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Tranter, Kieran; Webb, Eileen --- "Genes R us: ethics and truth in DNA" [2001] AltLawJl 65; (2001) 26(4) Alternative Law Journal 168

Genes R Us: Ethics and Truth in DNA

Eileen Webb and Kieran Tranter[*]

The use of DNA evidence raises ethical issues for lawyers.

This article argues that at a fundamental level what is at stake in DNA profiling is our humanity. It is this dimension that renders DNA profiling problematic — demanding a more reflective consideration of its social and political implications. This will be examined in four stages. First, it will be shown that there is a broad consensus concerning the benefit of DNA profiling in criminal justice. Second, it will be argued that this acceptance is founded on a popular perspective that DNA profiling provides ‘truth’ notwithstanding that it can neither deliver the ‘truth’ of a crime in the absence of corroborative evidence, nor claim to be perfectly valid. Third, it will be shown that this ‘truthful’ halo is based on what biologists have labelled the central dogma — that DNA is the complete code for an entity: Genes R Us.[1] Fourth, the manifestation of the central dogma in the public debate on DNA profiling in Australia raises two deep ethical concerns. Initially, it prepares Australia for new Darwinist approaches to criminal justice — legitimising the search for the ‘criminal gene’, and with it providing a ‘scientific’ basis for prejudice and racism. Further, DNA profiling introduces the biotechnology industry as a powerful interest group in the criminal justice system with a pecuniary interest in maintaining the status quo — both the public pre-eminence of the central dogma and a focus on catching criminals rather than crime prevention.

Together, these concerns suggest that DNA profiling threatens to diminish humanity. The central dogma reverberates strongly with the anti-human doctrines of globalisation and neo-liberalism. While DNA profiling is obviously a useful tool, its status as a tool must be continuously evaluated. As Heidegger warned, technology should never remake what it means to be human.

Broad consensus

Since the case of R v Tran (1990) 50 A Crim R 233 the use of DNA profiling in the criminal justice system has moved from being suspected and marginal to being broadly accepted as a significant advance in criminal justice by the community, law enforcement agencies and even some civil libertarians.

‘Lets gob-swab the lot of them’ was the rather, pardon the pun, tongue in cheek response of a journalist to the mass DNA profiling in the aftermath of the rape of an elderly woman in Wee Waa in central New South Wales.[2] Some politicians have called for compulsory contributions to a national DNA database. Police have repeatedly called for greater powers to take DNA samples.[3] Normally, these are the kinds of actions that would cause trepidation among many parts of the community. One would expect that valid and predictable concerns would be expressed as to the effect of such a regime on civil liberties and an individual’s right to privacy.[4] On the contrary, the community at large seems to demonstrate a resigned acceptance, and indeed in many cases a childlike enthusiasm for the perceived benefits of DNA profiling in the criminal justice system. Indeed, the surrender of certain freedoms appears to be accepted as a means justifying the end of crime detection. The commonly expressed perception is that if one has nothing to hide, the technology holds no threat.[5]

Unsurprisingly, enthusiasm for DNA profiling is prevalent amongst police hierarchies, and ‘tough on crime’ politicians. It promises that offenders can be identified and apprehended faster and at reduced public cost.[6] It also promises a deterrent effect for crimes such as burglary and assault. It is suggested that the higher chance of detecting offenders through DNA profiling and national databases would deter potential perpetrators.[7] Surprisingly, DNA profiling has also been enthusiastically embraced by what may be regarded as the opposite members of the community. DNA profiling has been successful in demonstrating, even posthumously,[8] the innocence of convicted offenders. For example, the Innocence Project in the United States has successfully contested the convictions and freed to date 73 people convicted of offences that DNA profiling can now establish they did not commit.[9] The nature of DNA as an ‘excluder’ also results in innocent people, who may otherwise be targeted in the investigative process, avoiding police attention. Therefore, there appears to be broad consensus on the utility of DNA profiling in criminal justice. The scope of the public debate is not on whether DNA profiling is a good thing; instead the real concern is how it should be managed.[10] There must be a balance struck between the forensic utilisation of DNA profiling and the protection of human rights.[11]

