Criminal Investigations (Bodily Samples) Amendment Bill — In Committee Third Reading 
Criminal Investigations (Bodily Samples) Amendment Bill — In Committee Third Reading 
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Criminal Investigations (Bodily Samples) Amendment Bill 
In Committee 
Debate resumed from 15 October. 
Part 2 Extension of authority to take and retain bodily samples 
Hon NATHAN GUY (Associate Minister of Justice) 
: 
 Part 2 implements the second stage of the Criminal Investigations (Bodily Samples) Amendment Bill by extending the provisions in Part 1 that apply to those adults suspected of committing a relevant offence to those suspected of committing any imprisonable offence. This part also makes the District Court the court to which applications under the Criminal Investigations (Bodily Samples) Act are made rather than the High Court and provides for a mandatory retention period of 10 years for DNA profiles from adults who are convicted for imprisonable offences that are not relevant offences. This staged approach is to allow police the time to develop guidelines and train staff and will also assist the Institute of Environmental Science and Research to cater for the increased workload. 
As a result of the Justice and Electoral Committee’s input Part 2 of the bill has undergone three notable changes. I would like to make some comments on those. The first is that the range of offences for which it is possible to collect DNA from a young person will not be expanded to include all imprisonable offences as for adults. As it applies to young people the new power will be available only where the young person is suspected of a relevant offence to ensure that only the most serious young offenders are subject to the new power. 
Secondly the select committee made a number of important amendments throughout Part 2 one of which was to include the relevant offences listed in the schedule of the Act. For example peeping or peering is a relevant offence in the schedule but it does not carry a sentence of imprisonment. As originally drafted this meant that DNA samples could not have been collected from persons suspected of committing that offence under Part 2 but could under the first phase. 
The third point I wish to make is that a new definition of “District Court” has been inserted to clarify that when judicial functions are transferred to the District Court they can equally be exercised by the Youth Court in cases where it has jurisdiction. 
In respect of Mr Chauvel’s amendment to require a review of the provisions in 5 years’ time members will be aware that as expressed in the explanatory note of the bill the Ministry of Justice will review the entire Act by August 2011. That review will look at the broader operation of the Act and will include how the provisions are operating and whether they should be amended. That review will be completed before the second stage of the bill is implemented. 
CHARLES CHAUVEL (Labour) 
: 
 In the Committee stage on Part 1 of the Criminal Investigations (Bodily Samples) Amendment Bill the Government used its majority to vote down an amendment in my name that required a warrant to be obtained prior to the exercise of the novel powers that Parliament intends to give to the State through this bill. Now under urgency we are debating Part 2 of this bill in Committee and I think it pays for Parliament to think about the novel power that we propose to confer through this legislation: to “allow the Police to collect without prior judicial approval a bodily sample from any person whom they ‘intend to charge’ with certain specified offences.” which is later to be expanded to “allow the Police to collect a bodily sample from any person whom they intended to charge with an imprisonable offence.” 
As the Minister in the chair the Associate Minister of Justice the Hon Nathan Guy correctly recorded I have put forward another amendment which is designed to require a select committee of this Parliament to conduct after 5 years a review of the operation of the new power that we intend to give to the State. Given that we are now sitting in urgency—and given the Committee’s decision to reject the requirement for a warrant the last time this bill was discussed when we were debating Part 1—I suggest that the review is even more important. A power of literal physical compulsion will be conferred under urgency with no judicial supervision whatsoever intended. The Associate Minister said that the ministry would conduct a review of the operation of the legislation by August 2011. But of course that review is intended to satisfy the State that it can move satisfactorily to Part 2 of the bill which extends the powers contained in the legislation from the specified offences it deals with to all imprisonable offences. This is a very different sort of review to the one my amendment proposes. I suggest that this Parliament takes a long hard look at whether it has overall been a good idea to extend the powers of the State without judicial supervision under urgency in this way. I submit that a select committee would be well suited to report back to the Parliament after hearing all the evidence. It would not be in an election year—as August 2011 is which is the deadline for the ministry’s review—but after 5 years of operation when we have a track record when the police and their actions can be looked at in an objective fashion and when we can properly work out whether this legislation has made the contribution that we all think it will to overall law and order. 
I hope that the Associate Minister will take another call at some point during the debate and that there will be a reconsideration of what appears to be the Government’s initial decision to reject the idea of a more independent review given that the State intends to take a very new power to itself. The State is proposing that an organ of the Crown will review the exercise of that power after a very short period of time—in an election year—for the purpose deciding whether that power should be extended. My proposed review is an entirely different beast: it seeks to consider the exercise of the new powers in the round to help us decide whether we have made a wise choice in extending the powers of the State the way that the bill is intended to do without judicial supervision. I have to say that if Parliament thinks about this carefully it will determine that the review that is set out in my amendment is a much better mechanism than the substitute offered by the Minister. 
MOANA MACKEY (Labour) 
: 
 I am happy to stand in the Committee stage to speak on Part 2 of the Criminal Investigations (Bodily Samples) Amendment Bill and to perhaps seek some reassurance from the Minister in the chair the Hon Nathan Guy regarding this part. As he said in his brief words to the Committee of the whole House this part of the bill dramatically extends the workload of the Institute of Environmental Science and Research. From the Opposition’s perspective I think we would like some reassurance from the Minister that that will come with adequate funding. The bill gives the State far greater power in this respect than it has had before and there is a real danger of a miscarriage of justice if these new powers are not backed up by adequate funding for the police and the Institute of Environmental Science and Research which will be doing the data analysis. 
I hope that the Minister for Research Science and Technology who I think is with us although he does look tired might take a call on adequate funding for the institute. We have to look beyond simply how much a DNA sample costs and multiplying it by a factor of how many more one expects to be doing. The kind of reassurance that we would like to see is that there will be adequate money for the extra reagents for the extra equipment for the extra work area the institute may need to carry out all these extra analyses and for the extra staff. But as I said in the second reading of this bill one of the most important things is that we need to make sure that the administration of this bill is adequately funded. I know that the Government does not like bureaucrats. I know it does not like people who are not front-line staff but the fact is that the chain of custody is just about the most important thing that one can have in a laboratory. If the institute is not adequately funded we are in real danger of seeing a miscarriage of justice. 
I would like to seek reassurance from the Minister in the chair that that will be adequately funded. I assume that he must have had those figures done. I cannot believe that the Government would pass legislation where it has not had advice from officials about what the fiscal impact will be and what the needs of the institute will be in terms of this extra funding. This is particularly so around the administration of samples—where the sample is collected by the police where it is labelled appropriately where it is sent to the Institute of Environmental Science and Research where it is logged in where from then on through the process the correct sample is logged next to the correct results. I do not need to tell the Committee that if that is not done properly—if the institute is put in a position where it is understaffed and under-resourced and where it is having to do all this without adequate funding—then those extra powers suddenly become very dangerous. I am sure the Government has done this work. I would really appreciate the Minister taking a call to let us know what those fiscal costs to the Crown are and giving us the reassurance that that money will be there. 
My colleague Charles Chauvel talked earlier about a review period in the law. That review would have been incredibly important when one considers these extra powers. We need to make sure that the system is working right. If the Institute of Environmental Science and Research or any other Crown agency is not on track to be able to do this work properly then it should not be put in the position of having to do the work. Frankly the cost to the citizens of New Zealand of having an agency in the position of doing the work when it is not ready is too great to even contemplate. So I hope the Minister will take a call. 
This is not an issue that I am trying to be trite about; this is an issue that I am genuinely concerned about having worked for the Institute of Environmental Science and Research and knowing the kinds of pressures that Crown research institutes are under. To be fair I say to the Minister that they now have to provide a 9 percent dividend to the Government and that money will have to come from somewhere. I want to know that these extra powers that we are giving will be properly funded so that we can avoid any kind of suggestion that there may be a miscarriage of justice. 
I note that Labour put up amendments to Part 1 where we wanted people to be able to question the process as well as the actual charge. That is important when one is doing this. I note that when we look at comments from forensics professors from the United Kingdom we see that they said there is a real risk when one moves down this path of opening up the possibility of miscarriages of justice. That risk is from having so many more samples in a DNA databank. It is especially so if institutes are not funded properly and if protections are not put in place for someone to challenge that process and the way that those Crown entities deal with those samples not just the charges that are against them. I hope that the Minister will take a call on this as it is a very very serious issue. 
The CHAIRPERSON (Lindsay Tisch) 
: I call Chester Borrows. 
Hon Trevor Mallard 
: Most popular chairperson in Parliament! 
