New Zealand Law Students Journal
Last Updated: 30 August 2012
TOWARDS A DNA DYSTOPIA? HUMAN RIGHTS CONCERNS UNDER THE
CRIMINAL INVESTIGATIONS (BODILY SAMPLES) AMENDMENT ACT 2009
It has been described as “critical in the fight against the escalating
rate of crime” in New
Zealand, a move which will
“save more victims than probably any other single piece of
legislation”. It has also
been called “an absolute prizewinner for how badly put together
legislation can be” and
“much worse than it could or should
be”. Even before it was
passed into law, the Criminal Investigations (Bodily Samples) Amendment Act 2009
(CIAA) managed to divide opinion
as few other law-and-order statutes have done.
The Act was passed into law on 28 October 2009 and received Royal Assent on 2
2009. Its first phase (see below) came into force on 6 September 2010.
Yet the important consequences of the amendment – its
impact on police
investigation and crime-fighting, its implications for the civil liberties and
privacy rights of New Zealand citizens,
its potential conflict with New
Zealand’s obligations under international law – are still yet to be
The Act makes significant changes to the DNA sampling and
profiling regime established under the original Criminal Investigations
Samples) Act 1995, altering the authority and procedure for the New Zealand
police to take DNA samples from criminal suspects
and store their genetic
profiles on the National DNA Database (NDD). The fear from some quarters is
that, whatever its touted benefits
for police, the expansion of New
Zealand’s DNA regime under the new legislation imports with it a
“host of ethical and
human rights concerns” which have not been
1. Opposition to the Amendment
Even before it passed into law, the CIAA attracted considerable criticism
from opposition MPs and interested parties. Select Committee
organisations such as the Human Rights Commission, the Privacy Commissioner and
Amnesty International, for example,
contended that the proposed extensions of
New Zealand’s DNA regime were “a step too
far”. Perhaps the strongest
indictment, however, came from the government’s own Attorney-General, Hon
Christopher Finlayson MP, whose
report on the Act’s consistency with the
New Zealand Bill of Rights Act 1990 (NZBORA) pursuant to s 7 of the Act found
proposed legislation to be inconsistent with New Zealand’s human
rights protections. In the face of
the lobby-group opposition and the Attorney-General’s reservations, the
Act was nonetheless passed by the House
with the support of a large
parliamentary majority – 108 votes in favour, and only 14
against. Yet those 14 Green and
Māori Party MPs who opposed the legislation were consistently forceful in
their objections, and even
the Labour Party – which ultimately supported
the Act – raised reservations about the extension of the DNA collection
regime, observing that the amendment created “legislative changes that
take us outside the New Zealand Bill of Rights
2. Concerns of Political Expediency
Underlying many of the concerns about the CIAA can be discerned a fear that
the Act represents a mere “knee jerk” reaction
law-enforcement issues rather than a principled approach to the expansion of
police powers. Law-and-order statutes are
notorious for pandering to popular
sentiment – the need for a government to be perceived as “tough on
rather than rationally considering the best way to address
the problem of criminal offending. That suspicion is heightened by the
the CIAA legislation comprised part of the National government’s
“100 Days” Post-election Action Plan
reform. During the 2008
electoral campaign, the National Party had promised to “bolster the tool
kit of the police” in order
to take a harsher stance on law-and-order
issues, including an expansion of New Zealand’s DNA
regime. The fact that the Act
was essential to upholding the Party’s electoral promises –
“another key plank in the Government’s
law and order package”
– played an undeniable role in motivating the Act’s expedited
passage. The risk, therefore, is
that the civil liberties and privacy implications of the expanded DNA regime
were not properly considered
in the race to pass the legislation into law. The
risk is that with every successive extension of police powers in this area,
become committed to them in turn, tak[ing] us progressively further
away from the alternative approaches that were equally possible
at an earlier
stage” – making it imperative that legal developments such as the
new Act be properly considered before
further action is
3. Scope of Paper
The focus of this paper is thus to address what may not have been properly considered in the drive to push through the legislation: to assess whether the CIAA can achieve its stated aims in a manner proportionate with its potential incursions upon New Zealanders’ rights to privacy, autonomy and equality – complex issues of civil liberties and the relationship between the citizen and the State. As Māori Party MP Te Uroroa Flavell observed during the Bill’s First Reading in the House in February 2009, “the positive benefits of convicting serious offenders sit alongside a host of worrying issues that we cannot and must not ignore”. The civil liberties issues are significant and worthy of thorough consideration – international experience indicates the perils of ignoring human rights in the effort to clamp down on criminal offending. Yet, this paper shall contend, the risks to the individual rights associated with new DNA regime are ultimately not as severe as some parties have depicted them to be. The new DNA regime has the potential to operate in a proportionate manner, consistent with New Zealand’s existing human rights and privacy legislation, as well as enhancing the ability of New Zealand police to track down and convict serious criminal offenders. To ensure that this occurs, however, the appropriate safeguards must be put in place, and the present lack of independent oversight of the DNA regime provides the greatest cause for concern. The National DNA Database is already a reality; what is important, in the words of a report by the UK Human Genetics Commission (HGC), is that we consider and enforce the appropriate “conditions of acceptability” for having a forensic DNA database.
1. DNA Matching and Crime-Fighting – The Previous DNA Regime
The New Zealand DNA regime itself is nothing new – the original
Criminal Investigations Act, passed in 1995, established a regulatory
the collection and retention of DNA profiles by police which was apparently only
the second such regime to be established
world. The issue at stake today
is thus not the propriety of DNA collection itself, but how far the legislative
regime is gradually expanding,
at an increasing potential cost to New
Zealanders’ civil liberties. The expansion of power granted to police
under the new
amendment Act, the Attorney-General noted in his NZBORA compliance
report, “represents a substantial expansion of the current
To understand why that expanded power has generated concern in some quarters, one must first understand how the existing DNA regime works. DNA profiles derive from two separate sources of samples, and it is the conjunction of these two sources which gives DNA profiling its functionality. Firstly, crime-scene profiles are commonly derived from biological samples collected at crime scenes, in the form of blood, hair, semen, skin, saliva, or sweat traces often invisible to the naked eye – as little trace material nowadays as a nose smudge left behind on a window. Secondly, DNA samples known as “subject samples” can be obtained from individuals – criminal suspects, volunteers, convicted offenders. Matches between the crime-scene profile and a subject profile – the numerical code derived from a subject sample – can determine if a subject was present at the scene of a crime. Matches can thus help police narrow the focus of their investigations, and DNA matches are also frequently adduced in court as often strongly probative evidence pointing to an individual’s guilt (although a fresh DNA sample must be taken from the accused to be adduced in court as evidence). The ability to collect DNA subject samples, however, can be useful to the police not only in respect of crimes currently under investigation. Once a person’s DNA profile is added onto the National DNA Database (NDD), it can be compared against unknown DNA from unsolved crime scenes (stored on another database, the Crime Sample Database (CSD)). A subject DNA profile can also be compared against DNA samples from future crime scenes when they are later entered onto the CSD. The ability to take and compare DNA samples is thus of undoubted utility to police in conducting investigations into criminal offending both past and present – matching NDD profiles against the CSD has already provided police with intelligence links for more than 13,000 cases, and reportedly results in about 90 identifications between individuals and unsolved crimes every month.
