Criminal Investigations (Bodily Samples) Amendment Bill

Although it may not be apparent from its title, the Criminal Investigations (Bodily Samples) Amendment Bill expands the ability of police to collect and use DNA samples to help solve and prevent more crime, which is a big focus of the National Government. This is because in many cases DNA technology provides more possibilities to obtain evidence from crime scenes than traditional fingerprint searches.

The bill will be brought into effect in two phases. The first phase will allow a DNA sample to be taken when the police intend to charge a person with a relevant offence as defined in the Criminal Investigations (Bodily Samples) Act 1995. The relevant offences will be expanded to include minor offences that have a link to more serious offending, and offences where DNA is often left at the crime scene. This phase will be brought into effect in July 2010 to allow time for the police to finalise operational guidelines and train their officers, and also to assist the Institute of Environmental Science and Research to prepare to manage their increased workload.

In the second phase the power to take a DNA sample will be extended for adults to all imprisonable offences. This will be brought into effect by Order in Council following a broad review of the operation of the Act and the new power. It is my intention that full implementation will be achieved by the end of 2011.

I am happy to speak on the title and commencement clauses of the Criminal Investigations (Bodily Samples) Amendment Bill. To respond to the comments of the Minister in the chair, Nathan Guy, I say that I am very disappointed that he did not confirm that the funding that is needed by the Institute of Environmental Science and Research to ensure that the testing will be carried out properly will be there. I acknowledge the comments that were made by the chair of the Justice and Electoral Committee, Chester Borrows, in the debate on Part 2, but the most important part of the question that I put to the Minister in the chair—the part that he has not answered yet, and that I hope he will—is whether he will guarantee the money that is needed by the Police and by the Institute of Environmental Science and Research to ensure that this process—

💬 Hon Nathan Guy: It’s all in here.

No, will he guarantee it? He should stand up and tell me that the money that the institute needs will be there. He should not tell me that he has a bit of paper that gives the figures that the institute needs; he should tell me that the Government will give it that money, and that there is no question that it will get the money that it needs to ensure that there is no risk of a miscarriage of justice. That is what we are talking about here.

I was a little bit concerned to hear the chair of the committee say that the Institute of Environmental Science and Research already does chain of custody, and it does it very well. He is right, but I have worked in a laboratory, and I can tell members that when one suddenly gets thousands of extra samples and there is not the funding for more staff, more space, a computer system to put them on, or whatever might be needed, there is a real risk. I am not saying this to be smart, to be tricky, or to try to create problems; I am genuinely asking. The officials may well have come to the committee and said that everything is hunky-dory, but they know what they would get if they crossed the Government at this stage. I know people who work at the Institute of Environmental Science and Research who do this job, and they are concerned. They are worried, particularly with the financial pressures on the Crown research institutes at the moment. They have to look overseas for work to be able to pay a 9 percent dividend to the Government, which was not required of them under the last Government, because that money was able to be reinvested. A 9 percent return? Yes. A dividend back to the Government to pay for things like private schools and national standards? No. I want the Minister in the chair to tell me that the Institute of Environmental Science and Research will have the money that it needs in order to ensure that we do not run any risk of a miscarriage of justice.

I also want to go back to the Minister’s discussion of the power of this technology. He is absolutely right: this is incredibly powerful technology. It is being improved all the time. I cannot remember who said this—I think it might have been Spider-Man, although he might have been quoting someone—but with great power comes great responsibility. The responsibility on this Committee is to get it right, because this is powerful technology. I feel like I sound a bit like a DNA denier, which I am not. I am a realist. I want this Committee to accept that there is a danger, when it comes to juries, around the fallibility of DNA. DNA, like any technology, is not infallible. There could be human error or deliberate planting. It is not infallible, but it is an incredibly powerful tool. People who go before a jury with DNA evidence against them are not in a very good position.

💬 Stuart Nash: Toast!

Yes. The fact is that we need to be aware of this fallibility if we are to increase our use of this technology, and if we are not sure that the funding will be there to ensure that we have all the proper safeguards for this very powerful technology. We need to make sure that the general public understand that, as I said in my second reading speech on this bill, unlike taking an entire fingerprint, DNA is tested at only a limited number of loci. We do not test the entire DNA profile of someone. We do not get someone’s entire genetic profile. Although DNA is one of the best technologies that we have, that fact needs to be understood. There needs to be education of the public around that, so when people serve on juries, they understand how the technology works, and they do not think that just because someone has DNA evidence against them, it means 100 percent, absolutely, and unquestionably that it has to be that person. That needs to be understood.

