Criminal Investigations (Bodily Samples) Amendment Bill — Second Reading 
Criminal Investigations (Bodily Samples) Amendment Bill — Second Reading 
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Criminal Investigations (Bodily Samples) Amendment Bill 
Second Reading 
Hon SIMON POWER (Minister of Justice) 
: 
 I move  
That the Criminal Investigations (Bodily Samples) Amendment Bill be now read a second time 
. This legislation forms part of the range of promises and undertakings made by National prior to the last election. I want to thank the Justice and Electoral Committee for its consideration of the bill. Its hard-working members who have been working on many pieces of legislation since November 2008 no doubt consider themselves to have set the standard for carrying a large legislative workload. Their chairman who when it comes to these matters is ever-patient and bipartisan Chester Burrows is to be congratulated for his work in this area as well. I am advised that the Justice and Electoral Committee received 20 submissions from interested groups and individuals in respect of this bill and heard from six submitters. The amendments recommended by the committee clarify the intent of the bill and I acknowledge that they improve its consistency with the broader legislative framework such as the Children Young Persons and Their Families Act 1989. I thank the committee for its work in that regard. 
The Criminal Investigations (Bodily Samples) Amendment Bill was introduced by the Government in its first 100 days in office. Its purpose is to expand the collection and use of DNA samples to assist the police in solving more crime. The bill will allow the police to collect DNA from a person whom they intend to charge with an offence and then match that person’s DNA profile against DNA samples from other unsolved crime scenes. As I mentioned in this bill’s first reading some time ago a DNA profile is the modern fingerprint. Forensic crime scene investigation has progressed to the point where even small amounts of trace evidence can now produce a usable DNA profile. The current DNA databank of 100000 profiles was the second to be established in the world and New Zealand scientists have been at the forefront of advances in extracting DNA profiles from crime scene trace evidence. 
During the Justice and Electoral Committee’s consideration of the bill the issue of judicial oversight prior to taking a sample was raised by submitters. That reflected the concerns raised by the Attorney-General in his report to this House under section 7 of the New Zealand Bill of Rights Act 1990. In response to those concerns I note that there are a number of measures that will minimise the intrusiveness of the powers contained in the bill and will safeguard individuals’ rights including existing remedies under the Evidence Act 2006 and the New Zealand Bill of Rights Act. Individuals can seek exclusion of evidence where the new power is used unreasonably. If the powers are used arbitrarily and breach an individual’s civil liberties he or she can always seek compensation. In addition operational guidelines have been developed by the police and the Ministry of Justice to assist the police in exercising their discretion to take a sample and to avoid the arbitrary application of this power. I am advised that the guidelines are designed to target the taking of samples. This means that those offenders who meet the criteria set out in the guidelines will be those who have a significantly higher chance of being responsible for unsolved crimes on the DNA profile database. 
The Justice and Electoral Committee made a number of useful amendments to the bill particularly around improving the process for taking a DNA sample from a young person and I am grateful for that work. One of the changes is to limit the range of offences for which a sample can be taken from a young person to the more serious relevant offences specified in the Act. That will ensure that only the most serious young offenders are subject to this law. In addition the criteria for taking a DNA sample from a young person have been significantly simplified. The committee concluded that the criteria for taking samples from young people repeated the protections that already exist 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 Children Young Persons and Their Families Act will apply and provide adequate protection for young people in custody. 
The committee also amended the bill to prevent a DNA sample from being retained if a youth is discharged without conviction. This aligns with the process for the retention of DNA samples for adults. Another very important amendment was to protect a young person’s entitlement to have an adult present when a DNA sample is taken. This amendment aligns the process with the regime currently in place for young people being interviewed by the police. 
The first priority of this Government in the justice portfolio has been to improve public safety. This bill contributes to that goal by giving the police the tools to resolve more crime 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 the hopefully soon-to-be-passed Anti-Money Laundering and Countering Financing of Terrorism Bill. This is one of the many steps this Government has swiftly taken following the election to fulfil its promises to the public of New Zealand. I commend the bill to the House. 
JACINDA ARDERN (Labour) 
: 
 I am pleased to take a call on the Criminal Investigations (Bodily Samples) Amendment Bill. The Minister of Justice Simon Power is right to point out that the Justice and Electoral Committee has been busy. The bill was quite technical when it came to its consideration by the select committee. I thank the officials who serviced the committee during its consideration of the bill. We required some guidance on some of the technical aspects and we also received some very useful initial briefings from the Institute of Environmental Science and Research which will be implicated directly with a heavy increase in its workload as a consequence of the changes this bill will make. 
