The Law Commission is calling for a radical overhaul of how DNA is obtained, used and retained by police.
The Law Commission has made 193 recommendations in total which would provide clear guidelines to the police on how to obtain, use and retain DNA. (file image) Photo: Pixabay
A new report from the commission found the current way DNA is used in criminal investigations ignores human rights values, tikanga Māori and the Treaty of Waitangi.
The review looked into the Criminal Investigations (Bodily Samples) Act 1995, and found there was no clear and robust process which guided police on how to collect, use and store DNA.
Lead commissioner on the review, Donna Buckingham, said: "In 1995 Aotearoa New Zealand became only the second country to establish a legal regime for the use of DNA in criminal investigations.
"But time and technology have moved on and what a tiny amount of DNA can reveal about a person has grown hugely in 25 years."
The commission has made 193 recommendations in total which would provide clear guidelines to police on how to obtain, use and retain DNA.
It would also protect individuals' human rights and privacy, and address the disproportionate impact the current system has on Māori.
"The failings we saw are the natural result of a piece of legislation that had just reached its 25th birthday when we delivered this report to the minister, and part of the reason for these failings and gaps is simply that science has moved on. Our thinking has also moved on in terms of how we approach human rights, tikanga Māori and the Treaty of Waitangi in this space," Buckingham told Midday Report.
"The State's intrusion into that area needs to be re-balanced" - lead commissioner Donna Buckingham
The review looked into how public interest and police tools to investigate crime could be re-balanced with human rights values, she said.
"Police have a very inclusive regime as a result of a series of legislative amendments both in 2003 and 2009. They can take DNA when they intend to arrest or have arrested [someone] for any imprisonable offence, or if they have a suspect in mind.
"What we're concerned about is the privacy values that are implicated by the changes in science now mean that the State's intrusion into that area needs to be re-balanced.
"DNA contains whakapapa information which is considered to be a taonga, and its collection give rise to rights and obligations according to tikanga. Collecting and using DNA in this criminal context also engages rights under the treaty, including the right to exercise tino rangatiratanga, there's no such recognition of either of those because of the passage of time."
The review has been given to Minister of Justive Kris Faafoi, who said the government would consider it.
Police did not want to comment.
What has the reaction been?
The emphasis on ensuring Māori inclusion in the formulation of the law, as well as its ongoing application was greeted by tikanga Māori with genomics researcher Karaitiana Taiuru.
He said there were many issues with the law which affected Māori, such as how a police officer could obtain a DNA sample from someone by consent, with no oversight.
"It's all about police discretion whether a Māori suspect has a DNA sample taken or not for an imprisonable crime," he said.
"We've seen already that the bias against Māori having their DNA either forcibly or voluntarily taken is much higher than non-Māori."
Genomics researcher Karaitiana Taiuru is surprised the Law Commission's recommendations went as far as they did. Photo: Supplied
There are more than 200,000 DNA samples which are being stored on databases - roughly 40 percent of which are Māori.
Taiuru said that raised additional concerns around tikanga Māori.
"Once DNA goes on the database, it stays there forever, so we have the living and the dead DNA sitting next to each other, which again is another cultural issue for many Māori."
The review recommends the establishment of an Oversight Committee, at least three of whom are Māori, to advise police on how to provide for tikanga Māori.
"I'm surprised that the Law Commission actually went as far as they did, but at the same time, I think it's sensible and it will protect Māori from biases and other cultural insensitivities in the future," Taiuru said.
One of their major recommendations is to regulate new analysis techniques, where no regulations currently exist.
One such technique is called genetic genealogy searching, where police can use data on websites such as ancestry.com to find DNA matches.
Canterbury University School of Law academic Debra Wilson said this raised privacy concerns.
"Everyone who submitted samples to ancestry.com didn't know this was a potential use," Wilson said.
"They're consenting to their DNA being used just to see what family members are out there. They're not agreeing to it being used as a crime database or for any other reason.
"That worries me because informed consent is central to most criminal medical procedures in New Zealand."
Victoria University School of Biological Sciences fellow Geoff Chambers said he agreed the law needed updating, but did not want an issue created where none existed.
"There is a temptation for the great and wise to raise public concerns that the public don't actually have, and then for the public to adopt those, and then to get quite outraged about them."
What's wrong with the current system?
There were six fundamental problems found with the current legislation by the Law Commission.
- There is no clear and robust guide for the police to draw on when collecting, using and retaining DNA
- It does not recognise tikanga Māori and the Treaty of Waitangi, which is out of step with other legislation which has a significant impact on Māori rights and interests
- It does not properly accommodate human rights values
- It is not comprehensive
- It is confusing and complex, due to a history of amendments, which makes the legislation difficult to implement
- There is no statutory provision for independent oversight, which is inconsistent with international best practice
What is the Law Commission proposing?
All the recommendations are filtered into seven core recommendations which will be given to the government.
- Improving protections for adults from whom police seek to obtain DNA by consent or on arrest
- Requiring a court order to obtain DNA from suspects who are children or young people or who lack the ability to provide consent.
- Regulating the use of DNA where the current law is either silent or fragmented
- Establishing a single DNA databank to hold all DNA profiles obtained by police with clear rules on how these DNA profiles can be used
- Restricting the retention of offenders' DNA profiles and aligning any retention of youth offender profiles more closely with the rehabilitative focus of the youth justice regime
- Creating an independent mechanism for the assessment of new DNA analysis techniques and whether these should be approved for use
- Improving oversight by increasing the role of the judiciary, establishing a new DNA Oversight Committee (with mandatory Māori representation), and providing for external auditing by the Independent Police Conduct Authority