Responsive Constitutionalism

'The New Responsive Constitutionalism' by Rosalind Dixon in (2023) Modern Law Review comments 

Constitutionalism is a near universal discourse. But it comes in many different variants: it can be democratic or authoritarian, liberal or post-liberal, and legal or political in nature. The term constitutionalism has also been used to describe different regional patterns in constitutional self-government, and modes of government in a variety of spheres – including ‘global’, ‘digital’ and ‘societal’ domains. 

Democratic constitutionalism itself has many variants and intersects with varying understandings of constitutionalism. Democratic constitutionalism can be legal or political in nature, and can take on a more preservative or a more transformative focus. It can likewise emphasise rights over structure (or vice versa), and either (or both) negative or positive rights traditions. 

There are important real-world consequences to these debates: constitutional lawyers, drafters and judges worldwide look not only to their own domestic traditions and politics but to these theoretical ideas to guide processes of constitutional design and construction. The ongoing process of constitution-making in Chile is only one of many recent examples. Constitutional drafters in Chile have proposed a wide variety of preservative versus transformative constitutional models, with different institutional variants, all within a framework of a commitment to democratic constitutionalism. 

This article describes a novel, distinctive version of democratic constitutionalism – responsive constitutionalism – which advances both thin and thick understandings of democracy, and proposes a new way of understanding democratic constitutionalism as involving a mix of legal and political, negative and positive, and entrenched and flexible constitutionalism. The idea of responsive constitutionalism draws on ideas about responsive law and regulation developed by scholars such as Nonet and Selznick, and Ayers and Braithwaite. 

Manuel Cepeda has also provided a compelling account of how these ideas can, and do, inform constitutional practice in real-world settings, including in countries such as Colombia. Indeed, he has used the term ‘responsive constitutionalism’ to describe a version of constitution making, institutional design and adjudication that involves the same emphasis as responsive law theorists on notions of participatory decision-making, ‘the competence and institutional capacity of [courts] to address complex problems’ and ‘promote substantive justice’, and the value of ‘invit[ing] experts, organizations, and universities’ to contribute to processes of constitutional interpretation and implementation. 

The idea of ‘responsiveness’, however, can be further adapted to fit a constitutional context, drawing on distinctive notions of institutional capacity in this context and what democracy is and requires. In previous work I have explored the idea of responsive judicial review as a distinct mode of constitutional construction and adjudication. Malcolm Langford has likewise put forward a concept of responsive courts in the context of social rights adjudication. This article attempts to spell out the broader theoretical framework in which these ideas sit, as well as the broader implications for constitutional design and construction. 

A ‘new’ responsive approach to constitutionalism, the article suggests, points to the importance of both unwritten and written, and politically and judicially-enforced constitutional norms in promoting democratic responsiveness. Hence, it is contended that responsive constitutionalism emphasises the value of: institutional pluralism; overlapping institutional authority; multiple access points to institutions; broad remedial power for relevant institutions, including courts; a balance between constitutional norms that promote rights-enhancing forms of state action and limits on state action; and strong institutional checks and balances, which are bolstered by an entrenched ‘minimum core’ of a democratic constitution. However, a more flexible set of constraints are appropriate in other contexts, where the aim of a responsive constitutional model is to promote dialogue between courts and legislators. 

Some aspects of this model can be achieved through formal constitutional design, and other aspects through a responsive approach to constitutional construction by courts. Constitutional design and constitutional construction will thus be potential complements as well as partial substitutes in realising a responsive model of constitutionalism. But there are also aspects of responsive constitutionalism that are beyond the scope of formal design or construction, and which depend on a supportive political and legal culture. For instance, the influence of responsive ideas on formal constitutional choices will depend on whether political elites and civil society actors support the logic of shared, balanced and/or tiered constitutional design. The effectiveness of these choices will depend on the independence and political support for institutions such as courts and ‘fourth branch’ bodies. And their continued implementation will depend on an ethos of both responsibility and restraint on the part of judges and legislators. Describing what responsive constitutionalism should look like, therefore, is not the same as saying what it would look like in different countries. This is a deeply important task, but one the article only begins to undertake. 

