KEITH LOCKE (Green) : The Green Party will be voting against this bill, in line with the report to the House of the Attorney-General, Christopher Finlayson, that this measure is not justified under section 21 of the New Zealand Bill of Rights Act, against “Unreasonable search and seizure”. The bill intrudes on privacy, and it intrudes on the privacy of one’s body to have samples taken when it is not absolutely necessary to do so. I was listening to the respected Māori commentator Moana Jackson on the radio this morning. He mentioned the questions of tapu in Māori society in relation to taking bodily samples, and he was worried about cases when the person had been arrested. But in this bill, it is not just when people have been arrested; bodily samples can be forced out of people when, under new section 24J(1)(b), inserted by clause 7, “a constable has good cause to suspect the person of committing a relevant offence and intends to bring proceedings against the person …”—“and intends” means just something that happens to be in the constable’s mind. There are no controls on it and no requirement actually to then charge the person. In fact, the legislation puts in a 2-month window, saying that after the person has had the sample taken, the authorities have 2 months to check that sample against every sample inside every database in sight. Then after 2 months they have to get rid of it.

So this allows for an open-slather collection of bodily samples from virtually anyone in the community. There does not have to be any evidence whatsoever that the person is guilty of a crime in order to take the sample. At least, that is an improvement on the British situation, where a huge database is being built up. In New Zealand, if a person is not later charged and convicted, then the sample and profile are supposed to be got rid of. But in terms of its lack of controls, the Attorney-General’s audit of this bill recommends that the bill does not proceed. He says that it is inconsistent with the New Zealand Bill of Rights Act.

This legislation allows for more and more DNA on the database to be built up, and that is a real problem. It is a step down the road to what we see in the United Kingdom, where 7 percent of the British population are now on its DNA database. Now that the authorities have the right to take DNA samples from virtually anyone without evidence, obviously they will go after people and say “Hold on—you can give it voluntarily. We have got the right, but you can give it voluntarily.”, and once someone gives a sample voluntarily, it can then be sitting on the database for evermore. So we will see a huge problem with that.

I think there are a number of problems here. One is the accidental misuse of samples. A scientist on Radio New Zealand’s Morning Report this morning said that the science is not entirely accurate. In this case, when over a 2-month period scientists are trying to match a sample against a whole database, mistakes can be made. As well, the Privacy Commissioner is worried about one agency, the police, controlling both ends of the system, and says there should at least be a separation between the agency that controls the database, and the police who are investigating a crime scene. There can be wrong matches, and there can be almost a vested interest in the institution of the police to solve crimes, which can lead to errors, as well.

The House of Lords in Britain this week expressed serious concern. It issued a report that warned that the national DNA database there could be used for “malign purposes”. Of course, this relates to the whole issue of national identification cards and universal identifiers, which could be misused—not necessarily by the democratic Governments of today but by a less democratic Government in the future.

It relates to the whole question that they refer to in their report. I quote a bit out of the House of Lords report, headed by the former Tory chief whip, Lord Goodlad: “The huge rise in surveillance and data collection by the State and other organisations risks undermining the longstanding traditions of privacy and individual freedom, which are vital for democracy.”

I think that our Attorney-General is quite right to raise those issues, as well. In his report, he said that “The use of DNA material for data bank comparison purposes, as distinct from investigation of a particular suspected offence, also necessarily constitutes a broader intrusion into privacy.” There is a huge issue here, and it is linked with other surveillance issues in the United Kingdom. The UK has 4 million closed-circuit television cameras, and it is going further down the track towards a surveillance society than other Western societies.

One of the problems with the legislation here is that it creeps towards a surveillance society. One might say that this bit of legislation is only taking it one step further, but once this is passed the Government might want to go further towards the British situation and have a more permanent database, not bothering to get rid of records on a person who is not convicted as they could be of some use in the future. Gradually, it could be built up to a universal DNA database.

The intrusion on people’s bodies is of concern, too. It is happening in a number of areas. Obviously, our DNA is something quite precious to us. There have been articles in the paper recently about the genome sequence and how it is easy to produce those; when one is born, one gets a genome sequence. Then there are all the problems with genome sequences and DNA being used by insurance companies, etc., to deny people coverage. There are a whole lot of social and ethical problems. In some ways, science is going ahead of our ethical considerations of some of these problems.