This bill makes considerable changes. I will reflect though on something that was discussed in the first reading debate of the bill and to a certain extent during the select committee consideration. That issue is whether DNA is comparable to a fingerprint. Is it fair and right to call DNA the modern fingerprint? I think it is right that we insert a little bit of scientific reality into this discussion. The DNA collection that we are talking about as opposed to fingerprint collection is a much more intrusive and invasive procedure. Historically it has been; the modernising of the process has reduced that somewhat. But because DNA links far beyond an individual fingerprint and even has the ability to link into family and relatives it is a broadening in a sense. I know that my colleague Moana Mackey will have much to say on this particular matter from her scientific background. 
I will go on to the substantive parts of the bill. For the Labour members of the committee the most significant issue in the bill was the broadening of the definition of when DNA collection can be made. As it stands the criteria for DNA collection depend on the severity of the offence and collection applies at the point that a charge has been laid against a potential offender. This bill changes that considerably. It will allow DNA collection by the police without judicial approval at the point that they intend to charge and it broadens the range of offences for which DNA collection can take place. 
In the commentary on the bill the Government has given the reason for judicial oversight not being included and it is a matter of convenience. That is something that ultimately has to be weighed against the other consideration in this House and that is the balance of someone’s individual freedoms and rights. Of course DNA collection is a crime-fighting tool. Taken to the extreme on one end of the scale we could take everyone’s DNA sample at birth. It could be recorded and documented and then at any point when someone committed a crime we could cross-check against that database. That is the extreme. 
Simon Bridges 
: I like that. I like that. 
JACINDA ARDERN 
: Simon Bridges seems quite intrigued and seems to like that. Perhaps only a limitation of resources is stopping the Government from going down that track. But I think—I would hope—that we accept in this House that doing that would counter the personal freedoms that individuals have. At the other extreme of the scale people have the right to protect themselves from any kind of invasive search or seizure or any intrusion of that kind from the State. We need to find the balance between those two extremes. 
At the moment I am concerned that the bill as it currently stands does not have the checks and balances that could improve it considerably. I point out that as is stated in the commentary on the bill: “New Zealand Labour members of the committee having carefully considered the Attorney-General’s report to the House on the inconsistency with the New Zealand Bill of Rights Act 1990 felt strongly”—and continue to feel strongly—“that there should be an amendment. The amendment should provide for some form of judicial oversight when Police take a DNA sample. We do not think that there would be problems with the availability of Justices of the Peace after hours as predicted by officials. For example there does not appear to be a problem in gaining after-hours search warrants. [Therefore] Labour members intend to table an amendment to this effect in the committee stage of the bill.” I do not think this will come as a surprise to Government members particularly given that when this bill was introduced the Attorney-General pointed out that this was also an issue from his perspective. We intend to table that Supplementary Order Paper in the name of Charles Chauvel. 
I will reflect on some of the other issues that the select committee discussed at great length. The Minister quite rightly pointed out that the committee gave great consideration to the taking of bodily samples from young offenders. Again I acknowledge the role that the chair played in navigating us through that discussion so well. There was discussion over what kinds of checks and balances should be in place for young people from whom bodily samples are required—and when I say “young” that includes people under the age of 17—because they will be captured by the intention-to-charge extension that I discussed earlier. The select committee decided that the most robust way to ensure not only that a sample taken from a young person falls within the criteria but also that protections would be provided for that young person would be to mirror the provisions contained under the care and protection legislation that we already have. That sets out the criteria for a young person to choose an advocate to sit in while a sample is taken. The committee did not want young people to be unnecessarily incarcerated for longer than was required if for instance they named a person who was unable to be contacted by the police with the explicit intention of evading a sample being taken. In the end I think the select committee collectively came up with a solution to ensure that that balance was struck and there is consistency—which I am a big fan of—with the existing legislation. 
Another point that I will quickly reflect on is the issue of holding samples. In the version of the bill that we were first presented with there was a staggered range of time periods for which a sample could be kept in a databank for cross-checking at the time that another crime is committed. Ultimately the aim of this bill is to ensure not only that a current crime is cleared but also that crimes committed in the past that still stay on the police books can have a chance of clearance as well. One concern that I raised in the first reading of the bill and that I continue to have is about the staggering of various years that have been apportioned to when samples can be kept and when samples can be disposed of. It will be quite a technical and potentially bureaucratic process. I think it is important though that we continue to maintain oversight to ensure that the time at which a sample is meant to be disposed of—and it ranges under different criteria from 7 to 10 years—is abided by particularly because these samples are cross-checked again. If people have not offended within a particular period of time and have not come back through the criminal justice system then a clean slate provision applies to their sample. We must ensure despite the fact that it will be quite a technical and difficult thing for the Institute of Environmental and Scientific Research to manage that that continues to happen and we should keep oversight of that. 
There is much more in this bill that I am very interested in debating later on. I look forward to having a greater opportunity to delve into the detail of many more technical provisions—in particular those that refer to young people—as this bill proceeds through the House. 
