Criminal Investigations (Bodily Samples) Amendment Bill

RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this

The Justice and Electoral Committee had the benefit of receiving guidance from Michael Rowe of the criminology department at Victoria University. Mr Rowe was able to share his experience of the British DNA database, a system that was meant to include samples of only convicted criminals but that was slowly ratcheted up to include samples of all those who had been arrested. He also noted that courts in Britain have agreed that the keeping of DNA records in databases breaches human rights legislation. This is information that the Māori Party simply could not ignore. Research from other countries, whether it relates to efficacy or matters of accuracy, indicates that such records are not a hugely useful tool.

I will go back to the topic of ethnic differences in the database. Our concern is that there is the risk of unethical use of the DNA database to conduct research and to make population statements about certain groups having a criminal gene. This was a particular concern of Dr Papaarangi Reid, the tumuaki at the faculty of health and medical sciences, Auckland University. It was her view that there was much to cause us alarm in the setting of appropriate parameters on the use of a DNA police database, which would make statements about whole populations and not just individual offenders. As we know too well, recent genetic inquiry has sought to discover genetic causes of behaviour—do members remember the warrior gene—so there is a risk that such a database could be accessed for research into a criminal gene. Such research, even though unethical, has been able to be conducted in the absence of proper ethical controls.

Dr Reid had a number of concerns that the Māori Party has taken seriously. It was her view that the positive benefits of convicting serious offenders sit alongside a host of issues of great concern. The general question of ethics and human rights suggests that DNA testing will affect Māori disproportionately, given the existing police bias and the over-scrutiny of Māori. It will create a level of truth, summed up best as “Crime will be found where it is most looked for.” Another concern is that DNA testing has implications for whānau as well as individuals, because first and second-degree relatives can be identified through genetic testing, thereby allowing the authorities to build up a family history. DNA testing would enable the police to create a DNA profile of the wider Māori population.

Finally, trust issues are involved when the police hold such information, and when we ask whether the rules about who is tested and how the information is used will change over time. As we saw with the Taser gun trial, the police function independently from parliamentary or ministerial scrutiny on operational matters, so we have considerable concern whenever discretion is to be applied. We are, as I said earlier, absolutely committed to the protection of the sacred genetic make-up inherent in whakapapa, and, as such, we cannot support this bill. There are simply other approaches that we should use, rather than tamper with DNA.

KANWALJIT SINGH BAKSHI (National) Link to this

I am pleased to take a call on the third reading of the Criminal Investigations (Bodily Samples) Amendment Bill. The first priority of this Government has been to improve law and order and public safety. The bill contributes to that goal by giving the police tools to resolve more crimes and catch more offenders. It accompanies other important law enforcement initiatives, such as the Gangs and Organised Crime Bill, the Search and Surveillance Bill, the recently passed Criminal Proceeds (Recovery) Act 2009, and many more. This bill is one of the many steps this Government has swiftly taken, following the election, to fulfil its promise to the public of New Zealand.

The Justice and Electoral Committee made a number of useful amendments to the bill, particularly around improving the process of taking DNA samples from young people. One of the changes is to limit the range of offences for which a sample can be taken from a young person to more serious relevant offences specified in the bill. That will ensure that only the most serious young offenders are subject to this law. In addition, the criteria for taking DNA samples from a young person have been significantly simplified. The Justice and Electoral Committee concluded that the criteria for taking samples from young people repeated the protection that already exists in the Children, Young Persons, and Their Families Act, specifically in section 208. As such, the bill has been amended to provide that section 208 of the Act will apply and will provide adequate protection for young people in custody.

DNA carries a unique genetic code for an individual. Current technology allows bodily samples like blood, saliva, and semen to be processed and reassembled in a form of barcode that can be matched with the other samples taken from a crime scene. This procedure is an important investigative tool, resulting in virtually conclusive proof of identity. It may be used to pinpoint an offender, as well as to clear an innocent suspect.

