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The recent introduction of the Justice Legislation Amendment (Police and other matters) Bill 2019 has granted police wide and expansive powers to conduct DNA testing – including the power to take a DNA sample from someone who has not yet been charged with an offence. 

At Gallant Law, we believe in access to justice for all and are strong advocates for the presumption of innocence that our legal system is built on. Our concern is that these laws, which confer very broad powers onto police, will have a detrimental impact on those from whom DNA is being sampled. 

In March 2019, the Victorian Government passed the Bill to help police ‘crack down on crimes’, citing some 55,000 DNA profiles that are currently held and do not match any profiles. Since then police have been given powers to take DNA samples from adult and juvenile suspects without a court order, even when the suspect does not consent to DNA sampling. This applies to people suspected of having committed an indictable offence, charged with an indictable offence or summoned to answer a charge for an indictable offence. 

The power to conduct DNA sampling in the absence of a court order is, in our view,  both new and concerning. Previously, such a power was only granted following a court order. Not only does this new legislation impact heavily on the presumption of innocence, the broadening of circumstances under which DNA testing is appropriate also infringes upon one’s privacy. 

Having said that, police can’t just go taking DNA samples at any time. The legislation requires that police are ‘satisfied that the taking of a sample is justified in all of the circumstances.’ 

But there are no guidelines as to what constitutes ‘being justified’ that a DNA sample is needed, nor any direction as to which factors are relevant to take into account when making this decision. Further, a senior police officer can authorise DNA testing in a matter they are not involved in investigating, so long as they have allowed a person, parent or lawyer to give any reason as to why the DNA testing should not go ahead. In these cases, consent from the person DNA is being taken from is not necessary. 

As we’ve said before, being involved in the criminal justice system in any way is frightening, confusing and stressful. We believe that the power to grant DNA testing at an officer’s discretion fails to take into account the anxiety the accused is likely to be experiencing.

Nonetheless, if you do find yourself in this situation, here are some important things to remember: 

  • Only certain crimes are ‘DNA sample offences.’ These include carjacking, dangerous driving causing death and stalking.
    • The procedure for DNA testing is a mouth swab, which should be done in the least painful and intrusive way possible. If you are a minor (under 18) a parent, guardian or independent person must be present.
    • You or your lawyer must be sent a copy of the forensic report.
    • Police must destroy the DNA evidence after 12 months where there is no charge or after a no-guilty verdict (otherwise than by the reason of a mental impairment).  


  • Being arrested on suspicion of an offence and being DNA tested does not mean you are guilty. 


If you or a loved one are involved in a situation like this, contact Gallant Law on 03/9070 9885 or on our after-hours line 0412 513 915 so we can offer tailored advice, guidance and support.