PAUL QUINN (National) 
: 
 I say that this Criminal Investigations (Bodily Samples) Amendment Bill is about nothing more than the modern-day fingerprint. It drags our identification systems into the 21st century so that we can go forward with confidence. I look forward to debating vigorously with my colleagues from the other side of the House who I must say contributed strongly during the Justice and Electoral Committee’s deliberations under the superb chairmanship of my friend and colleague Chester Borrows and with outstanding contributions from Mr Bakshi and Simon Bridges. We look forward to having a vigorous debate during the Committee stage. With those few comments I recommend this bill back to the House. 
CARMEL SEPULONI (Labour) 
: 
 I say from the outset that Labour will be supporting the Criminal Investigations (Bodily Samples) Bill but this support does not come without a number of concerns. I guess that at this stage our approach towards much of the National Government’s legislation is: “Oh well it doesn’t help but it doesn’t seem to harm too much either. So I guess we can support it.” 
Our No. 1 concern at this stage would be that all of this Government’s justice and law and order legislation shows a very narrow-minded approach towards law and order. This Government chooses to put the focus entirely on the ambulance at the bottom of the cliff rather than on an attempt in any way to build a gate at the top of the cliff. That is our concern and it is the concern that many members of the public and the many people working in justice and law and order areas have as well. They are concerned that all we are going to do is deal with the people who are committing crime rather than do anything about preventing those crimes from occurring. That is probably the No. 1 concern of members on this side of the House. 
Before discussing the contents of the bill before us it is important that it is put into context with regard to the legislative amendments made by the previous Labour Government to significantly extend DNA testing. All too often in matters pertaining to law and order this Government has attempted to create the perception that it is starting from scratch when this is simply not the case. Labour has undertaken the groundwork. Therefore to contextualise the proposed amendments we need to look at the base that this Government is starting from. 
In 2003 Labour passed legislation to amend the Criminal Investigations (Bodily Samples) Act which significantly increased the scope for the DNA testing of suspects. Under that Act burglary suspects can be compelled to provide a DNA sample including in circumstances where a crime scene sample is matched with a known offender’s DNA profile held on the police databank. Prior to that legislation crime scene samples could not be used in evidence unless a fresh DNA sample was taken and an alleged offender could refuse to give that sample. Under the 2003 legislation which was I say again passed by the previous Labour Government the offences for which someone may be compelled to give a sample have been significantly extended to cover crimes punishable by at least 7 years’ jail—such as motor vehicle conversion and some offences of receiving stolen goods or any attempt or conspiracy to commit such a crime. 
Under that same legislation DNA samples can be obtained by compulsion from prison inmates who were convicted of serious offences prior to the commencement of the Criminal Investigations (Bodily Samples) Act 1995. The police no longer need a court order to obtain a sample from a convicted person. However a judicial hearing can be requested by people who believe that they are not liable to provide such a sample. Buccal or mouth swabs which are cheaper less invasive and just as accurate as blood samples can now be given as an alternative. 
Another significant part of Labour’s Criminal Investigations (Bodily Samples) Act of 2003 is the ability to obtain DNA samples from inmates currently in prison who were convicted prior to 12 August 1996 when DNA testing was first introduced. Adding those inmates’ DNA profiles to the databank was intended to help police solve some historic cases. Prior to these amendments the legislation gave authorisation to seek a compulsion order only to obtain DNA samples for the police database from a person already convicted of burglary. This led to the ridiculous situation that when police found DNA material at the burglary scene and matched it to a profile on the databank they were prohibited from using that match in criminal proceedings against the suspect. Now that we have contextualised the legislation that is before us let us move on to the stated purpose of this bill. 
The bill before us the Criminal Investigations (Bodily Samples) Amendment Bill will generally allow DNA to be collected by police without prior judicial approval at the point when they intend to charge a person for a wider range of offences and to allow the DNA profile to be matched against other unsolved crime scene samples prior to the person’s conviction or acquittal. The bill aims to recognise DNA as the modern-day fingerprint to assist the police to solve more crime by having more identified DNA profiles to match against the increasing number of DNA samples obtained from unsolved crime scenes. The stated purpose might seem reasonable but a number of concerns have been raised by submitters by us and by members of the public. 
Labour agrees that DNA profiling is an essential investigative tool in mainstream policing. That is why Labour has already amended legislation to significantly extend DNA testing. Labour is not opposed to a further extension of DNA testing but is unclear whether this legislation will have a significant impact on serious crime considering the changes Labour already made when in Government. Labour members are concerned that National is proposing to test all those arrested not just those charged with the reality being that a large proportion of the people who are arrested are not charged. This means that under National’s proposed system many tests would be thrown out resulting in a poor use of money and police resources. Considering the rigmaroles this country has been put through by this National Government in respect of cuts to what Labour deems essential services projects programmes initiatives and incentives we find it difficult to comprehend that the Government would be willing to waste money on something such as this. When I talk about cuts I am talking about things like cuts to adult and community education the Gifted Kids Programme the training incentive allowance police vehicles and resourcing overseas development assistance Maori and Pacific scholarships—the list goes on and on. Yet National will implement this legislation in the knowledge that a number of the samples taken will be a waste of time and will be thrown away which results in a poor use of policing resources and funding. 