We see an intrusion on people’s bodies in a number of ways. There are DNA and genome sequences, the closed-circuit television cameras that can monitor one’s every movement or the every movement of cars around Britain, as more or less happens now. We can see it in the x-ray systems that are at airports, where there is virtually a naked image of someone. We can see it in the iris-scanning technology, which is quite intrusive and is starting to be brought in, in Australia. That is creeping in here with the permission for iris-scanning in New Zealand legislation that was recently passed. Altogether, I think we should wake up. It is good that the House of Lords, quite a respectable and conservative body, is sounding a lot of alarms in Britain. We should listen to people like that.

DAVID GARRETT (ACT) : I rise on behalf of the ACT party to support the Criminal Investigations (Bodily Samples) Amendment Bill, but I have to say it is with some reservations. If this bill was not going to select committee, I would have some very serious personal reservations about supporting it for reasons that I will come to. Before I do that, I would like to address in a different way an issue that was raised yesterday by a number of members, and was also raised before Christmas. It is the delays in providing draft legislation. I do not think anyone would argue that what has happened in the last wee while is ideal, but the Government is committed to its programme, which we support.

In my view, the problem in some respects is due to the style of legislation that we seem fixated on in this country. If we look at our laws, we see that it is not uncommon to find a provision such as section 23(1)(a)(iii)(A)(i). It refers in turn to another endless, convoluted clause and subclause. We have been doing that for 100 years, as if there is no other way. Well, there actually is another way; there are many other ways. I have been practising law for 17 years, and even my head hurts when I try to figure out what some laws mean, especially when they refer, as many law-and-order laws do, to other laws such as the Sentencing Act. There seems to be a complete resistance to any idea of looking at a different way.

I had the pleasure of running into an old professor of mine a day or so ago, Professor John Burrows QC, who is now a law commissioner. Professor Burrows taught me 20 years ago, and I recall to this day his legislation course, which covered a number of areas, such as how to interpret legislation—that was a biggie—but also how to draft, and different styles that different countries use. After 17 or 18 years I still remember an exercise we did trying to figure out the citizenship of a child born of British parents in France versus a child born of French parents in Britain. From memory—I am a little vague here—in the British situation we had to look at seven pieces of sometimes conflicting legislation, and in the French situation there were two. So I would like to make a wee plea to the drafting office to call Professor John Burrows. He is a lovely chap and a real gentleman. He will be too busy to do anything himself, but I am sure he will advise the drafting office on a better way of doing it.

To come back to the bill, as I have said, I have some reservations about it. Mr Locke has touched on a few. I too have some concerns about the provision that allows samples to be taken from persons intended to be charged. I can see that that goes down a very slippery slope, as Mr Locke has said, of police saying that perhaps individuals would like to give a sample to them voluntarily or, if not, they can then consider charging them and those individuals might wish to rethink their position. I think it is entirely appropriate that this bill is scrutinised by a select committee, particularly because of its length, its complexity, and the wide number of issues it raises.

Having said all of that, the left side of this House, to use the old, stale left-right dichotomy, is always fixated on the downside. There are always the problems of intrusion and Big Brother searching into your diseases and what have you, but what is often overlooked is the positive exonerative effects of DNA. There are many, many cases. Some members will be familiar with the fact that in the United States up to 30 people, I think, have been released from life sentences for murder—with a couple or three of them even coming off death row, which is absolutely chilling—and they have been released because DNA has exonerated them. It can be a very positive tool as well as a convicting tool.

In New Zealand we have the case mentioned very briefly yesterday by the Hon Simon Power of David Dougherty. That was a case where if we had had samples from the odious Nicholas Reekie, who was later convicted of the rape that Dougherty was falsely convicted for, two things would have happened: Mr Dougherty would never have gone to jail and had his life destroyed, and Nicholas Reekie would not have raped the woman whom he raped, which led to his conviction for the crime that Dougherty did not commit.

The Hon Lianne Dalziel yesterday mentioned cost. Well, it cost the State close on $1 million in compensation, plus God knows how much extra in legal costs, to compensate Dougherty for the 4 years he spent in jail—wrongfully. I have to say that very little credit is to be given to the then Government for the ridiculous and ever more absurd scenarios that it tried to dream up when it became obvious to a blind man that Dougherty was innocent.