I come back to this matter again, and I say to the Minister in the chair—he waved a bit of paper at me, and I am not sure what is on it—that he should get up and tell us that the money will be there. He should tell the people who work for the Police and the Institute of Environmental Science and Research that they will be properly funded to do this testing. The Minister might think this is funny, but we run a real risk of a miscarriage of justice if the money is not guaranteed to the organisations that are to be collecting, testing, and storing the samples. When those organisations are put under significant financial pressure and workload pressure, and they are not given adequate resources to look after and protect this incredibly powerful technology, we really run the risk of unintended consequences.

Labour supports this bill, but we just want to hear from the Minister in the chair—or from the Minister of Research, Science and Technology, who is responsible for Crown research institutes, and who is sitting across the Chamber and has not taken a call yet—that the money will be there for the Institute of Environmental Science and Research.

💬 Hon Dr Wayne Mapp: Contract. It’s contract-based.

The CHAIRPERSON (Lindsay Tisch): The question is, that clause 1 stand part. I call Moana Mackey.

The Minister just yelled something out to me, and I feel I need to respond.

💬 Chris Tremain: I raise a point of order, Mr Chairperson. The question had already been put, and I ask—

The CHAIRPERSON (Lindsay Tisch): I am the sole determiner of that. I have called Moana Mackey.

I thank the senior Government whip for trying to shut me down on this very important issue, which is clearly causing the Government embarrassment.

💬 Hon Member: It was a serious point of order.

That is right; that is true.

The Minister in charge of Crown research institutes has just washed his hands of the institute. This man is meant to be in charge of the organisation that will be given a huge increase in workload.

💬 Simon Bridges: DNA expert? Body language reader?

What?

💬 Simon Bridges: Well, how did he wipe his hands of it? What did he do to wipe his hands of it?

Oh, for God’s sake!

💬 Simon Bridges: No, you’re saying it. Tell me what he did.

If Mr Bridges just listened, instead of sitting up there, chipping away constantly, and never actually listening to anything other than his own voice, he might hear. The Minister of Research, Science and Technology, Wayne Mapp, interjected across the Chamber.

💬 Simon Bridges: What did he say?

He said that it will just be on contract, so it does not matter. I would like the Minister to take a call, because the people who work at the Institute of Environmental Science and Research are concerned about what will be a long-term increase in their workload. I ask whether the Minister will guarantee that within the contract for the institute for this increase in workload, it will get not only the funding that the select committee was told it would need, but also funding that goes beyond the testing of the samples to the chain of custody—the administration. I know that the Government does not like talking about administration, because that is bureaucrats; it is not front-line staff. But it cannot work if the administration—

💬 Hon Dr Wayne Mapp: Obviously you haven’t looked at their contracts.

Well, I ask why the Minister Dr Wayne Mapp does not get up and take a call. Rather than just sitting there like a dried arrangement, I ask why he does not get up, take a call, and speak on his portfolio area of responsibility. I know that he did not want the job. I know that he does not like it. He keeps going out to people in the Crown research institute community and telling them that he never wanted the job, which does not exactly instil confidence in their new Minister. I know that he was trying to lower expectations considerably, and I say to the Minister that it is a job well done, but he might want to get up in the Chamber and answer this question. I say to the Minister that I am not trying to be difficult and I am not trying to be argumentative or problematic. I have worked for this Crown research institute and I have worked in other similar areas. I know how often the chain of custody does not get picked up in the administration side.

💬 Chris Tremain: This debate is on the title and commencement.

It should be called the “Criminal Investigations (Bodily Samples) Pay Them Properly Bill”. Does that make the Government whip happy? The chair of the select committee got up and said that the Institute of Environmental Science and Research already had a great chain of custody process. Well, that said to me that the institute would not get any more money for doing chain of custody. I am sure that the Minister will agree, because he has been around and he has looked, that that is one of the most important parts. There is no integrity in the entire process if one is not absolutely 100 percent sure that from the moment that sample is taken, the process is sound. It is transported, it arrives at the Institute of Environmental Science and Research, and it is logged in. It is stored, because it will not be tested yet, and then it goes through the laboratory process. It is then analysed—a person does data analysis on it. Those results are then logged back against the person. Finally, the sample, whether it is a DNA data sample or a DNA physical sample, is stored. I ask how all of that process will be properly funded—it is not expected to come out of the baseline funding of Institute of Environmental Science and Research—given that the Minister now expects the institute to pay a dividend to the Government to pay for private school funding increases rather than that money going back into science. The Crown research institutes are under financial pressure; I am sure that the Minister would acknowledge that. I do not think it is too much to ask for the Minister in charge of this portfolio area—who has sat there the entire time I have been speaking and has been chipping away, but he will not get up and take a call on his portfolio area—to say to the Institute of Environmental Science and Research and this Committee that the funding will be there and that the Government will make sure that the contract includes all this extra area. I do not know why that is such a difficult thing for him to do. If he does not want to be the Minister for this portfolio, then he should give it to someone who does want to be the Minister. That is all I would say about it.