The Attorney-General has reported inconsistencies with the New Zealand Bill of Rights Act. Christopher Finlayson said the DNA plan appears to be inconsistent with the rights against unreasonable search and seizure under the Bill of Rights 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. Mr Finlayson said such safeguards were required in jurisdictions that used a comparable DNA scheme including New South Wales Victoria Canada the United States Germany Japan and the Netherlands. He said he could not see any special circumstances in New Zealand to justify not having statutory safeguards. 
The Human Rights Commission has expressed concerns that the proposed changes go too far. The criminal bill allows police to take DNA from anyone charged with an imprisonable offence whereas the current law has a much higher threshold for serious offences punishable by more than 7 years in prison. The Human Rights Commission says that the bill infringes the right to freedom from unreasonable search and seizure. It also increases the possibility of discrimination on the grounds of race and family status and impacts disproportionately on youth. 
That was from the Human Rights Commission and we have heard from the Attorney-General. The Privacy Commissioner has now expressed concerns that the changes proposed jeopardise the value of the existing criminal DNA databank in detective and preventive crime by undermining public trust in the police and the Government. The commissioner says that if police were able to take DNA from a wider range of people there should be oversights through an independent committee of additional audit powers and she wants the bill’s recommendation for samples for all imprisonable offences dropped as well as the bid to retain samples for longer than 2 years after a suspect has been cleared. 
Treasury has stated that it views the regulatory impact statement for this legislation 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 anecdotal and empirical evidence to support these reasons. The next reason Treasury gives for the legislation being inadequate is the limited analysis of the impacts of the option. The analysis of costs is partial; for example only aggregate first-year costs are estimated and capital costs are excluded. There is no assessment of risk such as risks related to implementation and how these might be mitigated. We do not know the costs involved or the risks. 
It seems very negligent that a Government that has spoken so often on the fact that we are in the middle of a recession or that we need some fiscal restraint would go into something that it has not fully costed out. But that is exactly what this Government has done. I have expressed Labour members’ concerns. We will support this bill but we will be making recommendations in respect of the submissions made and the advice received from various people across the different advisory groups including the Human Rights Commission. 
SIMON BRIDGES (National—Tauranga) 
: 
 DNA is potentially a very powerful tool in the toolbox for police and the justice sector. To pick up on something that some of the other members speaking on this have said DNA is an extraordinarily powerful fact of life and piece of technology that has developed hugely over the years. In going back not so long ago it would take a large blob of blood semen spit or some other bodily fluid—at least a good 50c piece—before DNA could be traceable. Today with the advances in technology trace DNA can be picked up invisible to the human eye and so small that it cannot be detected in any form. From that human DNA can be used in court. The power of this technology is amazing. 
At a broad-brush level the Criminal Investigations (Bodily Samples) Amendment Bill is very simple. I accept that there is detail about the point at which people’s DNA may be taken kicks in. A morass of detail is needed in legislation like this but at its base we have here an expansion of a database to suitable persons’ DNA so that more crime will be solved and that is a very good thing. 
In reference to the last bill dealt with in this House where victims’ rights were put more centre stage in the criminal justice system here we have a bill that will result in more crime being solved which means more victims vindicated able to move on with their lives and ultimately in fact fewer victims as more crime is solved. 
But I take seriously the point that Jacinda Ardern has made in that there is a balance here to be struck. There is a spectrum. At one end we could simply test every newborn child; no one would reasonably advocate that. There needs to be a way to whittle it down to suitable persons and we have done that in this bill. Have we struck the right balance in this bill? I think we absolutely have. Philosophically and practically what could the concerns possibly be? Theoretically I suppose there is a privacy concern. There is a certain intrusiveness. But the means by which DNA can be taken are much less intrusive than they have been. It is a mere minor inconvenience with a swab. I think that is very light indeed. It is a minor inconvenience. I accept of course there is then the keeping of the DNA profile. But let us be very clear about that. It is only in the cases where people have been convicted ultimately for long-term use. There are strict specific provisions in the bill in relation to the use and storage of the DNA. 
Another concern that could be thrown up is a slight—and I say this is a theoretical concern because I think it simply is that—increase in wrongful convictions which is theoretically possible. In fact I think that is quite far-fetched. More accused who would otherwise have been in the frame for crime will in fact be excluded through this technology. They will be excluded and there will be more rightful convictions. We have high-profile examples of the ultimate exclusion following wrongful convictions of people through the powerful use of DNA. One example is David Dougherty in New Zealand. I was young even younger than I am today at the time but if my memory serves me correctly he was convicted for serious crimes and served time in jail. It was only through advances in DNA that he was freed. Every member of this House will be aware of the very large number of cases of basically only men—I think a small number of women but a lot of men—on death row in the United States who have had convictions overturned through the use of technology and DNA as we have caught up. 