2. Authority Required to Obtain Samples – Previous
Thus both crime-scene samples and subject samples are necessary for DNA
profiling to be useful to the police, but the ease of obtaining
samples from the
two sources is far from equivalent. Taking a DNA sample from a crime scene
involves little legal or ethical difficulty
(although the practical difficulties
for forensic scientists may be considerable if DNA traces are small, mixed or
degraded). Obtaining DNA samples
from subjects, on the other hand, is much more controversial. Prior to the
passage of the CIAA in November 2009, when requiring a subject sample for
a particular criminal investigation, police could obtain a suspect’s DNA
only with the consent of the individual involved or with judicial approval
through a suspect compulsion order or juvenile compulsion
order (the so-called
“Part 2 suspect
regime”). The High Court
could issue such an order only if satisfied that police had “good cause to
suspect” that the suspect had
committed an indictable
offence. The requirement of a
judicial warrant was designed to ensure a degree of independent oversight in
light of the fact that police were
intruding on a person’s privacy and
bodily autonomy before any charges had been laid or proven in court.
If, on the other hand, police wished to take a suspect DNA sample not for the purposes of a current investigation but for comparison against unsolved crime-scene samples, the requirements were even more stringent. Police had to wait until the subject was not only charged but convicted in court of a “relevant offence” specified in a schedule to the Act before they could issue a databank compulsion notice compelling the convicted offender to give a DNA sample. A “relevant offence”, generally, was an offence punishable by more than seven years’ imprisonment, but also included a number of lesser offences supposedly indicating a propensity for more serious offending (or offences for which offender DNA is often left at the scene of the crime). Thus the only circumstances in which police could obtain a DNA subject sample for entry onto the DNA databank without consent or judicial approval were narrowly restricted by both the requirement that the subject be already convicted and the threshold severity of a “relevant offence”. Yet even those narrowly circumscribed powers proved powerful in practice – leading to the acquisition of 100,000 DNA profiles (subject and crime-scene) by October 2009.
3. Changes under the CIAA
The new CIAA expands the police powers to collect and store DNA by
making two fundamental changes to the DNA
This expansion is set to take place in two distinct stages. The first stage of implementation, Part 1 of the Amendment Act, is now effective. Part 1 implements the first change listed above by inserting a “new Part 2B” into the principal Act to complement the existing “Part 2 suspect regime”. The new “Part 2B regime” – referred to by the Police Association as the “arrestee regime” – allows police, without prior judicial approval, to compel a DNA sample from every person they merely intend to charge with one of the “relevant offences” listed in the Act. This means that police can now compel a DNA sample from an individual even before he or she is charged with an offence, and thus will lead to situations where police will compel a DNA sample from someone who is ultimately never charged or convicted. The Part 2B arrestee regime also allows police to enter the profile derived from a suspect’s DNA sample onto a temporary databank (the new “Part 2B temporary databank”) for matching against the CSD as soon as charges are brought – unlike the old regime, police need no longer wait until a conviction is entered before undertaking this task. The second stage of implementation, Part 2 of the Amendment Act, is still to come into force by a subsequent Order in Council, expected to occur in late 2011. Part 2 of the Amendment Act relates to the second fundamental change listed above – when implemented, it will do away with the concept of a “relevant offence” altogether, allowing police to take a DNA sample without prior judicial approval from anyone they intend to charge with any imprisonable offence.
What becomes clear from the above is that the CIAA also blurs the former distinction made between DNA samples taken for the purpose of a current criminal investigation and DNA samples taken to match against unsolved crime-scene profiles on the CSD. Previously, investigative samples taken under a suspect compulsion order could be used only for the investigation of that particular offence; if the offender was subsequently convicted, a fresh DNA sample had to be taken by police for the purpose of databank comparison. Under the new “arrestee regime”, however, a DNA sample taken from a suspect in the course of an investigation can be transferred directly from the temporary DNA databank onto the permanent National DNA Database if the offender is subsequently convicted, without the need for a fresh DNA sample to be taken. Unlike the United Kingdom, however, which has implemented similar threshold standards for DNA collection to the expanded New Zealand regime, in our country the DNA samples of people ultimately not convicted will be destroyed once charges against them are dropped or they are acquitted. Thus in this respect the expanded New Zealand regime can be distinguished from the issues surrounding conviction and DNA retention which has given rise to legal and ethical objections in the UK – an issue that will be discussed in more detail below.
The two-stage process was apparently not the government’s first preference for implementation of the new regime, and indeed raised concerns for the police that it “potentially undermines and frustrates the policy intent”. The staggered implementation resulted from the recognition of the need to afford the Institute of Environmental Science and Research (ESR) time to adjust to the increased workload, as well as adjusting for the significant costs involved in the new regime in light of New Zealand’s current fiscal situation. Tellingly, however, Minister of Justice Hon Simon Power also recognised that the expansion “raises issues that are worthy of public debate”, and that staged implementation provides an opportunity “to gather more robust information about full implementation” – perhaps an concession that even the government is less than certain about the full ramifications of its proposed course of action.
B. Proportionality And Public Safety: a Rights Balancing
In order to analyse the potential impact of the CIAA upon individuals’
civil liberties and right to privacy, it is necessary
to ascertain the problems
which the new regime purports to address. In New Zealand, as in other Western
liberal societies, human
rights are never considered absolute, and must
invariably be subject to competing rights as well as the wider public interest,
balance between personal liberty and the overall common
good. Of course, the NZBORA
itself recognises that rights may be subject “to such limits
prescribed by law as can be demonstrably justified in a free and
society”. The promotion of
public safety can undoubtedly provide a justification for limiting human
rights – the protection of the public from criminal behaviour is one
the State’s primary obligations – but there is always a balance to
be struck along the spectrum of societal safety
rights. The State must always
have good reason to gather sensitive personal information about its citizens,
particularly those who have not
yet been proven guilty of any
crime. Although some civil
libertarians decry any measures to increase police powers of investigation as a
move towards a “genetic
state”, ultimately one
must decide whether the incursion into citizens’ rights to privacy,
autonomy and equality may be proportionally
justified by the interests of the
police and the greater good of protecting society through enhanced law
The public-safety justification for expanding the police powers for compelling DNA samples was that the former regime did not allow the police to obtain a sufficient number of subject profiles to match against all outstanding crime-scene profiles. By substantially expanding the “pool” of subject profiles held in the database, the likelihood is increased of finding a match with an unsolved (or future) crime-scene profile on the CSD. Simon Power, in introducing the legislation, estimated that even the first stage of implementation would result in an additional 218 convictions from 2010 to 2011, while full implementation would result in approximately 445 extra convictions. Thus the legislation aims to “contribute to increasing public safety and public confidence in the justice system”; it is, supporters say, an “essential investigative tool” in policing, a “powerful tool in the toolbox for police and the justice sector”. The Act will, it is hoped, result in “more victims vindicated” by removing repeat low-level offenders from society before their offending can escalate to more serious criminal behaviour, and by removing serious offenders before they can strike again.
