Criminal Investigation (Bodily Samples) Amendment Bill
Rahui Katene, MP for Te Tai Tonga
Tuesday 27 and Wednesday 28 October 2009

Four years ago, the Maori Party was approached about the Genographic Project, a huge project in which DNA samples would be extracted from 100,000 indigenous volunteers.

That’s right – the blood and genetic codes of indigenous peoples would be suddenly available in the global DNA bank.

Perhaps it could be to construct what apparently a Chicago Museum has labelled as the perfect human specimen – Maori of course.

But the risk that the unique DNA of indigenous peoples might be used for other less honourable means was always there.

At the time, we felt duty bound by both legal codes and ethical standards to draw attention to the proposed DNA research, stipulating that informed consent and ethical approval should be obtained before any such research could proceed.

We do so on the basis of our firm belief that whakapapa is a taonga tuku iho to be protected, no matter what.

Roll on two years from the Genographic Project, and this time we were dealing with a Police Practice Note, updated in 2007 and published in the Police Journal, Ten One.

To be fair the practice note makes it clear that children under the age of ten years should only be fingerprinted for the purpose of eliminating them from a police inquiry and that children aged ten to thirteen years cannot be fingerprinted without written approval of the Youth Aid section of the police.

But the note also encouraged members of the New Zealand Police to promote the fact that it is in the best interests of children and young persons to voluntarily agree to be fingerprinted.

In reality, voluntarily given fingerprints provide the police with a tool which will greatly increase the likelihood of their being identified in future police investigations.

Mr Speaker, this Bill is a case of third time lucky for some.

The Bill introduces the ability to take DNA from any person that police intend to charge with any imprisonable offence, including young people. This will be widened to any person (or young person) police intend to charge with a ‘relevant offence’ in 2011.

Ostensibly it has a straight-forward goal - to assist with the convicting of those arrested for an imprisonable offence.

But is it really so simple?

In reality, many low level offences carry a penalty of short-term imprisonment as a maximum sentence, so that as it turns out, a very large pool of offenders could be required to undergo DNA testing.

And as we have become aware, the criteria will become broader in the future, capturing a wider group of suspects. Over time, for example, low level and youth offenders, those arrested but not convicted, or even merely those who are suspected; might all fall privy to the scheme.

The Maori Party has always believed that if DNA tests have to be employed as a means of identifying offenders, a more stringent test could be found to better target high end offenders and adopt some other approaches for the lower end.

Tino Rangatiratanga Tai Tamariki Youth Law considered that the offence thresholds should be targeted at the more serious end of the criminal offence scale, as is currently the case, and should not be opened up to encapsulate the range of offences that Part 2 of the Bill intends.

This was also the view of the Privacy Commissioner who was greatly concerned that Part 2 of the Bill would bring all imprisonable offences, whether serious or trivial, within the ambit of the DNA collection regime. This will greatly increase the number of samples collected.

The Commission’s view is that the law enforcement benefit of such a sweeping change would be outweighed by costs to privacy, public trust and the smooth functioning of the programme. As a consequence the Privacy Commissioner recommends that Part 2 should be removed from the Bill.

There are simply too many unknowns – too much variability in the potential use and collection of DNA.

For a start, there are a host of ethical and human rights concerns –particularly to do with existing police bias and over-scrutiny of Maori population, including the use of ethnic profiling.

Human rights concerns have been raised in the United Kingdom, that a DNA database breaches international human rights laws and standards.

In fact in these days when Parliament has been considering the value that referendum bring, it might be useful to consider the call for a “citizens’ inquiry”sponsored by the Human Genetics Commission, a government advisory body.

That inquiry suggests that DNA innocent people should have their details deleted from the national DNA database.

Britain has the largest DNA database in the world, including an estimated 100,000 profiles of children.

The Commission found widespread public distrust of the system, which collects and keeps genetic material from anyone who is arrested, even if they are not convicted of a crime.

And if anyone was ever wondering what was meant by ethnic profiling, they might start by considering the British experience. More than three in four young black men in the United Kingdom experience have their DNA on the database, but only 22% of young white men.

The Select Commission had the benefit of guidance from Michael Rowe from the Criminology Department, Victoria University. Mr Rowe was able to share his experience of the British database – a system which was meant to include only convicted criminals, but was slowly ratcheted up to include all those who had been arrested.

He also noted that Courts in Britain have agreed that keeping of DNA records in databases breaches human rights legislation.

Mr Speaker, this is information that the Maori Party simply couldn’t ignore. Whether it is efficacy or matters of accuracy - research from other countries indicates it is not a hugely useful tool.

And I want to go back to the ethnic differences in the database.

Our concern is that there is the risk of unethical use of the DNA database to conduct research and make population statements about certain groups having a ‘criminal gene’.

This was a particular concern of Dr Paparangi Reid, the Tumuaki, Faculty Health and Medical Sciences, Auckland University. It was her view that there was much to cause alarm in the setting of appropriate parameters on the use of a DNA police database, to make statements about whole populations and not just individual offenders.

As we know too well, recent genetic inquiry has sought to ‘discover’ genetic causes of behaviour (remember the ‘warrior gene’ research), so there is a risk such a database could be accessed for research into a ‘criminal gene’. Such research, even though unethical, has been able to be conducted in the absence of proper ethical controls.

Dr Reid had a number of concerns which the Maori Party has taken seriously

It was her view, that the positive benefits of convicting serious offenders sit alongside a host of very concerning issues.

The general question of Ethics and human rights suggests that DNA testing will affect Maori disproportionately – given existing police bias and over-scrutiny of Maori. It creates a level of ‘truth’, summed up best as crime will be found where it is most looked for.

Another concern is that DNA testing has implications for 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. DNA testing could enable the police to create a DNA profile of the wider Maori population.
Finally, there are trust issues with the police holding such information, and whether the rules of who is tested and how the information is used will change over time.

As we saw with the taser gun trial, the police function independently from parliamentary or ministerial scrutiny on operational matters and as such, we have considerable concern whenever discretion is to be applied.

We are, as I said earlier, absolutely committed to the protection of the sacred genetic makeup inherent in whakapapa, and as such we can not support this Bill. There are simply other approaches that should be used rather than tampering with DNA.

ENDS

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