Non-consensual collection and analysis of DNA: a contemporary legal lacuna

This article seeks to demonstrate the need for further developmentof Australian law applicable to non-consensual collection and ana-lysis of DNA. There is presently no recognition of proprietary rightsor legal interests in DNA, anyone may take possession of an aban-doned personal item and analyse DNA found on it. Once DNAbecomes dissociated from a person’s body, there are no legalmechanisms which prevent it from being collected and submittedfor genetic analysis such as the ancestry tests offered by Direct toConsumer (DTC) genetic testing services. This analysis can revealsensitive information about a person, such as paternity or diseasecarrier status, and existing privacy law offers little protection.Further, non-forensic DNA samples such as medical samples thatmay be collected in a hospital setting can be repurposed by lawenforcement for investigations. While there are legitimate reasonswhy law enforcement may utilize non-forensic DNA samples, thispractice falls outside the scope of existing forensic procedureslegislation. This article provides a detailed examination of thislegal gap and its contemporary significance, providinga foundation for further law reform.