1. Need for Caution in Expansion
Yet notwithstanding the legitimate aim of the legislation, one must always be
careful not to create injustices as one attempts to
eliminate other injustices.
Just as “surveillance state” scaremongering contributes little to an
informed public debate,
neither should concerns about human rights intrusions be
derided and dismissed as a “Big Brother conspiracy
theory”. To strike a
proportionate balance, the Act must advance its objective in “the most
effective, efficient and targeted way possible,
with the necessary
safeguards”. Thus although
human rights are not inviolable, they should be affected to the least extent
necessary. An example where the appropriate
balance has not been struck –
one which may provide a salutary warning to New Zealand – is the UK
National DNA Database
(NDNAD). The European Court of Human Rights (ECtHR)
recently condemned the NDNAD in S and Marper v United
Kingdom, ruling that it
“fails to strike a fair balance between the competing public and private
interests”, and thus violates
the UK’s human rights obligations
under arts 8 and 14 of the European Convention of Human Rights to respect
private and family
Interestingly, although New Zealand’s DNA database is at present much
smaller as a percentage of population than the UK’s
(in the UK, over 5
million people – more than New Zealand’s entire population –
are on the National DNA Database)
its “hit rate” in identifying
criminal offenders is reportedly higher than the
UK’s. This suggests that
New Zealand’s database is already operating relatively efficiently
compared to its larger overseas counterparts,
and that expansion of the NDD may
result in little increased
benefit. Police must be careful
to ensure that the NDD expansion does not, as Lianne Dalziel noted, merely
“flood the system with a
lot of irrelevant data, which will not produce
anything of any
C. Privacy: the Nature of DNA And Informational
The primary basis of objection to the expansion of New Zealand’s DNA
regime is that it represents an ever-greater intrusion
Zealanders’ right to informational privacy – “the fact that
genetic information is on police records is a novel conjunction,
giving novel possibilities that must be treated as
privacy, which concerns the right to keep private information reasonably
regarded as intimate or sensitive, is generally
defended both as an abstract
value and because of the specific harms that can result from its violation. As
the Nuffield Council
on Bioethics observes, even if no specific harm results
from a breach of privacy, “the unauthorised use of such sensitive personal
information might be seen as undermining the inherent dignity of human
beings”. The right to
privacy is also an important check on both the power of the State and the
private sector to intrude into the private
citizens. A report of the House
of Lords Select Committee on the Constitution in 2009 expressed concern in
respect of the UK NDNAD that “the
huge rise in surveillance and data
collection by the State and other organisations risks undermining the
of privacy and individual freedom, which are vital for
the New Zealand Privacy Commissioner noted, the DNA database represents a
“state-run collection of intimately
concerns arise in respect of biological samples because of the quantity and
quality of private information they contain.
However, if handled with the
appropriate oversight and safeguards, however, it is possible to minimise the
potential for this large
quantity of personal information to be misused or
1. DNA vs. Fingerprints
Supporters of DNA profiling frequently liken the procedure to a
“modern-day fingerprint” to try and make the idea more
palatable. Fingerprinting has
been used by police since the 1800s to identify offenders at crime scenes, and
the intrusion into informational
privacy which fingerprinting entails has been
generally accepted in New Zealand and other Western countries as proportional
and appropriate. Both
fingerprints and DNA possess three key characteristics – particularity,
variability and stability – that make them
highly effective as unique
markers of individual identity, able to distinguish an individual with near
certainty from the population
whole. The analogy between
fingerprinting and DNA profiling, however, is technically accurate but also
somewhat misleading. Although both
are used in effectively the same manner by
police, the comparison obscures the fact that a person’s DNA contains a
amount of private information which a fingerprint does
not. The Attorney-General
himself observed that “it has not been generally accepted that DNA samples
are equivalent to the taking
fingerprints”. Advances in
genetic technology have meant that samples from very small bodily traces can now
be used to obtain DNA, meaning that
DNA profiling now “provides more
possibilities to obtain suspect identification evidence from crime scenes than
2. The Unique Nature of DNA: Genetic
The key issue for privacy advocates is that along with this identification
function, samples of DNA can also provide a wide amount
information about the individual to whom it belongs. An individual’s DNA,
it has been said, “is not the
same as many other more mundane pieces of
information we are obliged to divulge”; rather, it contains the
individual”. Every sample
of a person’s DNA contains the entire genetic blueprint for that
person’s character, and can potentially
reveal information of
“profound personal significance to the individual” which ought to be
treated with a considerable
privacy. A person’s
DNA, the Human Genetics Commission has observed, is “personal to them
– it can be both identifying and
revealing – and its use by others
can constitute a harmful interference in their private
life”. This idea –
that genetic information is uniquely different from other forms of personal
information – has been termed
ability to “read” a person’s genetic blueprint is limited only
by our current level of technological capacity:
the more technology advances,
the more genome sequencing is allowing us to identify the function of particular
and their correlation with real-world phenotypic
“identity revealing” function of DNA could be used to determine a
person’s physical traits: their height,
physical build, hair and eye
colour, even their likely ethnic
background. Even more
intimately, DNA can reveal a person’s genetic predisposition to certain
diseases and conditions – from lactose
intolerance to prostate cancer
– and thus their potential health and life expectancy in the future.
 Most controversially, scientists
have also posited that DNA analysis may indicate a genetic propensity or
susceptibility to certain
behavioural characteristics – intelligence,
risk-taking, extroversion/introversion, even
sexuality. The more DNA samples
police have in their possession – especially from persons who
haven’t been convicted or even charged
with an offence – the greater
the risk of misuse of the exceptional nature of genetic information for
inappropriate and harmful
3. Privacy Protections and DNA
As the Supreme Court of Canada recognised in R v
RC, because, “unlike a
fingerprint, [DNA] is capable of revealing the most intimate details of a
person’s biological make
up”, the collection of DNA samples,
“absent a compelling public interest, would inherently constitute a grave
of the subject’s right to personal and informational
privacy”. New Zealand is
obliged at international law to protect the right to privacy by virtue of its
commitment to the International Covenant
on Civil and Political Rights (ICCPR).
The right to informational privacy is not explicitly recognised under the
s 21 (to be discussed below) establishes a more specific right
to maintain one’s private affairs from unreasonable search and
seizure. Most generally,
informational privacy is protected in New Zealand by the “Information
Privacy Principles” of the Privacy
Act 1993, with which both the police
and the ESR are bound to comply.
Although the principles are broadly drafted, they place general limits on what
the police can do with the DNA database – selling
the information to third
parties, for example, would clearly fall outside the scope of use “for a
lawful purpose connected
with a function or activity of the agency” under
Privacy Principle 1. Privacy
Principles 10 and 11, which require that an agency shall not, except in
exceptional circumstances, use or disclose information
for any purpose other
than that for which it was collected, would also prohibit the police from using
the NDD to reveal particular
characteristics about an individual unless a
demonstrable link could be shown to the databank’s purpose in
resolving criminal offences.