The article illustrates these arguments by reference to examples of constitutional electoral regulation in Australia, Kenya and the UK, as well as broader examples of the non-protection of constitutional rights in Australia. These systems share a common law and democratic parliamentary tradition, and as a group, they have a range of important similarities. But they also differ in the balance they strike between legal and political models of constitutionalism. The UK is well-known as an exemplar of political constitutionalism but has also added important elements of legal protection for constitutional rights – both by accession to the European Convention on Human Rights and adoption of the Human Rights Act 1998 (HRA 1998). The Australian constitutional system combines elements of both legal and political constitutionalism, but is notable in its continued emphasis on positive, political constitutional models for the protection of rights. And the 2010 Kenyan Constitution envisages both legal and political models of enforcement but goes much further in legally entrenching a wide range of democratic constitutional commitments.  In addition, the article draws on examples from Canada, New Zealand and South Africa to illustrate the broader terrain of democratic constitutional possibilities within the common law world. None of these examples prove the appeal of responsive constitutional approaches, over rival approaches. They simply show the plausibility of certain aspects of responsive constitutionalism in real world constitutional settings, and help demonstrate certain finer-grained aspects of the theory. 

The remainder of the article is divided into five parts. The second part sets out different understandings of democracy, and how a responsive approach attempts to reconcile both thin and thick understandings of democracy through the idea of a democratic ‘minimum core’ and broader, more democratically mediated notions of deliberation and constitutional rights. The third part sets out the idea of responsive constitutionalism as a model of shared legal and political authority, or one that depends on both legal and political forms of constitutionalism. The fourth considers the relationship between responsive constitutional ideas and notions of positive and negative constitutionalism, and how a responsive approach favours a balanced approach to both constraining and empowering democratic states. The fifth part explores the relationship between these ideas and notions of constitutional entrenchment, and how a responsive approach points to a ‘tiered’ approach to constitutional design, but also a quite distinct one, in which the democratic minimum core and only that core enjoys heightened protection against legislative override or amendment. The sixth part considers the relevance of responsive ideas to constitutional design and construction, while the seventh offers a brief conclusion on the promise and limits of formal constitutional design and construction as capable of realising responsive constitutional ideals.

Secrecy

The Attorney-General has released the report of the review of Commonwealth secrecy provisions, which 'addresses concerns raised by multiple reviews about the number, inconsistency, appropriateness and complexity of Commonwealth secrecy offences'. 

The report states 

2. In 2009, the Australian Law Reform Commission (ALRC) issued a report, Secrecy Laws and Open Government in Australia (the ALRC Report). The ALRC concluded that the number of secrecy offences was at odds with the general shift towards open and accountable government. The ALRC Report recommended reforms to repeal the then-existing offences in the Crimes Act 1914 (Crimes Act)2 and replace them with new general secrecy offences targeted to protect essential public interests. 

3. While new general secrecy offences were enacted in 2018,3 the number of secrecy provisions in Commonwealth laws has continued to grow. At the time of the ALRC report, there were 506 secrecy provisions in Commonwealth primary and subordinate legislation. Today – taking into account the general secrecy offences, specific secrecy offences and non-disclosure duties given criminal liability by section 122.4 of the Criminal Code Act 1995 (Criminal Code) – there are 875. 

4. The utility of secrecy offences in protecting certain information from being disclosed has come into focus more recently due to an increase in the frequency of data breaches, including the Optus and Medibank data breaches in 2022. PwC Australia’s alleged breach of confidence, brought to light in 2023, has similarly raised concerns about the adequacy and appropriateness of secrecy offences, including their coverage of those who receive confidential information from government on the one hand and their restriction of information-sharing between Commonwealth agencies on the other. 

5. In undertaking the task to inquire and report on secrecy provisions in Commonwealth laws and appropriate reforms, the Review was guided by the above context and the following key considerations:

1) Open and accountable government is fundamental to our democracy, and secrecy offences sit within a broader context of mechanisms that protect or facilitate access to Commonwealth information. 

2) Secrecy offences play a legitimate and important role in protecting the confidentiality of certain Commonwealth information where an unauthorised disclosure or other dealing may cause harm to public interests, such as national security and public safety, or harm to the relationship of trust between individuals and/or entities and the Australian Government. 

3) Criminal liability for unauthorised disclosures should be limited to the extent needed to protect essential public interests. Other sanctions (administrative or civil) may be more appropriate to deter and respond to unauthorised disclosures. 

6. The Review identified and considered the following secrecy offences across 238 Commonwealth laws: 11 general secrecy offences in Part 5.6 of the Criminal Code; 295 non-disclosure duties in 102 Commonwealth laws which attract criminal liability under section 122.4 in Part 5.6 of the Criminal Code;569 specific secrecy offences in 183 Commonwealth laws. 