CHESTER BORROWS (National—Whanganui) 
: 
 Fair enough! It was interesting to hear the comments from the previous speaker Moana Mackey. She will recall from her time spent sitting on the Justice and Electoral Committee and hearing from the officials in respect of the recovery of DNA samples and the processing of them that the costs were given to the committee. She will recall that they had been calculated on the basis of an expectation that the numbers coming through the system would build up over time of the requirement to maintain the chain of evidence and of the costs of collating and storing the information. Those costs were given. She also made a comment about the ability to challenge the charge and the issue of the recovery of the DNA or the sample that had been given. Of course the samples will not be profiled until a conviction has been entered. So it is not the case that every sample that is taken will move through the process. 
But it is important not to lose sight of one particular thing which is that of all the bills that have been passed through the House in recent years and that are anticipated to be passed in the near future this Criminal Investigations (Bodily Samples) Amendment Bill is the one that will save more victims than anything else has saved or will save. This legislation will identify offenders very very early in the piece based on their early offending. The offences contained in the schedule are a number of precursor offences. We know that offending by way of home invasions and sexual offences—offences against the person—can be predicted by the sort of behaviour that is reflected in the offences that are listed in this bill. In the same way we know that those people who go on to commit tragic offences against the person whom we particularly want to be able to identify by DNA evidence—for instance offenders like the “Parnell Panther”—start off their offending at a very low level with offences against what we now call the Summary Offences Act. So having their DNA on record very early in the piece would identify them as soon as they left traceable bodily evidence at the scene of a crime or on a victim. They would be able to be caught a lot earlier than they are caught at present. They would not be able to go on to commit a hundred more home invasions or rapes before they were caught. 
I go back to the point I made just a few seconds ago that this legislation has the ability to save more victims than any other legislation has. That is not a reason to give carte blanche to any infringement of people’s rights that the State may want to impose but we have to look at what we are doing here. The ability to obtain a DNA sample through the use of a cheek swab is fairly simple and straightforward. There are issues raised by the process of maintaining the chain of evidence and doing a test on that sample because the DNA test is much more extreme and requires more resources than say testing a blood sample. At the same time the Institute of Environmental Science and Research specialists have been doing that with blood alcohol samples for years and years. Their processes along the chain of evidence are simple and very streamlined. There is no reason why that will not apply here. 
The evidence given at the select committee hearing by officials from the Institute of Environmental Science and Research and from the Ministry of Justice as to funding and resources was very plain. I am sure that given her understanding of what is involved here the previous speaker Moana Mackey will know very well that there is no risk there. 
Moana Mackey 
: I just want a guarantee from the Minister. 
CHESTER BORROWS 
: She calls upon the Minister so the Minister in the chair the Hon Nathan Guy can get to his feet and tell her exactly what she has already heard within the select committee. No doubt he is able to do that. However Moana Mackey made her decision early in the piece that she was going to support this legislation because of what it will do. I commend her for that. I do not see any point in trampling over ground that she already knows very well. 
CARMEL SEPULONI (Labour) 
: 
 I will talk a little bit about what Charles has been saying and also Moana with regard to extending the permission of the State without judicial evidence. One thing that has not come up as much across the duration of the debates and the discussion over this issue is the cultural implications of the Criminal Investigations (Bodily Samples) Amendment Bill. Labour is not opposed to DNA testing. In fact Labour members were leaders with regard to the legislation around DNA testing in New Zealand. We have very much kept up with the technology that has taken place. We do support this bill but we do have some reservations. 
This perhaps is one of those reservations. It was a conversation that some colleagues and I were having about the cultural implications of this bill with regard to what DNA testing means for Maori and for some Pacific groups also. Even just now I was looking at one of the district health board websites and saw there that it encourages staff with Maori patients to give them back any hair toenails fingernails or bodily tissues that had been collected from them because of the fact that those items are seen as tapu. 
One of the reservations that have come from Maori and Pasifika is the ownership over the information that is contained in our DNA. One thing that seems of concern is the fact that that information can be gathered from people when they have not been charged with any particular crime—when there is the intention to charge but the suspect has not been found guilty of any crime. It seems a worry and it is something that will come up with those particular groups. Given that someone has not been found guilty of any crime and that he or she has not necessarily done anything wrong to have that information taken will be a concern to those particular groups because that information is seen as tapu. It is held in those parts of the body whether it be in hair fingernails or even in parts of the skin that a sample has been gathered from. I do think it is something that needs to be mentioned. Some thought needs to be given to that perhaps because in this country we regard those cultures as being of importance so we need to take into consideration their viewpoints on such things. 
One of the things that Moana has also made very clear is the fact that DNA testing is not foolproof. A concern that she has put out there as a scientist and as someone who has a background in this—in fact I think she is the only person in the Chamber who has a background on this subject—is that DNA testing has been held up very high and is perceived by many as being foolproof. But the concern arises where jurors and others may look at DNA tests and decide that that evidence is it. That is what it proves therefore that must be 100 percent the truth. Scientists have said and Moana has said— 
The CHAIRPERSON (Lindsay Tisch) 
: The member must use full names not members’ first names. That is the third time so I ask the member just to remember that. 
CARMEL SEPULONI 
: I apologise Mr Chairperson and I apologise to Moana Mackey. Moana Mackey has said that no scientist would say that DNA testing is foolproof. I think that is something that we need to take into consideration when we look at this bill because we do not want to put out the impression that DNA testing is 100-percent fact and that jurors can take this information and believe that it is all the evidence that they need. 
Moana Mackey also raised the fact—and this is something that has come up in the US and in other places—that there are more and more cases of people planting evidence with regard to DNA so getting other people charged with crimes and convicted of crimes when in fact the evidence was planted. That is something we need to be very cautious of as we go down the road of putting out DNA testing as the test. We have to make sure that we do not put it out to be foolproof. 
Before I end I want to talk about the evidence involved and how much the cost will be. That is something that keeps coming up with regard to this bill. It does not seem that the Government has looked into how much it will cost with regard to storing the DNA and collecting the DNA. We have a Government that says that money and resourcing is everything at the moment and that it needs to be very tight on the money that it spends. 
KELVIN DAVIS (Labour) 
: 
 I agree with what my colleague Carmel Sepuloni has outlined in terms of cultural safety in the Criminal Investigations (Bodily Samples) Amendment Bill. It is really important I think that people understand the Maori perspective on the collection of bodily samples. I make it clear that I support legislation that makes it easier for us to identify and apprehend offenders. I think that DNA is the new fingerprint and it will be very useful in apprehending offenders. But I think we need to be mindful of the cultural side of things. 
I will use three examples from my own background to illustrate how Maori feel about bodily samples. Some people may think that I am being a bit silly about it but I tell them that those beliefs are very real to Maori. The first one is a very simple example. At our family homestead in the sleepy hollow of Taumarere there is a plum tree that produces the greatest plums but nobody is allowed to eat them. The reason is that traditionally that is where my grandfather great-grandfather and all my great-great-uncles had their hair cut and the hair would be buried under that plum tree. Hair is treated as tapu as Carmel Sepuloni said. It was buried under that plum tree so nobody was allowed to go near the plum tree or touch the plums. 
Another example is the cutting of fingernails or any other sort of—what is the word? 
Hon Darren Hughes 
: Bodily functions. 
KELVIN DAVIS 
: —intimate articles that belong to a person. It does not have to be only bodily samples; it could be someone’s possessions that are intimate or close to that person. If somebody was able to get hold of them they could do some sort of harm to the person. In Maori terms we would call that a makutu. We are always mindful that when we cut our hair or fingernails we never just dispose of them where people can get hold of them in case they get hold of them and create some harm for us. That is the basis for why Maori are particularly concerned about what happens to bodily samples such as DNA. 
To make it clear I believe that if someone is guilty and he or she has DNA or bodily samples taken from him or her then quite frankly I am quite glad that that is happening and I am not precious about it at all. We have to make sure that New Zealand is a safe place. We need to be able to identify and apprehend offenders. But we need to be cognisant of the cultural aspect of taking body parts or body samples from people—Maori and Pacific Islanders in particular. 
Another example I would like to give occurred earlier this year. About 6 weeks ago a baby passed away and an autopsy was held. The samples taken from the organs were very small—about the size of a fingernail—yet they were not returned in a culturally appropriate way to the family and it caused a lot of angst. The coroner had a heck of a lot of explaining to do. The coroner being Maori had spent a lot of time and effort trying to make sure that the processes that the Coronial Services went through were culturally sensitive. However they were let down at this time and a lot of rebuilding had to be done. 
Those are just small examples of how when we take bodily samples from people we have to treat those samples in a culturally sensitive way. But I express my belief that this bill will be good for New Zealand. It will help to apprehend offenders and identify them and that is good for New Zealand. Labour supports this bill but it is really important that the Maori perspective—the Maori aspect—is taken into account. 