The bill will allow the police to collect DNA from a person whom they intend to charge with an offence, and, prior to that person’s conviction or acquittal, the police will be able to match that person’s DNA against the profile from the scene of the crime in unresolved cases. Offenders who go on to commit serious offences in the future will be identified a lot earlier, because their DNA will have been kept after they committed an offence in the very, very early stages of their criminal offending.

Over this year the Government has proudly brought before the Parliament a number of measures that impact squarely on the victims for the better. This legislation is one of them. It will save more victims than probably any other legislation that we have seen before this Parliament in a very long time. I commend this bill to the House.

METIRIA TUREI (Co-Leader—Green) Link to this

I shall take a short call on the Criminal Investigations (Bodily Samples) Amendment Bill. It is opposed by the Green Party. It has been opposed by the Green Party the whole way. The fact that this bill is contrary to the New Zealand Bill of Rights Act, and the Attorney-General’s report states that it has significant human rights abuses, is of extremely serious concern to the Greens and should be to Parliament as a whole. The forcible taking of DNA samples where the police only intend to charge a person—because a person has not been charged, the person has not been convicted of any offence—is a gross assault on that person. Under any other circumstances but for it being authorised in law, that would constitute an assault against that person. The Green Party does not believe that the law should be authorising assaults against a person simply because the police say they intend to charge that person with a crime, where there is no evidence to suggest that that person will be convicted of that crime.

I would like to reiterate the point, or support the points, made by Charles Chauvel about the serious concern that there will be no judicial oversight of the forcible taking of these bodily samples from citizens of this country. He set out a very clear description of the importance of judicial oversight in this matter, the fact that the law provides for that already, and that there does not seem to be any reason why that should change; it is obviously working currently. It does raise a concern for me, too, as to why Labour is supporting this legislation, despite the very clear concerns by Labour, and by Labour members, for the breach of human rights, the lack of judicial oversight, and, in regard to young people, and to Māori, and to others of other ethnic minorities, the risk of abuse by the police against those communities. I would urge Labour members to rescind their view and to oppose this legislation for all of the good reasons that Labour itself has put out in the debate over the last day or so.

Another concern of mine is around systemic bias, racism, that exists within the legal system. At least two good studies, one produced by the Department of Corrections and the other by the Christchurch medical school, I think in 2003, clearly showed that the legal system contains bias against Māori and that that bias leads to an overrepresentation of Māori in various parts of the legal system. The Department of Corrections study looked at a number of factors. Despite all the other social indicators, it concluded that there is a degree of overrepresentation related solely to the ethnicity of Māori at key points in the legal system. Although at each of those key points the overrepresentation might be small, none the less the cumulative effect of that bias is exacerbated over time.

One of those areas is arrests. This was proven by the subsequent Christchurch study, which looked at cannabis arrests and convictions. It found that despite all other risk factors such as a person’s being known to the police, and other issues, Māori men are still more likely than anyone else to be stopped, arrested, and convicted of cannabis offences. That is despite all other risk factors, including frequency of use, for example. It shows that the police are more likely to stop Māori men. It proves that. Now, with this bill, there will be no need for a conviction before a DNA sample is taken. The police have been trying to do some good work on the issue of systemic bias and to deal with it internally, but they have not fixed it. Systemic bias within the police still occurs in various parts of the legal system. With this bill, the police are able to take a DNA sample based simply on an intention to charge, thereby arresting a person. Māori will be more likely to suffer from that forcible assault than others in the community, proportionally.

This legislation is a form of enactment of systemic racism against Māori communities. Cam Calder can sit there and wave his hands about and think that that is perfectly fine, but what he cannot do is find the evidence to the contrary, because the evidence proves that such systemic racism and bias is in the system. It may be small, but for the individuals and whānau who suffer from it, the effects are considerable. It cannot be denied by anyone in this House that that is the case or that those families suffer as a result.