7. The Review also identified 25 override provisions in 20 Commonwealth laws that operate to exclude secrecy offences in other Commonwealth laws. Scope of the Review 8. The Review’s terms of reference are at Appendix A. The Review was directed to conduct an inquiry and report on:

• any specific secrecy offences in Commonwealth legislation that are no longer required in light of the introduction of the general secrecy offences in the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act) 

• the suitability and appropriate framing of the general and specific secrecy offences in Commonwealth legislation, having particular regard to: – the principles outlined in the ALRC Report, and – other relevant principles, including but not limited to those set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) 

• any amendments to general and specific secrecy offences in Commonwealth legislation that are necessary to adequately protect individuals who provide information to Royal Commissions balanced against other essential public interests, and 

• any amendments that are necessary to adequately protect public interest journalism balanced against other essential public interests. 

9. In January 2023, the Review provided an interim report to the Attorney-General that focused on protections for individuals providing secrecy-regulated information to Royal Commissions. This issue is considered further in Part 5, and the interim report is at Appendix D. 

10. The Review did not consider secrecy offences in the National Security Information (Criminal and Civil Proceedings) Act 2004 (consistent with Review’s terms of reference). The Independent National Security Legislation Monitor (INSLM) is currently considering these secrecy offences as part of a Review of the operation and effectiveness of the National Security Information (Criminal and Civil) Proceedings Act 2004.7 The INSLM is due to provide a final report to the Attorney-General by 31 October 2023. 

11. Further, issues around whistleblower protections are being considered as part of the review of the Public Interest Disclosure Act 2013 (PID Act), as are reforms to implement recommendations arising from the Parliamentary Joint Committee on Intelligence and Security (PJCIS) Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press (PJCIS Press Freedom Report). This data has been updated from the Review’s March 2023 consultation paper data. These updates are attributable to enactment of provisions, repeal of provisions, identification of additional provisions, and identification that some provisions were not secrecy provisions. Independent National Security Legislation Monitor, ‘Review into the operation and effectiveness of the National Security Information (Criminal and Civil Proceedings) Act 2004’ (2023). 

Consultation 

12. To help inform the Review, consultation was undertaken with all Commonwealth departments and agencies, as well as civil society, media organisations, legal experts and current Royal Commissions. In February 2023, the Attorney-General met with a range of media organisations to discuss issues affecting press freedom, including secrecy offences. In March 2023, the Review released a consultation paper inviting public submissions on the operation of secrecy provisions. The Review received 12 submissions from organisations and members of the public. With submitters’ consent, 10 of these submissions have been published on the Attorney-General’s Department’s website. 

Public consultation 

13. The public submissions to the Review were mostly from civil society, legal and media organisations. Their main concern was that the current state of secrecy law restricts public scrutiny of government processes and operations, and creates a chilling effect on public interest journalism and whistleblowers. They considered there were too many secrecy offences in Commonwealth legislation and that the existing offences were complex and overly expansive.  Submissions were also supportive of a reduction in criminal liability and proposed changes to narrow the application of general and specific secrecy offences to circumstances where there is clear harm to an essential public interest. 

14. However, the Review did not receive submissions from privacy stakeholders and submissions offered limited views on whether it is appropriate for secrecy offences to protect personal and commercial information. The public consultation period also concluded before the publication of PwC Australia’s alleged breach of confidentiality and the Report of the Royal Commission into the Robodebt Scheme and therefore, public stakeholders did not engage in those issues. 

Government consultation 

15. Consultation with Commonwealth departments and agencies sought to understand the particular context and need for secrecy provisions administered by each department, including whether criminal liability was necessary or whether administrative or civil sanctions were appropriate. These consultations included reviewing non-disclosure duties applying to Commonwealth officers that currently attract criminal liability through section 122.4 of the Criminal Code, which sunsets on 29 December 2023. 

16. Feedback indicated that many specific secrecy offences and non-disclosure duties do need to have criminal liability attached. Factors that departments and agencies considered in making their assessments included (but was not limited to):

• differences in the conduct covered by the general secrecy offences and the conduct covered by their specific secrecy offences 

• particular sensitivities of the information protected by specific secrecy offences and non-disclosure duties • whether the offences targeted actual or potential harm that might be caused by unauthorised disclosures 

• the need to assure stakeholders who provide information to government – including the Australian community and foreign partners – that there are appropriate penalties in place for unauthorised disclosure 

• the discrete roles played by different Commonwealth departments and agencies who hold information, for example, whether they are regulators, service providers, intelligence agencies or law enforcement agencies 

• whether there were alternative sanctions that could be better suited to deterring or punishing unauthorised disclosures, and 

• other benefits and implications of applying criminal penalties, such as supporting future decisions about whether a person should be a security clearance holder. 