There are many positive things from having DNA on the database. Yesterday the Hon Lianne Dalziel said—correctly—that samples can now be taken but only when people are convicted. That is all very well, but I go back to Dougherty and Reekie again. If Reekie’s DNA had been on the database for his earlier, less serious convictions, Dougherty would not have gone to jail wrongfully and Reekie would not have committed his second crime.

A DNA match is not conclusive of guilt; it is just a tool, it is just some evidence. The samples will be kept only if a suspect is convicted and again, I have to say, that the points made by Mr Locke in my view, are valid—at least in terms of examining them at select committee. It is all very well to say that records will be destroyed. There are also issues surrounding the extent of the DNA evidence or the DNA profile that is kept. I am not a scientist by any means but my understanding is that there are different levels of what can be discerned from DNA. A profile of an offender is one thing but then one can go to whole different levels to look at things about the offender—or the prospective offender—such as disease history, which are of no relevance at all.

However any law like this involves a balance. We have to accept that there is some invasion of privacy and in any such situation we need to look at what is the greater good. It is a bit of an old cliché but notwithstanding all of the concerns that Mr Locke has expressed—and some I have said that I share—no one who is innocent of a crime has any real concern about a DNA profile being kept of him or her. If the DNA profile is purely for identification of that person and not to provide a medical history or to show a propensity for genetic diseases or whatever, then maybe, sadly, we have got to the stage where that invasion of privacy is minor. As it is, we are talking about a pinprick in the finger. Mr Locke talked very emotionally yesterday about forcible removal of blood being against Māori culture. Well, we are talking about a pinprick.

All in all, I support this bill with some reservations and I am very happy that it is going to a select committee for further scrutiny. Thank you.

TE URUROA FLAVELL (Māori Party—Waiariki) : Mōrena. Tēnā tātou katoa, i tēnei ata. Sixteen years ago, in 1993, the Indigenous People’s Council on Biocolonialism established itself to oppose the Human Genome Diversity Project—a global genetic research project that evolved from the collection of indigenous people’s DNA. Later, in 2005, the National Geographic Society in collaboration with the computer giant IBM sponsored the Genographic Project, which again sought to collect 100,000 DNA samples from the indigenous peoples around the world, in Australia, Brazil, North America, South-east Asia, and South Africa—to name a few places. Again, the Indigenous People’s Council on Biocolonialism spoke up, opposing the trend to treat the indigenous subject as a scientific curiosity. Indigenous DNA is clearly a commodity worth having. The Māori Party believes in the sacredness of whakapapa, of genealogical connections, or bloodlines, and we believe there is no room for doubt when DNA is concerned.

Around the world indigenous groups are now far more alert to the risks of biopiracy and, as such, any legislation that proposes the collection and storage of genetic materials will confront a host of ethical, human, and collective rights issues. When rights are involved, inevitably so are lawyers and courts.

What does not help in terms of the backdrop to this bill is that just over 2 months ago the European Court of Human Rights ruled against the law enforcement policies of the British Government in respect of the commitment to gather and store the fingerprints and DNA of all criminal subjects. The court’s ruling concluded that the practice was a violation of the human right to privacy; describing the police’s decision to keep DNA stored on the database as having “overstepped any acceptable margin of appreciation” in striking a balance between individual rights and public interest. Where the British practice varies with our situation is that in their case the police seek to hold DNA material indefinitely in their database, even of those who have turned out to be innocent.

The Strasbourg ruling, or the European court ruling, has implications for our Parliament in throwing wide open the issue of how to insure a check on the powers of the State. Similarly, my research found that in the United States the Havasupai tribe filed a lawsuit in 2004 against the Arizona State University for the taking and misuse of their genetic samples.

Politicians, scientists, and law enforcement agencies around the globe are being held accountable for their use of the genetic material of targeted populations. And so it will be with this bill too where the police are granted discretionary power to take compulsory DNA evidence at the point of charging. This, as others have said, is a concern for us. Although we are pleased that the police will be required to annually reveal the statistics around the use of the tool, including whether it is overused on matters of ethnicity, we wanted to simply state the obvious: that any intervention involving DNA will be watched very closely by Māori.

