Criminal Investigations (Bodily Samples) Amendment Bill

Hon NATHAN GUY (Associate Minister of Justice) Link to this

Part 2 implements the second stage of the Criminal Investigations (Bodily Samples) Amendment Bill by extending the provisions in Part 1 that apply to those adults suspected of committing a relevant offence to those suspected of committing any imprisonable offence. This part also makes the District Court the court to which applications under the Criminal Investigations (Bodily Samples) Act are made, rather than the High Court, and provides for a mandatory retention period of 10 years for DNA profiles from adults who are convicted for imprisonable offences that are not relevant offences. This staged approach is to allow police the time to develop guidelines and train staff, and will also assist the Institute of Environmental Science and Research to cater for the increased workload.

As a result of the Justice and Electoral Committee’s input, Part 2 of the bill has undergone three notable changes. I would like to make some comments on those. The first is that the range of offences for which it is possible to collect DNA from a young person will not be expanded to include all imprisonable offences, as for adults. As it applies to young people, the new power will be available only where the young person is suspected of a relevant offence to ensure that only the most serious young offenders are subject to the new power.

Secondly, the select committee made a number of important amendments throughout Part 2, one of which was to include the relevant offences listed in the schedule of the Act. For example, peeping or peering is a relevant offence in the schedule but it does not carry a sentence of imprisonment. As originally drafted, this meant that DNA samples could not have been collected from persons suspected of committing that offence under Part 2, but could under the first phase.

The third point I wish to make is that a new definition of “District Court” has been inserted to clarify that when judicial functions are transferred to the District Court, they can equally be exercised by the Youth Court in cases where it has jurisdiction.

In respect of Mr Chauvel’s amendment to require a review of the provisions in 5 years’ time, members will be aware that, as expressed in the explanatory note of the bill, the Ministry of Justice will review the entire Act by August 2011. That review will look at the broader operation of the Act and will include how the provisions are operating and whether they should be amended. That review will be completed before the second stage of the bill is implemented.

CHARLES CHAUVEL (Labour) Link to this

In the Committee stage on Part 1 of the Criminal Investigations (Bodily Samples) Amendment Bill, the Government used its majority to vote down an amendment in my name that required a warrant to be obtained prior to the exercise of the novel powers that Parliament intends to give to the State through this bill. Now, under urgency, we are debating Part 2 of this bill in Committee, and I think it pays for Parliament to think about the novel power that we propose to confer through this legislation: to “allow the Police to collect, without prior judicial approval, a bodily sample from any person whom they ‘intend to charge’ with certain specified offences.”, which is later to be expanded to “allow the Police to collect a bodily sample from any person whom they intended to charge with an imprisonable offence.”

As the Minister in the chair, the Associate Minister of Justice, the Hon Nathan Guy, correctly recorded, I have put forward another amendment, which is designed to require a select committee of this Parliament to conduct after 5 years a review of the operation of the new power that we intend to give to the State. Given that we are now sitting in urgency—and given the Committee’s decision to reject the requirement for a warrant the last time this bill was discussed, when we were debating Part 1—I suggest that the review is even more important. A power of literal, physical compulsion will be conferred under urgency with no judicial supervision whatsoever intended. The Associate Minister said that the ministry would conduct a review of the operation of the legislation by August 2011. But, of course, that review is intended to satisfy the State that it can move satisfactorily to Part 2 of the bill, which extends the powers contained in the legislation from the specified offences it deals with to all imprisonable offences. This is a very different sort of review to the one my amendment proposes. I suggest that this Parliament takes a long, hard look at whether it has, overall, been a good idea to extend the powers of the State, without judicial supervision, under urgency in this way. I submit that a select committee would be well suited to report back to the Parliament after hearing all the evidence. It would not be in an election year—as August 2011 is, which is the deadline for the ministry’s review—but after 5 years of operation when we have a track record, when the police and their actions can be looked at in an objective fashion, and when we can properly work out whether this legislation has made the contribution that we all think it will to overall law and order.