 The Act itself also provides
restrictions on what constitutes legitimate use of the DNA databank, prohibiting
a priori the possibility of police lawfully using the NDD for
non-operational purposes. Section 27 of the Act provides that information on
database can only be disclosed “for the purpose of forensic comparison in
the course of a criminal investigation by the
Police” or “for the
purpose of administering the DNA
4. Remedies and the Risk of Accidental Breach
But what if those controls on informational privacy are breached by police,
especially in the absence of any constitutional recognition
of a right to
informational privacy in the NZBORA? A number of remedies are potentially
available to aggrieved individuals. A complaint
can be made under the Privacy
Act to the Privacy Commissioner (or the Ombudsman), with a possible appeal to
the Human Rights Review
Tribunal (HRRT) at the discretion of the Director of
Human Rights Proceedings. The
remedial powers of those bodies are significant too: the Privacy Commission can
refer the matter to the HRRT to make a declaration,
issue an order for specific
performance or restraint, or even award damages for “humiliation, loss of
dignity, and injury to
the feelings of the aggrieved individual” –
likely to be the kind of damage suffered by an individual whose privacy is
breached by misuse of the DNA databank, rather than direct pecuniary
loss. Since the 2004 Court of
Appeal decision in Hosking v Runting, a breach of informational privacy
can also potentially sound in common law civil damages where a “reasonable
privacy” and “highly offensive” publication can
be established. Finally, the
Criminal Investigations (Bodily Samples) Act 1995 itself establishes a number of
criminal offences to protect against
the misuse of DNA samples, including
offences of gaining or attempting to gain access to a DNA databank, disclosing
stored on the databank, or gaining or attempting to gain access
to or use a DNA sample. One
concern, however, is that these remedies can really only apply ex post facto
– by which time the damage caused by a leak of an individual’s
private genetic information may already have been done.
The more samples
collected, the greater the risk of misuse of DNA occurring before the person
involved has a chance to become aware
of and prevent the breach of privacy.
Although one might generally trust the police to abide by their legal
obligations to use the
databank appropriately (as the Police Association points
out, perhaps the greatest safeguard is that “it is difficult to imagine
any credible scenario where police would have any interest in investigating (for
example) a suspect’s hereditary disorders”),
a greater risk is posed
by the increased likelihood of accidental breach of
privacy. Even in the past few
years, instances have occurred in New Zealand of private information held by
government departments being inadvertently
released into the public domain, and
again the potential for accidental privacy breaches of the DNA databank is only
likely to increase
as the regime is systematically
5. DNA Profiles in Practice: Limited Risk of
Many of the concerns about interference with informational privacy, however,
fail to recognise one significant point about the way
that the DNA profiling
regime operates: DNA profiling should not be confused with full genome
sequencing. A distinction has to be
made between the DNA sample taken
from a subject and the DNA profile that is extracted as a result, and in
this respect those who liken the DNA regime to the
“21st-century fingerprint” are perhaps more correct. When
the ESR uses a DNA sample to produce a DNA profile for storage on the database,
it uses only a very small portion of the individual’s total DNA –
approximately 0.001% of the entire
genome. To distinguish a
person’s genetic identity, the ESR’s Identifiler testing system
examines only a very limited number
of sites (known as “loci”) on a
person’s DNA for the frequency of 15 markers known as “short tandem
and these sites do not contain any hereditary identifiers or
other information of an intimate
nature. The regions of DNA which
show the greatest variability from person to person – and thus function
most effectively to identify
individual offenders – are the non-coding
sections of DNA which bear no relation to an individual’s phenotypic
(their appearance, medical predispositions,
etc). The DNA profile stored on
the NDD consists of no more than a string of numbers used to identify and
distinguish the individual from
everyone else – effectively, therefore,
little more than a genetic
The potential for damage to be done to an individual’s privacy by police abuse or accidental disclosure, and accordingly the risk as increasing numbers of DNA profiles as are created, is thus relatively minimal – the limited information stored makes it difficult for profiles to reveal private or sensitive information. The technical nature of the DNA profile, moreover, means that it “can be deciphered by only a small group of specialist scientists”. Apart from linking a unique sequence of numbers to a named individual on the police records, the most that can be deduced from a DNA profile on the NDD is the sex of the individual concerned. Whilst it is not completely inconceivable that this last feature could raise embarrassment for transgender persons or perhaps those with hereditary sex-chromosome abnormalities such as Klinefelter’s syndrome (a condition in which a person possesses an extra male sex chromosome, XXY, which would show up in their DNA profile), the risk to privacy in this respect is hardly sufficient to justify opposing the retention of DNA profiles. The only other aspect of investigatory profiling which has raised cause for concern is familial profiling – analysis of an individual’s DNA profile can reveal the existence, and even the degree, of a biological relationship between two subject samples. The practice, which has apparently already been conducted in New Zealand, allows the police to use a close but not identical match between a crime-scene profile and a subject DNA profile as a basis for investigating family members of the subject on the assumption that one of them may provide an identical match. Familial searching has the potential to be highly intrusive – the revelation of previously unknown or unsuspected biological relationships (such as a paternity link) could have, the HGC noted, “profound and destabilising consequences for the individuals involved”. Again, however, although it is theoretically possible that police could inadvertently reveal a previously unknown genetic relationship, the risk to privacy is minimal provided police exercise appropriate discretion in making their inquiries. As the Nuffield Council on Bioethics observes, the public fear of revealing such unknown family connection perhaps has more to do with the sensitivity of the issue than the true extent of the risk.
6. DNA Sample Retention
If DNA profiles only were retained, therefore, the limited nature of the
information available should allay many of the concerns people
police collecting and storing their DNA. DNA samples, however – the
biological material which allows access to an individual’s genetic
blueprint – can potentially risk
causing greater harm, such as the risk of
insurance companies obtaining genetic information to identify genetic
disease and deny insurance coverage on that basis, or
unethical research into behavioural genetics (such as the so-called study of
Where a sample is obtained under the new Part 2B arrestee regime, the bodily
sample must be destroyed “as soon as practicable
after a DNA profile is
obtained from it” – specified as two months after the sample was
taken if the person is not charged,
or straight away if the charges are
withdrawn or the person is
acquitted. Privacy Principle
9, which says that an agency is “not to keep personal information for
longer than necessary” supports
the necessity of that
destruction. However, an
individual’s informational privacy will continue to be at greatly
increased risk for as long as the DNA sample
is retained, and individuals must
ultimately rely upon the good faith of police and the Police Commissioner to
ensure that samples
will be destroyed by the appropriate deadline. In the UK, it
was estimated in a 2000 report that as many as 50,000 profiles may have
unlawfully retained when they should have been destroyed because no conviction
resulted. The Privacy
Commissioner has raised concerns about one agency controlling both ends of the
system, from the investigation of crimes
scenes to the control of the
database. Given that the
police are effectively the sole guardians of people’s private genetic
information, attention will need to be
paid to ensure that the police comply
with the proper use and sample destruction provisions contained in the Act. On
level, the Privacy Act at least allows citizens under
Informational Privacy Principle 6 to obtain confirmation of whether or not
police hold personal information about them, which would empower them to monitor
whether the police have properly destroyed their
DNA sample by the required
date. The Privacy Commissioner has also suggested that her audit function be
strengthened to allow her
to conduct specific audits of the databank’s
operation on a regular basis (at present this can only be done on request from
police themselves). This
would be a highly prudent measure to ensure a further degree of independence of
oversight to uphold the Act’s obligations
on police to ensure sample
destruction is carried out properly and efficiently.