So it may sound a bit glib but I do think there is a sense with this bill that if one is innocent one has nothing to fear. There may be some minor inconvenience but this is a very strong tool in the toolbox that we are giving police and our justice system for all the right reasons. I commend this bill to the House. 
MOANA MACKEY (Labour) 
: 
 I am very pleased to be able to take a call on the Criminal Investigations (Bodily Samples) Amendment Bill. I do this from the perspective of someone who has done DNA analysis. With the greatest of respect to the speaker who has just resumed his seat Simon Bridges some of the concerns that I have and that I hope can be sorted out were ones he highlighted absolutely for me. 
Simon Bridges 
: So you’re not voting for it? 
MOANA MACKEY 
: No we are voting for the bill but in this Parliament we are allowed to talk about the bits we are concerned about. We do have a Committee stage where theoretically we can make changes and where a democratic vote is taken. 
Simon Bridges 
: But on balance you think it’s pretty good? 
MOANA MACKEY 
: If Mr Bridges would listen I will tell him what my concerns are as someone who has done DNA analysis and knows the shortcomings. 
The fact is that we need to remember that DNA profiling should never ever be confused with full genome sequencing. A lot of people have talked about the genetic fingerprint and that is absolutely accurate. But the fact is we test about 0.001 percent of the DNA profile when we do this. We do that for many reasons. One reason is that it would be impractical and expensive to test the whole genome and also we can get very very good and accurate results from the testing we do. But it is not foolproof and we need to understand that. When members talk about a genetic fingerprint they need to understand that when we take a fingerprint we take the whole fingerprint. When we do a DNA profile we test a very small number of loci; we do not test the entire genome. 
This concerns me because there is a scientific aura that exists around DNA that it is foolproof and incontrovertible and jurors hold that perception. I think that it needs to be explained to jurors that it is not foolproof and that there is error. We would not find a single DNA scientist who would say that it is 100 percent accurate. The problem is when we have a technology that has such a powerful reputation the possibility of miscarriages of justice is introduced. We have had them with this technology. They are small but we have had them. I think there are things we can do to make sure that that does not become a huge problem but they do need to be done. We are supporting this bill but that needs to be absolutely understood if this bill is not to create problems that could be avoided. 
The member also said that it is not intrusive. Well the intrusiveness comes not just from having a finger prick or a mouth swab but also from the fact that our DNA can say an awful lot about us. It is very private information that can reveal things about our potential health in the future and some people might consider that intrusive. I think we need to look at it in that light as well. It may be being used for only identification purposes but it has a potential to be used for a lot more particularly as the technology improves. 
There is a potential for abuse. It is interesting to note that in the United States because criminals know that the technology is so powerful and that DNA technology is likely to convict them if it is found at a crime scene they are planting other people’s DNA. This is very easy to do. If I were to shake hands with the member who has just taken his seat and then touch a glass his DNA would end up on that glass. Criminals are not unaware of this. They will go to whatever length they can to frame someone else. In America there are actual cases where they have found criminals planting DNA and not just that. There was a very famous case of a doctor who accused of raping a patient under sedation put a false vein in his arm so that he gave a blood sample that was not his. 
The other issue that concerns me is that DNA can be fabricated now. Any person with a basic biology degree can do this. It is not difficult. DNA can be fabricated and when it is put into a body one cannot tell it from the host DNA. These technologies are out there. 
These are not reasons to vote against this bill but they are things we need to be aware of if we are to make sure that we can control the powers that are being given here. They are substantial. This is an enormous extension of what already exists in the DNA databank. If we are to make sure that we can cut off every area of abuse we need to be aware that there are a lot of people out there who are finding ways to get around these DNA databanks and to get around DNA analysis. It is for that reason that I raise it. 
We have only to look at the history of DNA analysis itself to see how fast the technology is moving. We need to ensure that this legislation remains relevant regardless of where that technology goes. We have moved from what would be considered very time-consuming restriction fragment length polymorphism analysis which then did Southern blots which took a lot of time to having polymerase chain reaction and short tandem repeat processes now which are very very quick. We can take very very small samples of DNA and use the DNA’s ability to replicate itself to create much larger amounts of it which means that we are able to take smaller and smaller samples and get better and better results. Work is being done on Y chromosome analysis which will go in a completely different direction and there is mitochondrial DNA. 
We need to make sure that this legislation is relevant to all those types of DNA analyses and anything in the future that may come of it. In fact it has already been used in New Zealand. It is not admissible in court but work has been done where a DNA sample taken from a relative such as a woman’s Pap smear samples is used to identify criminals within her family. It is not admissible in court but I doubt it will be very long before technologies like that are able to be used. They are very powerful technologies but again technologies that are not foolproof. We need to acknowledge that in this House today. 