17. The Review also notes that additional issues have been raised in these consultations about the adequacy of secrecy offences to:

• protect sensitive defence information in light of the changing strategic environment, including AUKUS 

• deter or respond to the broad range of breaches of confidentiality that could occur, including PwC Australia’s recent alleged breach of confidentiality, and 

• the impact of secrecy offences on information-sharing about breaches of confidentiality between departments and agencies. 

The term ‘secrecy provisions’ is used in this report to refer to both specific secrecy offences and non-disclosure duties. The difference between these is discussed further in Part 1. Part 5.6 of the Criminal Code Act 1995 (‘Criminal Code’) defines ‘Commonwealth officer’ to mean individuals employed or engaged by the Commonwealth, including Australian Public Service employees and contracted service providers. The definition also includes individuals appointed or employed by the Commonwealth other than under the Public Service Act 1999 including Commonwealth ministers, statutory office holders and individuals employed by the Commonwealth under other legislation such as the Members of Parliament (Staff) Act 1984. On 10 August 2023, the Government introduced the Counter-Terrorism and Other Legislation Amendment Bill 2023 to Parliament. Schedule 2, Part 2 of the Bill would extend the sunsetting date of section 122.4 of the Criminal Code to 29 December 2024. 

18. The Review developed the following 11 recommendations to guide future work to reduce the number of secrecy offences and support a consistent approach to the framing of secrecy offences 

Recommendation 1: The following principles be adopted for framing Commonwealth secrecy offences going forward: 

• Principle 1: Secrecy offences should be limited to circumstances where there is an essential public interest that requires criminal sanctions. 

• Principle 2: Criminal liability for the protection of Commonwealth information should primarily be imposed through general secrecy offences. 

• Principle 3: Specific secrecy offences should apply where criminal liability differs in significant and justifiable ways from general secrecy offences. 

• Principle 4: A harms-based approach should be taken in framing secrecy offences. Secrecy provisions should: – contain an express harm element – cover a narrowly defined category of information and the harm to an essential public interest is implicit, or – protect against harm to the relationship of trust between individuals and the Government integral to the regulatory functions of government. 

• Principle 5: Secrecy offences that apply to Commonwealth officers should also apply to former Commonwealth officers. 

• Principle 6: Secrecy offences should clearly identify any third parties regulated by the offence and separate offences should apply to third parties. 

• Principle 7: Offences capturing third parties should have a higher threshold for establishing criminal liability. 

• Principle 8: Secrecy offences should clearly identify the conduct regulated. 

• Principle 9: Fault elements for secrecy offences should generally require intention or recklessness (awareness of a substantial risk) in line with the default approach in the Criminal Code Act 1995 (Criminal Code). 

• Principle 10: Secrecy offences should have maximum penalties that reflect the potential seriousness of the conduct. 

• Principle 11: Offence-specific defences should be considered when framing secrecy offences, including to protect public interest journalism. 

• Principle 12: All Commonwealth departments and agencies should regularly review specific secrecy offences in legislation they administer as part of reviews of legislation and legislative instruments. 

Recommendation 2: Legislation be developed to repeal specific secrecy offences and non-disclosure duties identified through this Review’s consultations as no longer being required. 

Recommendation 3: To enable the further reduction of specific secrecy offences and non-disclosure duties, the Attorney-General’s Department develop a new general secrecy offence for inclusion in Part 5.6 of the Criminal Code to ensure Commonwealth officers and persons who perform services for or on behalf of the Commonwealth do not disclose information obtained in connection with their employment or the provision of the service, where that disclosure would be prejudicial to the effective working of Government or where the information was communicated to them in confidence. 

Recommendation 4: If Recommendation 3 is implemented, all Commonwealth departments and agencies identify which specific secrecy offences and non-disclosure duties may then be repealed. 

Recommendation 5: Repeal section 122.4 of the Criminal Code, or allow it to sunset on 29 December 2024. 

Recommendation 6: Repeal the proper place of custody offences in sections 122.1(3) and 122.2(3) of the Criminal Code. 