STUART NASH (Labour) 
: 
 I rise to take a call in support of the Criminal Investigations (Bodily Samples) Amendment Bill. Labour supports this bill for a number of reasons but the main reason is that the people who elected us have a reasonable level of expectation around the support we will give to victims. I believe that this bill does that. First and foremost the main expectation of a person going to trial is that the case will be wound up as soon as possible. Any early resolution to a case or anything that helps to achieve an early resolution has to be good for victims’ rights and for society in general. A classic case would be this: we all know the dreadful statistics around the number of women who come forward after they have been sexually violated abused and raped. The number is incredibly low. The trials are incredibly traumatic for a whole lot of reasons. Often what happens is that it appears as though the woman herself is on trial and the perpetrator of the crime gets off the charge or sits there while the woman’s history is denigrated. I think that this bill will help in achieving a speedy resolution to a lot of those trials. But I also hope it will ensure that a lot more women who have been victims of sexual crimes will come forward in the knowledge that DNA samples will help to achieve a speedy resolution to any trial. I hope this will encourage women to come forward. 
Clauses 31 to 46 in Part 2 of the bill as introduced extend the authority to obtain a DNA sample from suspected persons. Primarily these clauses would permit a sample to be taken from a person suspected of committing an imprisonable offence and allow a compulsion order application to be made to the District Court to allow a sample to be taken from a person suspected of committing an imprisonable offence who had refused to consent to the taking of a bodily sample. As we know there are fundamental human rights issues around this. The Human Rights Commission has expressed concerns that the proposed changes may go a little too far. The bill allows the police to take DNA from anyone charged with an imprisonable offence whereas the current law has a much higher threshold—for example for serious offences punishable by more than 7 years in prison. 
The Human Rights Commissioner stated: “The bill infringes the right to freedom from unreasonable search and seizure but also creates the possibility of discrimination on the grounds of race family status and impacts disproportionately on youth.” Perhaps but I would also argue that the rights of the victim and the rights of society in general have to be weighed up against individual rights. I think it is time that people started taking individual responsibility for their actions. If they have done nothing wrong they have nothing whatsoever to fear from this. However if they have committed a crime or if they do have something to fear then they have to take responsibility for that and they will be caught. 
This bill sends a very strong message to the criminal classes of New Zealand that this Parliament will not tolerate the level of crime that we are beginning to see these days. It is simply not acceptable. Labour demands that people start taking individual responsibility for their actions and I think this is what this bill does. The Privacy Commissioner has expressed concerns that the changes proposed jeopardise the value of the existing criminal DNA databank in detecting and preventing crime by undermining public trust in the police and the Government. I would argue quite the opposite. If the people of New Zealand know that the police have these sorts of tools in their tool kit to solve crimes my personal view is that that will increase the confidence in the police’s ability to solve crimes in a quick clear and decisive manner. Again this brings me back to the point that there are a lot of women out there who have been victims of sexual crimes but are too afraid to come forward because of the distress that a trial will put them through. I think this bill will help to send a message that we will not tolerate this at all. 
There is one other issue I am slightly concerned about and my colleague Ms Moana Mackey alluded to this. I have read the regulatory impact statement and I do not see any costing anywhere at all for administering the consequences of this bill the cost of storing the DNA the collecting of the DNA or anything around that. It is my personal view that any regulatory impact statement should have a cost-benefit analysis in it. What I am not saying is that we can put a cost on the price of justice. However I think that provision should be included in this bill. Thank you very much. 
LYNNE PILLAY (Labour) 
: 
 I am happy to stand and take a call on the Criminal Investigations (Bodily Samples) Amendment Bill. In doing so I acknowledge the previous speakers from this side of the Chamber who I believe gave really measured speeches on this bill. In particular I acknowledge my good friend and colleague Moana Mackey who with her background in science has been able to give a little bit more information on the bill. I publicly congratulate Moana Mackey on that contribution. 
Labour members agree with the use of DNA profiling. We accept that it is a tool that will be an advantage in mainstream policing. But in saying that I explain to the Committee that Labour when in Government had already amended legislation to significantly extend DNA testing and its effectiveness. I acknowledge what Carmel Sepuloni said about our concern in terms of the added costs. The added costs under National’s regime come from the proposal that all who are arrested are tested not just those who have been charged. One would ask about this proposal I hope in terms of getting the best bang for the buck. Testing a large number of people who are arrested but not charged means that the tests and all the expense that goes with attaining them under the proposed system would be thrown out. That would result in effectively an added cost or even a waste of money and police resources. 
I also acknowledge that Chris Finlayson the Attorney-General had reported after scrutiny some inconsistencies with the New Zealand Bill of Rights Act. It would have been far better if the Government had supported Charles Chauvel’s amendment which went a long way towards addressing those concerns. It is really unfortunate that that amendment was voted down. I would be very interested to hear from Government members why that happened. I think that supporting his amendment would have gone a long way towards addressing not only Labour’s concerns but also the Attorney-General’s concerns about inconsistency with the New Zealand Bill of Rights Act. That is very disappointing but it is what must be. 
I also note that the Privacy Commissioner expressed concern that the changes could jeopardise the value of the existing criminal DNA data bank in preventing crime by undermining public trust. As I said if there had been some clarity and some certainty around this bill’s complying with the New Zealand Bill of Rights Act putting the mind of the public at ease on those concerns then I believe that the bill would deliver more. It would deliver what was intended rather than the things we have some concerns about. When concerns are present that the bill does not comply with the New Zealand Bill of Rights Act and when the public is concerned about privacy there is not confidence in the system. 
The Justice and Electoral Committee spent considerable time considering the bill. Of course at this stage I would not go past acknowledging the chairperson Chester Borrows who I can see looks flattered by that acknowledgment. It is a select committee that works well. As well as the staff of the Justice and Electoral Committee I also thank the officials because I know there were some robust discussions about the intent of the bill its consequences and perhaps its unintended consequences. I believe that the participation by officials was very valuable and it certainly gave more clarity to our deliberations. Thank you. 
STUART NASH (Labour) 
: 
 As mentioned Labour does agree with this measure. We are not opposed to further DNA testing. But alluding to what Ms Moana Mackey talked about it is unclear whether the legislation will have a significant impact on serious crime compared with the many significant changes the Labour Government made in important areas of the law and order debate. 
National is proposing to test all of those who are arrested not just those who are charged. The reason there is a slight problem with that is that a large number of people are arrested but not many are charged which means that under National’s proposed system many tests may well be thrown out resulting in poor use of money and police resources. I suppose that is why Treasury has stated that a lack of clarity around the problems with the current DNA testing regime along with the anecdotal and empirical evidence to support that is an issue with this bill. 
I would like to talk about two very high-profile cases in the area I come from which is Napier. A woman called Kirsa Jensen was found murdered on a beach in Napier. She was last seen riding her horse. The killer of Kirsa Jensen was never ever found. This was a case of national significance. It was widely profiled. The police believed that they knew who did it but they could never prove it because they did not have the evidence. This case tore apart families and in some cases it tore apart communities. It was a dreadful case and a dastardly crime. I believe that with the sorts of tools we have today the Kirsa Jensen case probably would have been solved. Her family would not have been spared their anguish but at least there would have been some closure. There was no closure for that family whatsoever and the case is still a festering sore in Hawke’s Bay. 
The other case is that of Teresa Cormack. We often hear about stranger danger. The one case in the last 20 years of a young girl being raped and murdered by a stranger was actually that of Teresa Cormack. It was a dreadful case of a young girl I think she was aged only 7 who was snatched on the streets of Napier and raped and buried. Again it was a dastardly crime. It was the sort of crime that does not bear thinking about. I believe that her killer was caught in the end many years later through DNA profiling. 
One of the big benefits of this legislation is that it may well help solve a lot of crimes that have gone unsolved. I can imagine nothing worse for the family of a victim than not knowing what happened or why and certainly not having anyone to answer for the crime perpetrated against a family member a friend or a person in the community. As I said I believe that the Kirsa Jensen case probably would have been solved with the use of DNA profiling and collection. The police believed they knew who the person who did it was but they did not have the evidence. With DNA profiling and DNA collection they probably would have had the evidence to enable them to catch Kirsa Jensen’s killer. Therefore a very very dangerous man would have been taken off our streets taken out of our community and put where he belonged. We know of other dastardly high-profile cases that are unsolved at the moment that could well be solved due to DNA profiling. 
One of my Labour colleagues who spoke very well on this bill Moana Mackey alluded to the fact that this bill will not allow repeat offenders like the “Parnell Panther” to continue offending. He went for months raping woman after woman creating fear in communities and fear amongst the female population. That insidious creep went around communities committing the most heinous of crimes. With this sort of DNA profiling that sort of monster may well be caught a lot earlier. The technology did not exist back then and therefore he was able to go on and on but he was finally caught. 
