Mr KIELY - 2002-10-17
Can the minister inform the House of ways to better facilitate the exchange of DNA information between jurisdictions?
ANSWER
Madam Speaker, I thank the member for Sanderson for his question in relation to DNA because it is an issue very much before me as Minister for Police, and very much before the Northern Territory. In fact, today I called on the Commonwealth and all jurisdictions to reconsider their approach to the form and shape that their own DNA legislation should take because we have a very clear view that the Northern Territory legislation is strong, effective, and proves up the potential of DNA as an effective, modern crime fighting tool.
If we were to go the way that the Commonwealth is attempting to bully and intimidate us, we would have drastically weakened DNA legislation, and the rest of the jurisdictions of Australia need to accept this and recognise this. If you are going to have a tool as powerful as this, you want it to be used to the greatest effect and that means all jurisdictions having the capability to do that. The Commonwealth insistence seeks to water down our legislation on what we consider spurious grounds. We might be alone in Australia on this issue, but we are not alone in the world. The British model, for example, the first jurisdiction to introduce DNA legislation in the world in 1984, recently moved to amend their laws, and guess whose model they are closest to in the western world? The Northern Territory.
That legislation has been challenged within the European judicial system, gone all the way to the English High Court and upheld. It is good enough for the High Court of England to support the DNA legislative regime that England has, yet that regime would not pass the Commonwealth of Australia test. If England were a state of Australia, they would be excluded from the DNA National Database in the same way that the Commonwealth is …
Mr Reed: When we introduced it, your shadow Attorney-General opposed it, mind.
Mr STIRLING: Well, I do not recall that. In fact, my recollection is that this legislation went through with the support of this House.
Members interjecting.
Mr STIRLING: I certainly do not recall that being the case. The situation is this: if we were to go the way of the Commonwealth, we would no longer, for example, be able to use DNA analysis for such crimes as car theft and burglary because the Commonwealth only want to hold it for the more serious level of crimes. That would have rendered absolutely useless Operation Gene Sweep, which the police carried out a month or two ago, with the subsequent pick-up of a number of offenders ranging from very serious offences, I might add, sexual assaults and the like, down to burglary and car thefts.
That is the power and effectiveness of DNA. Yet if we were to go with the Commonwealth, we would be excluded from using it for those crimes. This idea of how you get a sample, a swab from inside the mouth - not regarded as an intrusive method of obtaining a sample in the Northern Territory but under the Commonwealth model, regarded as an intrusive act - means that the person being tested in such a fashion can demand and will have a doctor of their choice or a dentist of their choice present at the time that the sample is taken. That is not going to suit us in the Northern Territory in every case, and nor do we want to overlay the requirements of the legislation with these complex requirements.
In many cases of DNA’s use as an effective crime fighting tool, it is used more times than not to exclude a person from a police investigation. We question the Commonwealth and the other jurisdictions: what purpose is served by attempting to restrict the use of DNA in the way that they propose. It is going to continue to be an issue because I raised it at the last Police Ministers Council in Darwin with Senator Ellison representing the Commonwealth, and I am taking it back to the next Police Ministers Council in Darwin which I will be chairing. Interestingly, when I raised it at the last Police Ministers Council, I was not without support. It was not a question of 7-1 because the minister from New South Wales came in to ask questions and to support the position that the Northern Territory was taking.
What it means is that we have to exchange agreements, and we saw the complication in the case of New South Wales prior to the Darwin Cup. We saw the complications in the case of the more recent South Australian example, where the Commissioner for Police in both jurisdictions had to sign off letters of exchange. I, as Minister for Police, had to sign off letters of exchange, and we had to again repeat the procedure in the case of South Australia.
We can go on and negotiate individual agreements with each of the states - and work is ongoing with Western Australia, Queensland and Tasmania - to secure up-front agreements so that we don’t have to get one-off exchange agreements each time that this situation arises, but that does not go anywhere near the effectiveness and great use of a proper national DNA bank for Australia.
The Commonwealth really has to look at this, as do the other jurisdictions, because a patchwork of agreements, Northern Territory with each other jurisdiction, is simply not as good as the DNA National Database could be if everyone was to adopt the Northern Territory model. We will continue to stand our ground, we won’t be watering down the legislation.
