Sepuloni Carmel: Criminal Investigations (Bodily Samples) Amendment Bill — In Committee Third Reading 
Sepuloni Carmel: Criminal Investigations (Bodily Samples) Amendment Bill — In Committee Third Reading 
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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.