This bill provides a very valuable tool in the police tool box that I think will make a big difference. It not only sends a very important message to the criminal element that this offending will not be tolerated but also sends a very important message to the people of New Zealand that we are prepared to go out there and protect their rights and put in place laws that will ensure that crimes are solved as soon as they possibly can be. As mentioned there are the rights of the individual but I firmly believe that the rights of the community and the rights of the country must come first. We must get these monsters off the street and if this bill helps then that is fantastic. 
The question was put that the following amendment in the name of Charles Chauvel to Part 2 be agreed to: 
to insert the following clause: 
48Independent review of changes 
The following new section is inserted after section 84: 
“85Review of operation of certain provisions of this Act 
“(1)This section applies to the provisions of this Act inserted by the Criminal Investigations (Bodily Samples) Amendment Act 2009 ( 
the provisions 
). 
“(2)The House of Representatives must as soon as practicable after 1 December 2014 refer to a select committee for consideration the following matters: 
“(a)the operation of the provisions since the date of the commencement of this section: 
“(b)whether the provisions should be retained or repealed: 
“(c)if they should be retained whether any further statutory amendments are necessary or desirable. 
“(3)The select committee to which these matters are referred must report its view on them to the House of Representatives before 1 December 2015.” 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 57 
New Zealand Labour 43; Green Party 8; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
A party vote was called for on the question  
That Part 2 be agreed to. 
Ayes 108 
New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 13 
Green Party 8; Maori Party 5. 
Part 2 agreed to. 
Schedule 
A party vote was called for on the question  
That the schedule be agreed to. 
Ayes 108 
New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 13 
Green Party 8; Maori Party 5. 
Schedule agreed to. 
Clauses 1 to 3 
Hon NATHAN GUY (Associate Minister of Justice) 
: 
 Although it may not be apparent from its title the Criminal Investigations (Bodily Samples) Amendment Bill expands the ability of police to collect and use DNA samples to help solve and prevent more crime which is a big focus of the National Government. This is because in many cases DNA technology provides more possibilities to obtain evidence from crime scenes than traditional fingerprint searches. 
The bill will be brought into effect in two phases. The first phase will allow a DNA sample to be taken when the police intend to charge a person with a relevant offence as defined in the Criminal Investigations (Bodily Samples) Act 1995. The relevant offences will be expanded to include minor offences that have a link to more serious offending and offences where DNA is often left at the crime scene. This phase will be brought into effect in July 2010 to allow time for the police to finalise operational guidelines and train their officers and also to assist the Institute of Environmental Science and Research to prepare to manage their increased workload. 
In the second phase the power to take a DNA sample will be extended for adults to all imprisonable offences. This will be brought into effect by Order in Council following a broad review of the operation of the Act and the new power. It is my intention that full implementation will be achieved by the end of 2011. 
MOANA MACKEY (Labour) 
: 
 I am happy to speak on the title and commencement clauses of the Criminal Investigations (Bodily Samples) Amendment Bill. To respond to the comments of the Minister in the chair Nathan Guy I say that I am very disappointed that he did not confirm that the funding that is needed by the Institute of Environmental Science and Research to ensure that the testing will be carried out properly will be there. I acknowledge the comments that were made by the chair of the Justice and Electoral Committee Chester Borrows in the debate on Part 2 but the most important part of the question that I put to the Minister in the chair—the part that he has not answered yet and that I hope he will—is whether he will guarantee the money that is needed by the Police and by the Institute of Environmental Science and Research to ensure that this process— 
Hon Nathan Guy 
: It’s all in here. 
MOANA MACKEY 
: No will he guarantee it? He should stand up and tell me that the money that the institute needs will be there. He should not tell me that he has a bit of paper that gives the figures that the institute needs; he should tell me that the Government will give it that money and that there is no question that it will get the money that it needs to ensure that there is no risk of a miscarriage of justice. That is what we are talking about here. 
I was a little bit concerned to hear the chair of the committee say that the Institute of Environmental Science and Research already does chain of custody and it does it very well. He is right but I have worked in a laboratory and I can tell members that when one suddenly gets thousands of extra samples and there is not the funding for more staff more space a computer system to put them on or whatever might be needed there is a real risk. I am not saying this to be smart to be tricky or to try to create problems; I am genuinely asking. The officials may well have come to the committee and said that everything is hunky-dory but they know what they would get if they crossed the Government at this stage. I know people who work at the Institute of Environmental Science and Research who do this job and they are concerned. They are worried particularly with the financial pressures on the Crown research institutes at the moment. They have to look overseas for work to be able to pay a 9 percent dividend to the Government which was not required of them under the last Government because that money was able to be reinvested. A 9 percent return? Yes. A dividend back to the Government to pay for things like private schools and national standards? No. I want the Minister in the chair to tell me that the Institute of Environmental Science and Research will have the money that it needs in order to ensure that we do not run any risk of a miscarriage of justice. 
I also want to go back to the Minister’s discussion of the power of this technology. He is absolutely right: this is incredibly powerful technology. It is being improved all the time. I cannot remember who said this—I think it might have been Spider-Man although he might have been quoting someone—but with great power comes great responsibility. The responsibility on this Committee is to get it right because this is powerful technology. I feel like I sound a bit like a DNA denier which I am not. I am a realist. I want this Committee to accept that there is a danger when it comes to juries around the fallibility of DNA. DNA like any technology is not infallible. There could be human error or deliberate planting. It is not infallible but it is an incredibly powerful tool. People who go before a jury with DNA evidence against them are not in a very good position. 
Stuart Nash 
: Toast! 
MOANA MACKEY 
: Yes. The fact is that we need to be aware of this fallibility if we are to increase our use of this technology and if we are not sure that the funding will be there to ensure that we have all the proper safeguards for this very powerful technology. We need to make sure that the general public understand that as I said in my second reading speech on this bill unlike taking an entire fingerprint DNA is tested at only a limited number of loci. We do not test the entire DNA profile of someone. We do not get someone’s entire genetic profile. Although DNA is one of the best technologies that we have that fact needs to be understood. There needs to be education of the public around that so when people serve on juries they understand how the technology works and they do not think that just because someone has DNA evidence against them it means 100 percent absolutely and unquestionably that it has to be that person. That needs to be understood. 
I come back to this matter again and I say to the Minister in the chair—he waved a bit of paper at me and I am not sure what is on it—that he should get up and tell us that the money will be there. He should tell the people who work for the Police and the Institute of Environmental Science and Research that they will be properly funded to do this testing. The Minister might think this is funny but we run a real risk of a miscarriage of justice if the money is not guaranteed to the organisations that are to be collecting testing and storing the samples. When those organisations are put under significant financial pressure and workload pressure and they are not given adequate resources to look after and protect this incredibly powerful technology we really run the risk of unintended consequences. 
Labour supports this bill but we just want to hear from the Minister in the chair—or from the Minister of Research Science and Technology who is responsible for Crown research institutes and who is sitting across the Chamber and has not taken a call yet—that the money will be there for the Institute of Environmental Science and Research. 
Hon Dr Wayne Mapp 
: Contract. It’s contract-based. 
The CHAIRPERSON (Lindsay Tisch) 
: The question is that clause 1 stand part. I call Moana Mackey. 
MOANA MACKEY 
: The Minister just yelled something out to me and I feel I need to respond. 
Chris Tremain 
: I raise a point of order Mr Chairperson. The question had already been put and I ask— 
The CHAIRPERSON (Lindsay Tisch) 
: I am the sole determiner of that. I have called Moana Mackey. 
MOANA MACKEY 
: I thank the senior Government whip for trying to shut me down on this very important issue which is clearly causing the Government embarrassment. 
Hon Member 
: It was a serious point of order. 
MOANA MACKEY 
: That is right; that is true. 
The Minister in charge of Crown research institutes has just washed his hands of the institute. This man is meant to be in charge of the organisation that will be given a huge increase in workload. 
Simon Bridges 
: DNA expert? Body language reader? 
MOANA MACKEY 
: What? 
Simon Bridges 
: Well how did he wipe his hands of it? What did he do to wipe his hands of it? 
MOANA MACKEY 
: Oh for God’s sake! 
Simon Bridges 
: No you’re saying it. Tell me what he did. 
MOANA MACKEY 
: If Mr Bridges just listened instead of sitting up there chipping away constantly and never actually listening to anything other than his own voice he might hear. The Minister of Research Science and Technology Wayne Mapp interjected across the Chamber. 
Simon Bridges 
: What did he say? 