I hope that the Associate Minister will take another call at some point during the debate, and that there will be a reconsideration of what appears to be the Government’s initial decision to reject the idea of a more independent review, given that the State intends to take a very new power to itself. The State is proposing that an organ of the Crown will review the exercise of that power after a very short period of time—in an election year—for the purpose deciding whether that power should be extended. My proposed review is an entirely different beast: it seeks to consider the exercise of the new powers in the round to help us decide whether we have made a wise choice in extending the powers of the State the way that the bill is intended to do, without judicial supervision. I have to say that if Parliament thinks about this carefully, it will determine that the review that is set out in my amendment is a much better mechanism than the substitute offered by the Minister.

MOANA MACKEY (Labour) Link to this

I am happy to stand in the Committee stage to speak on Part 2 of the Criminal Investigations (Bodily Samples) Amendment Bill and to perhaps seek some reassurance from the Minister in the chair, the Hon Nathan Guy, regarding this part. As he said in his brief words to the Committee of the whole House, this part of the bill dramatically extends the workload of the Institute of Environmental Science and Research. From the Opposition’s perspective, I think we would like some reassurance from the Minister that that will come with adequate funding. The bill gives the State far greater power in this respect than it has had before, and there is a real danger of a miscarriage of justice if these new powers are not backed up by adequate funding for the police and the Institute of Environmental Science and Research, which will be doing the data analysis.

I hope that the Minister for Research, Science and Technology, who I think is with us, although he does look tired, might take a call on adequate funding for the institute. We have to look beyond simply how much a DNA sample costs and multiplying it by a factor of how many more one expects to be doing. The kind of reassurance that we would like to see is that there will be adequate money for the extra reagents, for the extra equipment, for the extra work area the institute may need to carry out all these extra analyses, and for the extra staff. But, as I said in the second reading of this bill, one of the most important things is that we need to make sure that the administration of this bill is adequately funded. I know that the Government does not like bureaucrats. I know it does not like people who are not front-line staff, but the fact is that the chain of custody is just about the most important thing that one can have in a laboratory. If the institute is not adequately funded, we are in real danger of seeing a miscarriage of justice.

I would like to seek reassurance from the Minister in the chair that that will be adequately funded. I assume that he must have had those figures done. I cannot believe that the Government would pass legislation where it has not had advice from officials about what the fiscal impact will be and what the needs of the institute will be in terms of this extra funding. This is particularly so around the administration of samples—where the sample is collected by the police, where it is labelled appropriately, where it is sent to the Institute of Environmental Science and Research, where it is logged in, where from then on through the process the correct sample is logged next to the correct results. I do not need to tell the Committee that if that is not done properly—if the institute is put in a position where it is understaffed and under-resourced, and where it is having to do all this without adequate funding—then those extra powers suddenly become very dangerous. I am sure the Government has done this work. I would really appreciate the Minister taking a call to let us know what those fiscal costs to the Crown are, and giving us the reassurance that that money will be there.

My colleague Charles Chauvel talked earlier about a review period in the law. That review would have been incredibly important when one considers these extra powers. We need to make sure that the system is working right. If the Institute of Environmental Science and Research, or any other Crown agency, is not on track to be able to do this work properly, then it should not be put in the position of having to do the work. Frankly, the cost to the citizens of New Zealand of having an agency in the position of doing the work when it is not ready is too great to even contemplate. So I hope the Minister will take a call.

This is not an issue that I am trying to be trite about; this is an issue that I am genuinely concerned about, having worked for the Institute of Environmental Science and Research and knowing the kinds of pressures that Crown research institutes are under. To be fair, I say to the Minister that they now have to provide a 9 percent dividend to the Government, and that money will have to come from somewhere. I want to know that these extra powers that we are giving will be properly funded, so that we can avoid any kind of suggestion that there may be a miscarriage of justice.