7. Privacy and Public Confidence
Finally, even though in actual fact the risk of abuse of people’s
private genetic information may be low given the limited information
a DNA profile and the strict requirements for the destruction of samples, one
final consideration in this respect is
simply the public perception. A stated
objective of the new CIAA is to “contribute to increasing ...
public confidence in the justice system”, but the new arrestee regime may
have the contrary effect – the Privacy Commissioner expressed
concern in her Select Committee submission that expansion of
the NDD may
jeopardise its value and utility by undermining the public trust in the police
and government. The HGC notes
that regardless of the actual procedure involved, many people feel “in
some ineffable way” that their genetic
information is an intimate and
private matter with which the state should not
interfere. If the public at
least believes that retention of their genetic information on a
government database infringes their right to privacy, this could have serious
consequences for public support and cooperation, and thus for police
investigatory practice. In an
attempt to shield their privacy by resisting police retention of their DNA,
citizens might conceivably become less co-operative
with police investigations,
and treat police and the government with increased suspicion and mistrust (a
particular concern in respect
of minority groups in New Zealand – see
below). It is not unknown,
moreover, for individuals to attempt to guard their privacy by cheating the
system – the very first DNA
case in England, the Pitchfork case, resulted
in the true offender being initially eliminated from police investigations into
murder/rape of two 15-year-old girls because he successfully substituted
another man’s DNA blood sample in place of his
own. As the UK Human Genetics
Commission notes, “the [DNA databanks], and the effective prosecution of
criminal justice more generally,
depend on the trust, confidence and support of
[private] citizens”, and care must to be taken to ensure that this public
is not eroded by perceived police abuses of their expanded
At base, most objections to the expansion of DNA profiling under the privacy rubric are founded on the idea that the government keeping more information on file about its citizens represents a greater intrusion by the State into the lives of ordinary citizens. As noted above, the idea of ‘genetic exceptionalism’ causes many to mistrust the concept of a DNA databank without considering how it operates in practice. Because the genetic information stored on the NDD is no more than a string of numbers allowing a person’s unique identity to be determined (and none of their phenotypic characteristics or genetic predispositions), arguments based on the abstract right to protect personal information from the State’s retention on a database are not particularly apposite. More concerning is the risk of abuse associated with the collection and potential retention of bodily DNA samples, which allow access to a much wider range of personal and intimate information, and the risk for those samples to be misused or leaked to third parties. Provided, however, that oversight is maintained by the Police Commissioner, the Privacy Commissioner, and perhaps by private citizens themselves under the Privacy Act to ensure that samples are properly destroyed, the risks of such harms arising should not give cause for undue alarm.
D. Autonomy: the Right Against Unreasonable Search And
The second key concern in respect of civil liberties intrusions under the new
CIAA regime is related to informational privacy, but
also distinct from it: an
issue one can classify under the broad category of autonomy, personal privacy,
or freedom from legal restraint.
It was this concern which provided the basis of
the Attorney-General’s ruling that the CIAA is inconsistent with the
in particular the right against unreasonable search and seizure under s
21. Section 21 of the NZBORA
says that “[e]veryone has the right to be secure against unreasonable
search or seizure, whether of
the person, property, or correspondence or
otherwise”. Concerns also arise about the potential for the NDD regime to
with the “due process” of criminal justice and the
presumption of innocence.
Some opponents have attacked the CIAA on the grounds that the physical act of forcibly taking a DNA sample from a criminal suspect is “unreasonable” because such forcible sampling amounts to the legal authorisation of a “gross assault” on that person. This is technically correct – in the absence of appropriate legal justification, the most minor touching of another person constitutes assault – but such an alarmist claim distracts from the real concerns in this area. In fact, the procedure for taking a DNA sample is now as simple as taking a buccal (i.e. mouth) swab with a cotton swab known as a Q-tip rubbed against the inner cheek – a much less intrusive (and cheaper) means of sampling than the previous use of blood samples. The sample can be self-administered, takes only a matter of seconds and – according to the Police Association at least – “is far less invasive than brushing one’s teeth”. The DNA sample may still also be taken by fingerprick blood sample, but, since the person concerned has the opportunity to elect which method is used, the buccal swap is likely to become the preferred option. Thus, although the procedure for taking DNA samples has been admitted to involve a “certain intrusiveness”, it really amounts to little more than a minor physical inconvenience. Ultimately, the worst “assault” that could occur is if police are required to use force to hold a suspect down in order to take a fingerprick sample (if the suspect does refuse and reasonable force is required to take the sample, new s 48A(5) prescribes that the sample taken must be a fingerprick sample). Police are already authorised to use reasonable force when searching a suspect who has been taken into lawful custody and to take any money and property off them, for example, and the collection of a DNA sample represents no greater an intrusion on bodily autonomy. Moreover, samples can only be taken by a “suitably qualified person”, a further measure to ensure that the person taking the sample does not overstep the bounds of proper procedure. The real concerns around the CIAA procedure are thus not so much with the potential for it to countenance physical assault by police in taking buccal samples, as with the clear intrusion it represents on a person’s right to autonomy and freedom for State interference – particular as protected by s 21 of the NZBORA.
1. Reasonable Search/Demonstrable Justification
The intrusiveness of the procedural power conferred on police by the CIAA to
take samples from a person’s body clearly amounts
to a “search and
seizure of the person” for the purposes of s 21 of the
NZBORA. As was recognised in
R v Jefferies, such a physical search of the person “is a restraint
on freedom and an affront to human
is whether that search can be considered “reasonable”, under both s
21and the test of demonstrably justified
limitations under s 5 (although, of
course, s 4 of the NZBORA means that no provision of the CIAA will be affected
with s 21. The potential might remain, however, for certain
provisions to be interpreted in an NZBORA-consistent way by the
courts). To be considered
reasonable, as noted above, the intrusion must be justified by a sufficient
interest. More specifically,
the right against unreasonable search and seizure means that two key principles
must be satisfied before a DNA
sample can be lawfully taken:
2. Conflict with NZBORA and Human Rights
The new arrestee regime removes the requirement of prior judicial approval by
the High Court, and thus appears to severely derogate
from the second principle
above in the absence of special circumstances. Such special circumstances, the
could include situations where there is a substantially
reduced expectation of privacy – such as convicted offenders already
prison, perhaps. Yet the
police will now be able to take a DNA sample from any suspect without having to
seek prior judicial authority even in the
absence of extenuating “special
appears to directly cut across existing NZBORA protections under s 21 and the
general principle that searches and seizures will
be conducted pursuant to
judicial warrant, as well as
overseas jurisprudence (and may even go more deeply to the basic constitutional
principle of the rule of
law). In the US, the EU and
Canada, the courts have said that a failure to include judicial oversight of the
power of physical compulsion
is a breach of their relevant human rights
standards, although those instruments give the courts power to invalidate
in a way that the NZBORA does not. In New Zealand this means that if
the CIAA confers a power of search and seizure without judicial
then that power must ultimately stand, yet experience overseas still provides an
insight into how other countries perceive
the legality of similar regimes.