To be precise, the Māori Party has five specific concerns around the use of the DNA sample proposed in this bill. The first and the most fundamental is that surrounding ethics and human rights, and other speakers have spoken on this. The bill proposes to empower police with the ability to take DNA from any person that police intend to charge with any imprisonable offence, including young people. Where the waters become muddied, however, is whether these powers to take DNA samples should be discretionary. To be upfront, the application of discretion when applied to Māori has never worked in the interests of Māori. Countless research studies have provided evidence that given the risk of police bias and overscrutiny of Māori, DNA testing will affect Māori disproportionately. The research demonstrates that systematic factors operate at one or more steps of the criminal justice process, which make it more likely for Māori people to be apprehended, arrested, charged, convicted, and imprisoned.

In a study describing the overrepresentation of Māori in the criminal justice system just 18 months ago the Department of Corrections described these processes variously as: “unintended consequences of discretion”; “unevenness of decision making”; “bias”; and “institutional racism”. In addition, the risk of apprehension for Māori is often amplified because of formal and informal profiling by the official agencies—that is, a particular truth is created around ethnicity.

The element of discretion is the single most concern for the Māori Party, and, indeed, for a range of human rights advocates and groups. We noted a comment by Council for Civil Liberties’ spokesman Michael Bott yesterday that allowing for wider powers to take and use samples from people legally considered innocent, and without approval from the courts, was a major concern. We have no doubt that these concerns will be presented in full force throughout the select committee consideration.

A related issue for the party, is that associated with the construction of a DNA database. Members in the House who, like me, have come from a teaching background may recall some discussion and chatter in the staffroom where the negative behaviour of one child was generalised to stigmatise all the siblings of that child who were attending the school, saying something like: “It is that family—what can we expect?”. It is not right, and it is not fair, but it does happen. In much the same way there are DNA testing implications for the wider whānau, as well as individuals as first and second degree relatives, because they can be identified through genetic testing, thus allowing the authorities to build up a family history. Theoretically, DNA testing can enable police to create a DNA profile of the wider Māori population.

What this all translates into is the third issue—the issue of trust regarding the police guardianship of the DNA database. There will be in the minds of the public, issues of trust about police holding such information, including concern about who is tested, how the information is used, and whether those protocols will be sustained.

A fourth issue is the one related to the actual collection, utilisation, and storage to ensure there are appropriate parameters in place as to how the DNA material will be used. Our concern is that there is a fair and consistent system for sample collection that complies with the relevant international conventions, including the United Nations Convention on the Rights of the Child. We remember clearly in early 2000, in the Labour Government’s first term, the huge storm that erupted around the police action in Whangarei concerning the taking of fingerprints of children. Former Police Commissioner Rob Robinson had apparently told the Law and Order Committee about situations where some very young children had their fingerprints taken. Supposedly, this information was intended to deter them from a life of crime. We are concerned about the vulnerability of children and young people, and will be watching to see that appropriate and additional protections are in place to protect their rights, and we have had some discussion with the Minister about this matter. We must ensure that proper ethical controls are in place, covering every aspect of the collection, utilisation, and storage of the databank.

The final concern is the budget implications of the proposed changes. There is already a huge law and order budget, and we hope the Minister will be able to clarify how much additional resource will be channelled into policing tools and devices such as DNA testing and Taser guns, in comparison with the resources allocated for crime prevention, restorative justice measures, and strategies to support the police in enhancing community relations.

The issue of DNA testing is a complex one. The positive benefits of convicting serious offenders sit alongside a host of worrying issues that we cannot and must not ignore. We do not support this bill going forward, but we are aware that there is sufficient support for it to move at least to debate in the select committee. At this junction we will be looking particularly to see how our concerns are addressed about the likely impact on Māori and the use of discretion. We know that some work was initiated on the unintended consequences of discretion, and we believe it would be timely for that work to be completed and put before the House.

The project I speak about was initiated by the Ministry of Justice, in consultation with Te Puni Kōkiri, and undertaken in 2007-08. Discretion is a key concern for us with this bill, and we recommend an analysis of this project as a key document for the select committee. The Māori Party will not be supporting this bill. Kia ora tātou.

Hon Dr RICHARD WORTH (Associate Minister of Justice) : The previous speaker, Te Ururoa Flavell, made careful and considered comments that I am sure will be examined by the Justice and Electoral Committee to which this bill is referred.

