Criminal Investigations (Bodily Samples) Amendment Bill — Third Reading 
Criminal Investigations (Bodily Samples) Amendment Bill — Third Reading 
[Volume:658;Page:7495] 
Tuesday 27 October 2009 
( 
continued on Wednesday 28 October 2009 
) 
Criminal Investigations (Bodily Samples) Amendment Bill 
Third Reading 
Debate resumed. 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 The Justice and Electoral Committee had the benefit of receiving guidance from Michael Rowe of the criminology department at Victoria University. Mr Rowe was able to share his experience of the British DNA database a system that was meant to include samples of only convicted criminals but that was slowly ratcheted up to include samples of all those who had been arrested. He also noted that courts in Britain have agreed that the keeping of DNA records in databases breaches human rights legislation. This is information that the Maori Party simply could not ignore. Research from other countries whether it relates to efficacy or matters of accuracy indicates that such records are not a hugely useful tool. 
I will go back to the topic of ethnic differences in the database. Our concern is that there is the risk of unethical use of the DNA database to conduct research and to make population statements about certain groups having a criminal gene. This was a particular concern of Dr Papaarangi Reid the tumuaki at the faculty of health and medical sciences Auckland University. It was her view that there was much to cause us alarm in the setting of appropriate parameters on the use of a DNA police database which would make statements about whole populations and not just individual offenders. As we know too well recent genetic inquiry has sought to discover genetic causes of behaviour—do members remember the warrior gene—so there is a risk that such a database could be accessed for research into a criminal gene. Such research even though unethical has been able to be conducted in the absence of proper ethical controls. 
Dr Reid had a number of concerns that the Maori Party has taken seriously. It was her view that the positive benefits of convicting serious offenders sit alongside a host of issues of great concern. The general question of ethics and human rights suggests that DNA testing will affect Maori disproportionately given the existing police bias and the over-scrutiny of Maori. It will create a level of truth summed up best as “Crime will be found where it is most looked for.” Another concern is that DNA testing has implications for whanau as well as individuals because first and second-degree relatives can be identified through genetic testing thereby allowing the authorities to build up a family history. DNA testing would enable the police to create a DNA profile of the wider Maori population. 
Finally trust issues are involved when the police hold such information and when we ask whether the rules about who is tested and how the information is used will change over time. As we saw with the Taser gun trial the police function independently from parliamentary or ministerial scrutiny on operational matters so we have considerable concern whenever discretion is to be applied. We are as I said earlier absolutely committed to the protection of the sacred genetic make-up inherent in whakapapa and as such we cannot support this bill. There are simply other approaches that we should use rather than tamper with DNA. 
KANWALJIT SINGH BAKSHI (National) 
: 
 I am pleased to take a call on the third reading of the Criminal Investigations (Bodily Samples) Amendment Bill. The first priority of this Government has been to improve law and order and public safety. The bill contributes to that goal by giving the police tools to resolve more crimes and catch more offenders. It accompanies other important law enforcement initiatives such as the Gangs and Organised Crime Bill the Search and Surveillance Bill the recently passed Criminal Proceeds (Recovery) Act 2009 and many more. This bill is one of the many steps this Government has swiftly taken following the election to fulfil its promise to the public of New Zealand. 
The Justice and Electoral Committee made a number of useful amendments to the bill particularly around improving the process of taking DNA samples from young people. One of the changes is to limit the range of offences for which a sample can be taken from a young person to more serious relevant offences specified in the bill. That will ensure that only the most serious young offenders are subject to this law. In addition the criteria for taking DNA samples from a young person have been significantly simplified. The Justice and Electoral Committee concluded that the criteria for taking samples from young people repeated the protection that already exists in the Children Young Persons and Their Families Act specifically in section 208. As such the bill has been amended to provide that section 208 of the Act will apply and will provide adequate protection for young people in custody. 
DNA carries a unique genetic code for an individual. Current technology allows bodily samples like blood saliva and semen to be processed and reassembled in a form of barcode that can be matched with the other samples taken from a crime scene. This procedure is an important investigative tool resulting in virtually conclusive proof of identity. It may be used to pinpoint an offender as well as to clear an innocent suspect. 