Recommendation 7: Protections be improved for individuals providing information to Royal Commissions by:

• amending the Royal Commissions Act 1902 to establish: – a framework that clarifies the application of secrecy offences to individuals providing information to Royal Commissions, and – appropriate protective security requirements for Royal Commissions. 

• amending section 122.5 of the Criminal Code to include an additional defence to a prosecution where the information is communicated for the purposes of a Royal Commission.  

Recommendation 8: Legislation be developed to apply a public interest journalism defence similar to the defence in section 122.5(6) of the Criminal Code to additional secrecy offences, to be identified through work following the Review in line with Principle 11 in Recommendation 1. 

Recommendation 9: Legislation be developed as a priority to require the protection of public interest journalism to be considered in decisions on warrant applications, including in the investigation of secrecy offences, as recommended by the Parliamentary Joint Committee on Intelligence and Security in its Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. 

Recommendation 10: The Attorney-General’s Department amend the Commonwealth’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers to include the 12 principles to govern the framing of secrecy offences at Recommendation 1 and develop public information materials on the operation of Commonwealth secrecy offences to increase awareness and understanding about secrecy offences, including protections for public interest journalism. 

Recommendation 11: Request the Independent National Security Legislation Monitor consider, as part of the Monitor’s review of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, the appropriateness of the definitions of ‘inherently harmful information’ and ‘cause harm to Australia’s interests’ contained in Part 5.6 of the Criminal Code.

Proxies

'Surveillance deputies: When ordinary people surveil for the state' by Sarah Brayne, Sarah Lageson and Karen Levy in (2023) 57(4) Law & Society Review 462-488 comments 

 The state has long relied on ordinary civilians to do surveillance work, but recent advances in networked technologies are expanding mechanisms for surveillance and social control. In this article, we analyze the phenomenon in which private individuals conduct surveillance on behalf of the state, often using private sector technologies to do so. We develop the concept of surveillance deputies to describe when ordinary people, rather than state actors, use their labor and economic resources to engage in such activity. Although surveillance deputies themselves are not new, their participation in everyday surveillance deputy work has rapidly increased under unique economic and technological conditions of our digital age. Drawing upon contemporary empirical examples, we hypothesize four conditions that contribute to surveillance deputization and strengthen its effects: (1) when interests between the state and civilians converge; (2) when law institutionalizes surveillance deputization or fails to clarify its boundaries; (3) when technological offerings expand personal surveillance capabilities; and (4) when unequal groups use surveillance to gain power or leverage resistance. In developing these hypotheses, we bridge research in law and society, sociology, surveillance studies, and science and technology studies and suggest avenues for future empirical investigation. 

In 2020, Amazon announced that over 10 million users had joined its “Neighbors” app (Huseman, 2021). The app is integrated into the company's home surveillance devices, including the popular “Ring” doorbell camera—a video-enabled device that enables users to view, speak with, and record their front door area as well as the people who visit it. When a person purchases and installs a Ring doorbell, they are automatically enrolled in the Neighbors app, which enables users to post videos of “suspicious” activities and crimes (including the theft of Amazon packages from their doorsteps; Molla, 2020) and to view similar content posted by other users within five miles of their location. Although these “surveillance as a service” devices are marketed to, purchased, and installed by civilians, the state regularly seeks access to their data (West, 2019). The content collected by Ring cameras is shared directly with more than 2000 police departments across the United States through a combination of subpoenas, warrants, court orders and memorandums of understanding between municipalities or homeowners' associations and local law enforcement agencies (Lyons, 2021). Most often, that content is shared with the state by users who volunteer it to police (Gilliard, 2021; Haskins, 2021). Ring and Neighbors thus represents a convergence of interests among consumers, the state, and one of the largest and most powerful technology companies. Homeowners can protect their property; police have access to previously difficult-to-reach surveillance content; Amazon profits. 

