Criminal Investigations (Bodily Samples) Amendment Bill

I shall speak on one of the amendments that has been proposed in the name of my very good colleague Charles Chauvel. Firstly, I refer to proposed new clause 48, which is to follow clause 47. This amendment would require a review of the operation of certain provisions of the Act after a period of time. Members will see that it is essentially after the legislation has been in place for 5 years. I think this is a very good practice. We have undertaken this process in a number of legislative areas. The advantage of writing the review clause into the legislation itself is that it does not get lost in the annals of history and, of course, it will not get lost in the change of Government that will occur in 2011. That is why it is very important that we write the provision into the legislation, otherwise there may not be quite the level of priority given that ought to be given.

There is often a debate about whether 5 years is the right period in which to review legislation, and I want to make the case for a 5-year period. I recall that when I was very first a member of Parliament, back in the early 1990s, we dealt with some changes to the Human Rights Act. During the period of the operation of the Human Rights Act it had a sunset provision requirement that essentially exempted the Government from the full weight of the application of the Human Rights Act for a period of 10 years. During that 10-year period the individual Government departments that were responsible for each of the different pieces of legislation that had contrary provisions to the New Zealand Bill of Rights Act and to the Human Rights Act were to develop a series of papers, as it were, for different Ministers, highlighting to them whether the Government wanted to retain the discrimination, whether it wanted to remove the discrimination, or whether it wanted to make the case that it was not discriminatory under the New Zealand Bill of Rights Act, using, I think, the section 4 provision. There was an advantage in the period being 10 years, because there was such a substantial amount of work to do.

The reason I am arguing for a 5-year review, as my colleague has done with his proposed amendment, is that for 5 years the departments did nothing. It was only when we got into the second 5 years, as we were heading into the 10 years, that departments suddenly started to realise that they were in trouble as far as getting the legislation up to speed was concerned. In fact, I may even have the time slightly wrong because, as I recall, the legislation was passed in 1993, so it may have been a 5-year sunset provision. At the end of the period the departments suddenly found themselves right up against that deadline and the Government was going to lose the protection contained within the sunset provision, which meant that it suddenly had to start doing something about it. What actually happened was that the Government of the day—so I now think that it must have been a 5-year period that was allowed—actually had to move an amendment to the Human Rights Act to enable the sunset provision to last a little bit longer. I do not think that is a very useful way of ensuring that major changes to our legislation are subject to the intense scrutiny that I think something like this should be.

I am very supportive of the amendment and I hope that the Government will accept it in the spirit that it is offered to the Committee. It is a genuine attempt to ensure that with legislation that by its nature can be somewhat controversial, we do have a period of quiet reflection after its operation to see whether there is the need to retain the provisions as they are set out, whether they should be repealed, or whether further statutory amendments are necessary or desirable.

I have some comments to make about Part 1, then I will respond to the member’s comments about the amendment that has been tabled by Charles Chauvel in respect of the review period.

As members will know, the Criminal Investigations (Bodily Samples) Amendment Bill will be implemented in two stages. Part 1 implements the first stage. It will provide the police with the ability to collect a DNA sample from any person they intend to charge with a relevant offence. The part expands the range of offences for which it is possible to collect a DNA sample. Part 1 will allow a charged person’s DNA profile to be matched against samples collected from previously unsolved crime scenes.

Part 1 has also been enhanced by contributions made by the Justice and Electoral Committee, and I thank members of that committee, on both sides of the Chamber, for the work they have done, particularly in relation to provisions relating to young people. The committee has simplified the criteria for taking a DNA sample from a young person by applying the protections that already exist in the Children, Young Persons, and their Families Act, and that is entirely appropriate. Another important amendment made by the committee clarified a young person’s entitlement to have an adult present when a DNA sample is taken, which aligns the bill with the regime currently in place for young people being interviewed by the police. This is an exceptionally useful and appropriate clause. The effect of the clause is that if the adult chosen by the young person cannot reasonably be located or cannot attend within a reasonable period of time, the constable may require the young person to elect another adult, or the constable may elect for them, thereby ensuring that no deliberate delaying techniques are put into place, but at the same time ensuring that sufficient protections are afforded to a younger person.

