Garrett David: Criminal Investigations (Bodily Samples) Amendment Bill — First Reading 
Garrett David: Criminal Investigations (Bodily Samples) Amendment Bill — First Reading 
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DAVID GARRETT (ACT) 
: 
 I rise on behalf of the ACT party to support the Criminal Investigations (Bodily Samples) Amendment Bill but I have to say it is with some reservations. If this bill was not going to select committee I would have some very serious personal reservations about supporting it for reasons that I will come to. Before I do that I would like to address in a different way an issue that was raised yesterday by a number of members and was also raised before Christmas. It is the delays in providing draft legislation. I do not think anyone would argue that what has happened in the last wee while is ideal but the Government is committed to its programme which we support. 
In my view the problem in some respects is due to the style of legislation that we seem fixated on in this country. If we look at our laws we see that it is not uncommon to find a provision such as section 23(1)(a)(iii)(A)(i). It refers in turn to another endless convoluted clause and subclause. We have been doing that for 100 years as if there is no other way. Well there actually is another way; there are many other ways. I have been practising law for 17 years and even my head hurts when I try to figure out what some laws mean especially when they refer as many law-and-order laws do to other laws such as the Sentencing Act. There seems to be a complete resistance to any idea of looking at a different way. 
I had the pleasure of running into an old professor of mine a day or so ago Professor John Burrows QC who is now a law commissioner. Professor Burrows taught me 20 years ago and I recall to this day his legislation course which covered a number of areas such as how to interpret legislation—that was a biggie—but also how to draft and different styles that different countries use. After 17 or 18 years I still remember an exercise we did trying to figure out the citizenship of a child born of British parents in France versus a child born of French parents in Britain. From memory—I am a little vague here—in the British situation we had to look at seven pieces of sometimes conflicting legislation and in the French situation there were two. So I would like to make a wee plea to the drafting office to call Professor John Burrows. He is a lovely chap and a real gentleman. He will be too busy to do anything himself but I am sure he will advise the drafting office on a better way of doing it. 
To come back to the bill as I have said I have some reservations about it. Mr Locke has touched on a few. I too have some concerns about the provision that allows samples to be taken from persons intended to be charged. I can see that that goes down a very slippery slope as Mr Locke has said of police saying that perhaps individuals would like to give a sample to them voluntarily or if not they can then consider charging them and those individuals might wish to rethink their position. I think it is entirely appropriate that this bill is scrutinised by a select committee particularly because of its length its complexity and the wide number of issues it raises. 
Having said all of that the left side of this House to use the old stale left-right dichotomy is always fixated on the downside. There are always the problems of intrusion and Big Brother searching into your diseases and what have you but what is often overlooked is the positive exonerative effects of DNA. There are many many cases. Some members will be familiar with the fact that in the United States up to 30 people I think have been released from life sentences for murder—with a couple or three of them even coming off death row which is absolutely chilling—and they have been released because DNA has exonerated them. It can be a very positive tool as well as a convicting tool. 
In New Zealand we have the case mentioned very briefly yesterday by the Hon Simon Power of David Dougherty. That was a case where if we had had samples from the odious Nicholas Reekie who was later convicted of the rape that Dougherty was falsely convicted for two things would have happened: Mr Dougherty would never have gone to jail and had his life destroyed and Nicholas Reekie would not have raped the woman whom he raped which led to his conviction for the crime that Dougherty did not commit. 
The Hon Lianne Dalziel yesterday mentioned cost. Well it cost the State close on $1 million in compensation plus God knows how much extra in legal costs to compensate Dougherty for the 4 years he spent in jail—wrongfully. I have to say that very little credit is to be given to the then Government for the ridiculous and ever more absurd scenarios that it tried to dream up when it became obvious to a blind man that Dougherty was innocent. 
There are many positive things from having DNA on the database. Yesterday the Hon Lianne Dalziel said—correctly—that samples can now be taken but only when people are convicted. That is all very well but I go back to Dougherty and Reekie again. If Reekie’s DNA had been on the database for his earlier less serious convictions Dougherty would not have gone to jail wrongfully and Reekie would not have committed his second crime. 
A DNA match is not conclusive of guilt; it is just a tool it is just some evidence. The samples will be kept only if a suspect is convicted and again I have to say that the points made by Mr Locke in my view are valid—at least in terms of examining them at select committee. It is all very well to say that records will be destroyed. There are also issues surrounding the extent of the DNA evidence or the DNA profile that is kept. I am not a scientist by any means but my understanding is that there are different levels of what can be discerned from DNA. A profile of an offender is one thing but then one can go to whole different levels to look at things about the offender—or the prospective offender—such as disease history which are of no relevance at all. 
However any law like this involves a balance. We have to accept that there is some invasion of privacy and in any such situation we need to look at what is the greater good. It is a bit of an old cliché but notwithstanding all of the concerns that Mr Locke has expressed—and some I have said that I share—no one who is innocent of a crime has any real concern about a DNA profile being kept of him or her. If the DNA profile is purely for identification of that person and not to provide a medical history or to show a propensity for genetic diseases or whatever then maybe sadly we have got to the stage where that invasion of privacy is minor. As it is we are talking about a pinprick in the finger. Mr Locke talked very emotionally yesterday about forcible removal of blood being against Maori culture. Well we are talking about a pinprick. 
All in all I support this bill with some reservations and I am very happy that it is going to a select committee for further scrutiny. Thank you.