The bill will allow the police to collect DNA from a person whom they intend to charge with an offence and prior to that person’s conviction or acquittal the police will be able to match that person’s DNA against the profile from the scene of the crime in unresolved cases. Offenders who go on to commit serious offences in the future will be identified a lot earlier because their DNA will have been kept after they committed an offence in the very very early stages of their criminal offending. 
Over this year the Government has proudly brought before the Parliament a number of measures that impact squarely on the victims for the better. This legislation is one of them. It will save more victims than probably any other legislation that we have seen before this Parliament in a very long time. I commend this bill to the House. 
METIRIA TUREI (Co-Leader—Green) 
: 
 I shall take a short call on the Criminal Investigations (Bodily Samples) Amendment Bill. It is opposed by the Green Party. It has been opposed by the Green Party the whole way. The fact that this bill is contrary to the New Zealand Bill of Rights Act and the Attorney-General’s report states that it has significant human rights abuses is of extremely serious concern to the Greens and should be to Parliament as a whole. The forcible taking of DNA samples where the police only intend to charge a person—the person has not been convicted of any offence—is a gross assault on that person. Under any other circumstances but for it being authorised in law that would constitute an assault against that person. The Green Party does not believe that the law should be authorising assaults against a person simply because the police say they intend to charge that person with a crime where there is no evidence to suggest that that person will be convicted of that crime. 
I would like to reiterate the point or support the points made by Charles Chauvel about the serious concern that there will be no judicial oversight of the forcible taking of these bodily samples from citizens of this country. He set out a very clear description of the importance of judicial oversight in this matter the fact that the law provides for that already and that there does not seem to be any reason why that should change; it is obviously working currently. It does raise a concern for me too as to why Labour is supporting this legislation despite the very clear concerns by Labour and by Labour members for the breach of human rights the lack of judicial oversight and in regard to young people and to Maori and to others of other ethnic minorities the risk of abuse by the police against those communities. I would urge Labour members to rescind their view and to oppose this legislation for all of the good reasons that Labour itself has put out in the debate over the last day or so. 
Another concern of mine is around systemic bias racism that exists within the legal system. At least two good studies one produced by the Department of Corrections and the other by the Christchurch medical school I think in 2003 clearly showed that the legal system contains bias against Maori and that that bias leads to an overrepresentation of Maori in various parts of the legal system. The Department of Corrections study looked at a number of factors. Despite all the other social indicators it concluded that there is a degree of overrepresentation related solely to the ethnicity of Maori at key points in the legal system. Although at each of those key points the overrepresentation might be small none the less the cumulative effect of that bias is exacerbated over time. 
One of those areas is arrests. This was proven by the subsequent Christchurch study which looked at cannabis arrests and convictions. It found that despite all other risk factors such as a person’s being known to the police Maori men are still more likely than anyone else to be stopped arrested and convicted of cannabis offences. That is despite all other risk factors including frequency of use for example. It shows that the police are more likely to stop Maori men. It proves that. Now with this bill there will be no need for a conviction before a DNA sample is taken. The police have been trying to do some good work on the issue of systemic bias and to deal with it internally but they have not fixed it. Systemic bias within the police still occurs in various parts of the legal system. With this bill the police are able to take a DNA sample based simply on an intention to charge. Maori will be proportionally more likely to suffer from that forcible assault than others in the community. 
This legislation is a form of enactment of systemic racism against Maori communities. Cam Calder can sit there and wave his hands about and think that that is perfectly fine but what he cannot do is find the evidence to the contrary because the evidence proves that such systemic racism and bias is in the system. It may be small but for the individuals and whanau who suffer from it the effects are considerable. It cannot be denied by anyone in this House that those families suffer as a result. 
The changes in this bill also undermine the protections of young people in particular. I am especially disturbed to see that the police will be able to nominate a person to come and support a young person from whom a bodily sample is to be forcibly taken. It should not be for the police to decide who a support person for a young person in that circumstance should be. It is for the young person and for his or her whanau to decide yet the police will be given the power to make that decision in this bill. 
