Criminal Investigations (Bodily Samples) Amendment Bill — First Reading



The Green Party will be voting against this bill, in line with the report to the House of the Attorney-General, Christopher Finlayson, that this measure is not justified under section 21 of the New Zealand Bill of Rights Act, against “Unreasonable search and seizure”. The bill intrudes on privacy, and it intrudes on the privacy of one’s body to have samples taken when it is not absolutely necessary to do so. I was listening to the respected Māori commentator Moana Jackson on the radio this morning. He mentioned the questions of tapu in Māori society in relation to taking bodily samples, and he was worried about cases when the person had been arrested. But in this bill, it is not just when people have been arrested; bodily samples can be forced out of people when, under new section 24J(1)(b), inserted by clause 7, “a constable has good cause to suspect the person of committing a relevant offence and intends to bring proceedings against the person …”—”and intends” means just something that happens to be in the constable’s mind. There are no controls on it and no requirement actually to then charge the person. In fact, the legislation puts in a 2-month window, saying that after the person has had the sample taken, the authorities have 2 months to check that sample against every sample inside every database in sight. Then after 2 months they have to get rid of it.

So this allows for an open-slather collection of bodily samples from virtually anyone in the community. There does not have to be any evidence whatsoever that the person is guilty of a crime in order to take the sample. At least, that is an improvement on the British situation, where a huge database is being built up. In New Zealand, if a person is not later charged and convicted, then the sample and profile are supposed to be got rid of. But in terms of its lack of controls, the Attorney-General’s audit of this bill recommends that the bill does not proceed. He says that it is inconsistent with the New Zealand Bill of Rights Act.

This legislation allows for more and more DNA on the database to be built up, and that is a real problem. It is a step down the road to what we see in the United Kingdom, where 7 percent of the British population are now on its DNA database. Now that the authorities have the right to take DNA samples from virtually anyone without evidence, obviously they will go after people and say “Hold on—you can give it voluntarily. We have got the right, but you can give it voluntarily.”, and once someone gives a sample voluntarily, it can then be sitting on the database for evermore. So we will see a huge problem with that.

I think there are a number of problems here. One is the accidental misuse of samples. A scientist on Radio New Zealand’s

Morning Report

this morning said that the science is not entirely accurate. In this case, when over a 2-month period scientists are trying to match a sample against a whole database, mistakes can be made. As well, the Privacy Commissioner is worried about one agency, the police, controlling both ends of the system, and says there should at least be a separation between the agency that controls the database, and the police who are investigating a crime scene. There can be wrong matches, and there can be almost a vested interest in the institution of the police to solve crimes, which can lead to errors, as well.

The House of Lords in Britain this week expressed serious concern. It issued a report that warned that the national DNA database there could be used for “malign purposes”. Of course, this relates to the whole issue of national identification cards and universal identifiers, which could be misused—not necessarily by the democratic Governments of today but by a less democratic Government in the future.

It relates to the whole question that they refer to in their report. I quote a bit out of the House of Lords report, headed by the former Tory chief whip, Lord Goodlad: “The huge rise in surveillance and data collection by the State and other organisations risks undermining the longstanding traditions of privacy and individual freedom, which are vital for democracy.”

I think that our Attorney-General is quite right to raise those issues, as well. In his report, he said that “The use of DNA material for data bank comparison purposes, as distinct from investigation of a particular suspected offence, also necessarily constitutes a broader intrusion into privacy.” There is a huge issue here, and it is linked with other surveillance issues in the United Kingdom. The UK has 4 million closed-circuit television cameras, and it is going further down the track towards a surveillance society than other Western societies.

One of the problems with the legislation here is that it creeps towards a surveillance society. One might say that this bit of legislation is only taking it one step further, but once this is passed the Government might want to go further towards the British situation and have a more permanent database, not bothering to get rid of records on a person who is not convicted as they could be of some use in the future. Gradually, it could be built up to a universal DNA database.

The intrusion on people’s bodies is of concern, too. It is happening in a number of areas. Obviously, our DNA is something quite precious to us. There have been articles in the paper recently about the genome sequence and how it is easy to produce those; when one is born, one gets a genome sequence. Then there are all the problems with genome sequences and DNA being used by insurance companies, etc., to deny people coverage. There are a whole lot of social and ethical problems. In some ways, science is going ahead of our ethical considerations of some of these problems.

We see an intrusion on people’s bodies in a number of ways. There are DNA and genome sequences, the closed-circuit television cameras that can monitor one’s every movement or the every movement of cars around Britain, as more or less happens now. We can see it in the x-ray systems that are at airports, where there is virtually a naked image of someone. We can see it in the iris-scanning technology, which is quite intrusive and is starting to be brought in, in Australia. That is creeping in here with the permission for iris-scanning in New Zealand legislation that was recently passed. Altogether, I think we should wake up. It is good that the House of Lords, quite a respectable and conservative body, is sounding a lot of alarms in Britain. We should listen to people like that.