by Michael Strutt

It sometimes seems that Australia has fallen between the stools of two world orders. 

Our national flag and the ceremonial trappings of public life hark back to the heyday of the British Empire, but our self image and cultural accoutrements are steadily recasting us in the image of the United States.

When Britannia ruled the waves our island continent was its antipodean outpost. Australia was the furthest extent of English colonial power and a distant dumping ground for the petty offenders and Irish rebels who filled its prisons. 

The UK bequeathed us the Common Law and Westminster form of parliamentary democracy as the foundations of self government. When the time came, the US constitution provided the model for federating a scattered string of settlements into a modern nation-state. But Australians were not destined to become free citizens, and remained subjects of the British Crown. As a result, the limits of the relationship between government and the governed remain undefined to this day, with a Bill of Rights still a distant dream of Australia’s civil rights lawyers. 

We are a country with its soil in the South Pacific but its soul in the mid-Atlantic. It sometimes seems that, like the donkey half way between haystacks, in striving to reach the best of both worlds we only attain the worst of each.

Australia’s approach to gene technology provides both a case in point and a symbol representing the way the invader-settlers have traditionally approached the ‘problem’ of Australian difference.

As with the body politic, Australia’s use of forensic DNA in the criminal justice system looks to the United Kingdom for inspiration but to the United States for its methodology. 

Australia was not as swift as the U.K., U.S. or even New Zealand to take to genetic profiling in an attempt to solve crime. Although first employed by Australian investigators shortly after it was developed in Leicester, Alec Jeffreys’ ‘DNA fingerprinting’ remained little more than a forensic curiosity for over a decade. That was to change with the advent of a standardized DNA test kit, developed in a partnership between the FBI and big business and quickly adopted by every government-funded forensic laboratory in Australia.

Within a couple of years, all Australian legislatures had pushed through laws allowing police to collect forensic samples from practically everyone who came into contact with the criminal justice system. Suspects, petty offenders, relatives of missing persons and even victims of crime were soon to be encouraged or compelled to submit forensic samples for police DNA databases, regardless of whether the profiles were likely to be of use to investigators of unsolved crime. The main escapees from the DNA dragnet are police themselves, who have successfully resisted all calls for them to provide samples which might allow their own forensic contaminants to be eliminated from the crime scenes they attend.

One might hope that the relatively late advent of production-line forensic DNA testing in Australia might have allowed some lessons to be drawn from the overseas experience. Policymakers hear many stories of crimes solved with DNA technology, but they seem oblivious to the problems their 
counterparts faced during its introduction. It seems that many of their errors will soon be repeated here.

The US experience of massive backlogs of untested forensic samples clogging police evidence rooms and hampering investigations is already finding an echo down under. The DNA testing of incarcerated prisoners in order to solve ‘cold cases’ is well ahead of schedule in most Australian jurisdictions. In the meantime, police investigating serious, recently committed offences — including rape — must wait many weeks for results of DNA testing, while suspects cool their heels and remain in prison for months waiting for the lab to get around to proving their innocence. 

The history of U.S. forensic science is well populated with fraudsters who have been prepared to fake qualifications, falsify results, overstate conclusions or lie under oath to obtain convictions. Notable examples like Fred Zain of West Virginia, Joyce Gilchrist of Oklahoma and Pamela Fish of Illinois have already been replicated in Australia — as the many South Australians falsely convicted on the “expert” evidence of Colin Manock can attest. 

But instead of following the U.K. example of well funded, independent, professionalised forensic laboratories, Australia has opted for DNA testing on the cheap, carried out by incompetent or dishonest technicians who have been able to continue practicing even after being thoroughly discredited. Even those who have achieved considerable notoriety for shoddy work have seen their careers prosper under governments who care more about throughput than thoroughness. Joy Kuhl, who catapulted to international fame after committing fundamental scientific errors resulting in the wrongful conviction of Lindy Chamberlain for the murder of her daughter Azaria, is now in charge of the main DNA testing laboratory in the Northern Territory and continues to blunder her way through high 
profile forensic investigations.

One lesson that Australian politicians do seem to have learned from the US experience of forensic DNA evidence is that allowing prisoners to use it to challenge their convictions can be embarassing and expensive. No Australian states have any legislation guaranteeing prisoner access to the evidence or resources for testing or mounting an appeal. As a result, only one Australian — Frank Button from Queensland — has ever been able to overturn his or her conviction on the basis of DNA evidence.

In New South Wales, a panel appointed by the Premier evaluates all applications for post-conviction testing from serious offenders, but is yet to approve one. The panel has no statutory authority and can be deprived of resources or closed down at the whim of the government.

While Australian forensic scientists seek to emulate their cowboy counterparts in the US, our legal fraternity looks more towards the musty halls of London’s Old Bailey for their precedents.

UK police have found that media coverage of particularly heinous crimes can be very useful in getting rid of checks and balances built into DNA legislation. Whole villages full of innocent people can be easily persuaded to ‘consent’ to DNA testing by suggesting that it would eliminate them as ‘suspects’ in an abhorrent and well publicized crime. 

When it was revealed that the UK Forensic Science Service (FSS) database illegally held the DNA profiles of thousands of innocent people, Home Secretary Jack Straw at first simply waited. Several months later, two very serious cases went to trial on evidence obtained from illegally held DNA data. Straw used the uproar over the dimissal of one case to push through legislation retrospectively legalizing the retention of all DNA profiles collected by the police, regardless of whether the contributor was ever charged or convicted. 

In early 2000, when forensic DNA legislation was approaching a vote in the New South Wales Parliament, police staged the country’s first ever mass DNA testing. Almost all of the adult men in the town of Wee Waa lined up to be swabbed so that police might solve the brutal rape of a local old age pensioner. Those who criticized the draconian legislative package were portrayed as effectively being in favor of the rape of elderly women. The Bill passed without significant amendment. 

The tactic was repeated recently when the murder of an English tourist and abduction of his companion was used as the rationale for allowing unregulated exchange of police DNA information between states. The practical upshot of this change is that genetic privacy, the right to refuse a medical procedure, and the quality of police DNA data in every state have now effectively been reduced to the lowest standard 
operating in any of them.

In settling Australia the Europeans have introduced many infections, some more deliberately than others. From colonialism to cash crops, cane toads to criminal justice - things which had been useful in their native environment have turned feral under southern skies.

If gene technology is to be integrated beneficially into the interlinked series of cultural, economic, environmental and social systems which make up ‘Australia’ both its proponents and the public need to learn the same lesson. You cannot replace a discrete element within a complex system and expect to get predictably benevolent results. 

While our vision remains fixed on implanting North Atlantic nuclei into South Pacific cytoplasm, it seems unlikely that gene technology will be introduced in a manner consistent with Australia’s best interests. Rather, it is likely to facilitate new manifestations of the same old mistakes which have dogged its history of European settlement. 


GeneWatch: Current Issue
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Book review: Making Sense of Genes by Kostas Kampourakis. By Stuart A. Newman
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