Franks Stephen: Criminal Investigations (Bodily Samples) Amendment Bill — Second Reading Instruction to CommitteeCWH In Committee Third Reading 
Franks Stephen: Criminal Investigations (Bodily Samples) Amendment Bill — Second Reading Instruction to CommitteeCWH In Committee Third Reading 
[Volume:612;Page:9450] 
STEPHEN FRANKS (ACT) 
: 
 The ACT party looking at the bodily samples bill has to rely on the work done by the Law and Order Committee and our own reading of what we can of the bill. With the Minister bringing in yesterday a series of technical amendments in a Supplementary Order Paper amounting to 25 pages it is very hard to look at this bill as a parliamentarian should. It is going through under urgency—all its stages in one day. We had a 68-page bill to start with with a commentary from the select committee of some 26 pages and we were prepared to do what we could in some highly technical areas on the basis of that. Then the Minister brought in Supplementary Order Paper 159 with all these amendments. What it means is that we have to go back to first principles. 
I hope that in the course of the Committee stage my colleagues in the ACT party will find out the answers to a few simple questions. Why is it that DNA is not simply taken routinely from every person who commits an offence punishable by say more than 3 months’ imprisonment? Why is there not some understanding that the entire community could grasp instead of pages and pages of technical requirements and distinctions between consent measuring and compulsion orders? Why cannot the community simply absorb the idea that if a person commits an offence of a certain degree of seriousness that person will automatically have a DNA profile stored? 
Dr Wayne Mapp 
: In fact any offence. 
STEPHEN FRANKS 
: Any offence any conviction. It may be that traffic offenders do not have any particular predictable— 
Dr Wayne Mapp 
: Arrestable offence. 
STEPHEN FRANKS 
: An arrestable offence Mr Mapp suggests—but any offence with which there is some statistical probability of subsequent reoffending. Why is that not the case? I have another question. How do all of these provisions relate to the law’s only real concern—that the innocent go free and the guilty are convicted? I say that because as I go through the report I see that there is a whole lot of detail on concerns about process and a great deal of prescription of the manner in which samples have to be taken. 
Hon Phil Goff 
: That’s right because the people are presumed to be innocent until proved guilty—unless the member believes it to be otherwise. 
STEPHEN FRANKS 
: It seems to me from the interjection of the Minister that he thinks that in some way DNA sampling is a punishment and that to take a sample is an evidence of conviction. 
Hon Phil Goff 
: No generally we need consent from a person who is still deemed to be innocent for an intrusive process. 
STEPHEN FRANKS 
: The Minister says that consent is required. Why is consent required? Is consent required for a fingerprint? What is the difference I ask the Minister between a fingerprint and DNA? What is the difference between taking a photograph and taking a DNA sample? 
Hon Phil Goff 
: How is it that the member can be such a libertarian on some issues then pretend not to respect the civil liberties of others? 
STEPHEN FRANKS 
: The Minister asks how can we be libertarians on some issues and not be worried about civil liberties in relation to DNA. I am asking questions that are simply not answered. There is one very serious sign that the select committee addressed the issues entirely in terms of the Government view. That is found on page 23 of the commentary on the bill where the committee deals with what it calls amendments outside the scope of the bill. The commentary states: “amendments aimed at reducing the potential for contamination of crime scene samples by the investigating officer whether deliberate or accidental are outside the scope of the bill.” I would have thought that that should have been the primary concern of this bill. The real issue for us all is not whether consent should be obtained—a simply evidential matter—but whether the evidence once gained could be misused as appears to have been the case for Arthur Alan Thomas or whether as often suspected by other offenders it is used for fitting up where police decide that they will take justice into their own hands and manufacture the evidence. If there is a widespread community fear of that then this bill should address that fear instead of having reams and reams of procedure to tangle up the police and reams of protection against having to give a sample. The real focus here should have been on making sure that samples could not be planted at the site and that samples could not be misread by scientists whose main customers are the police and who become wearily suspicious and predisposed towards believing in the police case. 
 There has been enough evidence from the United States experience of the risk in having one body—as we do in New Zealand; we have the Institute of Environmental Science and Research. Even with the highest standards of integrity that one body comes to know that its main client is the police. This bill should have been focused precisely on the things that the select committee members tell us it did not even touch which I say again is the potential for contamination of crime-scene samples by the investigating officer whether deliberate or accidental. Contamination or planting is what it is all about. From the ACT perspective we cannot understand why so much time has been taken and why a bill that has been lying about in this form since 3 June—but first introduced in May last year; more than a year ago—has all this preoccupation with procedural correctness and does not address the main risk of injustice. The main risk the thing we should all be alarmed about is the prospect of the police deciding that they will do justice as they see it by manufacturing evidence or by being careless with evidence. As the select committee said this bill does not even touch on that. 
In his introductory speech to this second reading the Minister referred repeatedly to success in fighting crime. Why does this bill not recognise that the greatest predictor of future crime now and the most valuable information would in fact be samples taken from youth offenders? Once again this Government is establishing a pattern that says to young people: “Don’t worry about being responsible. We don’t treat your crime as real. If you commit a crime even if it’s of adult viciousness you won’t be obliged to give a sample. You can’t be required to consent.” These young offenders are getting exactly the wrong message. Offenders should know that it is automatic that if they start down that path they will be readily detected in the future. They are the ones where a pattern has not yet been set then established—that is a pattern of regarding the law as a joke and having the view that the community puts all sorts of technical trips in the path of the police and the justice authorities because it does not really mean what it says when it says that crime will not pay. This bill should have provided that age would be no obstacle to getting a sample. It should have simply said: “We judge by the crime; not by the status.” I am also concerned that the select committee allowed itself to be sidetracked by the so-called libertarians into worrying about retrospectivity. What does that have to do with it? In their discussion committee members allowed themselves to treat the question of whether a sample can be taken as though it were a form of punishment. It is simply gathering evidence. 
There is no reason for all the endless detail in the bill: how long after the conviction; when the application must be made; what status it had; and why the sample was not taken within a prescribed period. That is all utterly irrelevant if we see DNA sampling as being like fingerprints or as being evidence—like taking a photograph—or as being an aid to gathering evidence for the court to consider. Instead they have fallen into the trap of seeing this as some kind of punishment. It is not a punishment. It should be an automatic consequence of conviction. It should be an automatic consequence indeed of suspicion in cases where the person has a prior record that reasonably leads to any expectation that it is legitimate to take him or her into account as the suspect population. 
I see that the select committee took approximately 4 hours to hear the evidence and a total of 16 hours on this bill. I only wish it had been directed to recognising that for the law to work it must be simple and it must fit people’s intuitive expectations. Every offender or would-be offender in this country needs to know that any method that does not infringe on the rights of the innocent will be used to determine guilt or innocence.