The developing national framework for DNA sampling and the national database have reflected this need for a balance between utilisation and liberties. The Crimes (Blood Samples) Act 1989 (Vic) was the first example in Australia of police being given powers to obtain blood samples from suspects for genetic profiling.[12] In 1990 a report was compiled on the forensic use of DNA profiling and suggested the utility of a national DNA database.[13] In 1995 a Model Forensic Procedures Bill prepared by the Model Criminal Code Officers Committee was endorsed by the Standing Committee of Attorney’s General (SCAG). Cornerstones of the Bill involved the necessity for informed consent in relation to the taking of samples, the necessity for people with appropriate qualifications to take the samples, the destruction of the samples after the person concerned is no longer under suspicion, and the necessity for magisterial approval for the taking of particular samples. The Commonwealth and most of the States passed legislation implementing the 1995 Model Bill.[14] In late 1998 SCAG proposed the preparation of a discussion paper and model bill on the prospect of further legislation regarding the implementation of a national DNA database. The resulting discussion paper, prepared by the Model Criminal Code Officers Committee, was delivered in May 1999.[15] The Crimes Amendment (Forensic Procedures) Bill 2000 has passed through the Senate Committee stage. The Bill seeks to regulate forensic procedures on suspects; those convicted of serious indictable offences and volunteers. The Bill also provides for the use and destruction of material. Finally the Bill sets up procedures for the national database. NSW has already adopted the Commonwealth model in the form of the Crimes (Forensic Procedures) Act (2000) (NSW) which commenced on 1 January 2001.

It is envisaged that the National Crime Investigation DNA Database (NCIDD) will be in place by the end of 2001. The national database will provide police with a mechanism whereby DNA profiles of serious offenders can be compared to DNA profiles found at crime scenes and provide linkages between crime scenes and thus streamline the investigative process.[16]

Consequently, public discussion of DNA profiling in Australia and the emerging national framework is based on a broad consensus that DNA profiling is a good thing, provided an acceptable balance between use and liberties is found. This acceptance is predicated on an assessment that it offers truth and proof, that it can reach back across time and space and link an offender with a crime. However, DNA profiling cannot deliver this anticipated truthfulness.

Truth

The popular perception that DNA delivers truth has been described as a ‘gross simplification’.[17] Both the popular perception and the gross simplification stem from the scientific dimensions of DNA.

For the purposes of DNA profiling, DNA (deoxyribonucleic acid) is contained in paired chromosomes in the nucleus of cells in the human body. The advantage of DNA for forensic purposes is that, aside from identical twins, the DNA of an individual is unique. However, DNA profiling does not involve the matching of the complete DNA, as extracting and processing such incredible amounts of information is currently far beyond technical capacities. Instead, only a tiny segment of DNA is the subject of DNA analysis.[18]

DNA profiling involves the extraction of DNA from samples taken from individuals, either tissue, blood, semen or excreta.[19] Therefore, in the case of the Wee Waa rapist, swabs taken from inside the mouths of volunteers were matched to semen found at the crime scene. Wilson-Wilde describes the process of DNA analysis as involving:

• extraction — separating the DNA from the biological material,

• quantification — measuring how much DNA you have in a sample,

• amplification — copying the DNA relevant fragments,

• electrophoresis — separating the DNA fragments according to size so they can be measured,

• statistical analysis — measuring the DNA fragments by using computer software that compares them to known pieces of DNA and produces a DNA profile.[20]

In 1998 all Australian jurisdictions agreed to utilise the ProfilerPlus system which has created a common standard for DNA profiling in Australia. Recently, in R v Karger [2001] SASC 64 (29 March 2001) Mullighan J held that the ProfilerPlus system was regarded as reliable and accepted by the relevant scientific community.

Consequently, DNA profiling is not as simple as established forensic techniques like fingerprinting. There are important differences. In the case of fingerprints a match is a definite match. However, in the case of DNA evidence, while two non-matching samples result in a definitive exclusion, a match is not conclusive proof. What the match means is that the two samples may, but not necessarily did, originate from the same source.[21] In R v Pantoja (1996) 88 A Crim R 554 it was noted that the significance of a match ‘establishes no more than that the accused could have been the offender’ (at 564). Whether or not the samples did come from the suspect then becomes a matter of statistical probability. Clearly, the statistics are daunting — the likelihood of one individual’s DNA matching that of another is millions to one. However, it must be borne in mind that a match is not conclusive proof.[22]

Additionally, like fingerprints, a DNA profile match does not automatically link a person to a crime scene. It is best used in violent crimes where blood, saliva or semen are the by-products of the crime and can provide good samples that link the offender to the crime scene and the time of the crime.[23] However, these crimes, notwithstanding their media prominence, only constitute a small percentage of criminal activity. Burglary is one crime where the effectiveness of DNA profiling is reduced. While DNA profiling from hair or cigarette butts could link an accused to the crime scene, there are myriads of legitimate reasons why a sample may have been present. Further, in fraud, cyber or white-collar crimes, crimes without bodily traces, the utility of DNA is minuscule.

