Sepuloni Carmel: Criminal Investigations (Bodily Samples) Amendment Bill — Second Reading 
Sepuloni Carmel: Criminal Investigations (Bodily Samples) Amendment Bill — Second Reading 
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CARMEL SEPULONI (Labour) 
: 
 I say from the outset that Labour will be supporting the Criminal Investigations (Bodily Samples) Bill but this support does not come without a number of concerns. I guess that at this stage our approach towards much of the National Government’s legislation is: “Oh well it doesn’t help but it doesn’t seem to harm too much either. So I guess we can support it.” 
Our No. 1 concern at this stage would be that all of this Government’s justice and law and order legislation shows a very narrow-minded approach towards law and order. This Government chooses to put the focus entirely on the ambulance at the bottom of the cliff rather than on an attempt in any way to build a gate at the top of the cliff. That is our concern and it is the concern that many members of the public and the many people working in justice and law and order areas have as well. They are concerned that all we are going to do is deal with the people who are committing crime rather than do anything about preventing those crimes from occurring. That is probably the No. 1 concern of members on this side of the House. 
Before discussing the contents of the bill before us it is important that it is put into context with regard to the legislative amendments made by the previous Labour Government to significantly extend DNA testing. All too often in matters pertaining to law and order this Government has attempted to create the perception that it is starting from scratch when this is simply not the case. Labour has undertaken the groundwork. Therefore to contextualise the proposed amendments we need to look at the base that this Government is starting from. 
In 2003 Labour passed legislation to amend the Criminal Investigations (Bodily Samples) Act 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 circumstances where a crime scene sample is matched with a known offender’s DNA profile held on the police databank. 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 I say again 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 or conspiracy to commit such a crime. 
Under that same 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 or mouth swabs which are cheaper less invasive and just as accurate as blood samples can now be given as an alternative. 
Another significant part of Labour’s Criminal Investigations (Bodily Samples) Act of 2003 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 databank was intended to help police solve some historic cases. Prior to these amendments the legislation gave authorisation to seek a compulsion order only to obtain DNA samples for the police database from a person already convicted of burglary. This led to the ridiculous situation that when police found DNA material at the burglary scene and matched it to a profile on the databank they were prohibited from using that match in criminal proceedings against the suspect. Now that we have contextualised the legislation that is before us let us move on to the stated purpose of this bill. 
The bill before us the Criminal Investigations (Bodily Samples) Amendment Bill will generally allow DNA to be collected by police without prior judicial approval at the point when they intend to charge a person for a wider range of offences and to allow the DNA profile to be matched against other unsolved crime scene samples prior to the person’s conviction or acquittal. The bill aims to recognise DNA as the modern-day fingerprint to assist the police to solve more crime by having more identified DNA profiles to match against the increasing number of DNA samples obtained from unsolved crime scenes. The stated purpose might seem reasonable but a number of concerns have been raised by submitters by us and by members of the public. 
Labour agrees that DNA profiling is an essential investigative tool in mainstream policing. That is why Labour has already amended legislation to significantly extend DNA testing. Labour is not opposed to a further extension of DNA testing but is unclear whether this legislation will have a significant impact on serious crime considering the changes Labour already made when in Government. Labour members are concerned that National is proposing to test all those arrested not just those charged with the reality being that a large proportion of the people who are arrested are not charged. This means that under National’s proposed system many tests would be thrown out resulting in a poor use of money and police resources. Considering the rigmaroles this country has been put through by this National Government in respect of cuts to what Labour deems essential services projects programmes initiatives and incentives we find it difficult to comprehend that the Government would be willing to waste money on something such as this. When I talk about cuts I am talking about things like cuts to adult and community education the Gifted Kids Programme the training incentive allowance police vehicles and resourcing overseas development assistance Maori and Pacific scholarships—the list goes on and on. Yet National will implement this legislation in the knowledge that a number of the samples taken will be a waste of time and will be thrown away which results in a poor use of policing resources and funding. 
The Attorney-General has reported inconsistencies with the New Zealand Bill of Rights Act. Christopher Finlayson said the DNA plan appears to be inconsistent with the rights against unreasonable search and seizure under the Bill of Rights because it would give police the power to take DNA from those whom they intend to charge with an imprisonable offence without the safeguard of judicial or other independent approval. Mr Finlayson said such safeguards were required in jurisdictions that used a comparable DNA scheme including New South Wales Victoria Canada the United States Germany Japan and the Netherlands. He said he could not see any special circumstances in New Zealand to justify not having statutory safeguards. 
The Human Rights Commission has expressed concerns that the proposed changes go too far. The criminal bill allows police to take DNA from anyone charged with an imprisonable offence whereas the current law has a much higher threshold for serious offences punishable by more than 7 years in prison. The Human Rights Commission says that the bill infringes the right to freedom from unreasonable search and seizure. It also increases the possibility of discrimination on the grounds of race and family status and impacts disproportionately on youth. 
That was from the Human Rights Commission and we have heard from the Attorney-General. The Privacy Commissioner has now expressed concerns that the changes proposed jeopardise the value of the existing criminal DNA databank in detective and preventive crime by undermining public trust in the police and the Government. The commissioner says that if police were able to take DNA from a wider range of people there should be oversights through an independent committee of additional audit powers and she wants the bill’s recommendation for samples for all imprisonable offences dropped as well as the bid to retain samples for longer than 2 years after a suspect has been cleared. 
Treasury has stated that it views the regulatory impact statement for this legislation as being inadequate for a number of reasons including a lack of clarity around the nature of the problems with the current DNA testing regime along with anecdotal and empirical evidence to support these reasons. The next reason Treasury gives for the legislation being inadequate is the limited analysis of the impacts of the option. The analysis of costs is partial; for example only aggregate first-year costs are estimated and capital costs are excluded. There is no assessment of risk such as risks related to implementation and how these might be mitigated. We do not know the costs involved or the risks. 
It seems very negligent that a Government that has spoken so often on the fact that we are in the middle of a recession or that we need some fiscal restraint would go into something that it has not fully costed out. But that is exactly what this Government has done. I have expressed Labour members’ concerns. We will support this bill but we will be making recommendations in respect of the submissions made and the advice received from various people across the different advisory groups including the Human Rights Commission.