The committee made two further changes to Part 1. The first was to insert a definition of the term “charged” in clause 4, and the second was to amend the bill to allow the police to apply to a District Court judge to permit a sample to be taken under new powers as an evidential sample. I thank the select committee again for its valuable consideration, and particularly for those amendments and suggestions made in respect of the arrangements for when a young person is providing the said sample.

In respect of Mr Chauvel’s amendment, members will be aware that, as expressed in the explanatory note of the bar 1 copy of the bill, the Ministry of Justice will “review the operational and cost effectiveness of the entire Act … by August 2011.” On that basis the Government will not be supporting Mr Chauvel’s amendment. The Government’s view is that it is far more appropriate for the Government to undertake reviews of legislation that it administers than it is for the Committee to commit future Parliaments to undertake such a review.

I pick up from where my colleague Lianne Dalziel left off in respect of Charles Chauvel’s amendment regarding the review clause that he proposes. I must say that it is a pleasure to be dealing with a bill of substance. I see that Mr Brownlee has joined us, and I am sure he will want to take a call after his exertions in managing such wonderful proceedings in the Chamber as we have had tonight. I am sure he will want to take a call on the Criminal Investigations (Bodily Samples) Amendment Bill.

It is with some degree of positivity that I have pleasure in speaking to what I think is a bill of substance, as opposed to the last bill debated, the Sentencing (Offender Levy) Amendment Bill. So I assume that the Government will not take the same shellacking it took from the ACT Party in respect of this bill that it took a few moments ago on the last bill debated, when the rug got pulled out.

💬 Hon Darren Hughes: The marriage is strong.

I doubt that, somehow. I suppose I would say to the Minister in the chair, the Hon Simon Power, the Minister of Justice, that I believe the reason, in essence, he said he was not supporting this review clause, or the reason the department was not supporting it—far be it from the Minister to be led by the nose by the department; I am sure that would not be the case—

💬 Hon Gerry Brownlee: You don’t want to speak from your own experience.

—I ask Mr Brownlee to please not tempt fate—was that the department had proposed a review based on cost-effectiveness. The difference here is that Mr Chauvel’s review deals with some far more important matters of substance than simple cost-effectiveness. In essence, the review would test whether the operation of the provisions since the date of commencement should be retained or repealed, and, if they should be retained, whether any further statutory amendments are necessary or desirable. I am sure that even Mr Brownlee, with his highly developed level of intelligence—but he will correct me if I am wrong—would note that in essence, that asks whether the bill is working.

There are some very important issues. We heard in previous debates, and I will not labour the point, that criminals, intelligent creatures as they are, have engaged in, for instance, planting DNA. Some complicating factors could lead to corrupt outcomes in respect of DNA, so Mr Chauvel’s review is not about dollars and cents, it is actually about testing, given the new technology, and given the vulnerability of the new technology, as opposed to fingerprinting, which has been debated in earlier times in respect of this bill. It actually seeks to test whether the bill is working, and whether it requires amendments to perhaps bolster it. That is about quality. We are absolutely supporting this legislation because, despite Mr Power’s comments last night about tools and tool boxes, this is a very important tool for police, and we support the moves to put this bill in place.

I also make this appeal to the Minister. I do not see what is wrong with having a review, apart from a bit of cost. The select committee officials have to run around, do the work, and look at it, so there is a bit of a cost to that, but I would say that the cost is balanced against the cost of not testing whether the legislation is doing what the Government wants, whether it is producing the quality outcomes that the Government wants, and whether it is working. So I say to Mr Calder that, yes, there would be a cost for the select committee to look at this. It is not the first time that select committees have been charged with reviewing legislation. For instance, a select committee does it after every election, and there is actually a cost to that, too. I would not have thought that this would be a deal-breaker for the Minister; I would have thought it would be a pretty minor concession, and I would have thought that it would give a layer of comfort to the Government—an out clause, if you like. Because we are dealing with a new technology, the Government may have got it a bit wrong, there may have been a loophole, or there may be something that we did not think of collectively as a Parliament, so this review provides a quality-control mechanism.

