Criminal Investigations (Bodily Samples) Amendment Bill

on behalf of the Minister of Justice: I move, That the Criminal Investigations (Bodily Samples) Amendment Bill be now read a third time. This bill amends the Criminal Investigations (Bodily Samples) Act 1995 to expand police powers to collect DNA profiles. It recognises the value of DNA technology and empowers police to use the modern-day fingerprint to solve more crime. The bill implements the Government’s post-election action plan to require DNA testing for every person arrested for an imprisonable offence. I am proud to see another of National’s 100-day commitments being passed into law, hopefully today.

New Zealand’s pioneering DNA database, which is only the second created in the world, achieved its milestone 100,000th entry last month. The foresight of police in carefully storing genetic information, even before the technology was available to fully utilise it, has paid off. Serious cases of rape, abduction, sexual assault, home invasion, arson, and burglary—some of which have been cold for decades—have been solved only as a result of the availability of stored DNA material. However, over 8,000 of those 100,000 profiles stored on the database relate to unsolved cases.

In order to take full advantage of the DNA profile database as an effective weapon against crime and to help clear the backlog of unsolved cases, it is important to increase the database’s size by adding more identified DNA profiles. This bill will facilitate the growth of the database and the resolution of unsolved crime by allowing police to collect DNA from anyone whom they intend to charge with an imprisonable offence, without the need to obtain their consent or prior judicial approval. The bill will also expand the range of offences for which it is possible to collect DNA, and remove the requirement that the police must wait for a conviction before matching a charged person’s DNA against samples taken from unsolved crime scenes.

This bill has been enhanced by the contributions made by the Justice and Electoral Committee and I acknowledge the good work of that committee, chaired by Chester Borrows, in respect of the provisions relating to young people in particular. As a result of the committee’s input, the range of offences for which it is possible to collect DNA from a young person will not be expanded to the same extent as for adults, and greater consistency has been achieved with the Children, Young Persons, and Their Families Act 1989.

Members will be aware that in the select committee’s report to the House the Attorney-General, as well as various submitters on the bill, raised a concern under section 7 of the New Zealand Bill of Rights Act about the absence of prior judicial approval before a DNA sample is taken. Prior judicial approval was not included in the bill for a number of reasons. For example, there are a number of measures in the bill to minimise its intrusion into individuals’ rights. Taking a DNA sample is a minimal physical intrusion, and prior judicial approval does not add huge benefits to the process. Operational guidelines have been developed to avoid the arbitrary application of the power, and requiring prior judicial approval for the estimated 16,000 samples in the first year would come at a significant cost to the courts in processing that many applications.

We recognise that immediate full implementation of these changes although optimal is not completely practical. Police will need time to develop guidelines and train staff. Phased implementation will also assist the Institute of Environmental Science and Research to absorb the increased workload. Accordingly, the bill will be introduced in two stages. Initially, police will be allowed to collect DNA from anyone whom they intend to charge with serious offences or offences that indicate a propensity for future serious offending, such as peeping and peering. It is my intention that full implementation will be achieved in 2011. This Government has made public safety its top priority in the law and order portfolio. This bill will be a crucial tool in the fight against violent crime, and I commend it to the House.

This Criminal Investigations (Bodily Samples) Amendment Bill confers a novel power. The police may collect without prior judicial approval a bodily sample from any person whom they intend to charge with the offences specified in the legislation. As we have just heard from the Associate Minister of Justice, this measure is very likely to be expanded at a point not too far in the future, to allow for the collection of such a sample from any person whom the police intend to charge with an imprisonable offence.

At all times, the House has known that in legislating in this way, we are breaching our own human rights standard, the New Zealand Bill of Rights Act 1990. We have an Attorney-General’s report, which is a certificate that tells us this. The basis for the Attorney General’s certificate—it is not just a comment, as the Minister put it, but an important safeguard in our legislative process—was this: on the basis of US, European Union, and Canadian authority, a failure to include judicial oversight of the power of literal physical compulsion is a breach of the human rights standards to which we subscribe. We have known that that is the case at all stages of this bill. We could have fixed the problem very easily by simply requiring that the police obtain a warrant before they exercise the powers conferred in the bill, as they currently do with regard to the power to enter premises.