Moreover, the potential exists for litigation to be brought against New Zealand
at an international
level under the Optional Protocol to the ICCPR if an
individual believes our DNA regime violates New Zealand’s human rights
obligations. In Canada – from whose Charter of Rights and Freedoms many of
the provisions of the NZBORA such as s 21 are drawn – DNA databank
samples can only be taken from convicted serious offenders – it has been
it is the fact of a person’s conviction which gives rise to a
public interest contrary to their ordinary expectation of privacy
autonomy. DNA samples taken
from suspects can only be used for specific investigations, and their storage on
the database has been considered
inconsistent with the right against
unreasonable search and seizure under s 8 of the Canadian
Moreover, the ability of police to collect bodily evidence from people legally considered innocent, without approval of the courts and on the basis of suspicion alone, raises concerns about the proper process of justice and the presumption of innocence. It is a fundamental tenet of our criminal justice system that an accused is legally innocent until proven guilty: the so-called “golden thread” of the criminal law extending back to DPP v Woolmington. The principle is now also enshrined in s 25(c) of the NZBORA, and s 22 also affirms the liberty of the person and the right not to be subject to arbitrary detention (for the purpose of taking a bodily sample, for example). The new DNA regime does not directly contradict the presumption of innocence (and, again, s 4 of the NZBORA means that the statutory power under the CIAA for police to detain suspects for the purpose of taking bodily samples will operate despite any rights inconsistency). DNA evidence must obviously still be presented before a judge and jury before a conviction can result. But it does raise concerns about the treatment of presumptively innocent suspects. Under the new regime, police will also be able to extract a DNA profile from a suspect’s bodily sample and enter it onto the temporary DNA databank before the person is even convicted – essentially allowing the police to treat a suspect as a criminal offender before a court has had a chance to make that determination and thus placing them on a kind of “genetic probation”. “By placing an individual’s profile on a central, national register of criminal information”, the Privacy Commissioner has observed, “that individual is effectively deemed a criminal”. The power for police to take DNA from anyone they “intend to charge” places a considerable amount of subjective discretion in the hands of the police. Where previously a judge or JP was required to assess the evidence to an objective standard before issuing an order for a DNA sample to be taken, the standard has now become a much more subjective one – “‘intends’ means just something that happens to be in the constable’s mind”. The mere requirement of an intention to charge gives police legal cover to collect a DNA sample even if a charge never results, provided they can assert that there was “good cause to suspect the person of committing a relevant offence” and an intention at some point to “bring proceedings against the person in respect of that offence” – a vague and highly subjective standard. The determination of a suspect’s criminality (after all, matching a DNA sample against the CSD or crime-scene samples assumes there is criminality to be discovered) should not be devolved to the law enforcers themselves – as one member of the National Council of Women of New Zealand (NCWNZ) commented to Select Committee, “police must see themselves as under the law, not deciders without judicial guidance”.
3. Potential for Police Abuse – “Fishing
The conferral of such a powerful discretion on police is particularly
concerning given reports of the outcome of similar practice
Allegations have been made against police in the UK that they have stopped or
arrested suspects on trumped-up charges purely
to obtain their DNA for the
database: as one retired UK police superintendent has publicly alleged,
“it is now the norm to
arrest offenders for everything if there is a power
to do so ... so that the DNA of the offender can be
obtained”. The risk of
police going on speculative “fishing expeditions” is now also
present here given that police need only “suspect”
someone in order
to obtain a DNA sample from them, and need only bring charges against someone in
order to enter their DNA onto the
databank. Police may also be
tempted to use the threat of charging an individual to coerce him or her into
giving over their DNA sample “voluntarily”.
The risk of bullying or
coercion may be especially acute where vulnerable people – youth,
minorities, the mentally impaired
subject to DNA profiling – particularly those who haven’t been
charged with any offence – should know
that that process has been subject
to the proper and impartial scrutiny which judicial oversight provides, and
should also have the
right to challenge that process to an independent body. On
the other hand, it should be noted that one crucial difference between
CIAA arrestee regime in New Zealand and the current UK regime is that if a
person is not convicted, their DNA profile will
(at least in theory) be removed
from the temporary databank and the sample destroyed, reducing the value to
police of such “fishing
expeditions” to obtain DNA
4. A Need for Greater Oversight
The justification provided by the Act’s supporters for allowing the
police to take extra-judicial samples and enter them into
the databank before a
suspect is brought to court is that an individual may now be linked with other
unsolved crimes prior to conviction,
and they may thus be prosecuted for these
unsolved crimes alongside the original triggering
offence. In addition, it is
suggested, the linking of an individual to other historic crimes may influence
the court’s perception of
the risk of his or her re-offending when it
comes to making bail
decisions. These are
legitimate potential benefits, but they hardly justify the risk of police
abusing their power in the absence of any judicial
oversight when taking a DNA
sample. The Attorney-General observed in his NZBORA compliance report
that the lack of independent oversight was contrary to comparable DNA regimes in
New South Wales, Victoria, the
Australian federal DNA scheme, the United States,
Canada, Japan, Germany and the
Netherlands. Only in the
United Kingdom, South Australia and Tasmania, he noted, were schemes comparable
to the New Zealand regime operating without
safeguards. No special
circumstances could be discerned in New Zealand to justify bucking the
international trend in this respect or to render
such safeguards unnecessary:
“there appears to be a consensus in jurisdictions which provide for a
right against search and
seizure that DNA sampling regimes must be subject to
strict substantive and procedural
A resolution to this serious concern would be easy to implement. Some parties, such as the Privacy Commissioner, have pushed for the establishment of an independent statutory oversight committee with additional audit powers. Such an idea has merit, and accords with practice in many overseas jurisdictions – the US CODIS database, for instance, is subject to an external advisory committee including ethicists and a Supreme Court judge, while the UK system operates an advisory National DNA Database Ethics Group to provide independent ethical advice on the DNA databank to the government. The simplest method, however, would be to require police again to obtain a warrant before they may exercise the power to compel a DNA sample, as they still currently do in almost every other case of search and seizure. Some have claimed requiring police to seek warrants from justices of the peace after-hours could create large practical headaches and incur significant costs, yet police seem to have coped previously with the requirement. In fact, the Police Annual Report for 2008/09 states that of all DNA samples provided during the period, over 9,700 were obtained voluntarily with consent, and only 221 were obtained through suspect/juvenile compulsion orders – suggesting that the burden of seeking compulsion orders arises relatively infrequently in any case. In total, 80,902 suspect profiles on the NDD were provided by consent, compared with only 16,596 obtained through suspect compulsion orders. The relatively modest financial cost involved in seeking judicial approval, finally, is hardly a proportionate factor when weighed against the important protections which judicial oversight provides.