Other concerns relate to the actual testing. Extreme care must be taken in the handling and analysis of samples. There is a possibility of samples becoming contaminated through a mixing of two or more bands in the DNA (blood/saliva) or the DNA may be damaged as a result of age, exposure to the elements and other substances.[24] Also, scientists are fallible. There may be lapses in procedure or a misinterpretation of data may occur. [25] At trial, juries may not appreciate the statistical variations and the possibility of statistical error.

In analysing the indeterminate nature of DNA evidence the matter of juries and science is a prime concern. The methodical and statistical complexity of DNA profiling necessarily involves expert testimony. The involvement of the expert is problematic as there is a risk that the jury could be ‘blinded by science’.[26] Juries are often swayed by evidence arising from scientific procedures, not because of the actual probative value of the evidence, but because it is ‘scientific’ and therefore is accepted as absolutely valid and truthful.[27] Juries immersed in a public culture where DNA profiling is celebrated as a truthful way of linking criminals with crimes may not appreciate the numerous practical, statistical and methodological limitations on DNA profiling in determining guilt. So while DNA profiling cannot deliver truth, this fact has not challenged the broad public acceptance that DNA profiling can.

Central dogma — Genes R Us

In examining the ramifications of this enduring public assessment that DNA provides ‘truth,’ the deep ethical concerns about DNA profiling emerge. While forensic scientists, police and criminal lawyers are aware of the practical, methodological and statistical limitations of the use of DNA within the criminal justice system these limitations are not public. Instead, the broad acceptance for DNA that legitimates the increasingly expansive sampling powers and the national database retains a high level of credibility. The ethical concern is that this public discussion replicates a series of assumptions about DNA that biologists have labelled the central dogma.

The central dogma is that entities can be known from their genes,[28] that a detailed genetic map provides the ‘essence’ or ‘code’ for a living thing. The tremendous investment and media publicity devoted to the successful mapping of the Human Genome reflects how dominant the central dogma is in Western society. However, the central dogma is just that — dogma. Biologically, the central dogma is captured in the equation:

DNA  RNA  Protein

According to this belief DNA is the essential, write protected, read only code. RNA is the transcription and translation medium and protein is the end product — the building block of cells, the actual entity. The central dogma postulates a uni-linear movement, that RNA, which in turn is programmed by DNA, constructs entities. DNA is therefore raised up as the code of life, God’s little instruction book on how to build a living organism. Like all good dogmas, the central dogma has retained credibility in the face of contrary evidence. First, ‘RNA viruses’ like AIDS, invert the direction of the central dogma. In these viruses the viral RNA strand is injected into the target cell. In contradiction to the central dogma, the cell then transcribes new DNA from the viral RNA.[29] Second is the position elaborated by Donna Haraway that ‘first DNA is not self-reproducing, second it makes nothing, and third organisms are not determined by it’.[30] Haraway makes the point that DNA and living entities are nodes within chemical, cellular, environmental, technological, economic and ideological systems and their being and meaning can only be located systemically. In other words, the central dogma blurs the genotype/phenotype distinction. The genotype refers to the inherited genetic potential of an organism, while phenotype refers to the organism as it actually is.[31] While the genotype might explain why this dog is a male, black haired Labrador it does not capture him in entirety. DNA does not explain why this dog behaves the way he does, why he likes certain brands of dog food, why he is de-sexed, and why he is a family pet and not a guide dog. The phenotype manifests an entity in its individual, historical and systemic uniqueness. A seed might contain all the genetic material for a Ghost Gum, but whether 50 years later a tree with an 80 centimetre diameter trunk and a height of 20 metres is growing on the spot where the seed landed is dependent on an infinite array of ecological, historical, climatic and economic processes, to name but a few. Clearly there is a relationship between genotype and phenotype, but it is a relationship of potentials mediated by the complex, particular and individualised history of an entity.

