Speech: Criminal Investigation (Bodily Samples) Amendment Bill

Morena, tenei tatou katoa i tenei ata.

 

Sixteen years ago, in 1993, the Indigenous People’s Council on Bio-colonialism established itself to oppose the Human Genome Diversity Project a global genetic research project that evolved from the collection of indigenous peoples’ DNA.

 

Later in 2005, the National Geographic Society in collaboration with the computer giant, IBM Corporation, sponsored the Genographic Project which again sought to collect 100,000 DNA samples from indigenous peoples around the world – in Australia, Brazil, North America and Southeast Asia, Sub-Sahara and South Africa.

 

And again the Indigenous People’s Council spoke up, opposing the trend to treat the indigenous subject as a scientific curiousity.

 

The indigenous DNA is clearly a commodity worth having.

 

But for a party which believes in the sacredness of whakapapa, we believe there is no room for doubt when DNA is concerned.

 

Around the world, indigenous groups are now far more alert to the risks of biopiracy, and as such, any piece of legislation which proposes the collection and storage of genetic material will confront a host of ethical human and collective rights.

 

And when rights are involved, inevitably so are lawyers and Courts.

 

What does not help in terms of the backdrop to this Bill, that just over two months ago, the European Court of Human Rights ruled against the law-enforcement policies of the British government in respect to their commitment to gather and store the fingerprints and DNA of all criminal suspects. Their ruling concluded, that the practice was a violation of the human right to privacy; describing the police’s decision to keep DNA stored on the database as having, and I quote:

 

“over-stepped any acceptable margin of appreciation” in striking a balance between individual rights and public interests.

 

Where the British practice varies with our situation, is that in their case, the Police seek to hold DNA material indefinitely in their database, even of those who turn out to be innocent.

 

But the Strasbourg ruling or the European Court ruling has implications for our Parliament, in throwing wide open the issue of how to ensure a check on the powers of the state.

 

Similarly, my research found in the United States, the Havasupai tribe, filed a lawsuit in 2004 against Arizona State University for the taking and misuse of their genetic samples.

 

Mr Speaker, politicians, scientists and law enforcement agencies right around the globe are being held accountable for their use of the genetic material of targeted populations. And so it will be in this Bill too, where the Police are being granted a discretionary power to take compulsory DNA evidence at the point of charging. This, as others have said, is a concern.

 

While we are pleased that the Police will be required to annually reveal the statistics around the use of the tool; including whether it is overused on matters of ethnicity; we wanted to simply state the obvious - that is, that any intervention involving DNA will be watched very closely by Maori.

 

Mr Speaker, to be precise, the Maori Party has five specific concerns around the use of the DNA sample proposed in this Bill.

 

The first and most fundamental, is that surrounding ethics and human rights and other speakers have spoken on this. The Bill proposes to empower police with the ability to take DNA from any person that police intend to charge with any imprisonable offence, including young people.

Where the waters become muddied however, is whether these powers to take a DNA sample should be discretionary. To be upfront, the application of discretion when applied to Maori has never worked in the interests of Maori. Countless research studies have provided evidence that given the risk of police bias and over-scrutiny of Maori, DNA testing will affect Maori disproportionately.

 

The research demonstrates that systemic factors operate at one or more steps of the criminal justice process which make it more likely for M
ori to be apprehended, arrested, charged, convicted or imprisoned.

 

In a study describing the over-representation of Maori in the criminal justice system just 18 months ago, the Department of Correction described these processes variously, as the “unintended consequences of discretion”, “unevenness of decision-making”, “bias” and “institutional racism”.

 

In addition, the risk of apprehension for Maori is often amplified because of formal and informal profiling by official agencies- that is, a particular truth is created around ethnicity.

 

This element of discretion, is the single most concern for the Maori Party – and indeed for a range of human rights advocates and groups. We noted comments from the Council for Civil Liberties spokesman Michael Bott yesterday suggesting that allowing wider powers to take and use samples from people legally considered innocent and without approval from the courts was a major concern; and we have no doubt that these concerns will be presented in full force throughout the Select Committee stage.

 

A related issue for the party, is that associated with the construction of a DNA database: For those in the House who like me, have come from a teaching background, they may recall staffroom chatter where the negative behaviour of one child is generalised to stigmatise all the siblings of that child attending the school – “ah, it’s that family, what can we expect”.

It isn’t right; it isn’t fair, but it happens.

 

In much the same way, DNA testing has implications for the wider whanau, as well as individuals as first and second degree relatives can be identified through genetic testing, allowing the authorities to build up a family history. Theoretically in fact, DNA testing could enable the police to create a DNA profile of the wider Maori population.

 

What this all translates into is, the third issue, the issue of trust regarding the police guardianship of the DNA database. There will in the minds of the public, issues of trust about police holding such information, including concern about who is tested and how the information is used and whether those protocols will be sustained.

A fourth issue is that relating to the actual collection; utilisation and storage to ensure there are appropriate parameters in place about how the DNA material will be used. Our concern is that there is a fair and consistent system for sample collection, which complies with the relevant international conventions, including the United Nations Convention on the Rights of the Child.

We remember clearly in early 2000, in the Labour Government’s first term, the storm that erupted around the Police action in Whangarei in taking fingerprints from children. Former Police Commissioner Rob Robinson had told the law and order select committee I am advised about situations in which some very young children had their prints taken; supposedly this information was intended to deter them from a life of crime.

 

Now we are concerned about the vulnerability of children and young people, and will be watching to see that appropriate and additional protections are in place to protect their rights and we have had some discussion with the Minister on this matter. We must ensure that there are proper ethical controls in place in every aspect of the collection; utilisation and storage of the databank.

 

The final concern is that of the budget implications of the proposed changes Mr Speaker. With an already huge law and order budget, we hope that the Minister will be able to clarify how much additional resource will be channelled into policing tools and devices like DNA testing and taser guns, in comparison to the resources allocated for crime prevention, restorative justice measures, and strategies to support the police in enhancing community relationships.

Mr Speaker, the issue of DNA testing is a complex one. The positive benefits of convicting serious offenders sit alongside a host of worrying issues; issues that we can not and must not ignore.

 

We do not support this Bill going forward, but we are aware that there is sufficient support for it at least to move the debate to the Select Committee stage.

 

At that junction, we will be looking particularly to see how our concerns are addressed about the likely impact on Maori of the use of discretion.

 

We know that there was some work initiated on exactly this issue – the unintended consequences of discretion – and we believe it would timely for that work to be completed and put before the House.

 

The project I speak about was initiated by the Ministry of Justice in consultation with Te Puni Kokiri and was undertaken in 2007 and 2008. The concern with discretion is a key concern for us with this Bill, and we would recommend analysis of this project, as a key input for the Select Committee.

 

The Maori Party will be voting against this Bill.