Mackey Moana: Criminal Investigations (Bodily Samples) Amendment Bill — Third Reading 
Mackey Moana: Criminal Investigations (Bodily Samples) Amendment Bill — Third Reading 
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MOANA MACKEY (Labour) 
: 
 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 
: Repetition! 
MOANA MACKEY 
: It is because no one in Mr Quinn’s party has even addressed any of the concerns I have raised. Mr Quinn is about to stand up and give a speech on this bill. I look to the final Government speaker on this legislation to address these issues because they have not been addressed. That is the reason why I repeat myself. Mr Bridges gave a speech where he made a joke that was not even funny—one should not make jokes if they are not funny—when he should really have been taking the bill a little bit more seriously and addressing some of the issues I raised. 
As I said in the other readings of this bill and in the Committee stage we have to understand that DNA technology is not foolproof. It is not infallible. It is very very powerful. The powerful aura that exists around it is one of the reasons why we need to make sure there are safeguards. If we walk in to a court and there is DNA evidence against us then we are toast. Let us face it: we are likely to go down for that conviction. We need to ensure that juries and the people of New Zealand on whose behalf we are passing this legislation understand that it is not infallible technology. DNA sequencing for criminal purposes is not the same as full genome sequencing. We test about 0.001 percent of DNA when we do a DNA sequence for criminal purposes. Professor Ian Shaw who runs the forensic science course at the University of Central Lancashire and who is viewed as an expert on this matter says that the results are never 100 percent certain. We need to be aware of this because we have to put safeguards in place if this technology is to be used appropriately. Professor Shaw says: “The problem is that we will never really know how many people we’ve locked in prison using DNA matches are not guilty.” He said that although the chances of that happening were remote the more samples we get—and this bill will dramatically increase the number of samples we take—the greater the chance that we find two samples that look the same but are not actually from the same person. I do not say that to undermine this technology; I say it because we need to be aware of it. It really concerns me that no Government member has got up and spoken about this issue or has even acknowledged that there are limitations. They have all got up and told us that DNA testing will free the innocent and condemn the guilty. They have given it superhero status in crime fighting. Yes it is very very powerful. But with such powerful technology safeguards become even more important because evidence against a person will almost always result in a conviction. 
One of the issues that I have been particularly concerned about is the funding of the testing. That is probably one of my biggest concerns. The Minister of Research Science and Technology who is responsible for Crown research institutes was in the Chamber last night and he refused to confirm that the Institute of Environmental Science and Research would get the funding required to implement this bill safely. He refused to confirm that. He said it was a contract. He knew how much it costs so why would he not guarantee that the Institute of Environmental Science and Research will get the money? It is not just for the extra testing the staff the equipment and all the reagents that come with it but also for the chain of custody: for the administration the storing the transfer and the reporting of the samples. If the institute does not have the money for those things there is no point in doing it. 
I refer to an incident that members may remember. Last night members were dismissing this issue as if somehow it would never happen. Members may remember a case in New Zealand not very long ago where due to cross-contaminations between samples a Christchurch assault victim spent 4 months under investigation for double murder. The only reason that he got off was that he had an airtight alibi: he was being assaulted in Christchurch at the time. His DNA was taken because he was an assault victim and because of cross-contamination he spent 4 months under investigation. That is why the funding has to be there. I am not making this up to be difficult or argumentative; it is a genuine concern. I have friends who work at the Institute of Environmental Science and Research; I used to work there. Those friends have said that they are concerned. They are already under enormous pressure in terms of their DNA testing. All they want to know is that the money will be there for this bill to be implemented safely. 
On top of that is the fact that this Government now requires Crown research institutes to return a 9 percent dividend to Government so suddenly that financial pressure becomes all the more pressing. If people are working in situations where they are overworked understaffed and under-resourced we get mistakes. We cannot afford mistakes in this area because mistakes in this area send innocent people to prison. We should all regard that as completely and entirely unacceptable. All I am asking is for just one Government member to please get up and guarantee to the House that the money that the Institute of Environmental Science and Research needs for this technology and for this increase—[ 
Interruption 
] Well Jo Goodhew can sneer at me but I am actually quite serious about this. The money must be there otherwise we run the risk of a miscarriage of justice. 
Paul Quinn 
: Why did you buy KiwiRail? 
MOANA MACKEY 
: The Government’s answer to this very serious problem is: “Why did you buy KiwiRail?”. Apparently Paul Quinn is now telling us that the money for the Institute of Environmental Science and Research will not be there because we have purchased KiwiRail. Mr Quinn might like to take this issue a little more seriously. He is the next Government speaker and I expect him to address this issue. It is important. 
I come back to my point that DNA testing is not a fingerprint and we need to be very careful about it. A very interesting paper was given to the New South Wales Parliament when it went through a similar process. It pointed out that if all of New South Wales’ 8000 prisoners—as there were at that time—were tested against the 15000 profiles currently in the New South Wales police database simple chance indicated that around 120 false positives would be found. Again I say that we can have safeguards around it. But if we are not aware of the issue and if the Government members regard it as just a joke because all they want to do is go out there and say they are tough on crime without putting adequate safeguards around the technology we need to be careful. 
Labour tried to put up an amendment which the Government voted down requiring judicial oversight of the taking of samples. I think that issue will come back to the House because I do not see why any Government would have a problem with judicial oversight over the taking of a sample that can convict someone. My colleague Carmel Sepuloni made a very good point when the member David Garrett was talking about the sample being taken. If a person did not commit a crime but is suddenly dragged in to give a DNA sample that person might get really upset especially if it is someone who has been hassled a lot by the police and knows he or she did not do it. People do not always act rationally particularly if they are accused of something that they did not do and they feel that they are being subjected to harassment. We need to be aware of that and that is why the judicial oversight clause was really important. I think Labour will bring that issue back to the House. 
I also want to come back briefly to the issue of funding and errors. A study was done in the United States where an external DNA proficiency test conducted by the California Association of Crime Laboratory Directors found a 1 percent error rate in DNA testing in those reviewed laboratories. We have to be very careful. That error rate is not mentioned in court. When we are given the statistical probability of someone having committed a crime that laboratory error rate is not included as far as I am aware in New Zealand. I know it is not given overseas. We need to fund the Institute of Environmental Science and Research properly because if the error rate is getting up to one in a hundred statistical odds of one in a million suddenly do not mean a lot. 
Again I do not say that to undermine the technology. These are safeguards on the fringes. In large part this technology is very powerful and accurate but we need to be aware of its shortcomings. We should not mystify DNA testing or put it on a pedestal and suggest it is all-seeing and all-knowing. DNA testing tells us that someone’s DNA was there. It does not necessarily tell us that that person committed a crime; it tells us that someone’s DNA was found at a scene and that it was positively identified to a certain probability. We as politicians need to be very careful about talking this technology up. My colleague Lianne Dalziel made a very good point last night. The flip side is that just because there is no DNA evidence that does not mean that someone did not commit a crime. Programmes like  
CSI 
 drive me absolutely nuts but I will not get started on that programme because that would be another whole speech. The fact is that police find it very difficult because juries now think that if we do not have DNA evidence the person cannot possibly have committed the crime. That is the flip side of this argument.