Mackey Moana: Criminal Investigations (Bodily Samples) Amendment Bill — Second Reading 
Mackey Moana: Criminal Investigations (Bodily Samples) Amendment Bill — Second Reading 
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MOANA MACKEY (Labour) 
: 
 I am very pleased to be able to take a call on the Criminal Investigations (Bodily Samples) Amendment Bill. I do this from the perspective of someone who has done DNA analysis. With the greatest of respect to the speaker who has just resumed his seat Simon Bridges some of the concerns that I have and that I hope can be sorted out were ones he highlighted absolutely for me. 
Simon Bridges 
: So you’re not voting for it? 
MOANA MACKEY 
: No we are voting for the bill but in this Parliament we are allowed to talk about the bits we are concerned about. We do have a Committee stage where theoretically we can make changes and where a democratic vote is taken. 
Simon Bridges 
: But on balance you think it’s pretty good? 
MOANA MACKEY 
: If Mr Bridges would listen I will tell him what my concerns are as someone who has done DNA analysis and knows the shortcomings. 
The fact is that we need to remember that DNA profiling should never ever be confused with full genome sequencing. A lot of people have talked about the genetic fingerprint and that is absolutely accurate. But the fact is we test about 0.001 percent of the DNA profile when we do this. We do that for many reasons. One reason is that it would be impractical and expensive to test the whole genome and also we can get very very good and accurate results from the testing we do. But it is not foolproof and we need to understand that. When members talk about a genetic fingerprint they need to understand that when we take a fingerprint we take the whole fingerprint. When we do a DNA profile we test a very small number of loci; we do not test the entire genome. 
This concerns me because there is a scientific aura that exists around DNA that it is foolproof and incontrovertible and jurors hold that perception. I think that it needs to be explained to jurors that it is not foolproof and that there is error. We would not find a single DNA scientist who would say that it is 100 percent accurate. The problem is when we have a technology that has such a powerful reputation the possibility of miscarriages of justice is introduced. We have had them with this technology. They are small but we have had them. I think there are things we can do to make sure that that does not become a huge problem but they do need to be done. We are supporting this bill but that needs to be absolutely understood if this bill is not to create problems that could be avoided. 
The member also said that it is not intrusive. Well the intrusiveness comes not just from having a finger prick or a mouth swab but also from the fact that our DNA can say an awful lot about us. It is very private information that can reveal things about our potential health in the future and some people might consider that intrusive. I think we need to look at it in that light as well. It may be being used for only identification purposes but it has a potential to be used for a lot more particularly as the technology improves. 
There is a potential for abuse. It is interesting to note that in the United States because criminals know that the technology is so powerful and that DNA technology is likely to convict them if it is found at a crime scene they are planting other people’s DNA. This is very easy to do. If I were to shake hands with the member who has just taken his seat and then touch a glass his DNA would end up on that glass. Criminals are not unaware of this. They will go to whatever length they can to frame someone else. In America there are actual cases where they have found criminals planting DNA and not just that. There was a very famous case of a doctor who accused of raping a patient under sedation put a false vein in his arm so that he gave a blood sample that was not his. 
The other issue that concerns me is that DNA can be fabricated now. Any person with a basic biology degree can do this. It is not difficult. DNA can be fabricated and when it is put into a body one cannot tell it from the host DNA. These technologies are out there. 
These are not reasons to vote against this bill but they are things we need to be aware of if we are to make sure that we can control the powers that are being given here. They are substantial. This is an enormous extension of what already exists in the DNA databank. If we are to make sure that we can cut off every area of abuse we need to be aware that there are a lot of people out there who are finding ways to get around these DNA databanks and to get around DNA analysis. It is for that reason that I raise it. 
We have only to look at the history of DNA analysis itself to see how fast the technology is moving. We need to ensure that this legislation remains relevant regardless of where that technology goes. We have moved from what would be considered very time-consuming restriction fragment length polymorphism analysis which then did Southern blots which took a lot of time to having polymerase chain reaction and short tandem repeat processes now which are very very quick. We can take very very small samples of DNA and use the DNA’s ability to replicate itself to create much larger amounts of it which means that we are able to take smaller and smaller samples and get better and better results. Work is being done on Y chromosome analysis which will go in a completely different direction and there is mitochondrial DNA. 
We need to make sure that this legislation is relevant to all those types of DNA analyses and anything in the future that may come of it. In fact it has already been used in New Zealand. It is not admissible in court but work has been done where a DNA sample taken from a relative such as a woman’s Pap smear samples is used to identify criminals within her family. It is not admissible in court but I doubt it will be very long before technologies like that are able to be used. They are very powerful technologies but again technologies that are not foolproof. We need to acknowledge that in this House today. 
I quote from Professor Ian Shaw who runs the forensic science unit at the University of Central Lancashire who pointed out that the more samples we get the greater the chance that we will find two samples that look the same but are not actually from the same person. That is a risk. The more samples we are taking the more we are testing. It is a very very small chance but it does increase the likelihood that we will get a sample that could inaccurately finger someone for a crime that he or she did not commit. Again that is something that we need to be aware of if we want to make sure that this bill does not end up with serious unintended consequences. 
Then I come to the Institute of Environmental Science and Research and my real big concern is that the funding has to go with this piece of legislation. We are talking about an enormous increase in work for the Institute of Environmental Science and Research. It will be an enormous increase in DNA analyses which is why the bill is being staggered to allow that to happen. The funding has to go in to make sure that the process is rigorous. It has to be more than just funding for extra DNA tests. It has to be more than just saying what the cost of doing a DNA test is and then paying X thousand dollars more for that. There has to be extra money in particular for chain of custody control. If anything goes wrong in the chain of custody—the sample going from the police to the Institute of Environmental Science and Research where it will be logged then going to an analyst on the bench the results being logged against that sample ID and then that going back to the courts or the police for the conviction—the whole thing falls apart. I have worked in laboratories that have underfunded the administrative side of the process and the chain of custody. A laboratory might as well not be run if we cannot put every single sample accurately through the process and have confidence that there is no chance of a mix-up or contamination. Although I understand that money will be put into extra DNA analysis my plea to the Minister of Justice is not to forget the very very important administrative side which is the chain of custody. 
That brings me to the issue of judicial oversight. This is incredibly incredibly important because if we are going to use this technology more extensively we need to ensure that the process of taking the sample and putting it through the laboratory can be tested in court. People who are facing a lifetime in prison for crimes they say they did not commit—they may believe that there was foul play which is unlikely or a stuff-up which is more likely—must be able to challenge not just the results but the process of the storage and testing of samples. I quote the Hon Justice Michael Kirby who in a speech he gave in Australia said it is crucial “That effective procedures are afforded to guarantee against contamination of DNA samples. The planting of evidence … has been a distinct problem for the criminal justice system in the past.”—and we are fooling ourselves if we think that it has not been—“Given the likely devastating power of DNA evidence it becomes doubly important to ensure the integrity of collection of samples and their transmission storage testing reportage and preservation for the scrutiny of independent experts and ultimately if need be by the courts.” I could not agree more. 
I implore the Government to consider seriously the Supplementary Order Paper we will be putting up in the Committee stage. We cannot consider this kind of legislation if the people who are likely to be impacted by it are not given the right to challenge the process. As I said before we are fooling ourselves if we think that miscarriages of justice do not happen. This is an incredibly powerful technology but its powerfulness in the minds of the people—and in particular the minds of jurors—is far more than its actual power. We have to get this right otherwise we will see miscarriages of justice.