Flavell Te Ururoa: Criminal Investigations (Bodily Samples) Amendment Bill — First Reading 
Flavell Te Ururoa: Criminal Investigations (Bodily Samples) Amendment Bill — First Reading 
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TE URUROA FLAVELL (Maori Party—Waiariki) 
: 
 Morena. Tena tatou katoa i tenei ata. Sixteen years ago in 1993 the Indigenous People’s Council on Biocolonialism established itself to oppose the Human Genome Diversity Project—a global genetic research project that evolved from the collection of indigenous people’s DNA. Later in 2005 the National Geographic Society in collaboration with the computer giant IBM sponsored the Genographic Project which again sought to collect 100000 DNA samples from the indigenous peoples around the world in Australia Brazil North America South-east Asia and South Africa—to name a few places. Again the Indigenous People’s Council on Biocolonialism spoke up opposing the trend to treat the indigenous subject as a scientific curiosity. Indigenous DNA is clearly a commodity worth having. The Maori Party believes in the sacredness of whakapapa of genealogical connections or bloodlines and we believe there is no room for doubt when DNA is concerned. 
Around the world indigenous groups are now far more alert to the risks of biopiracy and as such any legislation that proposes the collection and storage of genetic materials will confront a host of ethical human and collective rights issues. When rights are involved inevitably so are lawyers and courts. 
What does not help in terms of the backdrop to this bill is that just over 2 months ago the European Court of Human Rights ruled against the law enforcement policies of the British Government in respect of the commitment to gather and store the fingerprints and DNA of all criminal subjects. The court’s ruling concluded that the practice was a violation of the human right to privacy; describing the police’s decision to keep DNA stored on the database as having “overstepped any acceptable margin of appreciation” in striking a balance between individual rights and public interest. Where the British practice varies with our situation is that in their case the police seek to hold DNA material indefinitely in their database even of those who have turned out to be innocent. 
The Strasbourg ruling or the European court ruling has implications for our Parliament in throwing wide open the issue of how to insure a check on the powers of the State. Similarly my research found that in the United States the Havasupai tribe filed a lawsuit in 2004 against the Arizona State University for the taking and misuse of their genetic samples. 
Politicians scientists and law enforcement agencies around the globe are being held accountable for their use of the genetic material of targeted populations. And so it will be with this bill too where the police are granted discretionary power to take compulsory DNA evidence at the point of charging. This as others have said is a concern for us. Although we are pleased that the police will be required to annually reveal the statistics around the use of the tool including whether it is overused on matters of ethnicity we wanted to simply state the obvious: that any intervention involving DNA will be watched very closely by Maori. 
To be precise the Maori Party has five specific concerns around the use of the DNA sample proposed in this bill. The first and the most fundamental is that surrounding ethics and human rights and other speakers have spoken on this. The bill proposes to empower police with the ability to take DNA from any person that police intend to charge with any imprisonable offence including young people. Where the waters become muddied however is whether these powers to take DNA samples should be discretionary. To be upfront the application of discretion when applied to Maori has never worked in the interests of Maori. Countless research studies have provided evidence that given the risk of police bias and overscrutiny of Maori DNA testing will affect Maori disproportionately. The research demonstrates that systematic factors operate at one or more steps of the criminal justice process which make it more likely for Maori people to be apprehended arrested charged convicted and imprisoned. 
In a study describing the overrepresentation of Maori in the criminal justice system just 18 months ago the Department of Corrections described these processes variously as: “unintended consequences of discretion”; “unevenness of decision making”; “bias”; and “institutional racism”. In addition the risk of apprehension for Maori is often amplified because of formal and informal profiling by the official agencies—that is a particular truth is created around ethnicity. 
The element of discretion is the single most concern for the Maori Party and indeed for a range of human rights advocates and groups. We noted a comment by Council for Civil Liberties’ spokesman Michael Bott yesterday that allowing for wider powers to take and use samples from people legally considered innocent and without approval from the courts was a major concern. We have no doubt that these concerns will be presented in full force throughout the select committee consideration. 
A related issue for the party is that associated with the construction of a DNA database. Members in the House who like me have come from a teaching background may recall some discussion and chatter in the staffroom where the negative behaviour of one child was generalised to stigmatise all the siblings of that child who were attending the school saying something like: “It is that family—what can we expect?”. It is not right and it is not fair but it does happen. In much the same way there are DNA testing implications for the wider whanau as well as individuals as first and second degree relatives because they can be identified through genetic testing thus allowing the authorities to build up a family history. Theoretically DNA testing can enable police to create a DNA profile of the wider Maori population. 
What this all translates into is the third issue—the issue of trust regarding the police guardianship of the DNA database. There will be in the minds of the public issues of trust about police holding such information including concern about who is tested how the information is used and whether those protocols will be sustained. 
A fourth issue is the one related to the actual collection utilisation and storage to ensure there are appropriate parameters in place as to how the DNA material will be used. Our concern is that there is a fair and consistent system for sample collection that complies with the relevant international conventions including the United Nations Convention on the Rights of the Child. We remember clearly in early 2000 in the Labour Government’s first term the huge storm that erupted around the police action in Whangarei concerning the taking of fingerprints of children. Former Police Commissioner Rob Robinson had apparently told the Law and Order Committee about situations where some very young children had their fingerprints taken. Supposedly this information was intended to deter them from a life of crime. We are concerned about the vulnerability of children and young people and will be watching to see that appropriate and additional protections are in place to protect their rights and we have had some discussion with the Minister about this matter. We must ensure that proper ethical controls are in place covering every aspect of the collection utilisation and storage of the databank. 
The final concern is the budget implications of the proposed changes. There is already a huge law and order budget and we hope the Minister will be able to clarify how much additional resource will be channelled into policing tools and devices such as DNA testing and Taser guns in comparison with the resources allocated for crime prevention restorative justice measures and strategies to support the police in enhancing community relations. 
The issue of DNA testing is a complex one. The positive benefits of convicting serious offenders sit alongside a host of worrying issues that we cannot and must not ignore. We do not support this bill going forward but we are aware that there is sufficient support for it to move at least to debate in the select committee. At this junction we will be looking particularly to see how our concerns are addressed about the likely impact on Maori and the use of discretion. We know that some work was initiated on the unintended consequences of discretion and we believe it would be timely for that work to be completed and put before the House. 
The project I speak about was initiated by the Ministry of Justice in consultation with Te Puni Kokiri and undertaken in 2007-08. Discretion is a key concern for us with this bill and we recommend an analysis of this project as a key document for the select committee. The Maori Party will not be supporting this bill. Kia ora tatou.