Criminal Investigations (Bodily Samples) Amendment Bill

NATHAN GUY (National—Ōtaki) Link to this

This Government is delivering on its election promises. This Criminal Investigations (Bodily Samples) Amendment Bill is a very important bill. In 2007 John Key announced this policy at the police conference. National campaigned on this policy, because law and order is a huge issue right across New Zealand. We saw that today, with the revelations about gangs on the front page of the Dominion Post. Chris Tremain talked in the House earlier today about this issue and what it means to people in Napier and, indeed, right across New Zealand.

This legislation is hugely important. It will allow for the DNA profiling of those who may be innocent or who, indeed, may be guilty. Profiling will be a highly effective tool for identifying and catching criminals. I am sure that most people in this House will agree that we have to catch more criminals, protect more people—more victims—and try to make our communities safer right across New Zealand. Currently, DNA samples can be taken only with a suspect’s consent or when someone is suspected of an offence punishable by more than 7 years’ imprisonment. These requirements preclude DNA samples being taken from those suspected of a wide range of significant offences, such as assault with a weapon. They also require police officers to go through the complex process of applying to the High Court for leave to take DNA samples when consent is not supplied.

It is important for those in the House this evening to acknowledge and support this bill. It will be referred to a select committee and people will have a chance to make submissions. I know that there are a few concerns about this bill, mainly around the issue of privacy. As is the case with fingerprint records and photos, DNA records will be destroyed as soon as practicable when charges are dropped or a person is found innocent—that is an important point.

Fears about the potential misuse of genetic information are often based on misunderstandings. The DNA profile currently used by the Institute of Environmental Science and Research in Auckland is only a very small portion of an individual’s total DNA profile. People will realise from watching some of the programmes currently on television, such as CSI—whether or not one believes what one sees on that programme—that a lot of criminals are caught by DNA testing.

Another important point is that this legislation will give the police another valuable tool to catch criminals. It will be one of a wider range of criminal investigation reforms. This was a big part of the Government’s law and order stand—one of our pre-election promises was to upgrade the police’s tool kit. The bill will enable the police to use one of the most sophisticated and modern-day methods of catching criminals. As I said before, this will occur in a two-stage process, and it is important that the House be alerted to that. Between now and 2011 the Government will phase in the power to conduct DNA testing on every person charged with an imprisonable offence. This will happen in two stages. In the first stage, the police will have the ability to obtain and test the DNA profile of every person charged with a relevant offence. In the second stage, the process outlined at stage one will be extended to all individuals charged with an imprisonable offence.

The Government is supporting this important legislation this evening. It is interesting to note that we have, I believe, the support of the biggest Opposition party, as well. During the election campaign, many people realised that over the last 9 years Labour had been too soft on crime, and now it is up to the National Government to toughen up that stance.

CARMEL SEPULONI (Labour) Link to this

It is important for me to state from the outset that Labour will support the referral of the Criminal Investigations (Bodily Samples) Amendment Bill to a select committee, but not without reservations. The most immediate reservation that comes to mind is the rushed manner in which this bill is being pushed through by the National Government. As a new MP I came into this House with a somewhat idealised expectation of how legislation might be conceptualised, developed, and implemented, but that idealised expectation has been knocked for six in the last 2 weeks of 2008 and this first week of 2009.

A complete disregard for adequate and appropriate levels of consultation has been demonstrated through the National Government’s farcical treatment of proposed legislation and scant regard for due process. When members of Parliament and the general public are not given the opportunity to carefully consider and consult over proposed legislation, what is the Government saying to New Zealand? Is it saying that the law does not require careful consideration? Is it undermining the value of the broader parliamentary and public voice? Is it placing personal and political agendas ahead of best practice?

If there was a rational explanation for why this particular bill needs to be rushed through so quickly, then I might understand. However, as many of my colleagues have already stated over the course of the past 3 days, this is all happening because the National Government has allowed its grand 100-day action plan to take priority over carefully considered legislation and fair process.

With the limited time we have had to consider this bill, which we saw for the first time just prior to the start of the first reading debate 2 days ago, what can we say about it? Labour had already amended legislation to significantly extend DNA testing, so, obviously, Labour agrees that DNA profiling is an essential investigative tool in mainstream policing. The way the Criminal Investigations (Bodily Samples) Act currently stands reminds us that Labour took DNA testing technology seriously and acted responsibly, as the former Government, to legislate accordingly. This also demonstrates that the current Government is again choosing to window dress rather than develop, in consultation, robust and effective legislation—and all of this for the purpose of being seen, at least on the surface level, to be addressing some of the fears that New Zealanders have with regard to law and order. But there is no depth to what it is doing.

Labour is not opposed to further extension of DNA testing, but it is unclear whether this legislation will have a significant impact on serious crime, considering the changes that Labour made when in Government. Given the opposing positions of the Ministry of Justice and Treasury with regard to this bill’s regulatory impact statement, we have very genuine and valid concerns. Treasury has clearly stated that it views the regulatory impact statement as being inadequate for a number of reasons, including “a lack of clarity around the nature of the problems with the current DNA testing regime along with evidence (anecdotal and empirical) to support these”. So the first problem is that there is no evidence. Given the fact that the National Government has removed the research and development tax credit, we are not surprised that it does not feel there needs to be an evidence base to the legislation it tries to push through.