I also highlight the other changes in the process around law enforcement that exacerbate the concerns I have about this bill. One is the concept of mobile justice units which was proposed in September of this year I think. Police will be able to not only arrest and charge people but also convict people on the street from the back of their cop car and they will be able to take various pieces of evidence from people. Presumably now they will also be able to take bodily samples from people as a means of managing what is called mobile justice. This gives the police an extraordinary power. Not only do the police have the power to stop people and to arrest and charge them—and it is reasonable that enforcement agencies are able to do that kind of work—but also the police will now have a judicial role as they will be able to decide whether to convict people and they will be able to fine them or otherwise punish them for that crime. This bill continues to increase the powers of the police by enabling them to have a mobile justice unit in the back of cop cars and now the police can forcibly assault people and take bodily samples while only intending to charge them. The power of the police in these circumstances is enormous. It is incredible. 
Last night I heard some National members going on about extreme cases and that is fine. But we are talking here about perfectly ordinary citizens who have not committed a crime who find themselves in a situation where the police might for some reason or another want to talk with them because of a concern around a crime forcibly assault them take bodily samples from them and never charge them. Perfectly ordinary New Zealanders who are going about their lawful business and who might just have been in the wrong place at the wrong time will find themselves being assaulted by the police. That is the consequence of this legislation. There is no doubt that the taking of bodily samples DNA from those who have been charged—for example where there is real concern about the possibility of their being involved in other crimes—might be the way to resolve some of those issues. There is an argument that can be made there but not when the police are simply allowed by this legislation to roam around the country finding people with whom perhaps they have a problem or perhaps finding ordinary law-abiding citizens who have never been in trouble but have found themselves in the wrong place at the wrong time and who are forcibly assaulted by the cops who have no intention of charging them but who can use the measures in this bill as a way of getting through it. 
Many of our police do a fine job and are working to improve the culture of the police but it is not improved yet; it is not fixed yet. Until it is giving the police these kinds of powers is an abuse of their power and it is an abuse of citizens. It puts the majority of citizens at risk of the abuse of this power. This bill provides no protection for those people. It is clearly a breach of human rights and enacts systemic racism into our system. Thank you. 
KELVIN DAVIS (Labour) 
: 
 Tena koe Mr Speaker. Tena koutou katoa i tenei rangi paki. I join with my Labour colleagues in supporting the Criminal Investigations (Bodily Samples) Amendment Bill at its third reading. I support it because hard-working New Zealanders need protection from those in our community who wish them harm and in particular I speak for our women and children who need protection from those who have no respect for others. I want to play my part in making New Zealand a safer place where those who wish harm on our women and children are identified and apprehended as quickly as possible so that the harm those people cause is minimised. 
A number of very salient points were made by colleagues last night and I will touch on a few of them. Firstly as was said last night this bill creates great power. But with great power there is also great responsibility and it is our duty to hard-working New Zealanders that we do not create injustices as we attempt to eliminate other injustices. When we hear the Attorney-General himself report that this legislation has inconsistencies with the New Zealand Bill of Rights Act then we need to tread carefully. The Hon Chris Finlayson said that the DNA plan appears to be inconsistent with the New Zealand Bill of Rights Act 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. The Hon Chris Finlayson said that such safeguards were required in jurisdictions that use the comparable DNA scheme including New South Wales Victoria Canada the United States Germany Japan and the Netherlands. He said that he could not see any special circumstances in New Zealand to justify not having statutory safeguards. 
Charles Chauvel last night described in some detail the circuitous route that may see this legislation challenged and New Zealand being judged to be acting contrary to the New Zealand Bill of Rights Act. So we may find ourselves here again ironing out those inconsistencies in months to come. Charles Chauvel also proposed a Supplementary Order Paper that would have avoided this but unfortunately it was voted down. 