I quote from Professor Ian Shaw who runs the forensic science unit at the University of Central Lancashire who pointed out that the more samples we get the greater the chance that we will find two samples that look the same but are not actually from the same person. That is a risk. The more samples we are taking the more we are testing. It is a very very small chance but it does increase the likelihood that we will get a sample that could inaccurately finger someone for a crime that he or she did not commit. Again that is something that we need to be aware of if we want to make sure that this bill does not end up with serious unintended consequences. 
Then I come to the Institute of Environmental Science and Research and my real big concern is that the funding has to go with this piece of legislation. We are talking about an enormous increase in work for the Institute of Environmental Science and Research. It will be an enormous increase in DNA analyses which is why the bill is being staggered to allow that to happen. The funding has to go in to make sure that the process is rigorous. It has to be more than just funding for extra DNA tests. It has to be more than just saying what the cost of doing a DNA test is and then paying X thousand dollars more for that. There has to be extra money in particular for chain of custody control. If anything goes wrong in the chain of custody—the sample going from the police to the Institute of Environmental Science and Research where it will be logged then going to an analyst on the bench the results being logged against that sample ID and then that going back to the courts or the police for the conviction—the whole thing falls apart. I have worked in laboratories that have underfunded the administrative side of the process and the chain of custody. A laboratory might as well not be run if we cannot put every single sample accurately through the process and have confidence that there is no chance of a mix-up or contamination. Although I understand that money will be put into extra DNA analysis my plea to the Minister of Justice is not to forget the very very important administrative side which is the chain of custody. 
That brings me to the issue of judicial oversight. This is incredibly incredibly important because if we are going to use this technology more extensively we need to ensure that the process of taking the sample and putting it through the laboratory can be tested in court. People who are facing a lifetime in prison for crimes they say they did not commit—they may believe that there was foul play which is unlikely or a stuff-up which is more likely—must be able to challenge not just the results but the process of the storage and testing of samples. I quote the Hon Justice Michael Kirby who in a speech he gave in Australia said it is crucial “That effective procedures are afforded to guarantee against contamination of DNA samples. The planting of evidence … has been a distinct problem for the criminal justice system in the past.”—and we are fooling ourselves if we think that it has not been—“Given the likely devastating power of DNA evidence it becomes doubly important to ensure the integrity of collection of samples and their transmission storage testing reportage and preservation for the scrutiny of independent experts and ultimately if need be by the courts.” I could not agree more. 
I implore the Government to consider seriously the Supplementary Order Paper we will be putting up in the Committee stage. We cannot consider this kind of legislation if the people who are likely to be impacted by it are not given the right to challenge the process. As I said before we are fooling ourselves if we think that miscarriages of justice do not happen. This is an incredibly powerful technology but its powerfulness in the minds of the people—and in particular the minds of jurors—is far more than its actual power. We have to get this right otherwise we will see miscarriages of justice. 
KANWALJIT SINGH BAKSHI (National) 
: 
 I stand to support the Criminal Investigations (Bodily Samples) Amendment Bill. Improving law and order in New Zealand is a critical priority for the National-led Government. Our actions over the past 11 months have reflected that priority. We share New Zealanders’ concerns about the growing levels of violent crime. We are determined to make our communities safer to promote the security of law-abiding New Zealanders to improve public safety and to ensure that there are appropriate consequences for offenders. 
In its first 100 days the National-led Government introduced legislation to expand DNA sampling of suspects and to match samples taken at crime scenes against profiles in order to help resolve hundreds of cases that might otherwise have gone cold. DNA is a 21st century fingerprint. DNA profiling is an invaluable tool for identifying and catching criminals. The Government believes that DNA samples should be taken in a wider range of circumstances. Our rationale for this is simple: if we use DNA profiling to catch and punish criminals earlier we will prevent them from creating more victims. This bill is a key component of the Government’s law and order package. We are firmly focused on creating safer homes streets and neighbourhoods for all New Zealanders. 
DNA carries a unique genetic code for individuals. Current technology allows bodily samples like blood saliva and semen to be processed and reassembled in the form of a barcode that can be matched with other samples taken from crime scenes. 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 allows police to collect DNA from a person they intend to charge with an offence and prior to that person’s conviction or acquittal match the person’s DNA against profile samples from the scenes of other unsolved crimes. 
In conclusion the measures proposed in this bill will subsequently increase the size of the DNA profile databank. The increased size of the databank will aid criminal investigation by linking offenders in the databank both to the scenes of unsolved crimes and potentially to scenes of future crimes. DNA’s role in solving more crimes and identifying more offenders will in turn contribute to increased public safety and public confidence in the justice system. Thank you. 