The problem with the central dogma for lawyers is that it compresses the phenotype to the genotype. Again to draw upon Haraway, it establishes ‘Genes R Us’ and ‘context is content with a vengeance; autonomy and automation interface intimately’.[32] Fundamentally, the central dogma diminishes what it means to be human — the unique diversity of an individual’s life is compressed into a fatalistic code. The reiteration of the central dogma within public discussion of DNA profiling opens up frightening dimensions for the criminal justice system. In particular, it opens the way for ‘new Darwinist’ accounts of social policy within the administration of criminal justice. As well, it introduces a powerful, private vested interest into the criminal justice system.

New Darwinism

Tim Murphy has recently proposed that the emergence of gene theory and biotechnology offer radical challenges to the critical legal project.[33] He suggests that ‘new Darwinist’ ideals — that human actions can be understood as genetically inherited behaviours that evolved in response to ecological factors — positively, could provide new approaches to ‘natural rights’ and socio-legal order, or negatively could raise the spectre of ‘odious positivism’. While the selfish gene theory or applied research of the theory into rates of abuse of stepchildren by step-parents raises important theoretical issues,[34] the public manifestation of the central dogma in the issue of DNA profiling marks an immediate political and ethical conflict.

As discussed, DNA as a forensic technique is only really useful for violent crimes, crimes in which blood, skin or semen can directly link the offender to the crime. Herein lies the first deep ethical concern. The utility of DNA in resolving violent crimes mixes seductively with the central dogma that genes are considered determinative of entities, to generate a culture where the new Darwinist quest for the ‘violent gene’ or ‘criminal gene’ becomes a legitimate exercise. The embryonic manifestation of this culture is already evident in Australia where political justifications for State and national databases depends on the logic that minor offenders ‘often’ graduate to more serious and violent crimes. Further, it is reflected in the ‘common sense’ assumptions that crime is a ‘family affair’ or the regrettably often-heard xenophobic beliefs that criminal activity is coexistent with race.[35] This new-age eugenics is exactly what the central dogma as manifest in the public treatment of DNA profiling promises. It squeezes the cultural, historical, economic and ideological factors away from human experience; phenotype becomes genotype. In suggesting crime is in the genes, it legitimates the institutional racism already evident in Australia’s criminal justice system and open up further possibilities for medicalisation of sectors of the population ‘in their best interests’.[36]

This is the first deep ethical concern about DNA profiling. It threatens a scientific basis for racism and scapegoating. Its use in high-profile violent crimes creates the potential for a cosy ‘objective’ split between us and them, between law abiding citizens and criminals, between white and others. For Australia, with a recent history of institutionally confusing racial characteristic with moral worth,[37] the new Darwinist potential of DNA must be highlighted and actively resisted.

Commercial interests

The second deep ethical concern relates to the vested commercial interests in DNA profiling. A central point in Haraway’s stance towards biotechnology is that the arrival of DNA and subsequent applications like DNA profiling, is a product of particular economic and cultural factors.[38] DNA is Big Science. Biotechnology, with the promises of gene therapy, genetically modified foods and cloning has in the 1990s replaced space and space travel as the ‘brave new frontier’.[39] Not only is it Big Science but it is also Big Business. DNA profiling is a detailed and complex procedure involving well-equipped laboratories and highly trained technicians. Maintenance of DNA databanks and sample repositories further adds to the cost and complexity of DNA profiling. However, the deep ethical concern goes beyond questions of economics. Many criminal justice systems in Western nations are experiencing waves of privatisation. Private prisons and private security firms contracted to undertake traditional police duties are the most obvious examples. A central concern of privatisation in criminal justice is the inappropriateness of allowing profit-motivated agencies a stake in how the community responds to crime.[40] This has two related dimensions for DNA profiling.