As my colleague Moana Mackey described in the second reading it is incredibly important that we ensure that the process of taking a sample and putting it through a laboratory can be tested in court. People who are facing a lifetime in prison for crimes they say they did not commit must be able to challenge not just the results but the process of storage and the testing of samples. There must be effective procedures that guarantee against the contamination of samples. It is hugely important to ensure the integrity of samples and of their transmission storage testing reportage and preservation and that this can stand the scrutiny of independent experts. We have created the situation whereby the police can arrest and “intend to charge” someone and take a DNA sample from a person. There are questions around what happens to DNA samples that are taken and eventually no charges are laid against the person or when charges are laid but the person is not convicted—in other words when the person is innocent. That raises questions about the destruction of DNA samples and profiles. How can people who have had samples taken be really sure that in the event of their being totally exonerated all traces of their DNA samples and profiles will be destroyed? I guess they have to take the system at its word. 
I was involved in a very small way in a case where an autopsy was performed on a baby’s body and some months after the funeral very small samples of tissue were returned to the family. The family members who believed that they had buried all of the baby at once were understandably very upset. It illustrates the fact that at times the system does let people down. I note the concerns that the Maori Party and the Green Party have with institutional racism. In the instance of this baby there was no intention to let the family down but the story illustrates how issues may arise and cause a lot of angst and grief when people have put trust in the system. I also ask: once one’s information is on the computer how can it ever be totally deleted? We just have to put our faith in the system but as I have said at times the system fails. 
As most people have come to accept DNA has become the 21st century equivalent of taking fingerprints. Others disagree and I note that the Green Party is concerned about the intrusion on people’s bodies. As a Maori I know there is a whole cultural side to the sanctity of parts of a person’s body although I acknowledge that the persons from whom these bodily samples are taken as a generalisation have probably failed to respect the sanctity of another person’s body. So I have little sympathy for those people; it is the person who has had a sample taken and is either not charged in the end or exonerated for whom I have empathy. 
I have described the way in which Maori traditionally have jealously guarded personal possessions—not just body parts like hair and fingernails but other personal items that come into contact with a person’s body such as clothes and hairbrushes etc. This is because of the belief that if we physically take a part of a person then we also capture a part of the person’s wairua and we can then use that to cause misfortune to the person. We call it makutu. In fact the ultimate insult in days gone by was to consume one’s enemy after battle. We can say that Maori collected their enemy’s DNA by eating it; I have been told that the hands and feet were particularly juicy. 
In no way do I want to be seen to be creating special treatment for Maori offenders. If someone has done the crime then as my colleague Stuart Nash said last night they need to take responsibility for what they have done. The Labour Party believes that we all need to take personal responsibility for our actions. If we have stuffed up there will be consequences. This goes for all New Zealanders. We just need to be cognisant of the fact that even if people are to be charged I presume they are still innocent until proven guilty. Therefore there needs to be a large measure of respect and sensitivity around the collection of DNA samples. 
I understand that the police have developed procedures to deal with cultural issues but that in the past when there was a higher threshold for collecting samples the police were dealing with higher-level criminals. Because the threshold has dropped the police may be dealing with less seasoned suspects who are unfamiliar with the system and who are not so sure about what has been asked of them. I would hate to see a relatively minor procedure escalate into something bigger which could mean that the alleged offender was charged with other offences such as assaulting a police officer especially if that person was innocent of the initial offence. 
I note that when taking a sample a constable has to hand to the person a written notice containing the particulars specified as well as inform the person “in a manner and in a language that the person is likely to understand” what the triggering offence is and the effect of certain sections in the Act—that the sample will be analysed and that the DNA profile derived from the sample cannot be used as evidence in criminal proceedings etc. On the face of it all this seems pretty straightforward: a written explanation in plain language and a plain language verbal explanation as to what is going to happen. This all seems well and good until we factor in the human elements. As I said last night as a teacher I know that just because a clear explanation is given and just because people are nodding their heads and saying yes it does not necessarily mean they understand what is going on. That is a mistaken belief. 
Labour supports this bill and we note that it complements work the previous Labour Government did by passing the Criminal Investigations (Bodily Samples) Act. That Act significantly increased the scope for DNA testing of suspects—for example burglary suspects could be compelled to provide a DNA sample. It provided that DNA samples could be obtained by compulsion from prison inmates convicted of serious offences before the 1995 Criminal Investigations (Blood Samples) Act and that police no longer needed a court order to obtain a sample from a convicted person. It also brought in the use of mouth swabs which are cheaper less invasive and just as accurate as blood samples and other provisions. 