It goes beyond looking at just cost-effectiveness. I make that appeal genuinely to the Minister, because, with respect, I think Mr Chauvel is putting up a high-quality but low-risk proposition. I do not think there is much political cost in saying that, and if the Government accepts this amendment, I will not make the charge against it that it does not have faith in the legislation, or any of that stuff—I would have made that charge in respect of the previous bill debated, and I did so—I will actually congratulate the Government and say to the Minister that he has shown a high degree of judgment and leadership, because it means he would be willing to concede that Parliament, especially when dealing with new technology, can often get it wrong, or, if not wrong, can often not come completely to grips with it.

DNA is an evolving technology. I had the privilege some years ago of going to the Massachusetts Institute of Technology to hear a lecture given by—and I forget the gentleman’s name—an eminent professor—

💬 Hon Darren Hughes: Gerry Brownlee?

No, it was not Gerry Brownlee; I would remember that name. It was not the “McDonald’s School of Graduates”; it was the Massachusetts Institute of Technology. We heard an eminent professor who was involved in mapping the genome talk about the strengths—

💬 Hon Darren Hughes: It wasn’t Gerry’s, was it?

No, it was not Gerry’s genome; it was the genome. We heard an eminent professor talk about the strengths and the weaknesses of DNA, and I was very impressed.

💬 Hon Gerry Brownlee: There is a demonstration of weak DNA in front of us right now.

Pardon?

💬 Hon Gerry Brownlee: Nothing.

💬 Hon Darren Hughes: Imagine mapping that DNA!

I will. For those who are watching this debate, I say that I almost yielded to the member Gerry Brownlee, but he said nothing. That is probably the best speech he has made for many years, I think. It summed up his whole time in this Parliament.

On a serious note—

💬 Hon Gerry Brownlee: It’s certainly filling out your 5 minutes!

I say to Mr Brownlee that when it comes to filling things out, I would not go there if I were him; I am very happy with the size of my suit. I do not think we have reached the technological advance whereby one can lose weight through DNA.

I will get back to the bill. In all seriousness, I say that the professor at the Massachusetts Institute of Technology lectured us on the strengths and weaknesses of DNA. I think it is a very powerful tool.

As I said, I commend the Minister for what he is doing in respect of this legislation, but I think he would show a high degree of judgment and leadership if he simply accepted a review. It has to go beyond just cost-effectiveness. It would have been great to know whether the dollars and cents were adding up in respect of the last bill debated. If the Minister said that he had done a cost-effectiveness review in respect of the last bill debated—well, no, we would not have wanted that in respect of that bill, because we could predict the outcome of that review. But this is still a relatively new and evolving technology, and this technology has strengths and weaknesses. It is not as straightforward as simply fingerprinting, and Mr Chauvel has simply sought to say that we should look at it in 5 years’ time to see whether we need to amend it, and see whether the provisions that this Parliament is supporting—I assume universally—are working well or whether we can improve it.

I say to Mr Calder, who wrung his hands about the cost of the select committee inquiry, that I think this would be a high-quality use of a select committee and a high-quality inquiry. At its very essence, it might provide new ideas to build on this legislation. By that stage, in 5 years, or perhaps in 5 months, we will know how this technology will evolve. It may be that from that inquiry flows new legislation for the Government of the day that will have an even greater impact on criminal elements and a greater positive impact for victims. If the Minister is not going to support the amendment, that is fair enough. But surely he has a better argument than saying, as the Ministry of Justice leads him by the nose, that he will not support this amendment because the ministry will have a review that says whether it is cost-effective. We are talking about quality, not dollars. We are asking whether it works, not about dollars. We are asking whether it meets its aims and objectives, not whether it is meeting the Budget line item projection that this Government has set for it.

I invite the Minister to respond now, if he wants to. It would be a pleasure if he did. I invite Mr Brownlee—who obviously has made some sterling contributions to this debate, being an expert on things scientific—to rise and answer for the Minister.

💬 Charles Chauvel: Sure to rise!

Sure to rise, yes. He may want to make a contribution to this debate. I think that deep down, in places Mr Brownlee does not want to talk about, he may well support the proposition I am putting up. It is worth quality-controlling the legislation. The Government will lose nothing politically and no one will have a go at it for saying that it will have a look at this legislation in 5 years, because it is very, very important. We think of David Dougherty. DNA evidence cleared that man. He was innocent. We think of Arthur Allan Thomas. It was historical technology, but I ask members to think of the consequences around that case. I say in all seriousness to the Government that it would show a high degree of leadership if it accepted this very simple but high-quality proposition.