First, the corporate backers of DNA pro-actively champion the central dogma in public discussions of biotechnology. Profits depend on the public accepting that DNA related technology can provide solutions to worldly problems — whether crime, cancer or starvation. To do so, the central dogma — that DNA is the blue print of life and tinkering with DNA will have a tangible effect on the behaviour, structure and life history of an entity — must be publicly maintained.[41] The effect of this is to generate a vocal and powerful interest group that wants to maintain the central dogma, and maintain the cultural constellations that could lead to new Darwinism. This means that the needed call to challenge the central dogma within public discourse is already oppositional. Second, DNA profiling is a technique in resolving crime, not crime prevention. If it has a crime prevention function, it is in deterrence. However, as the ‘success’ of the British database shows,[42] offenders who have had their DNA sampled are still committing offences.[43]If deterrence was really important the criteria for the databases would be: the fewer matches the better. This would show that offenders through knowledge that their DNA is on file would be deterred from committing further offences. In this context DNA profiling mirrors private prisons. It sees catching and incarcerating criminals, two activities that can generate a profit for private interests, as the core of the criminal justice system. Criminal activity is deemed unavoidable, vested interests have a financial stake in the failure of rehabilitation and the continuing recycling of people through the system, and big science with the techno-fix overshadows small, social and community-based methods of crime prevention.

This second ethical concern of DNA profiling is that its corporate heritage means that there is a strong vested interest in maintenance of the status quo. Continual public acceptance of the central dogma is very good news for the biotechnology industry and their shareholders. Further, DNA profiling is about ‘catching crims’ and making money out of the continual level of crime in society. It is antagonistic to small, practical, social and community actions that could reduce crime.

Humanity

Ultimately what is at stake in DNA profiling is our humanity. The central dogma reduces every individual human in all her or his life glory, to a predeterminative code — Genes R Us. DNA profiling provides a portal where the central dogma can be stabilised and entrenched within the public conscience. This has two implications. First, it paves the way for new Darwinist approaches to social policy. That violence or crime is genetic therefore justifying institutional racism or the sentencing of offenders to genetic therapy to rewrite the offending gene. Further, DNA and the central dogma is a product of the biotechnology industry. DNA profiling introduces another profit-driven stakeholder into the criminal justice system, a stakeholder with a strong vested interest in maintenance of the status quo, both the public legitimacy of the central dogma and crime rates.

The link between the denigration of humanity by the central dogma and global industry is unsurprising. The empirical evidence of globalisation has been the global reduction of human dignity and growing inequality. Further, the assumptions about humanity that underpin neo-liberalism, the ideological handmaiden of globalisation,[44] resonate strongly with the pre-programmed ideology of the central dogma. Neo-liberalism postulates a highly differentiated society of individuals, with each individual competing in the marketplace of life, and failure is internalised as a character fault.[45]Difference is not celebrated; instead it is hierarchically valued according to the criteria for an economically successful life.[46] The central dogma, particularly when manifested in new Darwinism, gives this depressing assessment of humanity the aura of a scientific fact. Further neo-liberalism’s internalising of failure manifests as a denigration of the social and community.[47] Thatcher’s ‘there is no such thing as society’ becomes an excuse not to change the status quo, not to address prejudice and inequality, and reflects a fundamental perspective that all there is is Genes R Us. Finally, neo-liberalism’s feverish approval of privatisation mirrors the logic of the central dogma. DNA as a cultural concept allows the privatisation of the genetic heritage of humanity — either its own or the myriad of species in the biosphere. The privatisation of criminal justice evident in DNA profiling is replicated by the enclosure of the public by neo-liberalism and the owning of ‘life’ by the biotechnology patent holders.

However, the purpose of linking of DNA profiling to globalisation and neo-liberalism is not to engage in an anti-technology rant.[48] It is to emphasise that the deep ethical concerns for DNA profiling resonate across contemporary culture. Technology does not exist independently of social, political and economic factors. Instead, technology and how it is used is always political and is a site for discussion and for resistance.[49] What is needed is a challenging of the central dogma of DNA, an awareness of the deeper social and political costs of the adoption of DNA technology and awareness of the vested interests in technological change. This is not to say that DNA profiling does not have a role to play in the criminal justice system. It is clearly a useful scientific tool in resolving crime. However, it must always be considered as a tool.

In 1953 Martin Heidegger delivered a famous lecture on the essence of technology.[50] Heidegger perceived that technology is a human activity. However, he was concerned that modern technology had the potential to swamp and diminish humanity — that humanity will see itself as only a stockpiled list of potentials awaiting efficient utilisation.[51] This danger of the denigration of humanity lies at the core of the DNA profiling issue. For Heidegger the solution was to re-emphasise the humanity of humanity through the pursuit of truth through poetry and art.[52] For a culture transfixed by the central dogma Heidegger’s warning is clear — remember what makes us human. We are what we build, love and celebrate, for our being is not presupposed or determined by Genes R Us.