I would like to briefly make these comments, and I start by saying that the Criminal Investigations (Bodily Samples) Amendment Bill is another key plank in the Government’s law and order package. We are not afraid to walk the talk and take the necessary action to create safer homes, safer streets, and safer neighbourhoods. As others have said, the bill allows for the staged implementation of its changes. It takes into account New Zealand’s fiscal situation, and allows the gathering of further information about the impact of full implementation. Staged implementation will also allow the Institute of Environmental Science and Research to adjust to the inevitable increase in its workflow. By 2011, the Government will have provided our police with the power to conduct DNA tests for every person charged with an imprisonable offence.

There are some people, and Mr Locke exemplifies that type of person, who have raised privacy concerns in connection with this legislation. That is a legitimate concern, as are the New Zealand Bill of Rights Act concerns that others have raised. But the reality, of course, is if someone has done nothing wrong, he or she has nothing to fear. DNA profiling will ensure that a person is not wrongly convicted of a crime. It has an exculpatory and exonerative role.

The bill contains specific provisions regarding the use and storage of DNA profiles, and, as is the case with fingerprints and photos, DNA records will be destroyed as soon as is practicable where charges are dropped or a person is cleared of charges. The reality is that at a physical crime scene there are almost invariably traces of blood, semen, and hair to be found. By permitting DNA samples to be taken through the sanction of the law and appropriate protective provisions, the police will have added to their tool kit of investigative resource another means of protecting and resolving criminal activity. I welcome the passage of this bill and its detailed review by the select committee. Thank you, Mr Deputy Speaker.

JACINDA ARDERN (Labour) : Thank you, Mr Deputy Speaker, for the opportunity to comment on the Criminal Investigations (Bodily Samples) Bill. I rise with heavy reservations around this bill. In fact, I have noted heavy reservations being expressed by a number of my colleagues and counterparts in this House. The most recent of those reservations was expressed by Mr Worth. I do not know whether anybody else picked up on it, but he noted the staged implementation of the bill. I can only assume—and he in fact said this—that that is to allow us time to figure out whether we have got this measure right. Now, that sounds like a heavy reservation to me. That is poor policy-making. I also heard reservations, more significantly perhaps, being expressed by my colleague in the ACT Party. There were areas in which we, unusually, share the same view.

Hon Lianne Dalziel: Not many.

JACINDA ARDERN: There were not many, but I will acknowledge that they do exist. Reservations were also expressed by the Attorney-General, and I will spend a bit of time dwelling on those, because—

Hon Steve Chadwick: That is worrying.

JACINDA ARDERN: It is very worrying; it is, in fact, extraordinary.

I will focus on two areas in my short address. Firstly, one of our concerns, which we have already expressed, is around process. It is absolutely unacceptable that 50 pages of commentary and bill should be tabled 2 to 3 hours before this House is due to debate the bill, in an area of such significance. Clearly, the National Government believes it is of significance, because why else would the bill be included in an urgency motion? The bill is of sufficient significance to be included in that motion, but we are unable to have the amount of time required to give it the scrutiny it deserves. Once again we have seen this House be misused by this Government, and that is an absolute disgrace. I think that begs the question of why there is such speed. I have seen some quotes given by members of this House around why expediency may occur in this policy area. I note a particular quote on this issue: “He has clearly timed it for this election and that has to be seen as something of an electioneering stunt.” That was a statement made by Wayne Mapp in 2002, when we made amendments to the Criminal Investigations (Bodily Samples) Act. National clearly sees fiddling with this legislation as a matter of political expediency, and that has come at the expense of good policy-making.

On that point I will go back, if I may, to first principles. In the Labour Party we do not object to the use of technology to improve the effectiveness and efficiency of criminal investigation—of course we do not. If there are reasonable ways in which these technologies can be used with the appropriate safeguards, we would of course like to see them being used. But it is important that we ensure we are doing so in the most effective, efficient, and targeted way possible, with the necessary safeguards.

Paul Quinn: You could have done that 9 years ago. You’ve had 9 years.

JACINDA ARDERN: For the education of Mr Quinn, who, with all due respect, I know is new to this House, I say that perhaps he might like to reflect on what Labour did around this legislation when it was in Government. He will see that we made massive gains. We have the highest hit rate in the world for DNA samples, because we changed the principal Act to target burglary. In targeting burglary we ensured that we targeted the early symptoms shown by criminals who were about to escalate their offending.