The reason that the Attorney-General could so confidently issue his certificate under the New Zealand Bill of Rights Act, and the reason that the House knows that it is legislating against our humans rights standard, is exemplified by a case from the European Court of Human Rights that is less than a year old: S and Marper v The United Kingdom. The judgment was given in December 2008. One of the facts of that case was that legislation very similar to the bill we are considering now was passed by the Westminster Parliament. Under that legislation, the South Yorkshire Police took the DNA samples and fingerprints of two men. Neither of the men had been convicted, but because they had been arrested for a recordable offence in England, Wales, or Northern Ireland, their DNA profiles were kept on a database, regardless of whether they were charged or convicted. This practice, by the way, meant that at the time of the European Court of Human Rights judgment, the details of around 4.5 million people were held in England, Wales, and Northern Ireland, one in five of whom have no criminal record whatsoever.

The European Court of Human Rights, comprising 17 senior judges from across Europe, found that the police’s actions violated article 8 of the European Convention on Human Rights, which deals with the right to respect for private and family life. The court stated that it was “struck by the blanket and indiscriminate nature of the power of the retention” in England and Wales. It also ruled that the retention of the men’s DNA “fails to strike a fair balance between the competing public and private interests”, and that the Government of the United Kingdom “has overstepped any acceptable margin of appreciation in this regard.” Finally, the court ruled that the retention constituted a “disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.”

Decisions similar to this one exist, and they come from the Supreme Court of Canada and the United States Supreme Court. That is because the European Convention on Human Rights comes from the same juridical stable as the initial amendments to the United States Constitution that became the US Bill of Rights, the International Covenant on Civil and Political Rights, the Canadian Charter of Rights and Freedoms, and, most recently for our purposes, the New Zealand Bill of Rights Act 1990.

What is the practical effect of this House’s refusal to be mindful of the Attorney-General’s section 7 certificate and the amendment to Part 1 in my name that would have made this legislation compliant with the New Zealand Bill of Rights Act? New Zealand has ratified the International Covenant on Civil and Political Rights and its optional protocols. One of those optional protocols entitles people in New Zealand to bring a complaint to the United Nations Human Rights Committee in New York as to a breach of their rights under the International Covenant on Civil and Political Rights.

Inevitably, as a result of our passing this legislation in its current form, the police will arrest, or will intend to arrest, an innocent person. Under the provisions of this bill, that person’s bodily sample will be retained even where an arrest does not proceed, or, if an arrest does proceed, where the charges are dropped or a conviction does not result from those charges. That person will ask, as someone who is innocent, that the State not retain his or her bodily sample. The State will refuse.

The person will have no further domestic remedies to exhaust, except maybe to make an application for a judicial review of the decision, which is unlikely to be granted. If that remedy is not granted, then that person will complain under the optional protocol to the International Covenant on Civil and Political Rights. On the overwhelming case law in the face of which we are legislating, the person will succeed in that complaint. When that happens, New Zealand will be in breach of international law, and this issue will be fairly and squarely back in the lap of this Parliament.

How the Government thinks that it is responsible, fiscally or otherwise, to legislate in this fashion without the simple insertion of the judicial safeguard that would make this legislation compliant with our entire human rights tradition is beyond me. It leads one to the conclusion that the failure to so legislate means that this bill is yet another example of window dressing on law and order by this Government. How ACT, the so-called liberal party, could vote against the amendment that would have added the requirement of judicial oversight and also a real review of the legislation is also beyond me.