The changes in this bill also undermine the protections of young people, in particular. I am especially disturbed to see that the police will be able to nominate a person to come and support a young person from whom a bodily sample is to be forcibly taken. It should not be for the police to decide who a support person for a young person in that circumstance should be. It is for the young person and for his or her whānau to decide, yet the police will be given the power to make that decision in this bill.

I also highlight the other changes in the process around law enforcement that exacerbate the concerns I have about this bill. One is the concept of mobile justice units, which was proposed in September of this year, I think. Traffic wardens will be able to not only arrest and charge people but also convict people on the street from the back of their cop car, and they will be able to take various pieces of evidence from people. Presumably now they will also be able to take bodily samples from people as a means of managing what is called mobile justice. This gives the police an extraordinary power. Not only do the police have the power to stop people and to arrest and charge them—and it is reasonable that enforcement agencies are able to do that kind of work—but also the police will now have a judicial role, as they will be able to decide whether to convict people and they will be able to fine them or otherwise punish them for that crime. This bill continues to increase the powers of the police by enabling them to have a mobile justice unit in the back of cop cars, and now the police can forcibly assault people and take bodily samples while only intending to charge them. The power of the police in these circumstances is enormous. It is incredible.

Last night I heard some National members going on about extreme cases, and that is fine. But we are talking here about perfectly ordinary citizens who have not committed a crime, who find themselves in a situation where the police might, for some reason or another, want to talk with them or deal with them because of a concern around the crime, forcibly assault them, take bodily samples from them, and never charge them. Perfectly ordinary New Zealanders who are going about their lawful business, and who might just have been in the wrong place at the wrong time, will find themselves being assaulted by the police. That is the consequence of this legislation. There is no doubt that the taking of bodily samples, DNA, from those who have been charged—for example, there is real concern about the possibility of their being involved in other crimes—might be the way to resolve some of those issues. There is an argument that can be made there, but not when the police are simply allowed, by this legislation, to roam around the country, finding people with whom perhaps they have a problem and have never been able to resolve that problem, perhaps finding ordinary law-abiding citizens who have never been in trouble but have found themselves in the wrong place at the wrong time, and who are forcibly assaulted by the cops, who have no intention of charging them but who can use the measures in this bill as a way of getting through it.

Many of our police do a fine job and are working to improve the culture of the police, but it is not improved yet; it is not fixed yet. Until it is, giving the police these kinds of powers is an abuse of their power, and it is an abuse of citizens. It puts the majority of citizens at risk of the abuse of this power. This bill provides no protection for those people. It is clearly a breach of human rights, and enacts systemic racism into our system. Thank you.

KELVIN DAVIS (Labour) Link to this

Tēnā koe, Mr Speaker. Tēnā koutou katoa i tēnei rangi paki. I join with my Labour colleagues in supporting the Criminal Investigations (Bodily Samples) Amendment Bill at its third reading. I support it because hard-working New Zealanders need protection from those in our community who wish them harm, and, in particular, I speak for our women and children who need protection from those who have no respect for others. I want to play my part in making New Zealand a safer place, where those who wish harm on our women and children are identified and apprehended as quickly as possible, so that the harm those people cause is minimised.

A number of very salient points were made by colleagues last night, and I will touch on a few of them. Firstly, as was said last night, this bill creates great power. But with great power there is also great responsibility, and it is our duty to hard-working New Zealanders that we do not create injustices as we attempt to eliminate other injustices. When we hear the Attorney-General himself report that this legislation has inconsistencies with the New Zealand Bill of Rights Act, then we need to tread carefully. The Hon Chris Finlayson said that the DNA plan appears to be inconsistent with the New Zealand Bill of Rights Act, because it would give police the power to take DNA from those whom they intend to charge with an imprisonable offence without the safeguard of judicial or other independent approval. The Hon Chris Finlayson said that such safeguards were required in jurisdictions that use the comparable DNA scheme, including New South Wales, Victoria, Canada, the United States, Germany, Japan, and the Netherlands. He said that he could not see any special circumstances in New Zealand to justify not having statutory safeguards.

