Ardern Jacinda: Organised Crime and Anti-corruption Legislation Bill — In CommitteeText is incorporated into the Bound VolumeArdern Jacinda: Organised Crime and Anti-corruption Legislation Bill — In Committee[Sitting date: 21 October 2015. Volume:709;Page:7419. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour): I want to come to a part of the bill that has not been debated thus far I believe and that relates to the amendment to the Criminal Investigations (Bodily Samples) Act in subpart 3. It is in Part 2 of the bill. I think that probably the fact that we are canvassing such a wide range of issues from human trafficking to facilitation payments to things like the sharing of DNA information between countries does demonstrate that this is indeed an omnibus bill. But in this part of the bill which is the amendment to the Criminal Investigations (Bodily Samples) Act 1995 without seeing the context it is probably very difficult to see why such a requirement is necessary. That is why I wanted to canvass in a little more detail the problem that we have just to ensure I guess that we have opted for the right options in updating our legislation because five options have been canvassed by officials.The situation we have is that periodically the police will receive requests from overseas agencies for DNA profile and those are most likely to come from the Australian authorities—interesting given the situation we are currently in—via Interpol. But there is an inability at present for New Zealand to legally provide information about DNA profile to our counterparts in Australia and that is because the current legislation that governs the DNA Databank is the Criminal Investigations (Bodily Samples) Act 1995 which does not permit DNA profile information to be provided for an overseas agency for the purpose of investigation.What is interesting is that we have had for some time a Mutual Assistance in Criminal Matters Act. That was put in place in 1992. Our bodily samples legislation came in 3 years later and yet for some reason that legislation did not factor in the fact that we had that mutual assistance agreement. What that means in practice—in an example that is used in the regulatory impact statement—is that the Queensland police investigating a homicide may take a DNA sample from the crime scene and may ask the New Zealand Police whether or not there is a matching sample in New Zealand’s data bank but even if the police in New Zealand go ahead and carry out that analysis and they come up with a positive match they are unable to disclose who the matching sample belongs to.Obviously that will seem curious to members in this Committee but what still seems curious to me given there was a 3-year difference between when this mutual arrangement was forged and when New Zealand put in place its bodily samples legislation to regulate the way we deal with DNA samples is whether there was any reason why that was not explicitly dealt with. Obviously it is some time ago now so it might be hard to demonstrate that but I do wonder whether Parliament gave it explicit consideration and decided against it.I do think in the context that we are now in where we have greater information-sharing arrangements—particularly with Australia which is where this provision will take the greatest effect—we are now sharing between countries information about detainees who for instance might have parole provisions that would apply to themdomestically but they are being sent back to their home country. We should have that information so that we are able to apply it. I would make the point though that that is very different to what we are seeing at the moment and members on all sides of the House are advocating very strongly against the deportation of people who have for all intents and purposes taken on Australian citizenship.But coming back to the bill and to subpart 3 there was a range of options to deal with this dilemma and it seems that of the five options that were canvassed a decision was made not to have a broader information-sharing provision within the Policing Act but to come in specifically with an amendment to the Criminal Investigations (Bodily Samples) Act. I think that is probably the right decision on the part of the Ministry of Justice. The ministry did want to make sure that it narrowed down the provision of this information-sharing agreement and to do that it would be better to put it in the enabling legislation for the Act that regulates samples itself rather than in something more broad like the Policing Act. But what is interesting is the role that the Ministry of Justice has recommended that the Attorney-General should play in decision making. I come to the specific—unless the Minister in the chair Minister Finlayson would like to make a contribution? No.I come now to the way that it has been set out in the bill itself. It states under subpart 3 that this subpart amends the Criminal Investigations (Bodily Samples) Act. Clause 39 “Section 27 amended (Access to and disclosure of information on DNA profile databank)” inserts in section 27(1) of the Act: “(d) for the purpose of responding to a request under the Mutual Assistance in Criminal Matters Act …”—so we are still falling back on making sure that those requests do come via that agreement—“(i) access to the information requested is authorised by the Attorney-General;”—which is the important point here; the bill is very explicit that it must be via the Attorney-General that these requests are made so that it is not the police who have the discretion to determine whether or not DNA profiling of a New Zealand citizen is able to be shared ad hoc with any counterpart in Australia that requests it—“and (ii) the request relates to an offence that corresponds to an offence in New Zealand that is punishable by a term of imprisonment of more than 1 year.”I guess one of the questions I wanted to raise in light of some of the issues that we are seeing currently is whether this requirement for the Attorney-General to provide that information is specific to New Zealand citizens or does it also apply to New Zealand - born individuals who may now hold citizenship somewhere else? So to give an example if Australia made contact via the mutual assistance agreement via the Attorney-General and sought DNA profiling of someone who was born in New Zealand but now holds citizenship in Australia how would that be treated for instance? This is keeping in mind some of the situations we are seeing in Australia at the moment where obviously the Australian authorities are trying to build cases against people whom they determine to be New Zealand citizens but who for all intents and purposes have been raised in Australia as Australians.The other point I wish to make is that in subparagraph (ii) it says “the request [must relate] to an offence that corresponds to an offence in New Zealand that is punishable by a term of imprisonment of more than 1 year.” It is obviously creating a threshold there that says we do not consider this to be a provision that should be used for things that have an offence that does not have a custodial sentence attached to it. We do not consider such an offence to be important enough and we want to make sure that the threshold is reasonable. I think that is really important but again it highlights the absurdity of the situation that we are seeing at the moment where people who have been imprisoned for not even a year are being deported and yet under this legislation a country cannot even ask for their DNA information if the threshold is that low. You could be deported for that offence and sent back to a country that you have not known for 20 years but you cannot even have your DNA information shared between countries because the threshold has not been met.That to me highlights the contradiction about what we are seeing in the way Australia is enacting its policy right now—that it will not give us information about these people but Australia will still deport them for a lesser offence than what we have set in this law as the threshold. I think that demonstrates something quite critical. I am glad the threshold has been set there. We should not be just sharing information about New Zealand citizens willy-nilly for what the public in this country—and indeed probably the public in other countries as well—would consider to be minor offences.From reading the regulatory impact statement I am heartened by the level of analysis that has been gone through to come to the conclusion that of the five options the bar has been set relatively high. The Attorney-General will be acting on the advice of Crown Law will be assessing the seriousness of the offence in the context of the reciprocal arrangement and has the ability to refuse the request. From the threshold that we have established in the legislation the Attorney-General has the ability to hold that sovereign decision to say that either it is not an offence that we consider to be serious enough or it simply does not meet our standards. I think that is incredibly important.I think it is important also to keep that decision making away from the police and put it in the hands of the Attorney-General. The police in New Zealand need to maintain their relationships with their counterparts via Interpol and this is one way that they will not be caught between a rock and a hard place when Australian police ask for the information and they are the decision makers in that regard. I think it is a provision that demonstrates how much thought has gone into ensuring that we balance the need to cooperate at an international level whilst also preserving the rights of New Zealanders in regard to the information that is held on them.And that is perfect timing I think you will find Mr Chair.