I will mention my second amendment for a moment. It has not succeeded as far as this third reading of the legislation. That amendment would have recognised that we are conferring a novel and new power upon the State with this bill. It is an intrusive power. It is a power, it is true—as other speakers have said—that could have a potentially great benefit in the struggle for law and order, but it is also capable of being greatly abused if we are not careful about how it is exercised. It is all the more capable of being greatly abused because of the failure to include a judicial oversight provision.

In my amendment was a proposal that after 5 years of the legislation’s operation there should be a review. The legislation would have been reviewed by a select committee comprised of members of Parliament, so it would have been a political review, but at least the select committee would have been able to hear evidence in public. The select committee would have been able to call for experts to give it a view as to the operation of the legislation after 5 years. That is a period of time after which we would have had the initial stage of operation, as we have heard from the Minister of Justice.

We have also heard of the Minister’s proposed extension, which, judging from his speech, is virtually automatic anyway, notwithstanding the outcome of the administrative review that he proposes. That administrative review will be conducted by the Ministry of Justice. Its major end will be to satisfy the Minister that it is timely to proceed to the second stage of this legislation—that is, that the law should provide for the taking of bodily samples in respect of any imprisonable offence. As we heard from the Minister, that move is virtually a fait accompli. The review will occur by August 2011, and it is likely to occur in the heat of an election campaign. This country does not do well in the sober consideration of law and order issues at that sort of time. It is just the wrong time to be reviewing whether we have proceeded in the right fashion by legislating in this way.

This bill is much worse than it could be or should be. As I tried to show in my speech, it will inevitably result in uncertainty and litigation against New Zealand at an international level, so it will not be our final consideration of it on this occasion tonight. With the simple addition of some judicial oversight, we could have had finality. Thanks to the Government, we have none.

I am pleased to stand and take a call in the third reading of the Criminal Investigations (Bodily Samples) Amendment Bill. As I have said before, this bill, more than any other legislation that has been before the House for a long time or will be before it in the future, will prevent more people from being victimised.

Apart from the scenario outlined by the previous speaker, Charles Chauvel, what will happen hundreds, if not thousands, of times over and over again is that a different scenario will be played out. I do not undermine what he said, but I think we need to take cognisance of the balance here. For example, a young man seen hanging around premises late at night, looking in some windows, will be caught unlawfully in an enclosed yard and will be arrested for peeping and peering. He will be taken back to the police station, his fingerprints will be taken, his photograph will be taken, he will be handed a cotton bud Q-tip and told to put it in his mouth, he will take a cheek swab, and it will be put into a plastic bag. At some stage after that he will probably plead guilty to the offences outlined, because to him they are nothing. At that stage, he does not realise the criminal he will go on to become. Later on, through a number of things that will probably impact on his life, he will become a sex offender and will go on to commit further crimes against the person that are far more horrific than he or those who were around him at the time—probably the constable who first arrested him for peeping and peering—ever contemplated.

After the offender commits what was likely to be his first offence and leaves a bodily sample at the scene, whether it be blood, semen, spittle, hair, a piece of skin on a broken window, or whatever, he will have the DNA compared with whatever sample he left behind at the scene and there will be a match. He will be identified very, very early in the piece as a sex offender and a conviction will probably emanate from that. Although we cannot say with 100 percent certainty that any DNA sample belongs to any particular person, the good scientists from the Institute of Environmental Science and Research can come before the court and say: “The likelihood of another person being the provider of this DNA sample is 29 million to one.” The jury, in the knowledge that there are only about 4.2 million of us living in this country, quite rightly will convict.