Conclusion

In conclusion, the issues around DNA profiling are all about what makes us human. The deep ethical concern for DNA profiling has been the broad public acceptance that it delivers truth and certainty about crime. The basis for this ‘truth’ is the central dogma of DNA — that DNA directly codifies an entity. The entry of the central dogma into the criminal justice system is problematic. First, it provides a way for new Darwinist approaches to social policy that discriminate according to alleged genetic difference. Second, it introduces the biotechnology industry into the criminal justice system, an industry that wishes to maintain the status quo of the central dogma and the current approach to crime. While a useful forensic method for resolving crime, DNA profiling must always be understood as a tool, limited and incomplete. Humanity is more than Genes R Us.


[*] Eileen Webb teaches law at the University of Western Australia.email: ewebb@ecel.uwa.edu.auKieran Tranter teaches law at Notre Dame University at Fremantle.email: ktranter@nd.edu.au© 2001 Eileen Webb and Kieran Tranter (text)© 2001 John Lynch (cartoon)

[1] Haraway, Donna, Modest_Witness@Second_Millennium. FemaleMan©_Meets_OncoMouse: Feminism and Technoscience, Routledge, New York, 1997, p.149.

[2] Knowles, Ron, Lets gob swab the lot of them, Sydney Morning Herald, 12 April 2000. See too ‘Test them all: Beattie’s plan for prisoner DNA blitz’, Sunday Mail, 14 April 2001, p.1.

[3] Refer generally to Gans, J., ‘A Critique of the Police’s Right to ask for DNA’ The Use of DNA in the Criminal Justice System, Seminar presented by the Institute of Criminology, University of Sydney, 11 April 2001.

[4] See generally Meagher, D., The Quiet Revolution — A Brief History of Analysis of the Growth of Forensic Police Powers in Victoria, (2000) Criminal Law Journal 76 particularly at p.84 onward.

[5] Meagher, D., above, pp.76, 82.

[6] Mobbs, J., ‘The National Criminal Investigation DNA Database — An Investigative Tool for the Future’, The Use of DNA in the Criminal Justice System, Seminar presented by the Institute of Criminology, University of Sydney, 11 April 2001.

[7] Model Criminal Code Officers Committee of the Standing Committee of Attorney’s General, Model Forensic Procedures Bill and the Proposed DNA Database, May 1999, p.2.

[8] For example the re-examination of the case of Colin Ross who was hanged for murder in the early 1920s.

[9] Wilson-Wilde, L., ‘DNA Profiling and its Impact on Policing’, The Use of DNA in the Criminal Justice System, Seminar presented by the Institute of Criminology, University of Sydney, 11 April 2001. See too the overturning of the conviction in R v Button, [2001] QCA 133.

[10] Refer generally Roberts, H., ‘Interpretation of DNA Evidence in Courts of Law: A Survey of Issues’, (1998) 30(1) Australian Journal of Forensic Sciences 29.

[11] Moynihan, R., DNA testing threatens freedoms: Kirby’, Australian Financial Review, 14 April 2000, cited in Heasler, A., ‘An Overview of DNA Testing and the New Crimes (Forensic Procedures) Act 2000’, The Use of DNA in the Criminal Justice System, Seminar presented by the Institute of Criminology, University of Sydney, 11 April 2001, p.2. See too Hocking, B., McCallum, H., Smith, A. and Butler, C, ‘Human Rights and the Criminal Justice System’, (1997) 3 Australian Journal of Human Rights.

[12] Meagher, D., The Quiet Revolution — A Brief History and Analysis of the Growth of Police Powers in Victoria, (2000) 24 Criminal Law Journal 76 at 77.

[13] Easteal, P. and Easteal, S., ‘Report to the Australian Police Ministers Council- The Forensic Use of DNA Profiling in Australia: Need for a National database’, Australian Institute of Criminology, 1991.

[14] Crimes Act 1958 (Vic) — Part 4.

[15] www.law.gov.au.publications/forensic.pdf

[16] Mobbs, above, ref 7, p.27.

[17] Haesler, A., above, ref 12.

[18] Young, W., Tinsley, Y. and Cameron, N., The Effectiveness and Efficiency of Jury Decision Making, (2000) Criminal Law Journal 89. See further B. Hocking, and others, above, ref 12.

[19] Table listing possible sources of DNA, Wilson-Wilde, L., above, ref 10, p.4.