💬 Hon Darren Hughes: He only got three out of 10 in the Dominion Post.

Three out of 10. If the Minister does not want to do it, then he should not do it. He should step aside and give the job to someone like Dr Paul Hutchison, who understands how the Crown research institute sector works, who works really hard with those people, and who knows the importance of funding the administration of sample collection and sample chain of custody care.

💬 Hon Dr Wayne Mapp: Why don’t you look at the latest results for all of them?

Well, the Minister should get up and take a call. I am happy to sit down now so that the Minister of Research, Science and Technology, who is responsible for Crown research institutes, can stand up and give the Committee the guarantee that it needs that this bill will be properly funded so that we do not run the risk of any kinds of miscarriages of justice.

I am pleased to be able to take a call on this section of the Criminal Investigations (Bodily Samples) Amendment Bill. As my colleague Moana Mackey said, it could have a new name. Its new name could be the “Criminal Investigations (Are You Going to Pay Them Properly) Bodily Samples Amendment Bill”. But I think there are some very serious issues apart from the payment. I will come back to that aspect, because it is part of the reason why I have taken this call. The Government needs to take account of how much it will cost. I think that an assumption is being made here that once a sample has been taken, it somehow identifies itself and it does not have to go for analysis to a Crown research institute that is already under pressure. That analysis will provide the basis for evidence, but it is not evidence in itself of anything other than the presence of somebody who is more likely to be that person than anyone else.

Unfortunately—and I think my colleague has raised an extremely good point here—the police are up against it as far as this issue goes. Any police officer will tell us today that the programmes they hate the most on TV are CSI, Cold Case, and anything that deals with DNA in any way, shape, or form, because there is almost an assumption that if the police do not turn up with a DNA sample from a crime scene, then somehow they do not have sufficient evidence to convict somebody who may be guilty of an offence. I think we do a great disservice to the criminal justice system when we put all of our eggs in one basket, and when we try to rely on a single technology and assume that, because facts fall in a particular way, that then results in certain conclusions being able to be drawn.

But that is not my only concern around this legislation. The cost is a significant part of it. DNA does not analyse itself. The sample does not analyse itself. The process needs to be properly resourced, and consideration has to be given to the effects of having such a large volume of material available. I sat in a police station once, Christchurch Central Police Station, where they—

💬 Hon Trevor Mallard: I’ve done that, too.

Well, I was not there for the same reason as that member! I was there as a visiting member of Parliament, not as a person under an inquiry. So, there we go. The police let me do a database search of a fingerprint, which was quite an exciting thing to do, but they had already arranged for it to produce a match so that I could see how the match came up on the computer system. But otherwise, even the process of matching takes hours. It generates hours of computer time to find the exact match, or the closest possible match in terms of—

💬 Hon Trevor Mallard: It doesn’t do that on CSI.

Well, the thing about CSI is that young women are led to believe that they can go on to a crime scene wearing lipstick, fingernail polish, and high-heeled shoes, so there we go. A lot of the things about those programmes are not really real, I say to Mr Mallard. I am sorry to disappoint him. But the point is that an incredible amount of pressure is put on the whole string of the process that has to be put in place in order to bring that evidence in front of a court at some future stage. It is not just a matter of taking a swab and then the swab looks after itself. A lot of work has to be done after that.

The second point I would make is that Treasury says that this legislation does not stack up in terms of its regulatory impact statement. I was involved in the original decision-making when I was on the select committee that looked at the original extension of DNA testing in this particular framework. This bill takes it a step further from the legislation that our Government introduced. We highlighted at the time that there were considerable links between certain types of crime and other types of crime. For example, there was a very strong association between previous convictions for burglary, and a rape conviction. The reason that there was a strong correlation was the opportunistic element involved with finding somebody at home when a burglary either was in process or was perpetrated when somebody was at home unexpectedly.

That is certainly a correlation between types of offences where one would think that DNA would be a useful source of information, and a useful correlation could be made. Gathering DNA from people convicted of burglary offences had a very distinct purpose when one looked at trying to find people associated with rapes later on, where the person was not caught immediately. I think that in those circumstances, the regulatory impact analysis, the cost-benefit analysis, stacked up. It made good sense to target those particular offences because of that strong correlation.

Here, all of that whole cost-benefit analysis has just gone out of the window. There is no cost-benefit analysis to substantiate the broad sweep, as it were, in terms of the collection of DNA in these circumstances for those charged with imprisonable offences without any judicial oversight whatsoever.