Although the points the previous speaker laid out before the House could well happen in the future, if we look on the balance of public interest in this matter we have to concede that the vast weight of public interest is following the line that I have just outlined. That is why this legislation is so good. Yes, there are costs involved. Bearing in mind the thousands and thousands of people who are arrested every year, going to a judge to obtain a warrant to retain a DNA sample, even before the conviction is entered, would incur a pointless cost. For instance, bearing in mind that the reason why a judicial oversight was required in the initial stages of recovering DNA was that it involved taking a blood sample, this is merely a cheek swab that the offender takes himself or herself. That is a very, very important point to remember, because the science has moved on, the intrusive nature of recovering DNA is far less than it ever was before, and the law needs to reflect that fact. It has been said many times in the course of this debate that DNA is the modern fingerprint, and yes, it is. If scientists were mad enough to hare off down the track and try to identify a number of other profiles within any DNA sample, then they could find out all sorts of things. But I am sure that no one in this House really subscribes to the Big Brother conspiracy theory.

As outlined by previous speakers, costs have been covered in the Committee stage. We know what those costs are and what we are setting ourselves up for. We also know that the call for more explicit guarantees comes from the side of the House that only last year gave us a Budget that promised hundreds of millions of dollars in spending entitlements and provisions that were never there to spend. Those members demand that level of accountancy from the current National Government, and it has explored and costed this very worthwhile election promise. We are very pleased to see that at the end of this third reading it will come into form. We look forward to not seeing the offenders of so many thousands and thousands of victims appearing before the court, and not seeing those young men and women enduring the pain of being the victims of such offenders.

I want to address something that the previous speaker, Mr Borrows, spoke about. He talked about a scenario where a young boy is caught peeping and peering through a window, he is taken to the police station, and gives a swab. Mr Borrows said that further down the line that boy would go on to commit a sexual offence, and that at that point the police would have his DNA on file. What this National Government has failed to do, and I think it is clearly outlined by what Mr Borrows said, is to look at the interventions so that the young boy does not get to the point where he commits a sexual offence. I think that is one of the major flaws of the National Government. The problem for the victim is that, yes, the DNA sample may be on file, and, yes, the police may be able to catch the perpetrator, but the problem for the victim is that the crime has already been committed, and the National Government would have done nothing to stop the crime from being committed. That is the issue, I think.

One of the major concerns we have with a lot of the law and order and justice legislation that is coming through from the National Government, and that we have seen go through the select committee process, is that it is all “ambulance at the bottom of the cliff” stuff, and this bill is no exception. Members on this side of the House have said that we agree with DNA testing. The previous Labour Government undertook measures to ensure that New Zealand was keeping up with the technology and that we were doing all that we could with regard to DNA testing. The issue is not the DNA testing necessarily, but the extent to which the National Government is going in that regard. It is also the fact that the sole focus is on the ambulance at the bottom of the cliff, and not on the stuff in the middle or on the stuff at the beginning, to stop the crimes from being committed in the first place. The example from the previous speaker, Mr Chester Borrows, was a good example of one of the reservations that this side of the House has about the legislation that is going through.

Before discussing the contents of the bill, it is important for me to put this into context again. I said earlier that Labour is not opposed to DNA testing. We have some reservations around it, but I point out that the previous Labour Government took legislation as far as it could in previous years. I want to go back and discuss some of the things that Labour has done previously, so that people understand that this National Government is not starting from scratch with regard to legislation around DNA. There was a solid foundation to start from.

In 2003 the previous Labour Government passed legislation to amend the Criminal Investigations (Bodily Samples) Act 1995, which significantly increased the scope for the DNA testing of suspects. Under that Act burglary suspects can be compelled to provide a DNA sample, including in the circumstances where a crime scene sample is matched with a known offender’s DNA profile held on the police data bank. Prior to that legislation, crime scene samples could not be used in evidence unless a fresh DNA sample was taken, and an alleged offender could refuse to give that sample. Under the 2003 legislation, which was, as I say, passed by the previous Labour Government, the offences for which someone may be compelled to give a sample have been significantly extended to cover crimes punishable by at least 7 years’ jail, such as motor vehicle conversion and some offences of receiving stolen goods, or any attempt to conspire to commit such a crime.