Ring exemplifies the phenomenon of what we term surveillance deputization: when ordinary people use their labor and economic resources to engage in surveillance activities on behalf of the state. Our analysis of the historical development and contemporary forms of surveillance deputization demonstrate that the phenomenon shows no signs of abating, as states continue to implore people to watch and report on one another. Despite its prevalence, sociolegal scholarship has rarely examined surveillance deputization as a coherent phenomenon, and it remains an underspecified mechanism of state power. The case of surveillance deputization illustrates broader forces at play, including neoliberal privatization of state functions, the cultivation of risk and fear, and the interplay between law, technology, and privacy. It also sheds new light on core themes and debates in law and society literature, including legal consciousness, legal mobilization, and legal ambiguity—concepts which consider how ordinary people make sense of ambiguous and rapidly changing legal and quasi-legal contexts. Therefore, we articulate a theoretical framework of surveillance deputization rooted in a law and society approach, describing how it functions, what motivates participation, its implications, and how it intersects with state and corporate interests. We offer four hypotheses about its dynamics and implications: (1) the interest convergence hypothesis; (2) the legal institutionalization hypothesis; (3) the technological mediation hypothesis; and (4) the social stratification hypothesis. 

Our hypotheses draw upon several key themes in the law and society literature. First, surveillance deputization represents a case in which ordinary people must contend with both an ambiguous legal environment and a new suite of technological capabilities. Future law and society scholarship might continue to examine this interplay between lay people's understanding of law and legal rights as they implement new tools that in turn support functions typically relegated to the state. Our hypotheses also invoke concepts of legal mobilization, when both private companies and private individuals actively leverage surveillance to obtain quasi-legal outcomes or aid in legal processes, exposing unclear meanings of the law in the digital, platformed age. Finally, our analysis directly engages law and society scholarship with studies of technology. As we show, the networked, data-intensive technologies that have become the infrastructure of everyday life—like smartphones, Internet of Things (IoT) sensors, software, and digital platforms—are both intensifying and transforming these practices (Ferguson, 2017; Murakami Wood & Monahan, 2019). Our analysis shows how these new devices and capabilities benefit the interests of both the user and the state; they allow more expansive and invasive surveillance capabilities as technology evolves; they allow governments to evade privacy-protective legal constraints; and, while they have the potential to further marginalize vulnerable groups, they can potentially be used to turn the lens back on the state itself. 

Although this article focuses on surveillance deputization, we hope the framework and empirical hypotheses detailed below spurs sociolegal work on questions of how the law deals with technological change, how ordinary people make sense of and contribute to the workings of the legal system, and continuities and changes in the practice of policing and in legal institutions. We begin with a brief social history of surveillance deputization, then explain our analytic and theoretical approach, including the literatures we draw from and the empirical examples we provide. We then move to a discussion of our four hypotheses, laying the groundwork for testable propositions in future empirical work. We close by encouraging scholars to continue to examine whether and how the acceleration of surveillance deputization augments the scope of state surveillance, intensifies the effects of surveillance on marginalized populations, and opens opportunities for collective resistance.

Forensics

The Queensland Government has today accepted the two recommendations of the Commission of Inquiry to examine DNA Project 13 Concerns. The media release states 

 The Commission of Inquiry found Project 13, which introduced automated DNA extraction methods to the Queensland Health forensics laboratory, was a ‘fatally flawed’ project, with scientifically sound methodologies sacrificed for speed while the laboratory was under pressure to accelerate DNA processing, when it was introduced more than 16 years ago. ... 

The recommendations relate to retesting some samples that were previously tested using the flawed Project 13 methodology between 2007 and 2016. 

A total of 103,187 casework samples were extracted using the automated DNA extraction method during that period. A single case can have multiple, sometimes hundreds, of samples. The existing ‘legal-led review’ process will determine which cases need their samples retested, and the priority order. 

Forensic Science Queensland will lead implementation, with efforts rolled into the existing program of work implementing First Commission of Inquiry recommendations. 

Given the findings of both Inquiries, amendments to the rules around the disposal of samples in the Police Powers and Responsibilities Act 2000 will be considered by Parliament next week. Currently, samples taken from a suspect in an indictable offence are to be destroyed after a year if proceedings have not been brought against the person in that time. 

The amendments will extend that time period to three years to ensure testing can be conducted. Additionally, some historical records which were not destroyed by the laboratory in line with the one-year disposal schedule, will have three years to be reviewed. 

A Bill will also be introduced into Parliament next week to give effect to recommendation 121 of the First Commission of Inquiry, to establish the position of Director of Forensic Science Queensland and the supporting Forensic Science Queensland agency. 

The interim FSQ and interim Advisory Board was created administratively within Queensland Health following the First Commission of Inquiry. The Bill will allow formal establishment of FSQ within the justice portfolio, which is expected to be in July 2024. 

Government will take steps to ensure the laboratory has the resources necessary to fulfill its obligations and restore public confidence in its operations.