Madam Speaker, I repeat that when that legislation went through, it went through with the entire support of this House.
ANSWER
Madam Speaker, I thank the member for Sanderson for his question in relation to DNA because it is an issue very much before me as Minister for Police, and very much before the Northern Territory. In fact, today I called on the Commonwealth and all jurisdictions to reconsider their approach to the form and shape that their own DNA legislation should take because we have a very clear view that the Northern Territory legislation is strong, effective, and proves up the potential of DNA as an effective, modern crime fighting tool.
If we were to go the way that the Commonwealth is attempting to bully and intimidate us, we would have drastically weakened DNA legislation, and the rest of the jurisdictions of Australia need to accept this and recognise this. If you are going to have a tool as powerful as this, you want it to be used to the greatest effect and that means all jurisdictions having the capability to do that. The Commonwealth insistence seeks to water down our legislation on what we consider spurious grounds. We might be alone in Australia on this issue, but we are not alone in the world. The British model, for example, the first jurisdiction to introduce DNA legislation in the world in 1984, recently moved to amend their laws, and guess whose model they are closest to in the western world? The Northern Territory.
That legislation has been challenged within the European judicial system, gone all the way to the English High Court and upheld. It is good enough for the High Court of England to support the DNA legislative regime that England has, yet that regime would not pass the Commonwealth of Australia test. If England were a state of Australia, they would be excluded from the DNA National Database in the same way that the Commonwealth is …
Mr Reed: When we introduced it, your shadow Attorney-General opposed it, mind.
Mr STIRLING: Well, I do not recall that. In fact, my recollection is that this legislation went through with the support of this House.
Members interjecting.
Mr STIRLING: I certainly do not recall that being the case. The situation is this: if we were to go the way of the Commonwealth, we would no longer, for example, be able to use DNA analysis for such crimes as car theft and burglary because the Commonwealth only want to hold it for the more serious level of crimes. That would have rendered absolutely useless Operation Gene Sweep, which the police carried out a month or two ago, with the subsequent pick-up of a number of offenders ranging from very serious offences, I might add, sexual assaults and the like, down to burglary and car thefts.
That is the power and effectiveness of DNA. Yet if we were to go with the Commonwealth, we would be excluded from using it for those crimes. This idea of how you get a sample, a swab from inside the mouth - not regarded as an intrusive method of obtaining a sample in the Northern Territory but under the Commonwealth model, regarded as an intrusive act - means that the person being tested in such a fashion can demand and will have a doctor of their choice or a dentist of their choice present at the time that the sample is taken. That is not going to suit us in the Northern Territory in every case, and nor do we want to overlay the requirements of the legislation with these complex requirements.
In many cases of DNA’s use as an effective crime fighting tool, it is used more times than not to exclude a person from a police investigation. We question the Commonwealth and the other jurisdictions: what purpose is served by attempting to restrict the use of DNA in the way that they propose. It is going to continue to be an issue because I raised it at the last Police Ministers Council in Darwin with Senator Ellison representing the Commonwealth, and I am taking it back to the next Police Ministers Council in Darwin which I will be chairing. Interestingly, when I raised it at the last Police Ministers Council, I was not without support. It was not a question of 7-1 because the minister from New South Wales came in to ask questions and to support the position that the Northern Territory was taking.
What it means is that we have to exchange agreements, and we saw the complication in the case of New South Wales prior to the Darwin Cup. We saw the complications in the case of the more recent South Australian example, where the Commissioner for Police in both jurisdictions had to sign off letters of exchange. I, as Minister for Police, had to sign off letters of exchange, and we had to again repeat the procedure in the case of South Australia.
We can go on and negotiate individual agreements with each of the states - and work is ongoing with Western Australia, Queensland and Tasmania - to secure up-front agreements so that we don’t have to get one-off exchange agreements each time that this situation arises, but that does not go anywhere near the effectiveness and great use of a proper national DNA bank for Australia.
The Commonwealth really has to look at this, as do the other jurisdictions, because a patchwork of agreements, Northern Territory with each other jurisdiction, is simply not as good as the DNA National Database could be if everyone was to adopt the Northern Territory model. We will continue to stand our ground, we won’t be watering down the legislation.
Madam Speaker, I repeat that when that legislation went through, it went through with the entire support of this House.
Last updated: 09 Aug 2016