Criminal Investigations (Bodily Samples) Amendment Bill

I move, That the Criminal Investigations (Bodily Samples) Amendment Bill be now read a first time. At the appropriate time I intend to move that the Criminal Investigations (Bodily Samples) Amendment Bill be referred to the Justice and Electoral Committee for consideration.

It may not be all that apparent from its title, but this bill is about expanding the collection and use of DNA samples to assist the police in solving more crime. In November 2007, National announced that it would bolster the tool kit of the police by requiring DNA samples to be taken from all those arrested for offences that are punishable by imprisonment. The first reading of this bill today fulfils the Government’s commitment to introduce such legislation in its first 100 days.

Currently, DNA samples can be taken only with a suspect’s consent, or by compulsion where people are suspected or convicted of an offence punishable by more than 7 years imprisonment or otherwise specified as a “relevant offence”. It precludes DNA samples taken from those suspected of a wide range of significant offences that do not meet the threshold. Where consent is not forthcoming before conviction, the current law requires police officers to go through the process of applying to the High Court for leave to take a DNA sample. This bill amends the Criminal Investigations (Bodily Samples) Act 1995 to allow police to collect DNA from a person whom they intend to charge with an offence, and to match that person’s DNA profile against DNA samples from other unsolved crime scenes.

The implementation of this legislation will follow a two-stage approach. The first stage will provide police with the ability to obtain and test the DNA profile of every person charged with a relevant offence. The current list of relevant offences is made up of serious offences where DNA trace evidence is often involved, or crimes that demonstrate a propensity for more serious offending. The bill expands this list to include other relevant offences, such as aggravated assault, peeping, committing an indecent act in a public place, unlawful possession of a firearm, cruelty to a child, and male assaults on females. The second stage will enable this new process to apply to all individuals charged with an imprisonable offence by 2011. I advise the House that our first preference was to proceed to full implementation as soon as possible. However, the staged approach outlined in the bill will allow the Institute of Environmental Science and Research to adjust to the increased workload resulting from the new regime, and for police to develop guidelines and train their staff.

The staged approach also recognises that there have been significant changes to New Zealand’s fiscal situation since the original policy was announced, and it provides an opportunity to gather more robust information about full implementation. Finally, the staged approach recognises that the expansion and the use of DNA sampling and matching raises issues that are worthy of public debate. The Government’s position is that a DNA sample simply constitutes the modern fingerprint. Forensic crime scene investigation has progressed to the point that small amounts of trace evidence can now produce a usable DNA profile. The current DNA databank of 90,000 profiles was the second to be established in the world, and New Zealand scientists have been at the forefront of advances in extracting DNA profiles from crime scene trace evidence. The question to this House is whether we are making the best use of this technology and these skills to help the police to solve more crime. The current list of relevant offences for which DNA samples can be taken represents only 13.6 percent of those individuals convicted of criminal offending. There are still over 8,000 unidentified DNA profiles from crime scenes in the databank that relate to unsolved crimes, including sexual assaults, aggravated robberies, homicides, arson, and drug offences.

The measures proposed in this bill will substantially increase the size of the DNA profile databank, which in turn will help to match offenders to unsolved crime scenes. It is estimated that the first stage of implementation will result in an additional 218 convictions from 2010 to 2011, while full implementation will result in approximately 445 convictions. Having said that, there will be some who oppose the expansion of the DNA scheme because they see it as an encroachment on human rights, and no doubt members will not have failed to notice the report from the Attorney-General pursuant to section 7 of the New Zealand Bill of Rights Act 1990, which accompanies this bill.

I do not propose to rehearse the opposing arguments here, as I genuinely encourage the select committee to engage the public in this debate. However, I would like to address some common misconceptions about the way in which DNA profiles are used. The profile currently used by the Institute of Environmental Science and Research for identification contains only a very small portion of the individual’s total DNA profile, and can be deciphered by only a small group of specialist scientists. Even then, the most that can be deduced is the sex of an individual. As such, the risks of inappropriate disclosure of an individual’s confidential genetic information are very low. Unlike the recently criticised United Kingdom DNA scheme, samples in New Zealand—not the profiles, but the samples—will be destroyed as soon as practicable, and DNA profiles will not be retained unless the person is convicted. So if charges are dropped or innocence is found, the DNA profiles will be destroyed. Furthermore, the bill contains very specific provisions regarding the use, storage, and retention of DNA profiles. Any misuse of the DNA sample or profile would, therefore, be subject to the full extent of relevant law and civil rights protections. Finally, the police will develop operational guidelines to avoid any arbitrary or unreasonable application of the proposed power.