I find part of this legislation quite difficult—not difficult to understand, but I find it hard to know what side of the grey line I stand on. I readily concede that DNA technology is a wonderful advance in solving crime. It helps us to solve crimes that would otherwise not be solved, and, accordingly, it brings to justice people who would otherwise not be brought to justice for, sometimes, very serious crimes.

In some senses, I can hear what people say when they say that DNA matching is a scientific advance that we should be taking advantage of. Some people go so far as to say it is modern fingerprinting. They say that we have always taken the fingerprints of people when they are arrested, matched them against the fingerprinting database or fingerprints taken at scenes of burglary or other violent crimes, to help establish proof, or, indeed, to disprove, that someone might be the alleged criminal. I can see the argument that DNA matching is in some ways very similar, except that it is better because it is more accurate.

I then look at what is being said around the world and what is happening in Europe. Europe is well aware of the usefulness of DNA technology to try to prove the guilt of criminals and bring them to justice, yet the Europeans courts have said that the British have gone too far. They have gone to the extent that New Zealand is proposing to go. Britain already has a law that says that anyone who has been arrested can have his or her DNA taken, that it can be stored in a database for a long period of time, and that it can be matched against DNA from earlier crimes or subsequent crimes. The guardians of civil liberties in the European Community have told Great Britain that it has to change the law. The Europeans think that it is too great an invasion of civil liberties and that there are too many risks to people as a consequence of the DNA being stored. Those risks arise in part from the mistakes that could be made in its storage. DNA could be mislabelled as being from somebody else. That seems to me to be a problem that can be overcome, because if a mistake is made and I am accused of a crime I was not guilty of, I could always say “No, that is not me. Please take another test of my DNA.”, and the new test would show that my DNA was not the same as the one on record. So I am not sure that that is a sound basis for refusing to allow the technology used to collect DNA.

None the less, this is a time of science racing ahead. It is very hard for us to envisage all of the situations in which use of this technology in the widest possible frame could be wrong. On that basis, I am more comfortable with the proposition that my colleague Charles Chauvel put forward. He said that rather than taking DNA from people upon their arrest as of right, they could either supply it voluntarily or it could be taken from them compulsorily on the order of a judicial officer. It is a bit like getting a search warrant. A search warrant is needed to go into a house and search for evidence. What is wrong with saying that there should be the equivalent of that sort of judicial oversight before someone is allowed to take a DNA sample compulsorily? The first of the two amendments proposed by Charles Chauvel addresses that issue, and in my view it is the more important of his two amendments. I encourage the Government to take that step. Why do we have to go the whole hog, to go to the great extent that the British Government has gone to? It is now being forced by the European Parliament to wind back that measure. Why should we in New Zealand take that extra step now? Why do we not go to the halfway house that Charles Chauvel is proposing? That would be consistent with what the Europeans say is appropriate.

I move, That the question be now put.

I will say a few words about the two Supplementary Order Papers that stand in my name. I apologise to the Committee that I was not able to be here earlier; I understand that the Minister in the chair, the Hon Simon Power, addressed one of them. I was, unfortunately—[Interruption]—that is right; I think I can refer to my own absence—detained at the Finance and Expenditure Committee doing round 58 of the emissions trading scheme.

💬 Hon Clayton Cosgrove: Did Gerry manage that process?

No, Gerry Brownlee did not manage that process; it was managed with the same level of competence by one of his colleagues.

💬 Hon Lianne Dalziel: What, the one who did the ACC as well?

Well, let us not go there, I say to members; let us concentrate on the business at hand. I am delighted to follow my friend and colleague David Parker, and also the contribution by Clayton Cosgrove, and to have been in the Chamber for both of those contributions. I am very sad to have missed the contribution of Lianne Dalziel.