MOANA MACKEY 
: He said that it will just be on contract so it does not matter. I would like the Minister to take a call because the people who work at the Institute of Environmental Science and Research are concerned about what will be a long-term increase in their workload. I ask whether the Minister will guarantee that within the contract for the institute for this increase in workload it will get not only the funding that the select committee was told it would need but also funding that goes beyond the testing of the samples to the chain of custody—the administration. I know that the Government does not like talking about administration because that is bureaucrats; it is not front-line staff. But it cannot work if the administration— 
Hon Dr Wayne Mapp 
: Obviously you haven’t looked at their contracts. 
MOANA MACKEY 
: Well I ask why the Minister Dr Wayne Mapp does not get up and take a call. Rather than just sitting there like a dried arrangement I ask why he does not get up take a call and speak on his portfolio area of responsibility. I know that he did not want the job. I know that he does not like it. He keeps going out to people in the Crown research institute community and telling them that he never wanted the job which does not exactly instil confidence in their new Minister. I know that he was trying to lower expectations considerably and I say to the Minister that it is a job well done but he might want to get up in the Chamber and answer this question. I say to the Minister that I am not trying to be difficult and I am not trying to be argumentative or problematic. I have worked for this Crown research institute and I have worked in other similar areas. I know how often the chain of custody does not get picked up in the administration side. 
Chris Tremain 
: This debate is on the title and commencement. 
MOANA MACKEY 
: It should be called the “Criminal Investigations (Bodily Samples) Pay Them Properly Bill”. Does that make the Government whip happy? The chair of the select committee got up and said that the Institute of Environmental Science and Research already had a great chain of custody process. Well that said to me that the institute would not get any more money for doing chain of custody. I am sure that the Minister will agree because he has been around and he has looked that that is one of the most important parts. There is no integrity in the entire process if one is not absolutely 100 percent sure that from the moment that sample is taken the process is sound. It is transported it arrives at the Institute of Environmental Science and Research and it is logged in. It is stored because it will not be tested yet and then it goes through the laboratory process. It is then analysed—a person does data analysis on it. Those results are then logged back against the person. Finally the sample whether it is a DNA data sample or a DNA physical sample is stored. I ask how all of that process will be properly funded—it is not expected to come out of the baseline funding of Institute of Environmental Science and Research—given that the Minister now expects the institute to pay a dividend to the Government to pay for private school funding increases rather than that money going back into science. The Crown research institutes are under financial pressure; I am sure that the Minister would acknowledge that. I do not think it is too much to ask for the Minister in charge of this portfolio area—who has sat there the entire time I have been speaking and has been chipping away but he will not get up and take a call on his portfolio area—to say to the Institute of Environmental Science and Research and this Committee that the funding will be there and that the Government will make sure that the contract includes all this extra area. I do not know why that is such a difficult thing for him to do. If he does not want to be the Minister for this portfolio then he should give it to someone who does want to be the Minister. That is all I would say about it. 
Hon Darren Hughes 
: He only got three out of 10 in the  
Dominion Post 
. 
MOANA MACKEY 
: Three out of 10. If the Minister does not want to do it then he should not do it. He should step aside and give the job to someone like Dr Paul Hutchison who understands how the Crown research institute sector works who works really hard with those people and who knows the importance of funding the administration of sample collection and sample chain of custody care. 
Hon Dr Wayne Mapp 
: Why don’t you look at the latest results for all of them? 
MOANA MACKEY 
: Well the Minister should get up and take a call. I am happy to sit down now so that the Minister of Research Science and Technology who is responsible for Crown research institutes can stand up and give the Committee the guarantee that it needs that this bill will be properly funded so that we do not run the risk of any kinds of miscarriages of justice. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I am pleased to be able to take a call on this section of the Criminal Investigations (Bodily Samples) Amendment Bill. As my colleague Moana Mackey said it could have a new name. Its new name could be the “Criminal Investigations (Are You Going to Pay Them Properly) Bodily Samples Amendment Bill”. But I think there are some very serious issues apart from the payment. I will come back to that aspect because it is part of the reason why I have taken this call. The Government needs to take account of how much it will cost. I think that an assumption is being made here that once a sample has been taken it somehow identifies itself and it does not have to go for analysis to a Crown research institute that is already under pressure. That analysis will provide the basis for evidence but it is not evidence in itself of anything other than the presence of somebody who is more likely to be that person than anyone else. 
Unfortunately—and I think my colleague has raised an extremely good point here—the police are up against it as far as this issue goes. Any police officer will tell us today that the programmes they hate the most on TV are  
CSI 
  
Cold Case 
 and anything that deals with DNA in any way shape or form because there is almost an assumption that if the police do not turn up with a DNA sample from a crime scene then somehow they do not have sufficient evidence to convict somebody who may be guilty of an offence. I think we do a great disservice to the criminal justice system when we put all of our eggs in one basket and when we try to rely on a single technology and assume that because facts fall in a particular way that then results in certain conclusions being able to be drawn. 
But that is not my only concern around this legislation. The cost is a significant part of it. DNA does not analyse itself. The sample does not analyse itself. The process needs to be properly resourced and consideration has to be given to the effects of having such a large volume of material available. I sat in a police station once Christchurch Central Police Station where they— 
Hon Trevor Mallard 
: I’ve done that too. 
Hon LIANNE DALZIEL 
: Well I was not there for the same reason as that member! I was there as a visiting member of Parliament not as a person under an inquiry. So there we go. The police let me do a database search of a fingerprint which was quite an exciting thing to do but they had already arranged for it to produce a match so that I could see how the match came up on the computer system. But otherwise even the process of matching takes hours. It generates hours of computer time to find the exact match or the closest possible match in terms of— 
Hon Trevor Mallard 
: It doesn’t do that on  
CSI 
. 
Hon LIANNE DALZIEL 
: Well the thing about  
CSI 
 is that young women are led to believe that they can go on to a crime scene wearing lipstick fingernail polish and high-heeled shoes so there we go. A lot of the things about those programmes are not really real I say to Mr Mallard. I am sorry to disappoint him. But the point is that an incredible amount of pressure is put on the whole string of the process that has to be put in place in order to bring that evidence in front of a court at some future stage. It is not just a matter of taking a swab and then the swab looks after itself. A lot of work has to be done after that. 
The second point I would make is that Treasury says that this legislation does not stack up in terms of its regulatory impact statement. I was involved in the original decision-making when I was on the select committee that looked at the original extension of DNA testing in this particular framework. This bill takes it a step further from the legislation that our Government introduced. We highlighted at the time that there were considerable links between certain types of crime and other types of crime. For example there was a very strong association between previous convictions for burglary and a rape conviction. The reason that there was a strong correlation was the opportunistic element involved with finding somebody at home when a burglary either was in process or was perpetrated when somebody was at home unexpectedly. 
That is certainly a correlation between types of offences where one would think that DNA would be a useful source of information and a useful correlation could be made. Gathering DNA from people convicted of burglary offences had a very distinct purpose when one looked at trying to find people associated with rapes later on where the person was not caught immediately. I think that in those circumstances the regulatory impact analysis the cost-benefit analysis stacked up. It made good sense to target those particular offences because of that strong correlation. 
Here all of that whole cost-benefit analysis has just gone out of the window. There is no cost-benefit analysis to substantiate the broad sweep as it were in terms of the collection of DNA in these circumstances for those charged with imprisonable offences without any judicial oversight whatsoever. 
The second point is that even the Human Rights Commission has said that this has gone too far and has the real risk that allowing this to be used in this way will undermine public confidence in the system. The Privacy Commissioner also expressed concern that the value of the existing criminal DNA data bank would undermine public trust in the police and the Government. These things are of concern. But apparently we are not concerned that Treasury thinks there is a lack of clarity around the nature of the problems with the current DNA testing regime that the Privacy Commissioner has expressed real concerns about undermining public trust in the police that the Human Rights Commissioner is concerned that the proposed changes go too far and that even the Attorney-General has tabled a report showing the inconsistency with the New Zealand Bill of Rights Act. 
Charles Chauvel 
: That well-known civil libertarian. 
Hon LIANNE DALZIEL 
: That well-known civil libertarian as has been highlighted! The point I am making is that given all of those things and the fact that we have not taken the opportunity for this bill to be remedied by the very good amendment that my colleague put up first of all to make the judicial oversight— 
Charles Chauvel 
: What’s his name? 