I take this opportunity to acknowledge the concerns that have been raised by the Māori Party that provisions in this bill may be used, in the Māori Party’s view, to unfairly target Māori. I am advised that the police will be required to report on the use of DNA sampling on an annual basis, to ensure that the use of this discretion is transparent.

This bill is a proactive approach to DNA, rather than the current system of collection post-conviction for a relatively small group of offences, but it provokes strong opinions. The priority of this Government in the justice portfolio is public safety, and this bill contributes to that goal by giving the police the tools to resolve more crime, and, of course, as the recent television portrayal of the David Dougherty case shows, DNA sampling can provide resolution by exonerating the innocent. I commend this bill to the House.

Let me say from the outset that Labour will support, with reservations, the referral of the Criminal Investigations (Bodily Samples) Amendment Bill to the select committee. I say that for a number of reasons, which I will get to in a moment, but I also note the point we made during the debate on the last bill that here we are in the dead of night, quite literally, rushing this bill through a first reading with no opportunity for members to read this legislation at length, analyse it, and debate it. Before Mr Hide raises his hackles—we will get to his role in this in a moment—I say that it will go to the select committee for the full 6 months. The point has already been made with the gangs legislation that this is about window dressing. On about day 84, I think, of the 100 days Mr Power and Mr Key can get up and say that they have these bills on the road; they are happening. That is all it is about.

I will raise a couple of things in respect of this bill. Mr Power said that one of the key questions before us is whether we are using DNA technology to its best effect. He admitted that he does not know; the technology changes day to day and month to month. But it is interesting to look at the assessments that are made. Labour agrees that it is essential to use DNA technology. We are not opposed to extending the use of DNA technology. I have to say that, as the record will show, Labour passed the Criminal Investigations (Bodily Samples) Amendment Act 2003, which made many extensions in respect of DNA sampling. This is where Mr Hide, I am sure, being the bastion of regulation busting, will again take an interest in this bill. This bill has been so rushed that not only did it fail the New Zealand Bill of Rights Act vetting—and I accept Mr Power’s comment that there are a lot of complex issues on both sides of that argument—but also, if one looks at this bill’s regulatory impact statement, which I am sure Mr Hide knows backwards because, as the regulatory buster, he will have scrutinised this legislation—

💬 Hon Simon Power: Open and transparent.

—Mr Power says it is open and transparent—it says this under the adequacy statement. I will quote from this section: “Treasury’s Regulatory Impact Analysis Team (RIAT) has not had sufficient time to assess whether or not the regulatory impact analysis (RIA) for this proposal is adequate.” [Interruption] My colleague said that Mr Power should be ashamed. Well, as we read on, I suspect he will shrink lower and lower under the desk. I go on to quote from the adequacy statement: “However, we”—that is, Treasury—“have briefly reviewed the [regulatory impact statement] and consider that this is inadequate on the following grounds:”. Before I get to those, I say that I am reliably informed by my colleague Lianne Dalziel, the previous Minister of Commerce, who takes great interest in these regulatory impact statements, that this is a prizewinner. This is an absolute prizewinner for how badly put together legislation can be. It is absolutely the prizewinner for us. Here is what Treasury said about it, and I will go back a bit: “However, we have briefly reviewed the [regulatory impact statement] and consider that this is inadequate on the following grounds: a lack of clarity around the nature of the problems with the current DNA testing regime along with evidence (anecdotal or empirical) to support these;”—

💬 Hon Lianne Dalziel: Not even anecdotal evidence!