Charles Chauvel last night described in some detail the circuitous route that may see this legislation challenged, and New Zealand being judged to be acting contrary to the New Zealand Bill of Rights Act. So we may find ourselves here again, ironing out those inconsistencies in months to come. Charles Chauvel also proposed a Supplementary Order Paper that would have avoided this, but unfortunately it was voted down.

As my colleague Moana Mackey described in the second reading, it is incredibly important that we ensure that the process of taking a sample and putting it through a laboratory can be tested in court. People who are facing a lifetime in prison for crimes they say they did not commit must be able to challenge not just the results but the process of storage and the testing of samples. There must be effective procedures that guarantee against the contamination of samples. It is hugely important to ensure the integrity of samples, and of their transmission, storage, testing, reportage, and preservation, and that this can stand the scrutiny of independent experts. We have created the situation whereby the police can arrest and “intend to charge” someone, and take a DNA sample from a person. There are questions around what happens to DNA samples that are taken and eventually no charges are laid against the person, or when charges are laid but the person is not convicted—in other words, when the person is innocent. That raises questions about the destruction of DNA samples and profiles. How can people who have had samples taken be really sure that in the event of their being totally exonerated, all traces of their DNA samples and profiles will be destroyed? I guess they have to take the system at its word.

I was involved in a very small way in a case where an autopsy was performed on a baby’s body, and some months after the funeral very small samples of tissue were returned to the family. The family members, who believed that they had buried all of the baby at once were, understandably, very upset. It illustrates the fact that at times the system does let people down. I note the concerns that the Māori Party and the Green Party have with institutional racism. In the instance of this baby, there was no intention to let the family down, but the story illustrates how issues may arise and cause a lot of angst and grief when people have put trust in the system. I also ask: once one’s information is on the computer, how can it ever be totally deleted? We just have to put our faith in the system but, as I have said, at times the system fails.

As most people have come to accept, DNA has become the 21st century equivalent of taking fingerprints. Others disagree, and I note that the Green Party is concerned about the intrusion on people’s bodies. As a Māori, I know there is a whole cultural side to the sanctity of parts of a person’s body, although I acknowledge that the persons from whom these bodily samples are taken, as a generalisation, have probably failed to respect the sanctity of another person’s body. So I have little sympathy for those people; it is the person who has had a sample taken and is either not charged in the end or exonerated for whom I have empathy.

I have described the way in which Māori, traditionally, have jealously guarded personal possessions—not just body parts like hair and fingernails but other personal items that come into contact with a person’s body, such as clothes and hairbrushes, etc. This is because of the belief that if we physically take a part of a person, then we also capture a part of the person’s wairua, and we can then use that to cause misfortune to the person. We call it mākutu. In fact, the ultimate insult in days gone by was to consume one’s enemy after battle. We can say that Māori collected their enemy’s DNA by eating it; I have been told that the hands and feet were particularly juicy.

In no way do I want to be seen to be creating special treatment for Māori offenders. If someone has done the crime, then, as my colleague Stuart Nash said last night, they need to take responsibility for what they have done. The Labour Party believes that we all need to take personal responsibility for our actions. If we have stuffed up, there will be consequences. This goes for all New Zealanders. We just need to be cognisant of the fact that even if people are to be charged, I presume they are still innocent until proven guilty. Therefore, there needs to be a large measure of respect and sensitivity around the collection of DNA samples.

I understand that the police have developed procedures to deal with cultural issues, but that in the past when there was a higher threshold for collecting samples, the police were dealing with higher-level criminals. Because the threshold has dropped, the police may be dealing with less seasoned suspects who are unfamiliar with the system and who are not so sure about what has been asked of them. I would hate to see a relatively minor procedure escalate into something bigger, which could mean that the alleged offender was charged with other offences, such as assaulting a police officer, especially if that person was innocent of the initial offence.

