Davis Kelvin: Criminal Investigations (Bodily Samples) Amendment Bill — Third Reading 
Davis Kelvin: Criminal Investigations (Bodily Samples) Amendment Bill — Third Reading 
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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.