Under that legislation DNA samples can be obtained by compulsion from prison inmates who were convicted of serious offences prior to the commencement of the Criminal Investigations (Bodily Samples) Act 1995. The police no longer need a court order to obtain a sample from a convicted person. However, a judicial hearing can be requested by people who believe that they are not liable to provide such a sample. Buccal swabs, or mouth swabs, which are cheaper and less invasive, and just as accurate as blood samples, can now be given as an alternative.

Another significant part of the Criminal Investigations (Bodily Samples) Amendment Act 2003 passed by Labour is the ability to obtain DNA samples from inmates currently in prison who were convicted prior to 12 August 1996 when DNA testing was first introduced. Adding those inmates’ DNA profiles to the police data bank was intended to help the police solve some historic cases. Prior to those amendments, the legislation gave police the authorisation to seek a compulsion order only to obtain DNA samples for the police database from a person already convicted of burglary. That led to the ridiculous situation that when police found DNA material at the burglary scene, and matched it to a profile on the data bank, they were prohibited from using that match in criminal proceedings against the suspect.

The problem with DNA testing, which must be taken into consideration by both sides of the House, is that it is not foolproof. Our colleague Moana Mackey has raised this point, has discussed it, and has spoken expertly on it because she does know this stuff. It is not foolproof. My colleague Moana Mackey described the scientific aura that exists around DNA, that it is perceived as somehow foolproof and incontrovertible. Moana Mackey highlighted how jurors often hold that perception. The reality is that not one single DNA scientist would say that it is 100 percent certain. But the problem is the technology has such a powerful reputation that the possibility of miscarriages of justice is introduced. Labour is supporting this bill, but the fact that DNA testing is not foolproof needs to be absolutely understood if this bill is not to create problems that could be avoided.

Another concern that has not been raised enough, and a concern that I brought up and that Kelvin Davis went on to discuss in more detail, is the cultural repercussions of this bill. No one would disagree that a possible consequence for anyone who has committed a crime and been found guilty is that his or her DNA is taken, it is put on file, and in future it can be looked up. If that person reoffends, then at least he or she can be tracked to that crime. The issue is if the person has not been found guilty of committing a crime, and if the person has not even been charged, that information is collected. Given the cultural tapu around some of those issues and the information that the DNA holds, we need to be a little bit sensitive about this. The things that Kelvin Davis and I both talked about earlier with regard to the way in which many Pacific groups and Māori collect their hair—and even that is tapu, because they do not leave it lying around for someone else to pick up—can be deemed indicative of the fact that they understood, even prior to the science that we have now, that it contained information, and that the information was sacred. They understood that that knowledge perhaps existed before we had the science that came along. So that is something we need to consider, especially given the fact that when the sample is taken those people have not been found guilty of any particular crime. I ask where that sample will be kept.

Many of my colleagues have raised the fact that not enough work has been done on the costings of storing the DNA. As the data banks may not have the capacity to hold all of the information that it is expected they will hold, there will be scope for mistakes and muddles to be made in respect of an excessive increase in the number of DNA samples that will be pushed through those data banks. We do need to be concerned about all of this. It is not just the possibility of the information becoming lost or messed up; it is actually people’s lives that are at stake here, with regard to whether they are found guilty of a crime they may not have committed.

Something that needs further exploration, and that has not been explored fully enough, is the cost of increasing the capacity of data banks so that the incredibly significant increase in DNA samples can be held, and also the systematic way in which data banks will be set up so that they can hold these samples without there being any possibility or scope for a mix-up or muddle. At the end of the day, people’s lives will be at stake in respect of whether they are found guilty of a crime.

That point takes us back to whether DNA evidence is foolproof, which we need to discuss. As the technology is improving and as more courts around the world are taking DNA testing much more seriously, we are finding that jurors, courts, and the public in general see DNA tests as being 100 percent certain. We know that that is not the case, and our scientists know that that is not the case.