[20] Wilson-Wilde, L., above, ref 10, p.3.

[21] Wilson-Wilde, L., above, ref 10, p.5.

[22] Redmayne, M., ‘Doubts and Burdens: DNA Evidence, Probability and the Courts’, (1995) Criminal Law Review 464.

[23] Meagher, D., above, ref 5, pp.76, 78.

[24] Wilson-Wilde, L., above, ref 10, p.4.

[25] R v Borham (unreported 3/11/92 CCA NSW) as cited in A.Haesler, above, ref 12, p.28.

[26] For a general discussion of the pitfalls in the jury system see Young, W., Tinsley Y. and Cameron, N., ‘The Effectiveness and Efficiency of Jury Decision Making’, (2000) Criminal Law Journal 89.

[27] For example the Chamberlain case.

[28] Fleising, Usher, ‘Genetic Essentialism, Mana, and the Meaning of DNA’ (2001) 20 New Genetics and Society 43.

[29] Starr, Cecie and Taggert, Ralph, Biology: The Unity and Diversity of Life, Wadsworth, Belmont, 5th edn, 1989, p.430.

[30] Haraway, Donna, above, ref 1, p.146.

[31] Fleising, Usher, above, ref 29, pp.45-6.

[32] Haraway, Donna, above, ref 1, p.149.

[33] Murphy, Tim, ‘Britcrits: Subversion and Submission, Past, Present and Future’, (1999) 10 Law and Critique 237.

[34] Murphy, Tim, above.

[35] Hogg, Russell and Brown, David, Rethinking Law and Order, Pluto Press, Annandale, 1998.

[36] An innocently, benefital sounding legislative phrase that legalised the removal of indigenous people. See Cubillo v Commonwealth of Australia [2000] FCA 1084; (2000) 174 ALR 97.

[37] Wilson, Ronald, Bringing them Home: National Inquiry into the Separation of Aboriginal and Torres Straight Islander Children from their Families, HREOC, Canberra, 1997.

[38] Haraway, Donna, above, ref 1, pp.131-72.

[39] Beebe, Barton, ‘Law’s Empire and the Final Frontier: Legalizing the Future in the Earlyorpus Juris Spatialia’, (1999) 108 Yale Law Journal 1737, 1771.

[40] Moyle, Paul, Profiting from Punishment: Private Prisons in Australia: Reform or Regression? Pluto Press, 2000; Stuart, Russell, ‘Private Prisons for Private Profit’, (1997) 22 Alternative Law Journal 7-9.

[41] Haraway, Donna, above, ref 1, pp.145-6.

[42] Wilson-Wilde, L., above, ref 10, p.5.

[43] Meggison, W.S., Forensic Science, Certainty and Fallibility: Justice in the Age of Technology’, (2001) 4 Alternative Law Journal (this issue).

[44] Burbach, Roger, Globalization and Postmodern Politics: From Zapatistas to High-Tech Robber Barons, Pluto Press, 2001, p.44.

[45] Thornton, Margaret, ‘Neo-liberalism, Discrimination and the Politics of Ressentment, (2000) 18 Law in Context 8; Carney, Terry and Ramia, Gaby, ‘From Citizenship to Contractualism: The Transition from Unemployment Benefits to Employment Services in Australia’ (1999) 6 Australian Journal of Administrative Law 117.

[46] See generally Bauman, Zygmunt, Postmodernity and its Discontents, New York University Press, 1997.

[47] Salleh, Ariel, Ecofeminism as Politics: Nature, Marx and the Postmodern, Zed Books, London, 1997.

[48] Shapiro, Michael, ‘Is Bioethics Broke? On the Idea of Ethics and Law ‘Catching Up’ with Technology? (1999) 33 Indiana Law Review 20, 39

[49] For a contemporary Australian perspective see Alan Petersen, Ian Barns, Janice Dudley and Patricia Harris (eds), Poststructuralism, Citizenship and Social Policy, Routledge, 1999.

[50] Heidegger, Martin ‘Question Concerning Technology’, in David Farrel Krell (ed.), Martin Heidegger Basic Writings, Routledge, 1993. pp.311-341.

[51] Heidegger, Martin, above, pp.330-3.

[52] Zimmerman, Michael, Heidegger’s Confrontation with Modernity: Technology, Politics and Art, Indiana University Press, 1990, p.219.


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