I note that Labour put up amendments to Part 1 where we wanted people to be able to question the process, as well as the actual charge. That is important when one is doing this. I note that when we look at comments from forensics professors from the United Kingdom, we see that they said there is a real risk, when one moves down this path, of opening up the possibility of miscarriages of justice. That risk is from having so many more samples in a DNA databank. It is especially so if institutes are not funded properly, and if protections are not put in place for someone to challenge that process and the way that those Crown entities deal with those samples, not just the charges that are against them. I hope that the Minister will take a call on this, as it is a very, very serious issue.

CHESTER BORROWS (National—Whanganui) Link to this

Fair enough! It was interesting to hear the comments from the previous speaker, Moana Mackey. She will recall, from her time spent sitting on the Justice and Electoral Committee and hearing from the officials in respect of the recovery of DNA samples and the processing of them, that the costs were given to the committee. She will recall that they had been calculated on the basis of an expectation that the numbers coming through the system would build up over time, of the requirement to maintain the chain of evidence, and of the costs of collating and storing the information. Those costs were given. She also made a comment about the ability to challenge the charge, and the issue of the recovery of the DNA or the sample that had been given. Of course, the samples will not be profiled until a conviction has been entered. So it is not the case that every sample that is taken will move through the process.

But it is important not to lose sight of one particular thing, which is that of all the bills that have been passed through the House in recent years and that are anticipated to be passed in the near future, this Criminal Investigations (Bodily Samples) Amendment Bill is the one that will save more victims than anything else has saved or will save. This legislation will identify offenders very, very early in the piece, based on their early offending. The offences contained in the schedule are a number of precursor offences. We know that offending by way of home invasions and sexual offences—offences against the person—can be predicted by the sort of behaviour that is reflected in the offences that are listed in this bill. In the same way, we know that those people who go on to commit tragic offences against the person, whom we particularly want to be able to identify by DNA evidence—for instance, offenders like the “Parnell Panther”—start off their offending at a very low level, with offences against what we now call the Summary Offences Act. So having their DNA on record very early in the piece would identify them as soon as they left traceable bodily evidence at the scene of a crime or on a victim. They would be able to be caught a lot earlier than they are caught at present. They would not be able to go on to commit a hundred more home invasions or rapes before they were caught.

I go back to the point I made just a few seconds ago that this legislation has the ability to save more victims than any other legislation has. That is not a reason to give carte blanche to any infringement of people’s rights that the State may want to impose, but we have to look at what we are doing here. The ability to obtain a DNA sample through the use of a cheek swab is fairly simple and straightforward. There are issues raised by the process of maintaining the chain of evidence and doing a test on that sample, because the DNA test is much more extreme and requires more resources than, say, testing a blood sample. At the same time the Institute of Environmental Science and Research specialists have been doing that with blood alcohol samples for years and years. Their processes along the chain of evidence are simple and very streamlined. There is no reason why that will not apply here.

The evidence given at the select committee hearing by officials from the Institute of Environmental Science and Research and from the Ministry of Justice as to funding and resources was very plain. I am sure that given her understanding of what is involved here, the previous speaker, Moana Mackey, will know very well that there is no risk there.

CARMEL SEPULONI (Labour) Link to this

I will talk a little bit about what Charles has been saying, and also Moana, with regard to extending the permission of the State without judicial evidence. One thing that has not come up as much across the duration of the debates and the discussion over this issue is the cultural implications of the Criminal Investigations (Bodily Samples) Amendment Bill. Labour is not opposed to DNA testing. In fact, Labour members were leaders with regard to the legislation around DNA testing in New Zealand. We have very much kept up with the technology that has taken place. We do support this bill, but we do have some reservations.

This, perhaps, is one of those reservations. It was a conversation that some colleagues and I were having about the cultural implications of this bill with regard to what DNA testing means for Māori, and for some Pacific groups, also. Even just now I was looking at one of the district health board websites and saw there that it encourages staff with Māori patients to give them back any hair, toenails, fingernails, or bodily tissues that had been collected from them, because of the fact that those items are seen as tapu.