I note that when taking a sample, a constable has to hand to the person a written notice containing the particulars specified, as well as inform the person, “in a manner and in a language that the person is likely to understand”, what the triggering offence is and the effect of certain sections in the Act—that the sample will be analysed, and that the DNA profile derived from the sample cannot be used as evidence in criminal proceedings, etc. On the face of it, all this seems pretty straightforward: a written explanation in plain language, and a plain language verbal explanation as to what is going to happen. This all seems well and good until we factor in the human elements. As I said last night, as a teacher I know that just because a clear explanation is given, and just because people are nodding their heads and saying yes, it does not necessarily mean they understand what is going on. That is a mistaken belief.

Labour supports this bill, and we note that it complements work the previous Labour Government did by passing the Criminal Investigations (Bodily Samples) Act. That Act significantly increased the scope for DNA testing of suspects—for example, burglary suspects could be compelled to provide a DNA sample. It provided that DNA samples could be obtained by compulsion from prison inmates convicted of serious offences before the 1995 Criminal Investigations (Blood Samples) Act, and that police no longer needed a court order to obtain a sample from a convicted person. It also brought in the use of mouth swabs, which are cheaper, less invasive, and just as accurate as blood samples, and other provisions.

In summary, I hope this legislation succeeds in making Kiwis, and in particular our women and children, safer. I hope there is sensitivity towards the cultural side of collecting DNA samples, and that we will not be sitting here again in a few months, ironing out the bill’s inconsistencies with the New Zealand Bill of Rights Act. Thank you.

DAVID GARRETT (ACT) Link to this

I rise on behalf of the ACT Party to support the Criminal Investigations (Bodily Samples) Amendment Bill, but with considerable reservations. I am glad to see the Green Party co-leader is sitting down, because I think I will probably cause her some shock later in my speech.

The ACT Party, as everyone knows, proclaims itself proudly to be the party of freedom. I notice Kelvin Davis quoted one of our founding principles, that one must take the consequences of one’s actions. That is typical of the thoughtful speeches made by that member that I have heard in the short time I have been in Parliament. There are divisions in our party because of our founding doctrine of freedom—freedom of the individual. Others in our party say that we should take a DNA sample from everyone. Everyone who is a decent citizen should volunteer and if they do not, a sample should just be taken. No one who is not criminally minded has anything to fear. That is one argument, and it has much to commend it. Others in our party say this is yet another unwarranted intrusion by the State, especially when we are talking about persons who have not even been charged, much less convicted. That causes me concern, personally, and it causes concern to many of our members.

I am personally in that uncomfortable place of straddling the fence on this one, but we cannot do that in this House. We have to make a call, and collectively ACT has made a call to support the bill. The Green Party speaker talked about systemic racism in the police. I personally do not believe that is the case. However, it is undoubtedly true, sadly, that the offence that the Americans call “driving while black”, which here is “driving while brown”, is indeed a reason, in the absence of anything else, for the police to pull Māori people over. Again, some will say that that is justified because Māori are overrepresented in the criminal population. That is simply a fact, whatever the reason for it. But to say that our police are completely colour-blind would be to deny reality.

The other day I was reviewing the case in Whakatāne where four policemen, over an extended period, pepper sprayed a Māori man who was helpless in a cell. They were charged and acquitted by a jury, which I found astounding having looked at the video tapes of what occurred. So to say that the police are entirely free of racist attitudes would be wrong, and I will not stand here and say that.

This is not an easy speech to make, because it is a very difficult question. As Kelvin Davis has touched on, I too share concerns about samples being taken where someone is intended to be charged, but no charge ever follows. I have concerns, and have had concerns. I am old enough, as probably now only a minority of members are, to remember the Arthur Alan Thomas case. I have read the 1981 royal commission report on the Thomas case, and it is a shocking read. I am prepared to bet that nobody else in this House has read it, but I can tell members that from that day on, blind trust in the police was misplaced. So I share Kelvin Davis’ concern, and I share Metiria Turei’s concern, in that regard.