Hon CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I will make a couple of brief comments in respect of the Criminal Investigations (Bodily Samples) Amendment Bill and correct something that Mr Bridges said. Any time members of the Opposition raise points of conjecture or points in this bill that we believe need to be examined someone from the Government—and I do not include Mr Borrows in this as I sat on the Justice and Electoral Committee as he chaired it through consideration of the bill and I think he did an admirable job—always pops his or her head up and says that we are not supporting the bill. Well as my colleague Moana Mackey has said we are supporting it but we have an obligation as Her Majesty’s loyal Opposition to raise issues of concern. This is the debating chamber in which this legislation should be rigorously examined and hopefully with the contribution of many members improved. It is our job as a Parliament to control the quality of this sort of legislation. 
I for one have had the privilege of seeing the police use this technology on a number of occasions and I support its use. Members who have said that this modern technology is another tool in the police’s tool box are right. It provides huge advantages. Before I rose to speak I was speaking with my colleague Moana Mackey about the David Dougherty case. As I understand it that is in essence an example of technology freeing an innocent person. Had it not been for that technology who knows what the consequences would have been in respect of Mr Dougherty’s life? Equally looking at historical technologies we can recall the case of Arthur Allan Thomas where evidence was planted using shall we say different technology from the contemporary one we are discussing now. 
Although Labour members support the bill and think it is essential—it will aid policing and the uncovering of crime—my colleague and others have raised some concerns in respect of for instance judicial oversight. It is a basic principle that there need to be some substantial safeguards. My colleague has already referred to criminal elements that are technologically literate; we fool ourselves today if we do not believe they exist. With respect it is a little bit like the accountancy profession which is charged with finding new loopholes and likewise the legal profession in legislation. They do that legally of course. The criminal profession is adequately resourced to discover loopholes in legislation designed to prevent criminal activity—and by loophole in this context I mean illegality. 
My colleague and others have said that there is some evidence to suggest that criminal elements are using and planting DNA evidence. That is a concern and a worry and it raises the spectre that this technology has to be used with a high degree of quality and quality assurance. For that reason we are proposing that there be substantial judicial oversight. I heard some arguments against that in terms of ability to obtain access and warrants—officials said that police could lack access to justices of the peace when trying to gain authorisation to do certain tasks permitted within this legislation. As one who had an oversight with justices of the peace and who administered their appointments I know that we are flooded with them. I do not think I received complaints from the police or others that they could not access justices of the peace in the execution of after-hours search warrants. We simply put the case up that although we support this legislation we feel that there need to be a couple of safeguards and those safeguards need to be tightened up. People like Mr Bridges make glib comments every time this side raises some concerns in a genuine way; he tries to perpetuate some myth that we are not supporting it because we have the audacity to raise some concerns. But far from that we raise our concerns in a legitimate way and we will be putting forward proposals that we believe will strengthen the legislation. 
I must say that when listening to some of the submitters the counterfactual prevailed and a number of conspiracy theories were put forward to the committee. From a personal point of view I was less than impressed with the Human Rights Commissioner’s submission. I was more impressed with the Privacy Commissioner’s submission. I think those of us who heard the Human Rights Commissioner’s submission on what potentially could happen and what had allegedly happened around the world found that to put it bluntly very little substantiated evidence was put to the committee about some of the conspiracy theories in those submissions. My colleague Moana Mackey made some very good points based on scientific knowledge and evidence rather than simply conjecture. I hope—if there is anyone from the Human Rights Commission listening—they might clean up their act a little bit in respect of that— 
Hon David Carter 
: Listening? They’ve turned off by now 
Hon CLAYTON COSGROVE 
: Possibly. They certainly will if that member rises to his feet and makes some sort of utterance. 
We support this bill. I note Treasury’s input in terms of the regulatory impact statement. It said it was inadequate for a number of reasons including “a lack of clarity around the nature of problems with the current DNA testing regime along with evidence (anecdotal and empirical) to support these;”. I also note that Treasury gave other reasons for the legislation being inadequate. There was “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;”. We do not know the costs involved and in this legislation we do not have a real and viable assessment and analysis of the risks. I think that falls short of Mr Hide’s role as the regulatory slayer who would cut all the red tape as the regulatory tsar of this Parliament who said he would examine with a fine-tooth comb and microscope every piece of legislation to ensure that it was up to scratch. Again a bill is going through this House where Mr Hide has been asleep at the wheel—he collects the Queen’s shilling but does not do the job—and another regulatory impact statement that is not up to the mark is sliding on through. 
With those comments and reinforcing the comments that Moana Mackey and others made from a technical and scientific point of view I say that we will support this bill. I congratulate the chair of the select committee on his conduct and members of the committee on putting this bill through. Certainly the debate and submissions that I listened to were generally very forthright and informative. I think that if amendments are accepted and looked at in a bipartisan way we can tighten up this bill. We could provide some safety and alleviate some of the concerns that a number in our community have. They are not just people whom some Government members may characterise as hand-wringers or do-gooders; they have genuine heartfelt concerns and want to see the bad guys apprehended. Where there is a miscarriage of justice like with Mr Dougherty this technology can be used to free people who are innocent. They are not hand-wringing do-gooders who are simply obsessed with the civil liberties argument; they have heartfelt concerns and want to see appropriate safeguards in this legislation so that it can be even more effective than the technology is today. With those thoughts I commend the bill to the House. 