The strong need for judicial oversight is also further increased under the new CIAA regime because of the widened range of offences for which police can now potentially compel a DNA sample. Without some form of independent approval, the indiscriminate collection of samples by police may jeopardise the effective operation of the system. By expanding the range of relevant offences to all imprisonable offences, a very large number of crimes are brought within the scope of the Part 2 sampling regime, including many relatively low-level offences which carry a maximum sentence of imprisonment. Sentences importing a maximum sentence of 3 months’ imprisonment include such relatively trivial offences as littering, shoplifting, disorderly behaviour, seeking donations by false pretence, possessing a knife in a public place, associating with convicted thieves, drink driving, and possession of cannabis (or even BZP). The risk that all imprisonable offences would be caught under Part 2 was a particular concern of the Privacy Commissioner – “expansion of the databank to encompass potentially trivial lawbreaking is... not warranted”. The only tangible result might be, she suggested, “a loss of general public faith in the integrity of police practices if samples are taken for trivial (but imprisonable) offences”. Any number of ordinary New Zealanders present at a crime scene – many of whom “might just have been in the wrong place at the wrong time” – may be compelled to produce DNA samples if police are not subject to higher scrutiny.
5. Undermining of the Act’s Rationale
In Europe, as the ECtHR observed in S and Marper, Austria, Belgium,
Finland, France, Germany, Hungary, Ireland, Italy, Luxembourg, the Netherlands,
Norway, Poland, Spain and Sweden
all restricted the collection of DNA samples
“to some specific circumstances and/or to serious
crimes”. In Austria,
for instance, police may only collect DNA from suspects of “severe”
crimes, and in Hungary for crimes of
imprisonment. In New Zealand,
however, it will ultimately be at the discretion of the police to decide whether
a particular offence merits DNA
collection. It is not realistic to expect that
gross abuses of power by police will result, but granting such a wide discretion
risk police over-zealousness (not necessarily amongst all police,
but amongst some). If this occurs, the scheme will also have moved away from the
original justification for its operation
– which risks undermining the
“specific and sufficient basis” for the regime to be justified under
s 21 of the
NZBORA. When it was first designed, the DNA regime was designed to
operate on the basis of propensity – the idea, supported
studies, is that people who were previously found guilty of a serious crime
present a higher than average likelihood
of being guilty of a current or future
crime under investigation.
The category of relevant offences for which a DNA sample could be compelled were
serious, violent offences such as rape, murder and
serious assault for which
there was a high risk of recidivism, but also lesser offences such as burglary
– predicated on the
assumption that such “precursor” offences
indicated a high propensity for further and escalated
offending. Such a rationale
does not hold up, however, when considering minor trivial offending, or in
regard to mere suspects who have yet
to be convicted of any offence at
Granting the police licence to take samples from suspects for all minor imprisonable offences without prior judicial authorisation thus not only goes against the principles of reasonable search and seizure, but risks jeopardising the operational efficiency of the database, its aim to identify precursor offenders, and public confidence in the justice system. For these reasons, both the Supreme Court of Canada and the ECtHR have emphasised the need for “clear, detailed rules” to provide “sufficient guarantees against the risk of abuse and arbitrariness”. The police, assisted by the Ministry of Justice, have also formulated Police Operational Guidelines to inform the police in exercising their discretion to take a DNA sample and to prevent the arbitrary application of their new power. The Operational Guidelines envisage restricting DNA sampling to situations where it is likely the sample will reveal information about a serious crime. The Attorney-General, however, rightly considered that such internally-developed guidelines would not provide “a sufficiently clear or reliable substitute for statutory safeguards”. The Privacy Commissioner too has been wary of placing operational controls in the hands of the police themselves, saying that “in my view it is Parliament that should decide where the line is to be drawn”.
Moreover, judicial oversight is important not only to guard against abuses of police procedure, but is also imperative for the police to ensure that the DNA evidence they adduce in court is sufficiently rigorous to be admitted. This will only occur if the chain of custody – from crime-scene investigators to the ESR to the NDD operators – can be subject to a high degree of quality assurance to rule out the possibility of abuse or tampering. The Police Association itself has recognised that “any dispute about lawful authority may jeopardise prosecutions, as well as creating litigation risks”. If police powers are abused or used arbitrarily in breach of s 21 of the NZBORA, then defendants can seek compensation under the NZBORA or seek to have the improperly obtained evidence excluded at trial under s 30 of the Evidence Act 2006. For the justice system to operate effectively DNA evidence must be able to withstand such challenges.
6. The Risk of the Distortion of Justice
These issues are of particular importance given the powerful probative effect
DNA evidence can have in jury trials. As the Hon Justice
Kirby commented in a
2000 speech at the University of Technology, Sydney, “given the likely
devastating power of DNA evidence,
it becomes doubly important to ensure the
integrity of collection of samples and their transmission, storage, testing,
and preservation for the scrutiny of independent experts and,
ultimately if need be, by the
courts”. DNA evidence
can be strongly incriminating evidence, and the powerful “scientific
aura” surrounding DNA testing can obscure
the reality that DNA evidence is
not foolproof. Research on
juries in New South Wales has found that jurors have “high expectations
for the significance of DNA evidence”
and indeed that “[t]his may be
based more on popular culture rather than scientific understanding”
– the so-called
effect”. Another recent
Australian study, in fact, found that juries were 23 times more likely to
convict in homicide cases where DNA evidence
adduced. The problem, as the
HGC observes, is that “DNA evidence shifts the balance of likelihood that
an individual is implicated if
their DNA corresponds to DNA taken from a crime
scene” – almost a de facto reversal of the presumption of
innocence, as suspects are given the burden of providing an alternative
explanation for how their DNA
ended up at a crime
scene. Moreover, concern has
been raised about the potential for jury’s misunderstanding of
probabilities and the so-called “prosecutor’s
distort the presumption of
Thus because of the powerful probative effect of DNA evidence and the increasingly reliance upon it, the need for oversight to ensure that the evidence is robust and reliable, and the need for caution in extending the DNA regime so broadly, becomes all the more imperative. Errors can and do still occur during DNA testing – mix-ups between samples, contamination with other samples, misinterpretations drawn from partial or mixed DNA samples – which can result in the misattribution of identity or other error. There also exists the potential for abuse and manipulation by both corrupt police investigators and forensically sophisticated criminals. It is not unknown even in New Zealand for police to plant circumstantial evidence at a crime scene or deliberately contaminate evidence in order to secure a conviction, and this has led to notorious miscarriages of justice such as in the Arthur Allen Thomas case. Naturally the police have a vested interest in using the DNA database to solve crimes, and this confluence of interest and power creates the risk of both inadvertent error and deliberate tampering in the drive to ensure convictions. Criminals too are aware of the increasing significance of DNA sampling in criminal investigations, and the more technically literate criminals are likely to find ways to get around or subvert the DNA procedure and, as evidenced by the UK Pitchfork case, the potential exists for “expert criminals” to plant other people’s DNA at a crime scene in order to frame someone else for an offence.
7. DNA and Autonomy: Conclusion
Thus while fears over the new CIAA regime authorising police
“assaults” by Q-Tip are largely unfounded, it is deeply regrettable
that judicial oversight
of DNA collection has been removed at the same time that
the regime has been expanded. This lack of independent oversight gives rise
number of risks associated with the use and misuse of police discretion, the
reliability of DNA samples and the operational
efficacy of the
system. Concerns surrounding
the effect of the regime’s expansion on the right against unreasonable
search and seizure, the presumption
of innocence and citizens’ autonomy
could be greatly allayed if the requirement for prior judicial approval were to
and statistics from past practice indicate that such a measure
would not be prohibitively expensive in terms of time or cost incurred.