I will deal first with the amendments that would make changes to clause 7. Labour members, in the commentary to the bill, as reported back from the Justice and Electoral Committee, said the following: “New Zealand Labour members of the committee, having carefully considered the Attorney-General’s report to the House on the inconsistency with the New Zealand Bill of Rights Act 1990, felt strongly that there should be an amendment.” I think that for the Committee, and for the Minister, if he could turn his mind to the issue, this really has to be the nub of the question. There is an Attorney-General’s certificate of inconsistency with the New Zealand Bill of Rights Act. The view taken is that the power to confer an authority of literal physical compulsion over those arrested, in the way that the bill proposes, does interfere with the rights and freedoms affirmed by the New Zealand Bill of Rights Act. That is not a position that this Parliament should endorse readily or freely. If it is within our powers to easily amend the position so that the rights and freedoms declared by the Act are not interfered with, then that should be done.

As David Parker pointed out in his contribution, there would be no impairing of effectiveness of the legislation; this has the potential to be a very powerful crime-fighting tool. That is one of the reasons why it has enjoyed widespread support. But, for goodness’ sake, if we require the police to seek a warrant—that is, judicial authority—to enter a person’s premises or property, why on earth would we not require that level of judicial supervision when we are talking about the ability to commit what under common law is an assault, without the provisions of this bill? That seems completely inconsistent to me. It ought to be the case that this Parliament just puts in place that very simple check and balance. The police tell me they have no difficulty at the moment, even after hours, in procuring search warrants from justices. It seems to me that if that is the case, given the number of occasions on which one would expect that the powers in this legislation would have to be exercised, there should not be any great administrative burden in putting that extra safeguard in for the people of New Zealand.

So I commend the Supplementary Order Paper dealing with the judicial oversight that ought to exist, in my view, over this power. As David Parker said, this is the sort of oversight that has been put in place in Europe. The European Court of Human Rights, in respect of offending English legislation, which is essentially the scheme that this bill would enact, has said that there should be that safeguard so that the European Convention on Human Rights is complied with. Our New Zealand Bill of Rights Act comes out of the same family. The ancestry is common. It is from the Universal Declaration of Human Rights. It is not onerous to bring about compliance, and we should do so.

I will now deal with the second Supplementary Order Paper. I understand that the Minister has said that he does not think it would be desirable to have a review by the law required of the novel provisions of the Criminal Investigations (Bodily Samples) Amendment Bill, and he has said that a cost-benefit analysis will be conducted by his ministry in 2011. That is a fantastic thing, and we will all be looking forward to the fruits of that exercise.

💬 Hon Lianne Dalziel: They’ll be in the middle of the election.

Well, there are two reasons, and one of them has just been touched on by Lianne Dalziel, as to why we ought to have a bit of an additional safeguard. The first is, of course, that 2011 is an election year. By this legislation we confer on the police, on the executive, a novel power. It is a power of literal physical compulsion, and I would have thought that we do not want an administrative review of that power, with all the implications that that would contain, appearing in election year. We want that review to occur in a more dispassionate time and place, and the legislation that I have proposed, the amendment to clause 48, is very simple. It says that after 5 years the House of Representatives would refer—

The CHAIRPERSON (Lindsay Tisch): I remind the member that we are on Part 1.

Oh, I beg your pardon. I thought I might be able to knock them both off in one speech, but if the Committee prefers that I take a second call on that, I am happy to do so.

The question was put that the following amendment in the name of Charles Chauvel to clause 7 be agreed to:

to add after new section 24J(1) the following new subsection:

(1A) A constable may only require a bodily sample to be given in accordance with a suspect compulsion order.

I seek leave to amend the ACT vote. It should be four votes opposed on each of the last two amendments.

The CHAIRPERSON (Lindsay Tisch): Leave is sought for that purpose. Is there any objection? There is no objection. We will amend the vote.

The question was put that the following amendment in the name of Charles Chauvel to clause 7 be agreed to:

to omit new section 24L.

I move, That the Committee report progress.

Progress to be reported presently.

House resumed.

The Chairperson reported the Sentencing (Offender Levy) Amendment Bill with amendment, progress on the Criminal Investigations (Body Samples) Amendment Bill, and no progress on the Domestic Violence (Enhancing Safety) Bill and the Gangs and Organised Crime Bill.

Report adopted.

The House adjourned at 9.50 p.m.