In summary I hope this legislation succeeds in making Kiwis and in particular our women and children safer. I hope there is sensitivity towards the cultural side of collecting DNA samples and that we will not be sitting here again in a few months ironing out the bill’s inconsistencies with the New Zealand Bill of Rights Act. Thank you. 
DAVID GARRETT (ACT) 
: 
 I rise on behalf of the ACT Party to support the Criminal Investigations (Bodily Samples) Amendment Bill but with considerable reservations. I am glad to see the Green Party co-leader is sitting down because I think I will probably cause her some shock later in my speech. 
The ACT Party as everyone knows proclaims itself proudly to be the party of freedom. I notice Kelvin Davis quoted one of our founding principles that one must take the consequences of one’s actions. That is typical of the thoughtful speeches made by that member that I have heard in the short time I have been in Parliament. There are divisions in our party because of our founding doctrine of freedom—freedom of the individual. Others in our party say that we should take a DNA sample from everyone. Everyone who is a decent citizen should volunteer and if they do not a sample should just be taken. No one who is not criminally minded has anything to fear. That is one argument and it has much to commend it. Others in our party say this is yet another unwarranted intrusion by the State especially when we are talking about persons who have not even been charged much less convicted. That causes me concern personally and it causes concern to many of our members. 
I am personally in that uncomfortable place of straddling the fence on this one but we cannot do that in this House. We have to make a call and collectively ACT has made a call to support the bill. The Green Party speaker talked about systemic racism in the police. I personally do not believe that is the case. However it is undoubtedly true sadly that the offence that the Americans call “driving while black” which here is “driving while brown” is indeed a reason in the absence of anything else for the police to pull Maori people over. Again some will say that that is justified because Maori are overrepresented in the criminal population. That is simply a fact whatever the reason for it. But to say that our police are completely colour-blind would be to deny reality. 
The other day I was reviewing the case in Whakatane where four policemen over an extended period pepper sprayed a Maori man who was helpless in a cell. They were charged and acquitted by a jury which I found astounding having looked at the video tapes of what occurred. So to say that the police are entirely free of racist attitudes would be wrong and I will not stand here and say that. 
This is not an easy speech to make because it is a very difficult question. As Kelvin Davis has touched on I too share concerns about samples being taken where someone is intended to be charged but no charge ever follows. I have concerns and have had concerns. I am old enough as probably now only a minority of members are to remember the Arthur Alan Thomas case. I have read the 1981 royal commission report on the Thomas case and it is a shocking read. I am prepared to bet that nobody else in this House has read it but I can tell members that from that day on blind trust in the police was misplaced. So I share Kelvin Davis’ concern and I share Metiria Turei’s concern in that regard. 
But the argument is finely balanced. We have become a much more violent society than we once were; there is no doubt of that. To anyone who tends to argue otherwise whether he or she wants to split hairs about domestic violence or whatever I say that that is simply a fact. At this point I will depart from the Greens who use the usual hyperbole when talking about anything to do with law and order on the issue of grievous assaults when taking samples. Well I have just assaulted my colleague Rahui Katene when I touched her. I remember studying torts 20 years ago. I got a D in the mid-sessional exam but got an A in the final exam because I swotted. I can remember the exact phrase “Even the slightest touching is an assault”. So I have just assaulted Rahui Katene—although I am cheating because she gave me her consent first. To say that taking a sample is a grievous assault is silly; it is just silly. The worst that could possibly happen to people who refuse to give a sample would be to have their head held and a swab stuck in their mouth. That cannot be called a grievous assault or even a serious assault. 
This is a finely balanced exercise. I share the concerns of other speakers about the intrusions—the human rights concerns—and I do not have blind faith in the police. However as I said at the beginning of my speech sitting on the fence in this House is not what we are sent here to do. The ACT Party with some reservation will support this bill. Thank you. 