One of the reservations that have come from Māori and Pasifika is the ownership over the information that is contained in our DNA. One thing that seems of concern is the fact that that information can be gathered from people when they have not been charged with any particular crime—when there is the intention to charge but the suspect has not been found guilty of any crime. It seems a worry, and it is something that will come up with those particular groups. Given that someone has not been found guilty of any crime, and that he or she has not necessarily done anything wrong, to have that information taken will be a concern to those particular groups because that information is seen as tapu. It is held in those parts of the body, whether it be in hair, fingernails, or even in parts of the skin that a sample has been gathered from. I do think it is something that needs to be mentioned. Some thought needs to be given to that, perhaps, because in this country we regard those cultures as being of importance, so we need to take into consideration their viewpoints on such things.

One of the things that Moana has also made very clear is the fact that DNA testing is not foolproof. A concern that she has put out there, as a scientist and as someone who has a background in this—in fact, I think she is the only person in the Chamber who has a background on this subject—is that DNA testing has been held up very high and is perceived by many as being foolproof. But the concern arises where jurors and others may look at DNA tests and decide that that evidence is it. That is what it proves, therefore that must be 100 percent the truth. Scientists have said, and Moana has said—

KELVIN DAVIS (Labour) Link to this

I agree with what my colleague Carmel Sepuloni has outlined in terms of cultural safety in the Criminal Investigations (Bodily Samples) Amendment Bill. It is really important, I think, that people understand the Māori perspective on the collection of bodily samples. I make it clear that I support legislation that makes it easier for us to identify and apprehend offenders. I think that DNA is the new fingerprint and it will be very useful in apprehending offenders. But I think we need to be mindful of the cultural side of things.

I will use three examples from my own background to illustrate how Māori feel about bodily samples. Some people may think that I am being a bit silly about it, but I tell them that those beliefs are very real to Māori. The first one is a very simple example. At our family homestead in the sleepy hollow of Taumārere there is a plum tree that produces the greatest plums, but nobody is allowed to eat them. The reason is that, traditionally, that is where my grandfather, great-grandfather, and all my great-great-uncles had their hair cut, and the hair would be buried under that plum tree. Hair is treated as tapu, as Carmel Sepuloni said. It was buried under that plum tree, so nobody was allowed to go near the plum tree or touch the plums.

Another example is the cutting of fingernails or any other sort of—what is the word?

STUART NASH (Labour) Link to this

I rise to take a call in support of the Criminal Investigations (Bodily Samples) Amendment Bill. Labour supports this bill for a number of reasons, but the main reason is that the people who elected us have a reasonable level of expectation around the support we will give to victims. I believe that this bill does that. First and foremost, the main expectation of a person going to trial is that the case will be wound up as soon as possible. Any early resolution to a case, or anything that helps to achieve an early resolution, has to be good for victims’ rights and for society in general. A classic case would be this: we all know the dreadful statistics around the number of women who come forward after they have been sexually violated, abused, and raped. The number is incredibly low. The trials are incredibly traumatic, for a whole lot of reasons. Often what happens is that it appears as though the woman herself is on trial, and the perpetrator of the crime gets off the charge or sits there while the woman’s history is denigrated. I think that this bill will help in achieving a speedy resolution to a lot of those trials. But I also hope it will ensure that a lot more women who have been victims of sexual crimes will come forward in the knowledge that DNA samples will help to achieve a speedy resolution to any trial. I hope this will encourage women to come forward.

Clauses 31 to 46 in Part 2 of the bill as introduced extend the authority to obtain a DNA sample from suspected persons. Primarily these clauses would permit a sample to be taken from a person suspected of committing an imprisonable offence and allow a compulsion order application to be made to the District Court to allow a sample to be taken from a person suspected of committing an imprisonable offence who had refused to consent to the taking of a bodily sample. As we know, there are fundamental human rights issues around this. The Human Rights Commission has expressed concerns that the proposed changes may go a little too far. The bill allows the police to take DNA from anyone charged with an imprisonable offence, whereas the current law has a much higher threshold—for example, for serious offences punishable by more than 7 years in prison.

