Chauvel Charles: Criminal Investigations (Bodily Samples) Amendment Bill — In Committee Third Reading 
Chauvel Charles: Criminal Investigations (Bodily Samples) Amendment Bill — In Committee Third Reading 
[Volume:658;Page:7487] 
CHARLES CHAUVEL (Labour) 
: 
 This Criminal Investigations (Bodily Samples) Amendment Bill confers a novel power. The police may collect without prior judicial approval a bodily sample from any person whom they intend to charge with the offences specified in the legislation. As we have just heard from the Associate Minister of Justice this measure is very likely to be expanded at a point not too far in the future to allow for the collection of such a sample from any person whom the police intend to charge with an imprisonable offence. 
At all times the House has known that in legislating in this way we are breaching our own human rights standard the New Zealand Bill of Rights Act 1990. We have an Attorney-General’s report which is a certificate that tells us this. The basis for the Attorney General’s certificate—it is not just a comment as the Minister put it but an important safeguard in our legislative process—was this: on the basis of US European Union and Canadian authority a failure to include judicial oversight of the power of literal physical compulsion is a breach of the human rights standards to which we subscribe. We have known that that is the case at all stages of this bill. We could have fixed the problem very easily by simply requiring that the police obtain a warrant before they exercise the powers conferred in the bill as they currently do with regard to the power to enter premises. 
The reason that the Attorney-General could so confidently issue his certificate under the New Zealand Bill of Rights Act and the reason that the House knows that it is legislating against our humans rights standard is exemplified by a case from the European Court of Human Rights that is less than a year old:  
S and Marper v The United Kingdom 
. The judgment was given in December 2008. One of the facts of that case was that legislation very similar to the bill we are considering now was passed by the Westminster Parliament. Under that legislation the South Yorkshire Police took the DNA samples and fingerprints of two men. Neither of the men had been convicted but because they had been arrested for a recordable offence in England Wales or Northern Ireland their DNA profiles were kept on a database regardless of whether they were charged or convicted. This practice by the way meant that at the time of the European Court of Human Rights judgment the details of around 4.5 million people were held in England Wales and Northern Ireland one in five of whom have no criminal record whatsoever. 
The European Court of Human Rights comprising 17 senior judges from across Europe found that the police’s actions violated article 8 of the European Convention on Human Rights which deals with the right to respect for private and family life. The court stated that it was “struck by the blanket and indiscriminate nature of the power of the retention” in England and Wales. It also ruled that the retention of the men’s DNA “fails to strike a fair balance between the competing public and private interests” and that the Government of the United Kingdom “has overstepped any acceptable margin of appreciation in this regard.” Finally the court ruled that the retention constituted a “disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.” 
Decisions similar to this one exist and they come from the Supreme Court of Canada and the United States Supreme Court. That is because the European Convention on Human Rights comes from the same juridical stable as the initial amendments to the United States Constitution that became the US Bill of Rights the International Covenant on Civil and Political Rights the Canadian Charter of Rights and Freedoms and most recently for our purposes the New Zealand Bill of Rights Act 1990. 
What is the practical effect of this House’s refusal to be mindful of the Attorney-General’s section 7 certificate and the amendment to Part 1 in my name that would have made this legislation compliant with the New Zealand Bill of Rights Act? New Zealand has ratified the International Covenant on Civil and Political Rights and its optional protocols. One of those optional protocols entitles people in New Zealand to bring a complaint to the United Nations Human Rights Committee in New York as to a breach of their rights under the International Covenant on Civil and Political Rights. 
Inevitably as a result of our passing this legislation in its current form the police will arrest or will intend to arrest an innocent person. Under the provisions of this bill that person’s bodily sample will be retained even where an arrest does not proceed or if an arrest does proceed where the charges are dropped or a conviction does not result from those charges. That person will ask as someone who is innocent that the State not retain his or her bodily sample. The State will refuse. 
The person will have no further domestic remedies to exhaust except maybe to make an application for a judicial review of the decision which is unlikely to be granted. If that remedy is not granted then that person will complain under the optional protocol to the International Covenant on Civil and Political Rights. On the overwhelming case law in the face of which we are legislating the person will succeed in that complaint. When that happens New Zealand will be in breach of international law and this issue will be fairly and squarely back in the lap of this Parliament. 
How the Government thinks that it is responsible fiscally or otherwise to legislate in this fashion without the simple insertion of the judicial safeguard that would make this legislation compliant with our entire human rights tradition is beyond me. It leads one to the conclusion that the failure to so legislate means that this bill is yet another example of window dressing on law and order by this Government. How ACT the so-called liberal party could vote against the amendment that would have added the requirement of judicial oversight and also a real review of the legislation is also beyond me. 
I will mention my second amendment for a moment. It has not succeeded as far as this third reading of the legislation. That amendment would have recognised that we are conferring a novel and new power upon the State with this bill. It is an intrusive power. It is a power it is true—as other speakers have said—that could have a potentially great benefit in the struggle for law and order but it is also capable of being greatly abused if we are not careful about how it is exercised. It is all the more capable of being greatly abused because of the failure to include a judicial oversight provision. 
In my amendment was a proposal that after 5 years of the legislation’s operation there should be a review. The legislation would have been reviewed by a select committee comprised of members of Parliament so it would have been a political review but at least the select committee would have been able to hear evidence in public. The select committee would have been able to call for experts to give it a view as to the operation of the legislation after 5 years. That is a period of time after which we would have had the initial stage of operation as we have heard from the Minister of Justice. 
We have also heard of the Minister’s proposed extension which judging from his speech is virtually automatic anyway notwithstanding the outcome of the administrative review that he proposes. That administrative review will be conducted by the Ministry of Justice. Its major end will be to satisfy the Minister that it is timely to proceed to the second stage of this legislation—that is that the law should provide for the taking of bodily samples in respect of any imprisonable offence. As we heard from the Minister that move is virtually a fait accompli. The review will occur by August 2011 and it is likely to occur in the heat of an election campaign. This country does not do well in the sober consideration of law and order issues at that sort of time. It is just the wrong time to be reviewing whether we have proceeded in the right fashion by legislating in this way. 
This bill is much worse than it could be or should be. As I tried to show in my speech it will inevitably result in uncertainty and litigation against New Zealand at an international level so it will not be our final consideration of it on this occasion tonight. With the simple addition of some judicial oversight we could have had finality. Thanks to the Government we have none.