We are not into news clippings now, like we were with the bail bill. The Minister does not even have news clippings to substantiate his claims around DNA testing. There is no empirical evidence, no anecdotal evidence. Mr Hide, of course, with his new hairstyle and all, will have scrutinised this legislation, being the regulatory buster. Then Treasury goes on to state that the regulatory impact statement is inadequate on the second ground: “limited analysis of the impacts of the options. The analysis of costs is partial,”. Mr Power said that once put aside, these DNA tests—which I am told cost around $200 a pop—will be disposed of. I ask him whether he or another speaker will tell the House what the cost of this is, because Mr Power campaigned on having no bureaucracy, on cutting bureaucracy, on cutting costs, on cutting red tape, cutting the administration, and on cutting the waste. None of those questions, as Treasury has pointed out, are addressed in this.

So there is limited analysis of the impact of the options. The analysis of cost is partial. For example, only aggregate first-year costs are estimated, and capital costs are excluded. There is no estimate—this is a cracker—of risks such as those associated with implementation, or of how these will be mitigated. Not only does the Government not know what the Sentencing (Offender Levy) Amendment Bill will cost, not only does it have no empirical or even anecdotal evidence, or news clippings, or perhaps printed matter on some other piece of paper, but the Government does not know what it costs, it does not know what the risks are, and it does not really know whether it will have any impact at all in respect of implementation.

Then we get to the last point, and I quote Treasury that the regulatory impact statement “does not report on the outcome of consultation”—yeah, I bet it does not, because the Government has no evidence, and it did not consult anybody, not even the regulatory buster, Mr Hide, haircut and all—“and how any issues raised have been addressed. Therefore the [regulatory impact statement] does not contain the relevant information or level of analysis required for a proposal of this magnitude.” In other words, this should be a blank piece of paper, because nobody really knows what it means, least of all the Minister. No costs, no evidence, no anecdotal evidence, no nothing, no consultation. If the Minister had gone out and talked to some of the stakeholders, maybe even the agencies, even the police perhaps, he may have got some evidence.

💬 Hon Darren Hughes: He talked to Mrs Goudie about it.

I am reliably informed that the anecdotal evidence, such as it is, has been provided by one Sandra Goudie. Again, it points to the classic member down the back here, Mr Hide, being asleep at the wheel—the man who was going to cut red tape, regulation, everything. He was going to do it. “Send your problems to Mr Hide,” he said on Holmes, “Send them to me: I will fix them, I will cut the cost.” He was too lazy, too inept, and too silly to even read the bill. I wonder whether he will stand up tonight and say “I have read it, and I agree. We don’t know how much it is going to cost. We don’t know how it’s going to work. We don’t have any evidence. We don’t know how it’s going to be implemented—we know nothing about it.”

💬 Hon Lianne Dalziel: There might be a miracle.

It might be a miracle. He might be able to claim that he has earned some of his salary. I think we are up to five bills now that the great regulatory buster, Mr Hide, has let slip through with failed regulatory impact statements. He might want to intervene. I ask whether Mr Hide has read the regulatory impact statement, whether he knows how much it will cost, and whether he was consulted. He has his glasses on; there is hope.

I say to Mr Power, in all seriousness, that Labour agrees that we should use technology to combat crime. We acted on that when we extended DNA sampling when we were in Government. I think Mr Power has made history tonight. In my experience—and I have been here only 9 years but others also tell me—that this is the worst condemnation of a bill. A key central agency, Treasury, has said that this is inadequate, that it is rushed—

💬 Hon Simon Power: Flimflam.

—no, worse than flimflam—and that it is based on no empirical or even anecdotal evidence. At least with the bail legislation before Christmas the Minister managed to dredge out a couple of mouldy, moth-eaten, flea-bitten press clippings to say “this is my evidence for doing it”, even though we know the bail legislation changed nothing.

We will vote for this bill to be referred to the Law and Order Committee, and I will really enjoy getting the Treasury people in and teasing out of them their exact views on this legislation. I will really enjoy Mr Hide’s submission, because, of course, the regulatory buster will want to relay his great knowledge on how he will cut out waste and red tape, yet he lets this one slip, slide, and grease through the keeper because he has not even read it. No evidence—

💬 Hon Member: It’s stunning.

It is a stunning admission by Treasury that there is no anecdotal evidence to back up the claims in this bill. It is absolutely stunning.

💬 Hon Darren Hughes: He should resign.