Hon LIANNE DALZIEL 
: My good friend the soon-to-be Hon Charles Chauvel. He put up two amendments. One amendment was to address the question of judicial oversight. The second one which I think was also important addressed the question of a review after the legislation had been in place. It is all very well for the Minister to stand up in the debate on this particular aspect of the bill and to say that the bill will be given a “once over lightly” before it is implemented. Actually he will just implement the bill and the “once over lightly” will not be the detailed analysis that I think Treasury the Privacy Commissioner the Human Rights Commissioner and I would assume the Attorney-General would expect. With those defects sitting around this issue there is indeed a sense of disquiet on this side of the Chamber about where this legislation has taken us. It would be helpful if the Minister would simply stand and provide my colleague Moana Mackey with the information she has requested which is very simply that if the extent of the pressure that will be put on the Institute of Environmental Science and Research is not remedied in advance by a commitment to the funding that is required to meet that pressure we will in fact create a greater problem than we have today with this legislation instead of going anywhere near to resolving the issue. 
As Treasury has said the Government has not even provided clarity around the nature of the problems with the current DNA testing regime. There is a little bit of a sense of smoke and mirrors here and a sense that this bill might be showing that the Government is doing something but may not be achieving that without the kind of commitment that we have been seeking here tonight. 
KELVIN DAVIS (Labour) 
: 
 I will take just a short call to talk about the title of the Criminal Investigations (Bodily Samples) Amendment Bill. I will talk a little bit more on cultural sensitivity and in particular the sensitivities that the police will need to demonstrate when they apprehend suspects as I guess we could call them. The question I have for the Minister is whether the police will receive training in cultural awareness and training on how to deal with Maori offenders in particular. I can think of a number of people up north unfortunately some of whom are my relations friends and people I have played rugby with who have had cause to be apprehended. If the police were not careful in the way they dealt with them in requesting a bodily sample I could understand that there would be quite a bit of concern. The reaction of the person who was being apprehended might not be the best. 
I think it is really important that the police have training on how to deal with Maori in this situation. I recall watching on television one of those police programmes in which the TV cameras tag along with a police unit at night. I recall a situation where a young Pakeha policeman dealt with a Maori offender and just the language that this policeman used when talking to this person created a lot of confusion. In fact even for me watching the programme there was a lot of confusion. The way that the policeman dealt with this person inflamed the situation and in the end this person was arrested for quite a minor offence. I would hate to see the situation where the police were trying to get a bodily sample from a person and were not particularly sensitive in the way they went about it and that inflamed the situation. It could mean that the person was charged with another offence. 
I see in the bill that the police are to provide suspects with some sort of written description of what is being requested. They are also meant to ask for bodily samples in plain language that suspects can understand so that they know what is going on. As a teacher I have had experience of trying to talk to people and I know that even though people might nod and say “Yes” that does not necessarily mean that they understand what is going on. It is really important that the police are able to get the information across in a sensitive manner so that they do not inflame the situation in terms of taking a bodily sample in the form of a mouth swab or whatever. It is important that the situation is not made worse and that everybody’s needs are respected bearing in mind as I said earlier that in the case of those people who are guilty of an offence I have no problems whatsoever with bodily samples being taken from them. 
It is important that we use DNA testing as my colleague Stuart Nash said earlier where people have been traumatised sexually abused or assaulted. Mr Nash brought up a situation in Napier where if DNA testing had been available at the time the murder of a girl could have been solved. 
It is important that there is cultural training for the police when they collect these samples. I know that means more funding and already my colleague Moana Mackey has asked the Minister of Research Science and Technology about more funding. The more samples that are brought in the more funding will be necessary to support the testing of samples. Another question that I have for the Minister is whether the police will be funded so that they have some training in cultural sensitivity. 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 108 
New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 13 
Green Party 8; Maori Party 5. 
Clause 1 agreed to. 
A party vote was called for on the question  
That clause 2 be agreed to. 
Ayes 108 
New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 13 
Green Party 8; Maori Party 5. 
Clause 2 agreed to. 
A party vote was called for on the question  
That clause 3 be agreed to. 
Ayes 108 
New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 13 
Green Party 8; Maori Party 5. 
Clause 3 agreed to. 
House resumed. 
Bill reported without amendment. 
The CHAIRPERSON (Lindsay Tisch) 
: I move  
That the report be adopted. 
A party vote was called for on the question  
That the report be adopted. 
Ayes 108 
New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 13 
Green Party 8; Maori Party 5. 
Report adopted. 
Third Reading 
Hon NATHAN GUY (Associate Minister of Justice) 
on behalf of the  
Minister of Justice 
: I move  
That the Criminal Investigations (Bodily Samples) Amendment Bill be now read a third time 
. This bill amends the Criminal Investigations (Bodily Samples) Act 1995 to expand police powers to collect DNA profiles. It recognises the value of DNA technology and empowers police to use the modern-day fingerprint to solve more crime. The bill implements the Government’s post-election action plan to require DNA testing for every person arrested for an imprisonable offence. I am proud to see another of National’s 100-day commitments being passed into law hopefully today. 
New Zealand’s pioneering DNA database which is only the second created in the world achieved its milestone 100000th entry last month. The foresight of police in carefully storing genetic information even before the technology was available to fully utilise it has paid off. Serious cases of rape abduction sexual assault home invasion arson and burglary—some of which have been cold for decades—have been solved only as a result of the availability of stored DNA material. However over 8000 of those 100000 profiles stored on the database relate to unsolved cases. 
In order to take full advantage of the DNA profile database as an effective weapon against crime and to help clear the backlog of unsolved cases it is important to increase the database’s size by adding more identified DNA profiles. This bill will facilitate the growth of the database and the resolution of unsolved crime by allowing police to collect DNA from anyone whom they intend to charge with an imprisonable offence without the need to obtain their consent or prior judicial approval. The bill will also expand the range of offences for which it is possible to collect DNA and remove the requirement that the police must wait for a conviction before matching a charged person’s DNA against samples taken from unsolved crime scenes. 
This bill has been enhanced by the contributions made by the Justice and Electoral Committee and I acknowledge the good work of that committee chaired by Chester Borrows in respect of the provisions relating to young people in particular. As a result of the committee’s input the range of offences for which it is possible to collect DNA from a young person will not be expanded to the same extent as for adults and greater consistency has been achieved with the Children Young Persons and Their Families Act 1989. 
Members will be aware that in the select committee’s report to the House the Attorney-General as well as various submitters on the bill raised a concern under section 7 of the New Zealand Bill of Rights Act about the absence of prior judicial approval before a DNA sample is taken. Prior judicial approval was not included in the bill for a number of reasons. For example there are a number of measures in the bill to minimise its intrusion into individuals’ rights. Taking a DNA sample is a minimal physical intrusion and prior judicial approval does not add huge benefits to the process. Operational guidelines have been developed to avoid the arbitrary application of the power and requiring prior judicial approval for the estimated 16000 samples in the first year would come at a significant cost to the courts in processing that many applications. 
We recognise that immediate full implementation of these changes although optimal is not completely practical. Police will need time to develop guidelines and train staff. Phased implementation will also assist the Institute of Environmental Science and Research to absorb the increased workload. Accordingly the bill will be introduced in two stages. Initially police will be allowed to collect DNA from anyone whom they intend to charge with serious offences or offences that indicate a propensity for future serious offending such as peeping and peering. It is my intention that full implementation will be achieved in 2011. This Government has made public safety its top priority in the law and order portfolio. This bill will be a crucial tool in the fight against violent crime and I commend it to the House. 
CHARLES CHAUVEL (Labour) 
: 
 This Criminal Investigations (Bodily Samples) Amendment Bill confers a novel power. The police may collect without prior judicial approval a bodily sample from any person whom they intend to charge with the offences specified in the legislation. As we have just heard from the Associate Minister of Justice this measure is very likely to be expanded at a point not too far in the future to allow for the collection of such a sample from any person whom the police intend to charge with an imprisonable offence. 
At all times the House has known that in legislating in this way we are breaching our own human rights standard the New Zealand Bill of Rights Act 1990. We have an Attorney-General’s report which is a certificate that tells us this. The basis for the Attorney General’s certificate—it is not just a comment as the Minister put it but an important safeguard in our legislative process—was this: on the basis of US European Union and Canadian authority a failure to include judicial oversight of the power of literal physical compulsion is a breach of the human rights standards to which we subscribe. We have known that that is the case at all stages of this bill. We could have fixed the problem very easily by simply requiring that the police obtain a warrant before they exercise the powers conferred in the bill as they currently do with regard to the power to enter premises. 