SIMON BRIDGES (National—Tauranga) 
: 
 I have spoken in both the first and the second readings so I will not take all of my allocated time. But I will talk about the— 
Chris Hipkins 
: Oh go on. Don’t let us down. 
SIMON BRIDGES 
: I could but I will not. I will talk about just three things. I will talk about the technology involved and some of the advances there. I will speak about the increase in the number of rightful convictions and the decrease in the number of wrongful ones that this bill will bring which is something that I see as being very important. Finally I will note something that Chester Borrows said. 
I have said at every stage of this bill that the technological increases and advances in this area are quite amazing. We have gone from the days not a very long time ago when large blobs of DNA were required to get a sample to the situation where a mere trace of DNA is all that is required. Often it is something not even visible to the human eye. The power of the technology has been amazing. Moana Mackey who knows a lot about this may be able to correct me but I do not believe we are yet at the stage where a mere breath is enough. We would still need physical contact. 
We have not gone down a much more controversial road either. Members will remember the Court of Appeal case regarding David Bain where there were issues to do with whether voice recognition and whether we could recognise what someone had said in a phone call could be admissible. It was not admissible in the Bain case. The inquiry went to whether there were words or merely heavy breathing. 
We could not say for example in a court case whether a person talking on the phone was David or Davina Hughes particularly if he or she was using a wrong name as Labour members sometimes do. We have powerful technology but we are not yet at the point where breath can be included. Certainly voice recognition is very controversial so we will not be able to tell which Labour members were making certain phone calls at certain times. 
Secondly I say that the number of rightful convictions will increase as a result of this bill. I think that is absolutely correct. It will also see innocent people vindicated as we saw with David Dougherty. 
I say to the Green member that I take seriously the point she makes about Maori and the justice system. I think that the overrepresentation of Maori in our justice system is of concern and I believe that it is also of concern to the Minister of Justice the Hon Simon Power. But I disagree with the Green member in relation to her concerns with this bill which I think will be a friend not a foe. It is simply a factual position to say that DNA sampling will see people rightfully convicted or rightfully acquitted. Therefore it is not racially biased in any way; I do not think that Maori in this country should have anything to fear. 
Finally I agree with something Chester Borrows said yesterday in a fine contribution. When we look at the whole arsenal of laws in the law and order area this bill is one of the finest and it is more likely to create fewer victims than any of the other bills passed to date. Thank you. 
MOANA MACKEY (Labour) 
: 
 I am happy to stand and take a call on the third reading of this important legislation. Labour will be supporting the Criminal Investigations (Bodily Samples) Amendment Bill. As has been said in previous readings of the bill Labour did a lot of work in the area of DNA databases further enabling the police and the courts to use DNA as a powerful tool when it comes to gaining convictions for serious crimes. This bill extends that work a lot further. 
Although members have spoken at length about the advantages of this technology and the opportunities it will bring I once again will talk as I did in my other speeches about some of the safeguards that need to be put around this legislation. I make it clear that Labour supports this legislation. I believe that this technology can be used in an appropriate and safe way. I am concerned that none of the Government speakers seem to have taken our concern on board. I spoke about it in the second reading I spoke about it at the Committee stage and I am about to speak about it again in the third reading. I think one final Government member— 
Paul Quinn 
: Repetition! 
MOANA MACKEY 
: It is because no one in Mr Quinn’s party has even addressed any of the concerns I have raised. Mr Quinn is about to stand up and give a speech on this bill. I look to the final Government speaker on this legislation to address these issues because they have not been addressed. That is the reason why I repeat myself. Mr Bridges gave a speech where he made a joke that was not even funny—one should not make jokes if they are not funny—when he should really have been taking the bill a little bit more seriously and addressing some of the issues I raised. 
