Criminal Justice Division

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Law Council of Australia

24 March 2003

Division 11A Review Committee Secretariat
Criminal Justice Division
Attorney-General's Department
Robert Garran Offices
National Circuit
BARTON ACT 2600

Dear Committee Members

I refer to your correspondence of 27 January 2004, in which you invited a submission from the Law Council of Australia in relation to your review (the review) of Part 1D, Division 11A of the Crimes Act 19 14 (Division 11A).

The Law Council of Australia is the peak national representative body of the Australian legal profession. It is the federal organisation representing approximately 40,000 Australian lawyers, through their representative Bar Associations and Law Societies (the "constituent bodies" of the Law Council).

The Law Council notes that in relation to this review separate submissions may be lodged by some of these bodies.

The Law Council speaks for the Australian legal profession on the legal aspects of national and international issues, on federal law and on the operation of federal courts and tribunals. It works for the improvement of the law and of the administration of justice.

The Law Council notes that Division 11A was amended in 2002 following the Bali bombings to allow information contained on a national, State or Territory DNA database to be accessed and disclosed for the purposes of either:

At the time of the passing of the amendments, the Minister for Justice and Customs commented in a media statement that:

"This will enable disclosure of the identity of residents or citizens of other countries who have been identified by DNA profile matchings undertaken by Australian authorities, as well as assisting overseas law enforcement agencies with their investigations. The legislation includes safeguards which ensure a balance between the needs of law enforcement with the privacy of those people involved, including restrictions on access, use and disclosure of information,"[1].

We understand the review is to look broadly at the effectiveness of the power, any problems encountered in its use, any deficiencies, and any issues relating to privacy or civil liberties.

Following receipt of your advice that a review had begun in relation to the operation of Division 11A, the Law Council requested comment on this matter from its constituent bodies and members of its National Criminal Law Committee.

I can advise that, to date, the Law Council has not received any adverse comment from its members in relation to the operation of the amendments provided for in Division 11A.

However, the Law Council would like to make the point that this might well be as a result of the fact that Australian lawyers are unlikely to have acted for persons under suspicion in relation to the Bali bombings. Therefore Australian lawyers are unlikely to have had much opportunity to observe how the powers might operate in an adversarial setting.

Furthermore, while we have no adverse concerns in relation to the use of the powers in this case, the Law Council remains of the view that any legislative changes in relation to the use and flow of DNA information should include sufficient safeguards to prevent misuse of a person's DNA profile.

While the Law Council recognises the potential value of sharing DNA information among jurisdictions -particularly within the context of the tragic circumstances of this exceptional case - care must be had to balance this potential benefit with issues of privacy and civil liberties.

On this basis we support the ongoing monitoring and review of any new legislative powers in relation to DNA information sharing, as has occurred in this case.

More broadly speaking, we also support the general use of appropriate offence provisions to prevent or deter the unlawful analysis of DNA samples, the improper disclosure of DNA information and the failure to destroy DNA information.

In this regard, we note and support the actions of the Commonwealth, States and Territories in ensuring appropriate offence provisions are in place within the context of the creation of the national DNA database system (such as those provided under Part 1C of the Crimes Act 1914).

I trust these comments are of interest to you and thank you for giving the Law Council the opportunity to comment on this important issue.

Yours Sincerely

Bob Gotterson, QC
President

[1] Emergency DNA legislation to assist Bali investigation, Media Release, Senator Hon Chris Ellison, Minister for Justice and Customs, 23 October 2002, available at http://www.ag.gov.au/agd/www/Justiceministerhome.nsf/Page/03B07D9181AA3438CA256C5B00151A0E?OpenDocument&highlight=DNA