But the argument is finely balanced. We have become a much more violent society than we once were; there is no doubt of that. To anyone who tends to argue otherwise, whether he or she wants to split hairs about domestic violence, or whatever, I say that that is simply a fact. At this point I will depart from the Greens, who use the usual hyperbole when talking about anything to do with law and order, on the issue of grievous assaults when taking samples. Well, I have just assaulted my colleague Rahui Katene when I touched her. I remember studying torts 20 years ago. I got a D in the mid-sessional exam but got an A in the final exam because I swotted. I can remember the exact phrase “Even the slightest touching is an assault”. So I have just assaulted Rahui Katene—although I am cheating, because she gave me her consent first. To say that taking a sample is a grievous assault is silly; it is just silly. The worst that could possibly happen to people who refuse to give a sample would be to have their head held and a swab stuck in their mouth. That cannot be called a grievous assault, or even a serious assault.

This is a finely balanced exercise. I share the concerns of other speakers about the intrusions—the human rights concerns—and I do not have blind faith in the police. However, as I said at the beginning of my speech, sitting on the fence in this House is not what we are sent here to do. The ACT Party, with some reservation, will support this bill. Thank you.

SIMON BRIDGES (National—Tauranga) Link to this

I have spoken in both the first and the second readings, so I will not take all of my allocated time. But I will talk about the—

MOANA MACKEY (Labour) Link to this

I am happy to stand and take a call on the third reading of this important legislation. Labour will be supporting the Criminal Investigations (Bodily Samples) Amendment Bill. As has been said in previous readings of the bill, Labour did a lot of work in the area of DNA databases, further enabling the police and the courts to use DNA as a powerful tool when it comes to gaining convictions for serious crimes. This bill extends that work a lot further.

Although members have spoken at length about the advantages of this technology and the opportunities it will bring, I once again will talk, as I did in my other speeches, about some of the safeguards that need to be put around this legislation. I make it clear that Labour supports this legislation. I believe that this technology can be used in an appropriate and safe way. I am concerned that none of the Government speakers seem to have taken our concern on board. I spoke about it in the second reading, I spoke about it at the Committee stage, and I am about to speak about it again in the third reading. I think one final Government member—

PAUL QUINN (National) Link to this

As my very good friend and colleague “Rusty Robertson” might say, it is great to be up on my hind legs. I will focus on a couple of points in concluding this debate on the Criminal Investigations (Bodily Samples) Amendment Bill. I will talk about judicial oversight and a wee bit about the cultural aspects that have been raised during the course of this debate, and then I will wrap up by recommending the bill be given the Royal assent.

There has been a lot of discussion during the course of this debate about judicial oversight, the Bill of Rights Act, and so on. The fact of the matter is that this legislation will be implemented in two parts. The first part sets out that the taking of a swab on the inside of the cheek will be implemented in the first round according to new Part 3 of the schedule. Swabs will be able to be taken on that basis. Once procedures have been established that comply with the New Zealand Bill of Rights Act, we will go to a second round of implementation, which is where a swab can be taken in the case of an offence that is punishable by imprisonment. There seems to have been a lack of understanding by members opposite about how this system is supposed to work. I think it is very important that we understand the system in the first instance.

The second issue I raise is that, although I agree with members opposite that we cannot legislate against stupidity or against the situation where people want to break the law, the simple reality is that members on this side of the House believe that there are sufficient safeguards in this legislation to protect people and provide a proper mechanism for implementation.

The final point I comment on is the issue of cultural impact, to which a number of speakers have referred. I am happy to defer to my teina because of his much greater experience and understanding in these areas. But I know that I have expectorated on the rugby field any number of times, and I am sure that when any of us have been driving trucks or working in the freezing works we have done the same. I cannot understand the objection to taking a swab from the inside of a cheek to be put into storage.

With those few concluding remarks, it gives me great pleasure to recommend to the House that this legislation now proceed to the Governor-General to receive the Royal assent. Thank you.