The Human Rights Commissioner stated: “The bill infringes the right to freedom from unreasonable search and seizure, but also creates the possibility of discrimination on the grounds of race, family status, and impacts disproportionately on youth.” Perhaps, but I would also argue that the rights of the victim and the rights of society in general have to be weighed up against individual rights. I think it is time that people started taking individual responsibility for their actions. If they have done nothing wrong, they have nothing whatsoever to fear from this. However, if they have committed a crime or if they do have something to fear, then they have to take responsibility for that, and they will be caught.

This bill sends a very strong message to the criminal classes of New Zealand that this Parliament will not tolerate the level of crime that we are beginning to see these days. It is simply not acceptable. Labour demands that people start taking individual responsibility for their actions, and I think this is what this bill does. The Privacy Commissioner has expressed concerns that the changes proposed jeopardise the value of the existing criminal DNA databank in detecting and preventing crime, by undermining public trust in the police and the Government. I would argue quite the opposite. If the people of New Zealand know that the police have these sorts of tools in their tool kit to solve crimes, my personal view is that that will increase the confidence in the police’s ability to solve crimes in a quick, clear, and decisive manner. Again, this brings me back to the point that there are a lot of women out there who have been victims of sexual crimes but are too afraid to come forward because of the distress that a trial will put them through. I think this bill will help to send a message that we will not tolerate this at all.

There is one other issue I am slightly concerned about, and my colleague Ms Moana Mackey alluded to this. I have read the regulatory impact statement and I do not see any costing anywhere at all for administering the consequences of this bill, the cost of storing the DNA, the collecting of the DNA, or anything around that. It is my personal view that any regulatory impact statement should have a cost-benefit analysis in it. What I am not saying is that we can put a cost on the price of justice. However, I think that provision should be included in this bill. Thank you very much.

LYNNE PILLAY (Labour) Link to this

I am happy to stand and take a call on the Criminal Investigations (Bodily Samples) Amendment Bill. In doing so I acknowledge the previous speakers from this side of the Chamber who, I believe, gave really measured speeches on this bill. In particular I acknowledge my good friend and colleague Moana Mackey, who, with her background in science, has been able to give a little bit more information on the bill. I publicly congratulate Moana Mackey on that contribution.

Labour members agree with the use of DNA profiling. We accept that it is a tool that will be an advantage in mainstream policing. But in saying that, I explain to the Committee that Labour when in Government had already amended legislation to significantly extend DNA testing and its effectiveness. I acknowledge what Carmel Sepuloni said about our concern in terms of the added costs. The added costs under National’s regime come from the proposal that all who are arrested are tested, not just those who have been charged. One would ask about this proposal, I hope, in terms of getting the best bang for the buck. Testing a large number of people who are arrested but not charged means that the tests and all the expense that goes with attaining them under the proposed system would be thrown out. That would result in, effectively, an added cost, or even a waste of money and police resources.

I also acknowledge that Chris Finlayson, the Attorney-General, had reported after scrutiny some inconsistencies with the New Zealand Bill of Rights Act. It would have been far better if the Government had supported Charles Chauvel’s amendment, which went a long way towards addressing those concerns. It is really unfortunate that that amendment was voted down. I would be very interested to hear from Government members why that happened. I think that supporting his amendment would have gone a long way towards addressing not only Labour’s concerns, but also the Attorney-General’s concerns about inconsistency with the New Zealand Bill of Rights Act. That is very disappointing, but it is what must be.

I also note that the Privacy Commissioner expressed concern that the changes could jeopardise the value of the existing criminal DNA data bank in preventing crime by undermining public trust. As I said, if there had been some clarity and some certainty around this bill’s complying with the New Zealand Bill of Rights Act, putting the mind of the public at ease on those concerns, then I believe that the bill would deliver more. It would deliver what was intended, rather than the things we have some concerns about. When concerns are present that the bill does not comply with the New Zealand Bill of Rights Act, and when the public is concerned about privacy, there is not confidence in the system.

The Justice and Electoral Committee spent considerable time considering the bill. Of course, at this stage I would not go past acknowledging the chairperson, Chester Borrows, who I can see looks flattered by that acknowledgment. It is a select committee that works well. As well as the staff of the Justice and Electoral Committee, I also thank the officials, because I know there were some robust discussions about the intent of the bill, its consequences, and, perhaps, its unintended consequences. I believe that the participation by officials was very valuable, and it certainly gave more clarity to our deliberations. Thank you.