Four years ago the Māori Party was approached about the Genographic Project, a huge project in which DNA samples were to be extracted from 100,000 indigenous volunteers. That is right—the blood and genetic codes of indigenous peoples were to be suddenly available in the global DNA bank. Perhaps it could be used to construct what a Chicago museum has apparently labelled as the perfect human specimen: Māori, of course. But the risk that the unique DNA of indigenous peoples might be used for other, less honourable means was always there. At the time we felt duty-bound by both legal codes and ethical standards to draw attention to the proposed DNA research, stipulating that informed consent and ethical approval should be obtained before any such research could proceed. We did so on the basis of our firm belief that whakapapa is a taonga tuku iho, to be protected no matter what happens.

We rolled on 2 years from the Genographic Project, and this time we were dealing with a police practice note, updated in 2007 and published in the police journal Ten-One. To be fair, the practice note made it clear that children under the age of 10 years should be fingerprinted only for the purpose of eliminating them from a police inquiry, and that children aged 10 to 13 years could not be fingerprinted without the written approval of the Youth Aid section of the police. But the note also encouraged members of the New Zealand Police to promote the fact that it was in the best interests of children and young persons to voluntarily agree to be fingerprinted. In reality, voluntarily given fingerprints provide the police with a tool that will greatly increase the likelihood of those children and young persons being identified in future police investigations.

This Criminal Investigations (Bodily Samples) Amendment Bill is a case of third time lucky for some people. The bill introduces the ability to take DNA from any person, including a young person, whom the police intend to charge with any imprisonable offence. In 2011 this will be widened to any person or young person whom the police intend to charge with a “relevant offence’ as defined in the legislation. Ostensibly, the bill has a straightforward goal: to assist with the conviction of people who are arrested for an imprisonable offence. But is it really as simple as that? In reality, many low-level offences carry a penalty of short-term imprisonment as a maximum sentence, so it turns out that a very large pool of offenders could be required to undergo DNA testing. As we have become aware, the criteria will become broader in the future, capturing a wider group of suspects. Over time, for example, low-level and youth offenders, those arrested but not convicted, or even those who are merely suspected of offending, might all fall prey to this scheme.

The Māori Party has always believed that if DNA tests have to be employed as a means of identifying offenders, a more stringent test could be found to better target high-end offenders and that some other approaches should be adopted for the lower-end offenders. YouthLaw Tino Rangatiratanga Taitamariki considered that the offence thresholds should be targeted at the more serious end of the criminal offending scale, as is currently the case, and should not be opened up to encapsulate the range of offences that Part 2 intends. This was also the view of the Privacy Commissioner, who was greatly concerned that Part 2 would bring all imprisonable offences, whether serious or trivial, within the ambit of the DNA collection regime. This would greatly increase the number of samples collected. The commissioner’s view is that the law enforcement benefit of such a sweeping change would be outweighed by costs to privacy, public trust, and the smooth functioning of the programme. As a consequence, the commissioner recommends that Part 2 should be removed from the bill.

There are simply too many unknowns about and too much variability in the potential use and collection of DNA. For a start, there are a host of ethical and human rights concerns, particularly to do with the existing police bias against and over-scrutiny of the Māori population, including the use of ethnic profiling. Human rights concerns have been raised in the United Kingdom that a DNA database breaches international human rights laws and standards. In fact, in these days when Parliament has been considering the value that referenda bring, it may be useful to consider the call in the United Kingdom for a citizens’ inquiry sponsored by the Human Genetics Commission, which is a Government advisory body. That inquiry suggested that people who are deemed to be innocent should have their details deleted from the National DNA Database. Britain has the largest DNA database in the world, including an estimated 100,000 profiles of children. The commission found widespread public distrust of this system, which collects and keeps genetic material from anyone who is arrested, even if that person is not convicted of a crime. If anyone was ever wondering what was meant by ethnic profiling, he or she might start by considering the British experience. More than three in four young black men in the United Kingdom experience having their DNA included on the database, but only 22 percent of young white men do.

The Justice and Electoral Committee had the benefit of guidance from Michael Rowe.

Debate interrupted.

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