I do not know. Maybe the Minister was so secretive about this legislation that he took himself hostage, and he did not feel it was appropriate that he read the bill before it came in the House either. Maybe Simon Power thought he had better not release his legislation to himself so he could read it, let alone any of his colleagues. Maybe that is what he did. Mr Power stands condemned for not doing his job, and for bringing inadequate legislation. This is simply about going to the people on day 16 or whatever it is and saying “We have had 100 days, and haven’t I been a smart politician, I’ve introduced this legislation.” It is substandard.

Well, that was pretty much what we have come to expect from the member who has just resumed his seat. He cannot attack ideas, and he cannot attack the fact that the Criminal Investigations (Bodily Samples) Amendment Bill is good legislation that will go a long way down the track towards saving potential victims. All he can do is try to slap around the fact that it slipped past him. If he has been through a campaign such as the one we have been through and did not catch on to the fact that a National Government would introduce exactly this legislation, we need to ask who was not doing his job. The member was not doing his job. He was not representing the people of his electorate, and he certainly was not doing his job of representing Labour Party constituents.

There is another important factor to note: the Attorney-General has studied this legislation and provided a report under section 7 of the New Zealand Bill of Rights Act. What is required of the Attorney-General in a case like this is to do the job, and to look at the bill and its implications in terms of the New Zealand Bill of Rights Act. We can stack that up against the record of the former Attorneys-General under the Labour Government. I ask what happened then. Did Margaret Wilson, when she was the Attorney-General, do that sort of scrutiny of the foreshore and seabed legislation? No, she did not. What about Michael Cullen; did he perform that sort of scrutiny of the Electoral Finance Bill? No, he did not. What is required of the Attorney-General in preparing a report such as this is to be objective and aloof, and if there is one thing I can say about my little cousin Mr Finlayson, it is that he is objective and aloof. Some would say he is objectionable, but I would leap to his defence, and I am sure his other cousin who is sitting opposite would agree totally with me.

I would like Clayton Cosgrove to have a wee think about this. How many people who break into homes in the middle of the night and rape, like the “Parnell Panther” did, did not start off their offending with low-level crime? How many did not start off by kicking around the streets, kicking over rubbish bins, smashing windows, and doing rats-and-mice burglaries? Now, when those offenders are locked up for those sorts of offences, they will have a DNA sample taken from them. It will be converted into a profile and that will be held on record. The rest of New Zealand applauds that. They say: “Good job, too!”.

Previously, when the police took a rapist along to the doctor and those samples were taken, the rapist’s hair was combed to retrieve hair follicles. The police stood next to that rapist while the doctor held his penis in his or her hands and shoved a Q-tip the size of a power pole down the end of the old fella to get a bit of penile secretion. That is intrusive. But we are talking now about a DNA sample that is collected by a Q-tip going inside the cheek and taking a swab, which is then put into a plastic bag. That is as intrusive a measure as this piece of legislation provides for, and if anyone objects to that he or she does not understand the situation and is not prepared to listen to an explanation of it. The fact is that DNA sampling is far less intrusive than having 10 big police officers roll the fingers of an unwilling person who has been arrested, in order to take his or her fingerprints. DNA testing is no more than a modern-day fingerprint, and the profile can be destroyed as soon as the charges are withdrawn or the defendant is found to be not guilty. I do not understand the objection that member has to this legislation, apart from the fact that he never had the courage to raise it in the House in his term in Government.

💬 Hon Clayton Cosgrove: I raise a point of order, Mr Speaker.

I withdraw and apologise.

💬 Hon Clayton Cosgrove: Sit down.

The ASSISTANT SPEAKER (Eric Roy): Sit down. We are getting into the habit of taking swipes at each other through points of order. I have made this clear before. When any member raises a point of order it must be terse and to the point, and it is not to be used to score points. Now, if the member has a serious point of order, he should make it tersely.

💬 Hon Clayton Cosgrove: I do, and it is simply—[Interruption] Can I finish?

The ASSISTANT SPEAKER (Eric Roy): Well, I do not know. You have already contradicted me, which is out of order.

💬 Hon Clayton Cosgrove: I agreed with you.