STUART NASH (Labour) Link to this

As mentioned, Labour does agree with this measure. We are not opposed to further DNA testing. But, alluding to what Ms Moana Mackey talked about, it is unclear whether the legislation will have a significant impact on serious crime, compared with the many significant changes the Labour Government made in important areas of the law and order debate.

National is proposing to test all of those who are arrested, not just those who are charged. The reason there is a slight problem with that is that a large number of people are arrested but not many are charged, which means that under National’s proposed system many tests may well be thrown out, resulting in poor use of money and police resources. I suppose that is why Treasury has stated that a lack of clarity around the problems with the current DNA testing regime, along with the anecdotal and empirical evidence to support that, is an issue with this bill.

I would like to talk about two very high-profile cases in the area I come from, which is Napier. A woman called Kirsa Jensen was found murdered on a beach in Napier. She was last seen riding her horse. The killer of Kirsa Jensen was never ever found. This was a case of national significance. It was widely profiled. The police believed that they knew who did it, but they could never prove it, because they did not have the evidence. This case tore apart families and in some cases it tore apart communities. It was a dreadful case and a dastardly crime. I believe that with the sorts of tools we have today the Kirsa Jensen case probably would have been solved. Her family would not have been spared their anguish, but at least there would have been some closure. There was no closure for that family whatsoever, and the case is still a festering sore in Hawke’s Bay.

The other case is that of Teresa Cormack. We often hear about stranger danger. The one case in the last 20 years of a young girl being raped and murdered by a stranger was actually that of Teresa Cormack. It was a dreadful case of a young girl, I think she was aged only 7, who was snatched on the streets of Napier and raped and buried. Again, it was a dastardly crime. It was the sort of crime that does not bear thinking about. I believe that her killer was caught in the end, many years later, through DNA profiling.

One of the big benefits of this legislation is that it may well help solve a lot of crimes that have gone unsolved. I can imagine nothing worse for the family of a victim than not knowing what happened or why, and, certainly, not having anyone to answer for the crime perpetrated against a family member, a friend, or a person in the community. As I said, I believe that the Kirsa Jensen case probably would have been solved with the use of DNA profiling and collection. The police believed they knew who the person who did it was, but they did not have the evidence. With DNA profiling and DNA collection, they probably would have had the evidence to enable them to catch Kirsa Jensen’s killer. Therefore, a very, very dangerous man would have been taken off our streets, taken out of our community, and put where he belonged. We know of other dastardly, high-profile cases that are unsolved at the moment that could well be solved due to DNA profiling.

One of my Labour colleagues, who spoke very well on this bill, Moana Mackey, alluded to the fact that this bill will not allow repeat offenders, like the “Parnell Panther”, to continue offending. He went for months raping woman after woman, creating fear in communities and fear amongst the female population. That insidious creep went around communities committing the most heinous of crimes. With this sort of DNA profiling, that sort of monster may well be caught a lot earlier. The technology did not exist back then, and therefore he was able to go on and on, but he was finally caught.

This bill provides a very valuable tool in the police tool box that I think will make a big difference. It not only sends a very important message to the criminal element that this offending will not be tolerated but also sends a very important message to the people of New Zealand that we are prepared to go out there and protect their rights and put in place laws that will ensure that crimes are solved as soon as they possibly can be. As mentioned, there are the rights of the individual, but I firmly believe that the rights of the community and the rights of the country must come first. We must get these monsters off the street, and if this bill helps then that is fantastic.

Hon NATHAN GUY (Associate Minister of Justice) Link to this

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.

MOANA MACKEY (Labour) Link to this

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 LIANNE DALZIEL (Labour—Christchurch East) Link to this

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—

KELVIN DAVIS (Labour) Link to this

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.

The CHAIRPERSON (Lindsay Tisch) Link to this

I move, That the report be adopted.