As I said in the other readings of this bill and in the Committee stage we have to understand that DNA technology is not foolproof. It is not infallible. It is very very powerful. The powerful aura that exists around it is one of the reasons why we need to make sure there are safeguards. If we walk in to a court and there is DNA evidence against us then we are toast. Let us face it: we are likely to go down for that conviction. We need to ensure that juries and the people of New Zealand on whose behalf we are passing this legislation understand that it is not infallible technology. DNA sequencing for criminal purposes is not the same as full genome sequencing. We test about 0.001 percent of DNA when we do a DNA sequence for criminal purposes. Professor Ian Shaw who runs the forensic science course at the University of Central Lancashire and who is viewed as an expert on this matter says that the results are never 100 percent certain. We need to be aware of this because we have to put safeguards in place if this technology is to be used appropriately. Professor Shaw says: “The problem is that we will never really know how many people we’ve locked in prison using DNA matches are not guilty.” He said that although the chances of that happening were remote the more samples we get—and this bill will dramatically increase the number of samples we take—the greater the chance that we find two samples that look the same but are not actually from the same person. I do not say that to undermine this technology; I say it because we need to be aware of it. It really concerns me that no Government member has got up and spoken about this issue or has even acknowledged that there are limitations. They have all got up and told us that DNA testing will free the innocent and condemn the guilty. They have given it superhero status in crime fighting. Yes it is very very powerful. But with such powerful technology safeguards become even more important because evidence against a person will almost always result in a conviction. 
One of the issues that I have been particularly concerned about is the funding of the testing. That is probably one of my biggest concerns. The Minister of Research Science and Technology who is responsible for Crown research institutes was in the Chamber last night and he refused to confirm that the Institute of Environmental Science and Research would get the funding required to implement this bill safely. He refused to confirm that. He said it was a contract. He knew how much it costs so why would he not guarantee that the Institute of Environmental Science and Research will get the money? It is not just for the extra testing the staff the equipment and all the reagents that come with it but also for the chain of custody: for the administration the storing the transfer and the reporting of the samples. If the institute does not have the money for those things there is no point in doing it. 
I refer to an incident that members may remember. Last night members were dismissing this issue as if somehow it would never happen. Members may remember a case in New Zealand not very long ago where due to cross-contaminations between samples a Christchurch assault victim spent 4 months under investigation for double murder. The only reason that he got off was that he had an airtight alibi: he was being assaulted in Christchurch at the time. His DNA was taken because he was an assault victim and because of cross-contamination he spent 4 months under investigation. That is why the funding has to be there. I am not making this up to be difficult or argumentative; it is a genuine concern. I have friends who work at the Institute of Environmental Science and Research; I used to work there. Those friends have said that they are concerned. They are already under enormous pressure in terms of their DNA testing. All they want to know is that the money will be there for this bill to be implemented safely. 
On top of that is the fact that this Government now requires Crown research institutes to return a 9 percent dividend to Government so suddenly that financial pressure becomes all the more pressing. If people are working in situations where they are overworked understaffed and under-resourced we get mistakes. We cannot afford mistakes in this area because mistakes in this area send innocent people to prison. We should all regard that as completely and entirely unacceptable. All I am asking is for just one Government member to please get up and guarantee to the House that the money that the Institute of Environmental Science and Research needs for this technology and for this increase—[ 
Interruption 
] Well Jo Goodhew can sneer at me but I am actually quite serious about this. The money must be there otherwise we run the risk of a miscarriage of justice. 
Paul Quinn 
: Why did you buy KiwiRail? 
MOANA MACKEY 
: The Government’s answer to this very serious problem is: “Why did you buy KiwiRail?”. Apparently Paul Quinn is now telling us that the money for the Institute of Environmental Science and Research will not be there because we have purchased KiwiRail. Mr Quinn might like to take this issue a little more seriously. He is the next Government speaker and I expect him to address this issue. It is important. 
I come back to my point that DNA testing is not a fingerprint and we need to be very careful about it. A very interesting paper was given to the New South Wales Parliament when it went through a similar process. It pointed out that if all of New South Wales’ 8000 prisoners—as there were at that time—were tested against the 15000 profiles currently in the New South Wales police database simple chance indicated that around 120 false positives would be found. Again I say that we can have safeguards around it. But if we are not aware of the issue and if the Government members regard it as just a joke because all they want to do is go out there and say they are tough on crime without putting adequate safeguards around the technology we need to be careful. 
