Dalziel Lianne: Criminal Investigations (Bodily Samples) Amendment Bill — First Reading 
Dalziel Lianne: Criminal Investigations (Bodily Samples) Amendment Bill — First Reading 
[Volume:652;Page:1122] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I will traverse the elements of the regulatory impact statement which was so eloquently referred to by my colleague the Hon Clayton Cosgrove. But I begin with reference to the fact that we have the report of the Attorney-General on whether the Criminal Investigations (Bodily Samples) Amendment Bill complies with the New Zealand Bill of Rights Act. I think it is important that the House gives consideration to it. I am very disappointed that the Minister of Justice did nothing other than make reference to its existence. 
This is the first time for a very long time that the Attorney-General has reported— 
Hon Simon Power 
: Look at the stats of the last Government. 
Hon LIANNE DALZIEL 
: I would be very interested to look at the statistics. If the Minister had referred to this in his speech then— 
Hon Simon Power 
: I did. 
Hon LIANNE DALZIEL 
: The member did nothing but refer to it. He did not say on how many occasions we have put up with being asked to proceed down a pathway that will see us contravening a pretty fundamental piece of law in this country and that is the New Zealand Bill of Rights Act. This process allows us as a Parliament to vote in favour of legislative changes that take us outside the New Zealand Bill of Rights Act. That is what the process is designed to do. I think it is important that every member of Parliament knows that in voting in favour of this bill we are voting in favour of law changes that fundamentally breach the New Zealand Bill of Rights Act. Everyone needs to know that. I think it is important that people have a discussion about it. 
The Labour Opposition is committed to this bill going to a select committee so we will not vote against its first reading. We think that this bill could actually be improved to the point that it would no longer breach the provisions of the New Zealand Bill of Rights Act. When the select committee considers the bill it should consider the Attorney-General’s report with specific reference to this finding: “With the exception of the United Kingdom decisions which have now been effectively reversed by the [European Court of Human Rights] there appears to be a consensus in jurisdictions which provide for a right against search and seizure that DNA sampling regimes must be subject to strict substantive and procedural safeguards; … DNA databanks appear to operate successfully in the many comparable jurisdictions which apply such substantive and procedural safeguards.” The Attorney-General could find no basis on which to conclude that New Zealand differs from either of these positions to such a degree that these safeguards are unnecessary. 
That is a very worthy report but it cannot just end there. It cannot just be brushed off in Parliament as having been prepared and tabled. We need to debate the seriousness of actually making such a change to the law that breaches our obligations under the New Zealand Bill of Rights Act. I hope that members of other parties take a call on this particular issue because I think it is pretty fundamental and it is important that the select committee deals with it in detail. That is the particularly serious matter that I want to draw the House’s attention to. 
The less serious issue—although it is actually equivalently serious in a different way—is the regulatory impact statement. I know that we have all laughed as the detailed reporting of Treasury has been read out but there are two aspects of the adequacy statement in the regulatory impact statement that I want to draw to the House’s attention. I want the select committee to look at these as well. The Ministry of Justice thought the adequacy criteria were met in the case of this bill. The Ministry of Justice—the ministry responsible for the drafting instructions for this bill—said the regulatory impact statement was adequate. Treasury’s regulatory impact analysis team said the complete opposite. The positions are not able to be rationalised at all. There is no point at which one could find any similarity between the two positions. So I think that requires some serious consideration. 
It is very interesting that the Government somehow seems to think that if it makes a statement of objective—namely “The measures proposed will substantially increase the size of the DNA profile databank. This increased databank will aid criminal investigations by both linking offenders on the databank to previously unsolved crime scenes and potentially to future crime scenes.”—then “DNA’s role in solving more crimes and prosecuting more offenders will in turn contribute to increasing public safety … ”. There is nothing in any of the information that has been provided for the development of the regulatory impact statement or indeed for the Government’s consideration of this very bill—no evidence—to back up that claim at all. 
Treasury goes so far as to say that not only is there no empirical evidence but also there is not even any anecdotal evidence. I do not even describe anecdote as evidence. In fact I think it is an oxymoron to say “anecdotal evidence” because it either is evidence or is not. Anecdote is not evidence; it is simply anecdote. There is not even that to support this regime being implemented. 
Before we go down the track of introducing such a major change which breaches the New Zealand Bill of Rights Act an in-depth cost-benefit analysis should be undertaken. But it is really hard to do a cost-benefit analysis when one does not know what the nature of the problem is. The first thing Treasury said was that there was “a lack of clarity around the nature of the problems with the current regime”. So if one cannot define the current problem how can one define the benefit of a change to the current policy? 
The second thing is that as part of a cost-benefit analysis one also needs to have the cost. Guess what? The Government has provided estimates of the aggregate first-year costs and capital costs are excluded. Why is that? It is because the Government has no idea what the cost will actually be. Guess what? Police guidelines will be drawn up around the use of the discretion and the Government does not know how many people will be required to provide samples in that regard. 
All I am saying is that when members of the select committee receive this bill they will require a heck of a lot more than a simple statement from the Ministry of Justice that this regulatory impact statement meets the adequacy criteria whereas Treasury’s regulatory impact analysis team which is obviously able to provide far more in-depth analysis than the Ministry of Justice—which may in fact be self-interested in this regard—states that there really is not the information to back this up. 
What really bothers me about this legislation is the question of what it is really designed to do. I think we find the answer further on in the explanatory note which essentially states that this is part of the Government’s commitment to the 100 days of action. Therefore this bill is being introduced in order to meet the Government’s objective of being seen to be doing things. Here we go: “… to implement the Government’s 100 Day Actions mean that at this stage only indicative costings can be provided for full implementation of the proposals.” So the Government is doing this only to be seen to be doing something rather than doing in-depth analysis. 
I make one final point. The original legislation was based on having a propensity link. That is the whole point of having convictions that are relevant convictions. That is the whole point. We will find that a rapist has a history of burglary offences which is why burglary is one of the relevant offences. Once the Government turns this into a free-for-all for all convictions that potentially could carry a prison sentence of any length it will flood the system with a lot of irrelevant data which will not produce anything of any merit. It might have a one in a thousand hit or a one in ten thousand hit but the Government does not know what that will be or what cost there will be to the real policing techniques that are needed on the ground because DNA evidence does not always provide the answer that people would seek it to achieve.