The reason that the Attorney-General could so confidently issue his certificate under the New Zealand Bill of Rights Act and the reason that the House knows that it is legislating against our humans rights standard is exemplified by a case from the European Court of Human Rights that is less than a year old:  
S and Marper v The United Kingdom 
. The judgment was given in December 2008. One of the facts of that case was that legislation very similar to the bill we are considering now was passed by the Westminster Parliament. Under that legislation the South Yorkshire Police took the DNA samples and fingerprints of two men. Neither of the men had been convicted but because they had been arrested for a recordable offence in England Wales or Northern Ireland their DNA profiles were kept on a database regardless of whether they were charged or convicted. This practice by the way meant that at the time of the European Court of Human Rights judgment the details of around 4.5 million people were held in England Wales and Northern Ireland one in five of whom have no criminal record whatsoever. 
The European Court of Human Rights comprising 17 senior judges from across Europe found that the police’s actions violated article 8 of the European Convention on Human Rights which deals with the right to respect for private and family life. The court stated that it was “struck by the blanket and indiscriminate nature of the power of the retention” in England and Wales. It also ruled that the retention of the men’s DNA “fails to strike a fair balance between the competing public and private interests” and that the Government of the United Kingdom “has overstepped any acceptable margin of appreciation in this regard.” Finally the court ruled that the retention constituted a “disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.” 
Decisions similar to this one exist and they come from the Supreme Court of Canada and the United States Supreme Court. That is because the European Convention on Human Rights comes from the same juridical stable as the initial amendments to the United States Constitution that became the US Bill of Rights the International Covenant on Civil and Political Rights the Canadian Charter of Rights and Freedoms and most recently for our purposes the New Zealand Bill of Rights Act 1990. 
What is the practical effect of this House’s refusal to be mindful of the Attorney-General’s section 7 certificate and the amendment to Part 1 in my name that would have made this legislation compliant with the New Zealand Bill of Rights Act? New Zealand has ratified the International Covenant on Civil and Political Rights and its optional protocols. One of those optional protocols entitles people in New Zealand to bring a complaint to the United Nations Human Rights Committee in New York as to a breach of their rights under the International Covenant on Civil and Political Rights. 
Inevitably as a result of our passing this legislation in its current form the police will arrest or will intend to arrest an innocent person. Under the provisions of this bill that person’s bodily sample will be retained even where an arrest does not proceed or if an arrest does proceed where the charges are dropped or a conviction does not result from those charges. That person will ask as someone who is innocent that the State not retain his or her bodily sample. The State will refuse. 
The person will have no further domestic remedies to exhaust except maybe to make an application for a judicial review of the decision which is unlikely to be granted. If that remedy is not granted then that person will complain under the optional protocol to the International Covenant on Civil and Political Rights. On the overwhelming case law in the face of which we are legislating the person will succeed in that complaint. When that happens New Zealand will be in breach of international law and this issue will be fairly and squarely back in the lap of this Parliament. 
How the Government thinks that it is responsible fiscally or otherwise to legislate in this fashion without the simple insertion of the judicial safeguard that would make this legislation compliant with our entire human rights tradition is beyond me. It leads one to the conclusion that the failure to so legislate means that this bill is yet another example of window dressing on law and order by this Government. How ACT the so-called liberal party could vote against the amendment that would have added the requirement of judicial oversight and also a real review of the legislation is also beyond me. 
I will mention my second amendment for a moment. It has not succeeded as far as this third reading of the legislation. That amendment would have recognised that we are conferring a novel and new power upon the State with this bill. It is an intrusive power. It is a power it is true—as other speakers have said—that could have a potentially great benefit in the struggle for law and order but it is also capable of being greatly abused if we are not careful about how it is exercised. It is all the more capable of being greatly abused because of the failure to include a judicial oversight provision. 
In my amendment was a proposal that after 5 years of the legislation’s operation there should be a review. The legislation would have been reviewed by a select committee comprised of members of Parliament so it would have been a political review but at least the select committee would have been able to hear evidence in public. The select committee would have been able to call for experts to give it a view as to the operation of the legislation after 5 years. That is a period of time after which we would have had the initial stage of operation as we have heard from the Minister of Justice. 
We have also heard of the Minister’s proposed extension which judging from his speech is virtually automatic anyway notwithstanding the outcome of the administrative review that he proposes. That administrative review will be conducted by the Ministry of Justice. Its major end will be to satisfy the Minister that it is timely to proceed to the second stage of this legislation—that is that the law should provide for the taking of bodily samples in respect of any imprisonable offence. As we heard from the Minister that move is virtually a fait accompli. The review will occur by August 2011 and it is likely to occur in the heat of an election campaign. This country does not do well in the sober consideration of law and order issues at that sort of time. It is just the wrong time to be reviewing whether we have proceeded in the right fashion by legislating in this way. 
This bill is much worse than it could be or should be. As I tried to show in my speech it will inevitably result in uncertainty and litigation against New Zealand at an international level so it will not be our final consideration of it on this occasion tonight. With the simple addition of some judicial oversight we could have had finality. Thanks to the Government we have none. 
CHESTER BORROWS (National—Whanganui) 
: 
 I am pleased to stand and take a call in the third reading of the Criminal Investigations (Bodily Samples) Amendment Bill. As I have said before this bill more than any other legislation that has been before the House for a long time or will be before it in the future will prevent more people from being victimised. 
Apart from the scenario outlined by the previous speaker Charles Chauvel what will happen hundreds if not thousands of times over and over again is that a different scenario will be played out. I do not undermine what he said but I think we need to take cognisance of the balance here. For example a young man seen hanging around premises late at night looking in some windows will be caught unlawfully in an enclosed yard and will be arrested for peeping and peering. He will be taken back to the police station his fingerprints will be taken his photograph will be taken he will be handed a cotton bud Q-tip and told to put it in his mouth he will take a cheek swab and it will be put into a plastic bag. At some stage after that he will probably plead guilty to the offences outlined because to him they are nothing. At that stage he does not realise the criminal he will go on to become. Later on through a number of things that will probably impact on his life he will become a sex offender and will go on to commit further crimes against the person that are far more horrific than he or those who were around him at the time—probably the constable who first arrested him for peeping and peering—ever contemplated. 
After the offender commits what was likely to be his first offence and leaves a bodily sample at the scene whether it be blood semen spittle hair a piece of skin on a broken window or whatever he will have the DNA compared with whatever sample he left behind at the scene and there will be a match. He will be identified very very early in the piece as a sex offender and a conviction will probably emanate from that. Although we cannot say with 100 percent certainty that any DNA sample belongs to any particular person the good scientists from the Institute of Environmental Science and Research can come before the court and say: “The likelihood of another person being the provider of this DNA sample is 29 million to one.” The jury in the knowledge that there are only about 4.2 million of us living in this country quite rightly will convict.  
Although the points the previous speaker laid out before the House could well happen in the future if we look on the balance of public interest in this matter we have to concede that the vast weight of public interest is following the line that I have just outlined. That is why this legislation is so good. Yes there are costs involved. Bearing in mind the thousands and thousands of people who are arrested every year going to a judge to obtain a warrant to retain a DNA sample even before the conviction is entered would incur a pointless cost. For instance bearing in mind that the reason why a judicial oversight was required in the initial stages of recovering DNA was that it involved taking a blood sample this is merely a cheek swab that the offender takes himself or herself. That is a very very important point to remember because the science has moved on the intrusive nature of recovering DNA is far less than it ever was before and the law needs to reflect that fact. It has been said many times in the course of this debate that DNA is the modern fingerprint and yes it is. If scientists were mad enough to hare off down the track and try to identify a number of other profiles within any DNA sample then they could find out all sorts of things. But I am sure that no one in this House really subscribes to the Big Brother conspiracy theory.  
As outlined by previous speakers costs have been covered in the Committee stage. We know what those costs are and what we are setting ourselves up for. We also know that the call for more explicit guarantees comes from the side of the House that only last year gave us a Budget that promised hundreds of millions of dollars in spending entitlements and provisions that were never there to spend. Those members demand that level of accountancy from the current National Government and it has explored and costed this very worthwhile election promise. We are very pleased to see that at the end of this third reading it will come into form. We look forward to not seeing the offenders of so many thousands and thousands of victims appearing before the court and not seeing those young men and women enduring the pain of being the victims of such offenders. 
CARMEL SEPULONI (Labour) 
: 
 I want to address something that the previous speaker Mr Borrows spoke about. He talked about a scenario where a young boy is caught peeping and peering through a window he is taken to the police station and gives a swab. Mr Borrows said that further down the line that boy would go on to commit a sexual offence and that at that point the police would have his DNA on file. What this National Government has failed to do and I think it is clearly outlined by what Mr Borrows said is to look at the interventions so that the young boy does not get to the point where he commits a sexual offence. I think that is one of the major flaws of the National Government. The problem for the victim is that yes the DNA sample may be on file and yes the police may be able to catch the perpetrator but the problem for the victim is that the crime has already been committed and the National Government would have done nothing to stop the crime from being committed. That is the issue I think. 