CHESTER BORROWS (National—Whanganui) 
: 
 It is a pleasure to stand in support of the Criminal Investigations (Bodily Samples) Amendment Bill. I commend the work of the Justice and Electoral Committee and the goodwill that was exchanged across the table. We all learnt a heck of a lot more about DNA than we realised there was for us to learn in such a short space of time. I also commend the way the matter was debated around the table. I think it is important to note that what lies behind this is safety. The reason why the National Party introduced into its policy that we would remove a sample of DNA from everybody arrested for an imprisonable offence was safety. Those offenders who go on to commit crimes especially heinous crimes—the rapes murders home invasions and the serious assaults—against the person generally started off their offending at low-level Summary Offences Act offences. If we were in a position to identify their DNA very early in the piece by the time they got down the track to committing those more serious crimes for instance we would have them on DNA left at the scene of the crime. 
I think we have to say not to anyone in particular that generally it is about the victims stupid. So often these days we can get carried along on a wave that is looking at rights and freedoms without ever caring about or paying any cognisance at all of the responsibilities of living in a civilised society. Although we enjoy rights and freedoms in this society we have to acknowledge that they come with a responsibility. The first responsibility of a Government is to protect the public. There has been strong stringent judicial oversight of the DNA-securing process in the past. That is because the technology used in the past always required a blood sample to be taken. That is why it was seen as such an intrusion into somebody’s person and there needed to be a judicial warrant to do that. 
Under this legislation the DNA swab is taken by the alleged offender by taking a Q-tips cotton swab and putting it inside his or her cheek taking it out and handing it to the waiting police officer. No one has the sample taken by somebody else and no one is held down to have the sample taken by force. In actual fact it is taken by the alleged offenders themselves with their own cheek swab—it is as intrusive as that. So there is no need for judicial oversight in respect of DNA swabs taken in that way as there has been before. 
Another thing we need to bear in mind is that DNA exculpates as well as implicates. The previous speaker the Hon Clayton Cosgrove mentioned David Dougherty and how he was exculpated for a rape he had been convicted for. There are numerous other suspects who are removed from an inquiry with the use of DNA. We have to bear that in mind and that is a very strong point. 
I want to pick up on some of the points made by some of the other speakers. A previous speaker Carmel Sepuloni said that a large number of those arrested are not charged but that is not true. I suggest that probably less than 1 percent of those who are arrested are never charged. They go in front of a court charges may be withdrawn at a later time and in that situation if all the charges are withdrawn the DNA sample would also be disposed of. That is true but it would be disposed of before the identifying stage. It would not be taken and sent away then identified profiled logged on a database and then there is not a conviction or the charges are withdrawn. There is very little administrative cost in holding that sample until the conviction is entered. 
Another point contained within the legislation is that the DNA sample is activated by charging. That means that the DNA sample of somebody who was arrested and taken before the court and later diverted after a guilty plea for instance would be retained. The sample is kept on charging and that is a significant thing to remember. There is not a lot of administrative cost in doing what we are doing up until the point of conviction in any event because it is only after that that the DNA is profiled. 
The previous speaker Jacinda Ardern said that DNA was not the modern fingerprint because it has the ability to give a lot more information than for instance a fingerprint can; it does more than just identify the person and that is correct. But I also pick up on the point that Moana Mackey made: although there are several hundred identifiers with any sample of DNA under this profiling only about 16 points are identified and they are not points that go to hereditary identifiers and those sorts of identifiers. 
Moana Mackey 
: How do you know? 
CHESTER BORROWS 
: Because that was the evidence that we heard before the select committee. 
It is also important to note that yes as Moana Mackey said DNA can be manufactured. However in all likelihood and I am sure she would agree although it is something that could be done—and it is always something that we cannot discount because a scientist would never discount anything—the chances of that happening are very unlikely. If DNA is going to be placed within a crime scene it is probably going to be somebody else’s bodily sample; semen blood saliva or some other DNA-carrying substance would be left at the scene rather than manufactured DNA. 
It is a cliché to go on talking about tools and tool boxes. DNA and recovering DNA at this level means that there will be fewer victims created in the future. Offenders who would go on to commit serious offences in the future will be identified a lot earlier because DNA will be held from the Summary Offences Act offences they commit at a very very early stage in their criminal offending. Over this year the Government has very proudly brought before this Parliament a number of measures that impact severely on victims for the better. This legislation is one of them. It is going to save more victims than probably any other single piece of legislation that we have seen before this Parliament in a very long time. 
A party vote was called for on the question  
That the Criminal Investigations (Bodily Samples) Amendment Bill be now read a second time. 
Ayes 108 
New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 14 
Green Party 9; Maori Party 5. 
Bill read a second time.