The ASSISTANT SPEAKER (Eric Roy): I am on my feet. You told a member to sit down, but it is not your job to rule the House. Make your point of order tersely.

💬 Hon Clayton Cosgrove: It is totally out of order to question a member’s courage. I am sure that you, as a senior officer of the House, realise that. Had I been allowed to conclude more than two words, that would have been the terse point of order that I made. I would invite you to rule on it.

The ASSISTANT SPEAKER (Eric Roy): The member is correct, and the member who was speaking must withdraw.

I withdraw and apologise.

The ASSISTANT SPEAKER (Eric Roy): Have you finished your speech?

Yes, I have.

I will traverse the elements of the regulatory impact statement, which was so eloquently referred to by my colleague the Hon Clayton Cosgrove. But I begin with reference to the fact that we have the report of the Attorney-General on whether the Criminal Investigations (Bodily Samples) Amendment Bill complies with the New Zealand Bill of Rights Act. I think it is important that the House gives consideration to it. I am very disappointed that the Minister of Justice did nothing other than make reference to its existence.

This is the first time for a very long time that the Attorney-General has reported—

💬 Hon Simon Power: Look at the stats of the last Government.

I would be very interested to look at the statistics. If the Minister had referred to this in his speech, then—

💬 Hon Simon Power: I did.

The member did nothing but refer to it. He did not say on how many occasions we have put up with being asked to proceed down a pathway that will see us contravening a pretty fundamental piece of law in this country, and that is the New Zealand Bill of Rights Act. This process allows us as a Parliament to vote in favour of legislative changes that take us outside the New Zealand Bill of Rights Act. That is what the process is designed to do. I think it is important that every member of Parliament knows that in voting in favour of this bill we are voting in favour of law changes that fundamentally breach the New Zealand Bill of Rights Act. Everyone needs to know that. I think it is important that people have a discussion about it.

The Labour Opposition is committed to this bill going to a select committee, so we will not vote against its first reading. We think that this bill could actually be improved to the point that it would no longer breach the provisions of the New Zealand Bill of Rights Act. When the select committee considers the bill it should consider the Attorney-General’s report, with specific reference to this finding: “With the exception of the United Kingdom decisions, which have now been effectively reversed by the [European Court of Human Rights], there appears to be a consensus in jurisdictions which provide for a right against search and seizure that DNA sampling regimes must be subject to strict substantive and procedural safeguards; … DNA databanks appear to operate successfully in the many comparable jurisdictions which apply such substantive and procedural safeguards.” The Attorney-General could find no basis on which to conclude that New Zealand differs from either of these positions to such a degree that these safeguards are unnecessary.

That is a very worthy report, but it cannot just end there. It cannot just be brushed off in Parliament as having been prepared and tabled. We need to debate the seriousness of actually making such a change to the law that breaches our obligations under the New Zealand Bill of Rights Act. I hope that members of other parties take a call on this particular issue, because I think it is pretty fundamental, and it is important that the select committee deals with it in detail. That is the particularly serious matter that I want to draw the House’s attention to.

The less serious issue—although it is actually equivalently serious in a different way—is the regulatory impact statement. I know that we have all laughed as the detailed reporting of Treasury has been read out, but there are two aspects of the adequacy statement in the regulatory impact statement that I want to draw to the House’s attention. I want the select committee to look at these as well. The Ministry of Justice thought the adequacy criteria were met in the case of this bill. The Ministry of Justice—the ministry responsible for the drafting instructions for this bill—said the regulatory impact statement was adequate. Treasury’s regulatory impact analysis team said the complete opposite. The positions are not able to be rationalised at all. There is no point at which one could find any similarity between the two positions. So I think that requires some serious consideration.

It is very interesting that the Government somehow seems to think that if it makes a statement of objective—namely, “The measures proposed will substantially increase the size of the DNA profile databank. This increased databank will aid criminal investigations by both linking offenders on the databank to previously unsolved crime scenes and potentially to future crime scenes.”—then “DNA’s role in solving more crimes and prosecuting more offenders will in turn contribute to increasing public safety … ”. There is nothing in any of the information that has been provided for the development of the regulatory impact statement or, indeed, for the Government’s consideration of this very bill—no evidence—to back up that claim, at all.