Labour tried to put up an amendment which the Government voted down requiring judicial oversight of the taking of samples. I think that issue will come back to the House because I do not see why any Government would have a problem with judicial oversight over the taking of a sample that can convict someone. My colleague Carmel Sepuloni made a very good point when the member David Garrett was talking about the sample being taken. If a person did not commit a crime but is suddenly dragged in to give a DNA sample that person might get really upset especially if it is someone who has been hassled a lot by the police and knows he or she did not do it. People do not always act rationally particularly if they are accused of something that they did not do and they feel that they are being subjected to harassment. We need to be aware of that and that is why the judicial oversight clause was really important. I think Labour will bring that issue back to the House. 
I also want to come back briefly to the issue of funding and errors. A study was done in the United States where an external DNA proficiency test conducted by the California Association of Crime Laboratory Directors found a 1 percent error rate in DNA testing in those reviewed laboratories. We have to be very careful. That error rate is not mentioned in court. When we are given the statistical probability of someone having committed a crime that laboratory error rate is not included as far as I am aware in New Zealand. I know it is not given overseas. We need to fund the Institute of Environmental Science and Research properly because if the error rate is getting up to one in a hundred statistical odds of one in a million suddenly do not mean a lot. 
Again I do not say that to undermine the technology. These are safeguards on the fringes. In large part this technology is very powerful and accurate but we need to be aware of its shortcomings. We should not mystify DNA testing or put it on a pedestal and suggest it is all-seeing and all-knowing. DNA testing tells us that someone’s DNA was there. It does not necessarily tell us that that person committed a crime; it tells us that someone’s DNA was found at a scene and that it was positively identified to a certain probability. We as politicians need to be very careful about talking this technology up. My colleague Lianne Dalziel made a very good point last night. The flip side is that just because there is no DNA evidence that does not mean that someone did not commit a crime. Programmes like  
CSI 
 drive me absolutely nuts but I will not get started on that programme because that would be another whole speech. The fact is that police find it very difficult because juries now think that if we do not have DNA evidence the person cannot possibly have committed the crime. That is the flip side of this argument. 
PAUL QUINN (National) 
: 
 As my very good friend and colleague “Rusty Robertson” might say it is great to be up on my hind legs. I will focus on a couple of points in concluding this debate on the Criminal Investigations (Bodily Samples) Amendment Bill. I will talk about judicial oversight and a wee bit about the cultural aspects that have been raised during the course of this debate and then I will wrap up by recommending the bill be given the Royal assent. 
There has been a lot of discussion during the course of this debate about judicial oversight the Bill of Rights Act and so on. The fact of the matter is that this legislation will be implemented in two parts. The first part sets out that the taking of a swab on the inside of the cheek will be implemented in the first round according to new Part 3 of the schedule. Swabs will be able to be taken on that basis. Once procedures have been established that comply with the New Zealand Bill of Rights Act we will go to a second round of implementation which is where a swab can be taken in the case of an offence that is punishable by imprisonment. There seems to have been a lack of understanding by members opposite about how this system is supposed to work. I think it is very important that we understand the system in the first instance. 
The second issue I raise is that although I agree with members opposite that we cannot legislate against stupidity or against the situation where people want to break the law the simple reality is that members on this side of the House believe that there are sufficient safeguards in this legislation to protect people and provide a proper mechanism for implementation. 
The final point I comment on is the issue of cultural impact to which a number of speakers have referred. I am happy to defer to my teina because of his much greater experience and understanding in these areas. But I know that I have expectorated on the rugby field any number of times and I am sure that when any of us have been driving trucks or working in the freezing works we have done the same. I cannot understand the objection to taking a swab from the inside of a cheek to be put into storage. 
With those few concluding remarks it gives me great pleasure to recommend to the House that this legislation now proceed to the Governor-General to receive the Royal assent. Thank you. 
A party vote was called for on the question  
That the Criminal Investigations (Bodily Samples) Amendment Bill be now read a third time. 
Ayes 108 
New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 14 
Green Party 9; Maori Party 5. 
Bill read a third time. 
The result corrected after originally being announced as Ayes 108 Noes 13.