One of the major concerns we have with a lot of the law and order and justice legislation that is coming through from the National Government and that we have seen go through the select committee process is that it is all “ambulance at the bottom of the cliff” stuff and this bill is no exception. Members on this side of the House have said that we agree with DNA testing. The previous Labour Government undertook measures to ensure that New Zealand was keeping up with the technology and that we were doing all that we could with regard to DNA testing. The issue is not the DNA testing necessarily but the extent to which the National Government is going in that regard. It is also the fact that the sole focus is on the ambulance at the bottom of the cliff and not on the stuff in the middle or on the stuff at the beginning to stop the crimes from being committed in the first place. The example from the previous speaker Mr Chester Borrows was a good example of one of the reservations that this side of the House has about the legislation that is going through. 
Before discussing the contents of the bill it is important for me to put this into context again. I said earlier that Labour is not opposed to DNA testing. We have some reservations around it but I point out that the previous Labour Government took legislation as far as it could in previous years. I want to go back and discuss some of the things that Labour has done previously so that people understand that this National Government is not starting from scratch with regard to legislation around DNA. There was a solid foundation to start from. 
In 2003 the previous Labour Government passed legislation to amend the Criminal Investigations (Bodily Samples) Act 1995 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 the circumstances where a crime scene sample is matched with a known offender’s DNA profile held on the police data bank. 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 as I say 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 to conspire to commit such a crime. 
Under that 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 swabs or mouth swabs which are cheaper and less invasive and just as accurate as blood samples can now be given as an alternative. 
Another significant part of the Criminal Investigations (Bodily Samples) Amendment Act 2003 passed by Labour 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 police data bank was intended to help the police solve some historic cases. Prior to those amendments the legislation gave police the authorisation to seek a compulsion order only to obtain DNA samples for the police database from a person already convicted of burglary. That led to the ridiculous situation that when police found DNA material at the burglary scene and matched it to a profile on the data bank they were prohibited from using that match in criminal proceedings against the suspect. 
The problem with DNA testing which must be taken into consideration by both sides of the House is that it is not foolproof. Our colleague Moana Mackey has raised this point has discussed it and has spoken expertly on it because she does know this stuff. It is not foolproof. My colleague Moana Mackey described the scientific aura that exists around DNA that it is perceived as somehow foolproof and incontrovertible. Moana Mackey highlighted how jurors often hold that perception. The reality is that not one single DNA scientist would say that it is 100 percent certain. But the problem is the technology has such a powerful reputation that the possibility of miscarriages of justice is introduced. Labour is supporting this bill but the fact that DNA testing is not foolproof needs to be absolutely understood if this bill is not to create problems that could be avoided. 
Another concern that has not been raised enough and a concern that I brought up and that Kelvin Davis went on to discuss in more detail is the cultural repercussions of this bill. No one would disagree that a possible consequence for anyone who has committed a crime and been found guilty is that his or her DNA is taken it is put on file and in future it can be looked up. If that person reoffends then at least he or she can be tracked to that crime. The issue is if the person has not been found guilty of committing a crime and if the person has not even been charged that information is collected. Given the cultural tapu around some of those issues and the information that the DNA holds we need to be a little bit sensitive about this. The things that Kelvin Davis and I both talked about earlier with regard to the way in which many Pacific groups and Maori collect their hair—and even that is tapu because they do not leave it lying around for someone else to pick up—can be deemed indicative of the fact that they understood even prior to the science that we have now that it contained information and that the information was sacred. They understood that that knowledge perhaps existed before we had the science that came along. So that is something we need to consider especially given the fact that when the sample is taken those people have not been found guilty of any particular crime. I ask where that sample will be kept. 
Many of my colleagues have raised the fact that not enough work has been done on the costings of storing the DNA. As the data banks may not have the capacity to hold all of the information that it is expected they will hold there will be scope for mistakes and muddles to be made in respect of an excessive increase in the number of DNA samples that will be pushed through those data banks. We do need to be concerned about all of this. It is not just the possibility of the information becoming lost or messed up; it is actually people’s lives that are at stake here with regard to whether they are found guilty of a crime they may not have committed. 
Something that needs further exploration and that has not been explored fully enough is the cost of increasing the capacity of data banks so that the incredibly significant increase in DNA samples can be held and also the systematic way in which data banks will be set up so that they can hold these samples without there being any possibility or scope for a mix-up or muddle. At the end of the day people’s lives will be at stake in respect of whether they are found guilty of a crime. 
That point takes us back to whether DNA evidence is foolproof which we need to discuss. As the technology is improving and as more courts around the world are taking DNA testing much more seriously we are finding that jurors courts and the public in general see DNA tests as being 100 percent certain. We know that that is not the case and our scientists know that that is not the case. 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 Four years ago the Maori Party was approached about the Genographic Project a huge project in which DNA samples were to be extracted from 100000 indigenous volunteers. That is right—the blood and genetic codes of indigenous peoples were to be suddenly available in the global DNA bank. Perhaps it could be used to construct what a Chicago museum has apparently labelled as the perfect human specimen: Maori of course. But the risk that the unique DNA of indigenous peoples might be used for other less honourable means was always there. At the time we felt duty-bound by both legal codes and ethical standards to draw attention to the proposed DNA research stipulating that informed consent and ethical approval should be obtained before any such research could proceed. We did so on the basis of our firm belief that whakapapa is a taonga tuku iho to be protected no matter what happens. 
We rolled on 2 years from the Genographic Project and this time we were dealing with a police practice note updated in 2007 and published in the police journal  
Ten-One 
. To be fair the practice note made it clear that children under the age of 10 years should be fingerprinted only for the purpose of eliminating them from a police inquiry and that children aged 10 to 13 years could not be fingerprinted without the written approval of the Youth Aid section of the police. But the note also encouraged members of the New Zealand Police to promote the fact that it was in the best interests of children and young persons to voluntarily agree to be fingerprinted. In reality voluntarily given fingerprints provide the police with a tool that will greatly increase the likelihood of those children and young persons being identified in future police investigations. 
This Criminal Investigations (Bodily Samples) Amendment Bill is a case of third time lucky for some people. The bill introduces the ability to take DNA from any person including a young person whom the police intend to charge with any imprisonable offence. In 2011 this will be widened to any person or young person whom the police intend to charge with a “relevant offence’ as defined in the legislation. Ostensibly the bill has a straightforward goal: to assist with the conviction of people who are arrested for an imprisonable offence. But is it really as simple as that? In reality many low-level offences carry a penalty of short-term imprisonment as a maximum sentence so it turns out that a very large pool of offenders could be required to undergo DNA testing. As we have become aware the criteria will become broader in the future capturing a wider group of suspects. Over time for example low-level and youth offenders those arrested but not convicted or even those who are merely suspected of offending might all fall prey to this scheme. 
The Maori Party has always believed that if DNA tests have to be employed as a means of identifying offenders a more stringent test could be found to better target high-end offenders and that some other approaches should be adopted for the lower-end offenders. YouthLaw Tino Rangatiratanga Taitamariki considered that the offence thresholds should be targeted at the more serious end of the criminal offending scale as is currently the case and should not be opened up to encapsulate the range of offences that Part 2 intends. This was also the view of the Privacy Commissioner who was greatly concerned that Part 2 would bring all imprisonable offences whether serious or trivial within the ambit of the DNA collection regime. This would greatly increase the number of samples collected. The commissioner’s view is that the law enforcement benefit of such a sweeping change would be outweighed by costs to privacy public trust and the smooth functioning of the programme. As a consequence the commissioner recommends that Part 2 should be removed from the bill. 
There are simply too many unknowns about and too much variability in the potential use and collection of DNA. For a start there are a host of ethical and human rights concerns particularly to do with the existing police bias against and over-scrutiny of the Maori population including the use of ethnic profiling. Human rights concerns have been raised in the United Kingdom that a DNA database breaches international human rights laws and standards. In fact in these days when Parliament has been considering the value that referenda bring it may be useful to consider the call in the United Kingdom for a citizens’ inquiry sponsored by the Human Genetics Commission which is a Government advisory body. That inquiry suggested that people who are deemed to be innocent should have their details deleted from the National DNA Database. Britain has the largest DNA database in the world including an estimated 100000 profiles of children. The commission found widespread public distrust of this system which collects and keeps genetic material from anyone who is arrested even if that person is not convicted of a crime. If anyone was ever wondering what was meant by ethnic profiling he or she might start by considering the British experience. More than three in four young black men in the United Kingdom experience having their DNA included on the database but only 22 percent of young white men do. 
The Justice and Electoral Committee had the benefit of guidance from Michael Rowe. 
Debate interrupted.