Treasury goes so far as to say that not only is there no empirical evidence but also there is not even any anecdotal evidence. I do not even describe anecdote as evidence. In fact, I think it is an oxymoron to say “anecdotal evidence”, because it either is evidence or is not. Anecdote is not evidence; it is simply anecdote. There is not even that to support this regime being implemented.

Before we go down the track of introducing such a major change, which breaches the New Zealand Bill of Rights Act, an in-depth cost-benefit analysis should be undertaken. But it is really hard to do a cost-benefit analysis when one does not know what the nature of the problem is. The first thing Treasury said was that there was “a lack of clarity around the nature of the problems with the current regime”. So if one cannot define the current problem, how can one define the benefit of a change to the current policy?

The second thing is that as part of a cost-benefit analysis one also needs to have the cost. Guess what? The Government has provided estimates of the aggregate first-year costs, and capital costs are excluded. Why is that? It is because the Government has no idea what the cost will actually be. Guess what? Police guidelines will be drawn up around the use of the discretion, and the Government does not know how many people will be required to provide samples in that regard.

All I am saying is that when members of the select committee receive this bill they will require a heck of a lot more than a simple statement from the Ministry of Justice that this regulatory impact statement meets the adequacy criteria, whereas Treasury’s regulatory impact analysis team, which is obviously able to provide far more in-depth analysis than the Ministry of Justice—which may in fact be self-interested in this regard—states that there really is not the information to back this up.

What really bothers me about this legislation is the question of what it is really designed to do. I think we find the answer further on in the explanatory note, which essentially states that this is part of the Government’s commitment to the 100 days of action. Therefore, this bill is being introduced in order to meet the Government’s objective of being seen to be doing things. Here we go: “… to implement the Government’s 100 Day Actions, mean that at this stage only indicative costings can be provided for full implementation of the proposals.” So the Government is doing this only to be seen to be doing something, rather than doing in-depth analysis.

I make one final point. The original legislation was based on having a propensity link. That is the whole point of having convictions that are relevant convictions. That is the whole point. We will find that a rapist has a history of burglary offences, which is why burglary is one of the relevant offences. Once the Government turns this into a free-for-all for all convictions that potentially could carry a prison sentence of any length, it will flood the system with a lot of irrelevant data, which will not produce anything of any merit. It might have a one in a thousand hit, or a one in ten thousand hit, but the Government does not know what that will be, or what cost there will be to the real policing techniques that are needed on the ground, because DNA evidence does not always provide the answer that people would seek it to achieve.

I raise a point of order, Mr Speaker. This is the first day back at Parliament and I think MPs are just getting into the swing of things. There is a very early start—

The ASSISTANT SPEAKER (Eric Roy): What is your point of order?

I seek leave for the House to rise just a minute early rather starting into my speech.

The ASSISTANT SPEAKER (Eric Roy): Leave is sought for the House to rise at this point. Is there anyone opposed to that course of action? Yes, there is.

I agree with the last speaker that the report of the Attorney-General, Chris Finlayson, is a very strong critique of the Criminal Investigations (Bodily Samples) Amendment Bill. It states that the bill is inconsistent with the right against reasonable search and seizure, as affirmed in section 21 of the New Zealand Bill of Rights Act. The Minister also refers to the intrusive nature of DNA samples, quoting from the European Court of Human Rights: “Unlike a fingerprint, it is capable of revealing the most intimate details of a person’s biological make up. … The taking and retention of a DNA sample is not a trivial matter and, absent a compelling public interest, would inherently constitute a grave intrusion on the subject’s right to personal and informational privacy.” I will be interested to hear the Māori Party’s contribution on this bill, because I think the forcible extraction of blood from a person who is not even charged with an offence will be seen as offensive by many in the community. From what I understand about tikanga, to many Māori it is offensive and we should not support it.

The controls in the system are very weak. As the Attorney-General says, they are weaker than in any country but the United Kingdom. In the United Kingdom—

The ASSISTANT SPEAKER (Eric Roy): I am sorry to interrupt the member but the time has come for me to leave the Chair.

Debate interrupted.

Sitting suspended from 10 p.m. to 9 a.m. (Wednesday)