The next reason Treasury gives for the legislation being inadequate is the “limited analysis of the impacts of the options. The analysis of costs is partial, e.g. only aggregate first year costs are estimated and capital costs are excluded, and there is no assessment of risks, such as risks related to implementation, and how these will be mitigated”. So the second problem is that no one knows the costs involved or the risks with regard to what the Government is trying to push through. Despite the fact that we are in the middle of a recession and that National members have said the Government will cut bureaucracy and red tape and make sure it looks after taxpayers’ money, it will push through legislation, even though taxpayers are paying for it and the Government does not know how much it will cost.

The next reason Treasury gives for the legislation being inadequate is that “the RIS does not report on the outcome of consultation and how any issues raised have been addressed.” So the third problem is that there has been no consultation. How can we discuss any issues when none has been raised because there has been no consultation? Going back to what I said earlier, we know that this legislation will go to the select committee and that we will have 6 months to discuss it, so there is absolutely no reason why the bill needed to be pushed through in urgency.

I have no doubt that the select committee and the public will be vigilant in pulling this bill apart and putting it back together to create rational, well-thought-out legislation—basically in complete contrast to its current form. What will the end result look like? Probably it will be only slightly modified, compared with the version that currently stands. Will it be more effective than the current legislation? We will not know until the task is complete, but possibly not. In that case the select committee will have spent hours, and thousands of dollars of taxpayers’ money, on effectively doing nothing, if the legislation is no more effective than what we currently have. Thousands of dollars of taxpayers’ money would have been spent on discussing and consulting on legislation that will effectively do nothing. So much for cutting the red tape and bureaucracy!

Labour will support this legislation. There is a possibility that the amended legislation will go slightly further than what we currently have, but there is no proof of that, because, as Treasury has said, there is no evidence to suggest that it will. When we look at the current legislation and what Labour put into place, we can see that burglary suspects can already be compelled to provide a DNA sample. That is because of the changes that Labour pushed through, including to the circumstances in which a crime scene sample is matched with a known offender’s DNA profile held on a police data bank.

Prior to that, crime scene samples could not be used in evidence unless a fresh DNA sample was taken, which the alleged offender could refuse to give. That is one of the points that Labour pushed through with the amending legislation in 2003.

The next point is that the offences for which someone may be compelled to give a sample have been significantly extended to cover crimes punishable by at least a 7-year jail sentence, such as motor vehicle conversion, some receiving stolen goods offences, or any attempt or conspiracy to commit such crimes.

The next point with regard to what Labour has already done is that DNA samples can be obtained by compulsion from prison inmates who have been convicted of serious offences prior to the commencement of the Criminal Investigations (Bodily Samples) Act 1995.

The next point with regard to what Labour has already done is that the police no longer need a court order to obtain a sample from a convicted person; however, a judicial hearing can be requested by a person who believes that he or she is not liable to provide such a sample.

The next point with regard to what Labour has already done is that mouth swabs, which are cheaper, less invasive, and just as accurate as blood samples, can now be given as an alternative.

The issue arising is that this is a substandard bill that National is proposing, and that, effectively, we may spend 6 months wasting taxpayers’ money while working on the bill, to come up with something that is very little different from what we already have in place.

SIMON BRIDGES (National—Tauranga) Link to this

I support the Criminal Investigations (Bodily Samples) Amendment Bill. I agree with something the Minister said, and, indeed, with what other members in the House have said: that DNA is indeed the modern-day fingerprint. Therefore, at a basic, intuitive level this bill makes great sense, as it expands the State’s database and it allows more crimes to be solved—it is hard to disagree with that—it allows more criminals to be brought to justice—it is hard to disagree with that—and also, of course, it allows the innocent to be eliminated from the inquiry. And, indeed, it is hard to disagree with that.

The bill also allows the State to move with the times as the science gets better and better. The science of DNA testing does indeed get better and better month by month. It was not so long ago that it required a DNA sample about the size of a 50c piece—whether blood, semen, hair; you name it—for there to be any ability to use it and get usable DNA from it. Now there is trace DNA, invisible to the human eye, which is capable of being good evidence in court. The power of the technology is greatly increasing month by month, and this bill moves with the times and allows us to use the modern-day fingerprint of DNA to good effect in the criminal justice system. The bill seems to do away, as well, with the needless charade of suspect compulsion order hearings in the High Court and the need for lengthy, expensive hearings that waste a High Court judge’s time, and for that reason alone it is to be commended.

Can I also just say that in terms of the Attorney-General’s report, it is good indeed to see that an Attorney-General is able to issue a report to this House like this report, which is a lawyerly, detached legal opinion, rather than the kind of report—which was not a report at all—that we saw from the previous Attorney-General in relation to the Electoral Finance Bill, where, clearly, there were breaches of the New Zealand Bill of Rights Act. Here we have a fine lawyer as Attorney-General, who is able to deal in shades of grey rather than just in black and white. He has issued a tentative opinion that this bill appears to be inconsistent with the New Zealand Bills of Rights Act. Certainly, as someone on the Justice and Electoral Committee, I say that I am sure we will take this report seriously. We will look at the issues in terms of the New Zealand Bill of Rights Act impact and consider this matter carefully.

Nevertheless, this bill allows the DNA testing database into the criminal justice system in a greater way. It is the modern-day fingerprint. I commend the bill to the House.