Mackey Moana: Children Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill — In Committee Third Reading 
Mackey Moana: Children Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill — In Committee Third Reading 
[Volume:660;Page:9298] 
MOANA MACKEY (Labour) 
: 
 I will start off my call on Part 2 by foreshadowing two amendments that Labour will put forward. It is important to say that Labour has put forward these amendments to Part 2 based on previous rulings in the accident compensation legislation about where these matters need to be raised. The Chairperson previously ruled that expiry provisions must be within a part of the bill not with the preliminary provisions so we are following that ruling and these amendments are to be inserted as a new clause in Part 2. 
The two amendments are very different. The first amendment would mean that the entire Act expires by way of a sunset clause and the second amendment would mean that only Part 2 of this legislation expires. I very much look forward to the ACT Party’s support for these amendments as the ACT Party has regularly called for legislation and regulations to have sunset clauses and expiry dates. In this instance we agree with those members and we look forward to having a majority of the Committee in favour of these sunset clauses. 
When it comes to Part 2 I urge the Minister in the chair the Minister for Social Development and Employment to answer some of the questions that are going unanswered in this debate. I would really appreciate getting some clarification over the compulsion in the taking of DNA samples from minors. 
I have the Criminal Investigations (Bodily Samples) Act 1995 in front of me which is the principal Act being amended by this part. A reading of the Act would imply that we can compulsorily take a sample from a 12 or 13-year-old in the case of murder or manslaughter and my reading of the amendment that the Minister is putting forward in Part 2 is that that power will be extended to any indictable offence punishable by 14 years’ imprisonment or more. I would like the Minister’s clarification on that—that what we are doing here is saying that a DNA sample can be taken compulsorily from a 12 or 13-year-old for any indictable offence punishable by 14 years’ imprisonment or more. I do not think it is too much to ask for that clarification so that we know what we are passing here this evening. 
This is of particular interest to me and I gave many speeches on previous legislation amending the Criminal Investigations (Bodily Samples) Act which this Government passed. That amending legislation extended the DNA database. The reason I did that was that although I am a great believer in DNA legislation—I am a great believer in its potential not just for convicting the guilty but for freeing people who have been wrongly convicted of crime—it does worry me that members of this Parliament do not seem to realise that although this technology has enormous potential it also has enormous risk and restrictions in its ability. It is not foolproof by any stretch of the imagination. 
Members of this Committee know how powerful DNA technology is. If 12 or 13-year-olds go to court and there is DNA evidence against them it is very difficult to argue out of those charges. The fact is that all DNA evidence does is prove that someone’s DNA was at the scene of a crime. That is all it proves. It is up to the rest of the evidence to prove why someone’s DNA was there that that person was there and what that person was doing whilst there. There is an idea that somehow if someone’s DNA is found at a crime scene it means that person committed the crime. I find it worrying that Government members have made those claims in terms of this legislation and in previous DNA legislation that we have passed. They have called DNA testing a fingerprint. It is not a fingerprint. A fingerprint is an entire thing. 
When we come to DNA testing we test only a few loci—something like 0.001 percent of someone’s DNA is tested when a DNA sample is taken. Although it is incredibly accurate it is not a fingerprint. If we are to be extending again the use and the powers of this technology I want to hear—and I am pleased the Minister of Justice has come to the Chamber—that Government members understand and are prepared to articulate not just the potential but the limitations of this technology. 
As my colleague Lianne Dalziel has pointed out time and time again it is not just that it is difficult to exonerate someone if he or she is innocent but has DNA against them; it is sometimes hard to get a conviction if the person does not have DNA evidence against them. People believe because they watch  
CSI 
 that DNA is always there in every single case—it is called the  
CSI 
 effect amongst the science community. The belief is that if DNA is present someone is guilty and if it is not present the person must be innocent. That is not true. With the greatest respect to the Minister in the chair I say that when legislation like this extends the jurisdiction of this technology I want to know that the Government understands those limitations. 
I would like the Minister to stand and say yes categorically this bill is about the compulsory taking of DNA samples from 12 and 13-year-olds for any indictable offence punishable by 14 years’ or more imprisonment and that has been extended from murder and manslaughter. That is actually why we have a Committee stage—it is the one opportunity for Opposition MPs to put questions about legislation directly to a Minister and to have them answered particularly on legislation that is of such importance. 
I sincerely hope because my colleagues have told me that this question has not been answered that the Minister is prepared to answer it and to clarify it not just for members on this side of the Chamber but for the public of New Zealand who want to know exactly what is being passed into law. I am very pleased to see that the Minister is seeking advice and I hope we can get some clarification on this point so we can stop asking the same question. Until we get a response I think it is very very unfair of the Minister to just not answer our question and then move the closure motion as the Government will inevitably try to do. 
Previous speakers have said that we are talking about children here and we are. These are 12 and 13-year-olds. I think anyone who has children or anyone who was a 12 or 13-year-old knows that we are talking about children. It is terrible when children do tragic and awful things. But I would also say that this legislation is about the taking of a DNA sample prior to someone being found guilty. 
A person is innocent until proven guilty in this country and we have to remind ourselves of that when we are talking about extending the jurisdiction of this technology which is very powerful but comes with enormous risks. When we hear tub-thumping and chest-beating speeches from Government members about how the Government is tough on crime and is cracking down on these terrible awful tiny horrors and terrors we have to remind ourselves that in this country a person is innocent until proven guilty. 
Just because someone has a DNA sample taken it does not mean that he or she is guilty. Given the extension of these provisions to 12 and 13-year-olds who may well not have done anything wrong I do not think it is too much to ask for the Minister in the chair to take a call and clarify for the Opposition members and for the people of New Zealand exactly what we are passing into law because it is not clear. 
I would also like the Minister in her response to that question to acknowledge that the Government despite all the speeches that its members are giving understands the limitations on this technology. I would like her to acknowledge that the Government will properly fund the Institute of Environmental Science and Research which does the DNA testing through a contract with the police and that it will train the police properly. In Victoria special squads had to be hired to forcibly take DNA samples from minors. They had to be trained in how to hold minors down in order to forcibly take a DNA sample. 
I want the Minister to clarify that that may well be what we are talking about here. If it is I ask whether training will take place so that we do not end up with endless complaints to the Independent Police Conduct Authority and endless litigation over what the police can and cannot do. The police need protection in this as well. They need to know exactly what they can and cannot do in order to forcibly take a DNA sample—because we are extending this provision well beyond where the current law is at right now. 
But more important is the question of whether the Institute of Environmental Science and Research will be properly funded not just for the cost of actually doing the extra DNA tests but for the administrative staff. The administrative staff receive the samples log them in correctly and continue the chain of custody that started with the police and we need to ensure that we do not have any miscarriages of justice because of a lack of funding for the administrative functions that the institute carries out. This is not scaremongering; this has happened in other jurisdictions. In fact this happened in New Zealand. A man was assaulted in Christchurch and he gave a DNA sample. He was then was charged with murder. But his alibi was that he was in Christchurch being assaulted at the time of the murder so he could not possibly have done it.