I will compare our hit rate with that of the United Kingdom. It has already been raised today by Mr Locke that the United Kingdom has one of the highest sample rates we can see in the world. It is about 6 or 7 percent of the population. The equivalent of all of New Zealand is on a DNA database in the UK. Have we seen the equivalent hit rate that we see in New Zealand? No. That begs the question of whether doing more sampling means we are more effective in the resolution of crime.

Now, what we have not seen from National in the analysis on this bill is the justification for the heavy expansion in those who are included in DNA testing, as well as for the cost of that. In fact, I know this has already been raised by my esteemed colleagues, but I want to reflect on the view of Treasury’s regulatory impact analysis team, because I think it is significant. I would, however, like to commend Mr Power for including information on that in the commentary on the bill. Unlike Mr English, he is not scared to share Treasury’s view. Treasury’s view is that there is a lack of clarity around the nature of the problems with the current DNA testing regime, along with a lack of evidence, anecdotal or empirical, to support these measures. A lack of evidence results in poor policy-making. There is limited analysis of the impacts of the options. In fact, in the analysis of the options that we have been presented with, there is a short, more limited introduction, followed by full unmitigated testing of everyone before he or she has even been convicted of any imprisonable offence.

The Attorney-General has picked up that this issue is of huge concern, because there are no longer the safeguards that we would expect to find in such a regime. We see those safeguards in Canada, Australia, and even the USA, and in the one place where we have not seen them it now appears that the measure has been highly contested in the European Court on the basis of what it has done to human rights.

From our perspective, this bill detracts from the real issue. There are gains to be made here. If we can improve the way the regime works—for instance, by reverting to the police commissioner’s submission that was made in 2002, which stated that it may be advisable to look at all offences punishable by up to 3 years in prison—we may capture a greater precursor range of offences that will lead to more serious offending. That might be worth looking at. Instead, the National Government, without analysis, has gone the whole hog in terms of all imprisonable offences and has removed the safeguards. That is a key point and a key concern of the Attorney-General.

I want to reflect a little not only on the human rights issue attached to this measure but also on the cost issue. There is a reason why we need to be proportionate in terms of what we target. What we take for DNA testing, which could cost up to $20 million—that is, up to 200 cops—means less in the way of resources to spend on prevention or other aspects of investigation, and that is incredibly important. Even Warren Young, a member of the Law Commission and a highly esteemed member of our justice fraternity, has stated that obviously a huge amount can be done with forensic science but there are limited resources, both with regard to people and money. That is not unlike the situation we see in our health sector. If we had all the money in the world, we could perhaps throw it on an initiative such as this. But why would we invest money in compulsion around testing for something as limited as traffic offences, when we could target the spending more effectively?

I want to dwell a little as well on the changes that this measure will mean for the forensic science community. I do not think enough time has been spent on that issue. I am sure that the select committee—and I am lucky enough to be on that select committee—will hear evidence on that, but I would be interested in hearing from the Institute of Environmental Science and Research Ltd. I have heavy concerns about that. DNA is not the same as fingerprinting, and I want to make that point to the Minister. I find it worrying that he has treated it in the same way as fingerprinting. A fingerprint is 100 percent unique; DNA is not. That is a concern. There has not even been any discussion around the way we are to treat familial DNA. That issue has been raised overseas, and we have not seen much discussion about the way we are to treat the storage of the evidence and samples.

I also have concerns about whether the Institute of Environmental Science and Research Ltd is equipped to respond to this measure. I recall that in 2002 the institute, even with the minor extension to sampling that had come in just the burglary area and in retrospective testing pre-1996, had concerns about whether it had the ability to do this work. So we need to have a very robust discussion with the institute on this issue. We need to make sure the institute is able to keep the chain of custody in tow, because there is a range of dates around the dumping of samples. The dates are quite staggered, and I think we need to consider that.

There are two more issues I want to raise. I actually question whether this bill is all Mr Power’s work. I have a lot of respect for Mr Power, but it strikes me that this is more of a Judith Collins bill. But I look forward to considering the bill in the select committee and to giving it the heavy scrutiny it deserves and that the House has not had the opportunity to give it.

Hon NATHAN GUY (Senior Whip—National) : I move, That this debate be now adjourned.