these identifying particulars are divided into non intimate or intimate procedures. A non intimate identifying procedure includes taking hand, finger, feet, toe and ear prints of a person; photographing the person, aside from his or her private parts; taking a buccal swab and taking a person's hair, other than their pubic hair. An intimate identifying procedure includes photographing a person's private parts; taking a dental impression; taking pubic hair and taking a blood sample.

The Government recognises the need for appropriate safeguards to be included in this legislation. Indeed, it has broadened those contained in the 2000 Bill. For example a provision has been included enabling a person from whom a sample has been taken to request and be given a portion of the sample taken from them. We have also included greater opportunities for people to consent to undergoing a procedure and have prescribed that the authority that can issue a warrant allowing a procedure to be done on a protected person is a magistrate.

The Bill also goes to considerable lengths to protect the privacy of persons undergoing these procedures. For instance, intimate procedures must not involve the removal of more clothing than is necessary and must be done in private. Furthermore, the Bill specifies the types and gender of persons who can perform the procedures to take identifying particulars. For example, only a doctor or a dentist may take a dental impression.

The gender composition of our Police Service is well known to many members of this house. While the Police Service is actively endeavouring to recruit a more diverse work force, considerable opportunity to achieve a greater gender balance remains. As a consequence of this, currently officers of either sex take fingerprints from persons in police custody. Under this Bill, this practice will continue to apply to the taking of non-intimate identifying particulars. However, importantly, only a doctor, dentist, nurse or qualified person may perform an intimate procedure.

This Bill has been designed to strike an appropriate balance between privacy and assisting in the deterrence, timely investigation and prosecution of crime. It will also enable innocent suspects to be more readily discounted from investigations and recidivist offenders more easily identified.

The Bill contains separate provisions to deal with the examination and collection of samples from various classes of persons. These classes are -

(i) volunteers;

(ii) protected people;

(iii) deceased people;

(iv) involved persons;

(v) persons who are suspects for an offence;

(vi) persons who have been charged with an offence; and

(vii) persons who are within the prison system as a result of a conviction for a serious offence.

Part 4 of the Bill includes provisions relating to volunteers, protected people, deceased people and police officers. A volunteer is a person who is not a suspect, victim or witness to an offence. A volunteer must consent to undergoing an identifying procedure. Volunteers will be able to limit the use or matching of their identifying particulars and can withdraw their consent at any time.

A protected person is a child or a person who is unable to consent to the procedure due to mental disability, or is unable to understand the request or communicate consent. The Bill provides that a responsible person must consent to a protected person, who is not a suspect, victim or witness undergoing a procedure. A responsible person includes a parent or guardian. In the case of both the adult volunteer and the protected person, the information obtained must be destroyed on expiry of any time limit set by the volunteer or responsible person.

With regard to deceased persons, the State Coroner must authorise the taking of identifying particulars, either on his or her own initiative or on the application of a person with a proper interest. Information taken from a deceased person must be used and destroyed in accordance with the coroner's direction.

The Bill also provides for police officers to undergo an identifying procedure. However, this will be used for the limited purposes of exclusion, which will be prescribed in the regulations, and the information taken must be destroyed if the person ceases to be employed by the Police Service.

An involved person is a person who is not a suspect but who is reasonably suspected to be involved in an offence, either as a victim or a witness. An officer must request an involved adult person to consent to a non-intimate identifying procedure. In the case of an involved protected person, approval must be sought from a responsible person. If the request is refused by the responsible person, or an officer forms a reasonable suspicion that the responsible person will refuse or is a suspect, a magistrate may authorise the procedure.

Information obtained from an involved person may be compared with other samples on a limited or unlimited basis, as provided in the Bill. This information must be destroyed if after two years no person is charged, or proceedings against a person are completed and the involved person requests the destruction of that information. Importantly, the involved person or the responsible person will be informed of his or her ability to request destruction.

An uncharged suspect is a person who is reasonably suspected of having committed a serious offence but who has not been charged with the offence. A serious offence is an offence for which the statutory penalty is strict security life imprisonment, life imprisonment, or imprisonment for 12 months or more.

An officer may request a suspect to willingly undergo an identifying procedure that may be either intimate and/or non-intimate, as the case dictates. In the case of a suspect who is a protected person, consent must be sought from a responsible person. If an adult suspect does not consent to a non-intimate procedure, performance of the procedure must be approved by a senior officer who is not involved in the investigation. An intimate procedure can be done on an adult suspect only under a warrant issued by a justice of the peace. If a request to conduct any procedure on a protected person is refused, performance of the procedure must be authorised by a magistrate.

Information obtained from an uncharged suspect may be compared with other information, as provided in the Bill. The information obtained must be destroyed if within two years no person is charged with the offence or the matter is finalised without a finding of guilt and the destruction is requested. An adult suspect or the responsible person will be informed of his or her ability to request destruction.

A charged suspect is a person who has been charged with a serious offence but who has not been dealt with by a court. An officer may ask a charged suspect to consent to provide an identifying particular. If the charged suspect does not consent, an officer may order the charged suspect to undergo an identifying procedure if the officer reasonably suspects that identifying particulars may not be held by the Western Australia Police Service or may be needed to verify the person's identity with particulars already held by the Western Australia Police Service. If the charged suspect does not obey the order, the officer may, if necessary, arrest the person and detain him or her for as long as necessary to do the procedure. Information obtained from a charged suspect may be compared with other information, as prescribed by the Bill. The identifying information must be destroyed if the matter is finalised without a finding of guilt and the destruction is requested.

From the day this legislation comes into effect, identifying particulars will be able to be taken from serious offenders who are in our State's offender management system. This includes remand and sentenced prisoners, as well as those on parole or supervised release orders. Overwhelmingly, criminal justice academics and professionals have concluded that approximately 10 per cent of the population commit 90 per cent of the crime. It is therefore reasonable, indeed compelling, that the DNA database should contain DNA information from serious offenders. Sampling prisoners, or back capture, as such sampling is known, will ensure that the DNA database is populated quickly and, if the experience of other jurisdictions is mirrored, significantly assist police in solving currently unsolved offences and crimes.

This Bill enables and underpins the creation of a DNA database and a crime-scene index that will be accessible to other jurisdictions. With the passage of this legislation, Western Australia will at last catch up to other Australian jurisdictions and be able to participate fully in the CrimTrac national database. The minister will be able to authorise the operation of a state DNA database. The state database will link to the CrimTrac national forensic database and other state and territory DNA databases.

To ensure the independence of the database, the minister may appoint a person, other than a police officer, to manage our DNA database. To further ensure the integrity of the information held on databases and elsewhere, the Bill includes the following offences and penalties -


improper disclosure of identifying information - two years imprisonment;
improper use of identifying information - two years imprisonment;

unauthorised databases - a fine of $250 000.


Furthermore, regulations may be enacted that create offences with penalties not exceeding $5 000 in regulations.
Identifying particulars such as DNA are extremely powerful tools that, along with other modern investigative methods, will greatly enhance the deterrence, timely investigation and prosecution of crime. Fundamentally, Western Australia will no longer be the only jurisdiction prohibited from placing and accessing DNA profiles in the national database. The benefits of this legislation are many. It will result in faster, less expensive investigations allowing police resources to be allocated to other areas of need. The formation of the database will act as a deterrent to criminals and promote

guilty pleas, thus reducing the backlog in our courts and sparing victims from further trauma. Importantly, the expected increase in the clearance rates for crime should improve public confidence in our justice system. I commend the Bill to the House.

Debate adjourned, on motion by Mr Marshall.