The second point is that even the Human Rights Commission has said that this has gone too far and has the real risk that allowing this to be used in this way will undermine public confidence in the system. The Privacy Commissioner also expressed concern that the value of the existing criminal DNA data bank would undermine public trust in the police and the Government. These things are of concern. But apparently we are not concerned that Treasury thinks there is a lack of clarity around the nature of the problems with the current DNA testing regime, that the Privacy Commissioner has expressed real concerns about undermining public trust in the police, that the Human Rights Commissioner is concerned that the proposed changes go too far, and that even the Attorney-General has tabled a report showing the inconsistency with the New Zealand Bill of Rights Act.

💬 Charles Chauvel: That well-known civil libertarian.

That well-known civil libertarian, as has been highlighted! The point I am making is that, given all of those things, and the fact that we have not taken the opportunity for this bill to be remedied by the very good amendment that my colleague put up, first of all, to make the judicial oversight—

💬 Charles Chauvel: What’s his name?

My good friend, the soon-to-be Hon Charles Chauvel. He put up two amendments. One amendment was to address the question of judicial oversight. The second one, which I think was also important, addressed the question of a review after the legislation had been in place. It is all very well for the Minister to stand up in the debate on this particular aspect of the bill and to say that the bill will be given a “once over lightly” before it is implemented. Actually, he will just implement the bill, and the “once over lightly” will not be the detailed analysis that I think Treasury, the Privacy Commissioner, the Human Rights Commissioner, and, I would assume, the Attorney-General would expect. With those defects sitting around this issue, there is, indeed, a sense of disquiet on this side of the Chamber about where this legislation has taken us. It would be helpful if the Minister would simply stand and provide my colleague Moana Mackey with the information she has requested, which is very simply that if the extent of the pressure that will be put on the Institute of Environmental Science and Research is not remedied in advance by a commitment to the funding that is required to meet that pressure, we will, in fact, create a greater problem than we have today with this legislation, instead of going anywhere near to resolving the issue.

As Treasury has said, the Government has not even provided clarity around the nature of the problems with the current DNA testing regime. There is a little bit of a sense of smoke and mirrors here, and a sense that this bill might be showing that the Government is doing something, but may not be achieving that, without the kind of commitment that we have been seeking here tonight.

I will take just a short call to talk about the title of the Criminal Investigations (Bodily Samples) Amendment Bill. I will talk a little bit more on cultural sensitivity and, in particular, the sensitivities that the police will need to demonstrate when they apprehend suspects, as I guess we could call them. The question I have for the Minister is whether the police will receive training in cultural awareness and training on how to deal with Māori offenders, in particular. I can think of a number of people up north, unfortunately, some of whom are my relations, friends, and people I have played rugby with, who have had cause to be apprehended. If the police were not careful in the way they dealt with them in requesting a bodily sample, I could understand that there would be quite a bit of concern. The reaction of the person who was being apprehended might not be the best.

I think it is really important that the police have training on how to deal with Māori in this situation. I recall watching on television one of those police programmes in which the TV cameras tag along with a police unit at night. I recall a situation where a young Pākeha policeman dealt with a Māori offender, and just the language that this policeman used when talking to this person created a lot of confusion. In fact, even for me watching the programme there was a lot of confusion. The way that the policeman dealt with this person inflamed the situation, and in the end this person was arrested for quite a minor offence. I would hate to see the situation where the police were trying to get a bodily sample from a person and were not particularly sensitive in the way they went about it, and that inflamed the situation. It could mean that the person was charged with another offence.

I see in the bill that the police are to provide suspects with some sort of written description of what is being requested. They are also meant to ask for bodily samples in plain language that suspects can understand, so that they know what is going on. As a teacher, I have had experience of trying to talk to people, and I know that even though people might nod and say “Yes”, that does not necessarily mean that they understand what is going on. It is really important that the police are able to get the information across in a sensitive manner so that they do not inflame the situation in terms of taking a bodily sample in the form of a mouth swab or whatever. It is important that the situation is not made worse and that everybody’s needs are respected, bearing in mind, as I said earlier, that in the case of those people who are guilty of an offence, I have no problems whatsoever with bodily samples being taken from them.

It is important that we use DNA testing, as my colleague Stuart Nash said earlier, where people have been traumatised, sexually abused, or assaulted. Mr Nash brought up a situation in Napier where, if DNA testing had been available at the time, the murder of a girl could have been solved.

It is important that there is cultural training for the police when they collect these samples. I know that means more funding, and already my colleague Moana Mackey has asked the Minister of Research, Science and Technology about more funding. The more samples that are brought in, the more funding will be necessary to support the testing of samples. Another question that I have for the Minister is whether the police will be funded so that they have some training in cultural sensitivity.

I move, That the report be adopted.