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Waters, Nigel --- "From Wee Waa to Norfolk Island (and beyond?): 'voluntary' biometric testing for criminal investigations" [2002] PrivLawPRpr 48; (2002) 9(6) Privacy Law and Policy Reporter 116

From Wee Waa to Norfolk Island (and beyond?): ‘voluntary’ biometric testing for criminal investigations

Nigel Waters

The appeal by the Australian Federal Police (AFP) for Norfolk Island residents and visitors to voluntarily give their fingerprints in a current murder investigation sets an interesting and potentially disturbing precedent. It shares some of the characteristics of the voluntary collection of DNA samples from residents of the NSW town of ,Wee Waa in 2000, also in connection with a murder investigation.

In the Norfolk Island case, the feasibility and value of the fingerprinting is enhanced by the limited size of the population — approximately 2000 residents and 680 visitors were on the island at the time of the murder. As the month long operation drew to a close in September, some 1250 individuals had given their prints out of 1650 local residents aged between 15 and 70 who had received letters requesting their participation. The AFP claimed to be satisfied with this 77 per cent response rate, but will probably be disappointed.

While fingerprinting and subsequent matching is not as costly as DNA testing and analysis, it is still a time consuming operation, with collection alone averaging 30 minutes, and the AFP estimates that analysis and comparison of the 1250 sets of prints with those from the crime scene could take three months.

As in Wee Waa, it must be doubted whether this exercise can validly be described as voluntary. The community pressure to participate, particularly on ,a small island, must be enormous, even for those with strong objections in principle to the reversal of the onus of proof, although the fact that more than 20 per cent have apparently declined to give their prints is an encouraging sign that the pressure is not overwhelming — this ‘dissent rate’ is high enough to mean that no adverse inference can automatically be made.

Of the approximately 500 males aged 18-45 in Wee Waa, 420 had ‘voluntarily’ given a sample (as well as thumbprints and photos) by the time someone confessed, with around a dozen having declined to participate and a further ,65 not having ‘got around to it’.[1]

The police would no doubt argue that the precedent of asking for those likely to have been present at a crime scene ,to give fingerprints for elimination purposes is well established. But surely there has to be a significant difference between a defined crime scene and a whole community? Police forces should be asked to spell out whether there ,are any limits, other than those of practicality and cost, that they see as applying to such initiatives. In other words, if cost was not an obstacle, would they like to test and eliminate ,the entire relevant population for every investigation where suspect biometrics are available? If their answer is yes, then there is an urgent need for debate about the appropriate limits before technology reduces or eliminates the cost constraint.

The other issues raised relate to safeguards and accountability. The Wee Waa samples were destroyed some five months after the testing — how did this timing relate to the progress of the investigation? In the Norfolk Island case, the AFP is assuring residents that the fingerprints will not be used for any other purpose, including the investigation of other crimes. What guarantees apply to this assurance? The temptation to match the prints against unrelated scene of crime prints must be considerable, and will remain for as long as the prints are kept. The ‘assurance’ may even be subject to legislative or court order override given certain circumstances. Strict time limits and rules for disposal must therefore be a fundamental part of any safeguards, as well as rules about storage, security and access, and appropriate record-keeping, monitoring and reporting.

The Australian Law Reform Commission discussion paper on Protection of Human Genetic Information (see box opposite) devotes three chapters to forensic uses, and has a useful section on collection and use of DNA samples from volunteers. Several submissions to the Inquiry raised the concerns discussed above, and the Discussion Paper proposes that regulation or police guidelines be developed in all jurisdictions for the conduct of mass screening programs. While there are additional risks involved in DNA sampling, the same rules and safeguards should apply ,to mass collection and analysis of fingerprints or, in future, other biometrics.

Nigel Waters, Associate Editor.,Source: AFP Media Releases and ,media reports.

[1] The Sydney Morning Herald 20 August 2000.

Possible new laws to control genetic information

The Australian Law Reform Commission has published a discussion paper (no 66) on its current joint Inquiry, with the National Health ,and Medical Research Council (NH&MRC), into the Protection ,of Human Genetic Information.,(see <>).

The paper contains more than ,100 proposals and 40 further ,questions. Submissions are invited ,by 29 November.

Rather than proposing major new stand alone legislation, the Inquiry acknowledges the complexity of the issues and their overlap with many other areas of regulation, and the need for existing laws, codes and guidelines to be revised and in some cases supplemented. It also concludes that the desirable response involves not only providing adequate protections against the unlawful use of genetic information, but also putting into place measures and strategies aimed at ensuring that where such information may be used lawfully, it is used properly, fairly and intelligently.

The Inquiry proposes that the Privacy Act 1988 (Cth) be extended ,to cover identifiable human genetic samples and genetic databases, and calls for the harmonisation of the various information and health privacy regimes. A criminal offence of unauthorised non-consensual genetic testing is proposed, and testing would be restricted to accredited laboratories. It would be made unlawful to discriminate on the basis of a person’s genetic status (or another’s perception of that status). The establishment of an independent, standing advisory body — the Human Genetics Commission of Australia (HGCA) ,— is also proposed.

Human Genetic Research would ,be more clearly governed by the machinery of the NH&MRC and Human Research Ethics Committees (HRECs), but this would allow for genetic research without express consent in certain circumstances. The Inquiry also recognises that it will be appropriate in some cases for health professionals to disclose genetic information about a person to ,relatives without consent.

The Inquiry also deals in the Discussion Paper with the use of ,genetic information in the contexts ,of insurance, employment and law enforcement (see main article on ‘voluntary’ forensic testing). In insurance, the obvious question that genetic information raises is the extent to which better knowledge of an individual’s predisposition to particular conditions, susceptibility to particular medical events, or even life expectancy, should be allowed to affect the community rating or mutual rating ,basis of much insurance underwriting. This potentially affects not only health and life insurance but also many superannuation policies, income protection, and even travel insurance which includes medical expenses cover.

In the employment context, the Discussion Paper discusses a range of uses of genetic information, including pre-employment screening and monitoring of workers’ health. The motivations for testing in a workplace environment range from occupational health and safety to the financial interests of the employer (often connected to superannuation and insurance cover for employees). ,There is an obvious risk of discriminatory use of genetic information. The paper also draws attention to gap in the protection offered by the Privacy Act 1988 ,(Cth) due to the ‘employee record’ exemption, which means that even the most sensitive of health information (including genetic information) is not covered by information privacy law if it relates to private sector employees (genetic and health information of federal government employees is covered).

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