Ultimately, as the Attorney-General noted, “intrusive search regimes
require express, external and prior safeguards”
in order to satisfy the
courts, targeted suspects and the public that they are operating fairly and
lawfully. Anything less sets
a dangerous precedent in respect of State incursions into personal autonomy and
privacy, as expressly protected
by s 21 of the NZBORA, with no reasonable
E. Equality: Impact on Minorities and Young
The final human rights issue which arises in respect of the new CIAA
regime concerns equality. Evidence from New Zealand and overseas research
indicates that the impact of DNA collection will not fall
proportionately on all
groups in society. The Human Rights Commission, in an oral submission to the
Justice and Electoral Select
Committee, observed that the new DNA regime
“increases the possibility of discrimination on the grounds of race and
Proponents of the CIAA frequently cite the adage that no one who is
innocent of a crime has any need for concern about the police holding their DNA
– the “nothing to hide, nothing to fear”
attitude– but what this ignores is the potential distress and stigma
being listed on the DNA database can
engender. Inclusion on the
databank marks one as a person of interest to the police – one of the
first groups of people the police will
turn to as likely suspects every time a
crime is committed – and thus, as Dr Ruth McNally of the ESRC Centre
a distinct category of “pre-suspects”
automatically placed under suspicion whenever an offence is
committed. Because in most
cases a person’s DNA will be held permanently on the NDD, that person is
effectively branded for life –
identified, as the HGC puts it, as in an
official, “intentional” relationship with
police. An individual’s
ability to counter this social stigma may prove difficult – the suspicion
that there is often “no
smoke without fire” may be hard to
overcome. This stigmatisation
effect may even prove counterproductive to the overall aims of the database by
encouraging offending amongst
those pre-judged and classified as offenders. The
effect is exacerbated under the new regime by the wide range of offences for
individuals can now be placed on the database: drawing the line for DNA
sampling at all imprisonable offences “effectively
labels as criminals
people charged with trivial
average New Zealander, would not consider himself a criminal because he dropped
a piece of litter, but inclusion on the NDD for
such an offence would
effectively label him as
1. Diminished Rights and Rehabilitation
In respect of convicted serious offenders this concern is perhaps less of an
issue – a distinction is made with these offenders
because of the severity
of the offences they have committed. With serious offending, when one violates
the laws of the State and
a criminal conviction results, one abdicates
one’s unqualified entitlement to enjoy individual legal rights such as
– conviction is “accepted as justifying a greater level of
interference” with privacy
rights. Thus the holding of a
convicted serious offender’s DNA profile on the NDD seems an analogous
intrusion on these “social
contract” grounds – individual
rights are only protected so long as the individual complies with the agreed
responsibilities of society. Under the new regime, however, as noted
above many people who have committed only minor offences nevertheless
a maximum sentence of imprisonment, as well as those who are merely
suspected and never charged or convicted, may now be targeted for inclusion
the NDD, and thus subject to the social stigma and diminished privacy rights of
having one’s genetic information kept on
file by the government. Moreover,
even in respect of convicted serious offenders, the ongoing intrusion into their
rights by retention
of their DNA post-imprisonment represents a continuing
social discrimination and interference with anonymity even after the offender
considered to have fulfilled his
punishment. The ability to be
rehabilitated, as the Privacy Commissioner noted in her submission on the CIAA,
“is a key component of the
justice system and should not be lightly
Criminal Records (Clean Slate) Act 2004 regime, represents a move in this
direction by allowing a person’s record of conviction
to be removed for
certain minor offences after a “rehabilitation period” of 7
years. The stated aim of that
legislation is to “limit the effect of an individual’s
convictions” to enable law-abiding
citizens to live free from the adverse
effects of historical criminal records. Yet the expansion of the DNA regime runs
this goal by permanently recording the details of convicted
2. Effect on Māori Biases
The stigma effect is of particular concern because of its potential to impact
disproportionately on certain ethnic and vulnerable
minority groups and thus
aggravate existing social
tensions. The Māori
Party, for instance, has raised concerns that DNA sampling may unfairly target
Māori. Although the DNA regime
is in theory “colourblind”, by
giving the police discretion in choosing to compel DNA samples the DNA regime
existing police biases or the “overscrutiny” of
Māori by police.
Research into systematic biases in the criminal justice system has indicated
that Māori are indisputably overrepresented in
police arrests, charges and
convictions: a 2007 study by the Department of Corrections, in fact, found that
Māori in the criminal justice system was, in part,
one of the “unintended consequences of discretion”, reflective
“institutional racism” and “biases” among the
police. A 1993 New Zealand
study indicated that Māori are three times more likely to come into contact
with the police than non-Māori,
and police statistics show Māori are
more likely, for instance, to be arrested and convicted of cannabis offences
of the new imprisonable offences for which police will soon be able
to compel a DNA sample. The
more that Māori are targeted (unconsciously or otherwise) by the DNA
regime, the greater the risk that Māori will be
stigmatised as criminal offenders. Ultimately the assumption that Māori are
more predisposed to being
arrested for criminal offending may become a reality
through police practice by reinforcing racial assumptions of their propensity
criminality. If Māori
see themselves branded as criminal offenders on the databank, and police treat
them as pre-supposed suspects –
risking premature “tunnel
vision” in investigations – then increased rates of Māori
criminal offending risk
becoming a self-fulfilling
This fear is borne out by evidence from the UK, where there exists an undeniable overrepresentation of black men on the NDNAD – over 30% of all black males have profiles on the NDNAD, compared with only 10% of white males and Asian males. The risk, the UK Equalities and Human Rights Commission notes, is that such overrepresentation “is creating an impression that a single race group represents an ‘alien wedge’ of criminality” by stereotyping black men as criminal suspects. This has the potential to result in a disproportionate number of arrests, charges and convictions for members of certain ethnic groups such as Māori, whereas others who commit similarly serious crimes may not be convicted. It may also serve to further alienate Māori from the criminal justice system by undermining their confidence in receiving fair and equal treatment. The Māori Party has expressed concerns that young Māori may fight back against police if confronted for the taking of a DNA sample. Māori Party MP Rahui Katene suggests that “they [young Māori] already distrust the police and [if] the police want to take a swab, they’re not going to know what is going on at all”. A recent report by the UK Home Affairs Select Committee found that “it is hard to see how [such an] outcome can be justified on grounds of equity or public confidence in the criminal justice system”.
On the other hand, it should be borne in mind that DNA evidence also has the potential to exonerate Māori offenders as well as inculpate them. The US Innocence Project, for example, reported that 70 per cent of those exonerated by DNA testing in the US were members of minority groups. DNA has the potential to impact positively or negatively on ethnic groups such as Māori; how the technology is used in practice will determine whether it serves to counteract or exacerbate existing systemic biases. The government’s response has been to require police to include information in their annual report on the proportion of DNA samples taken from ethnic minority groups.
3. Risk to Young Offenders: The Need to Maintain
Finally, the DNA regime also raises concerns in respect of young offenders.
New Zealand is a signatory to the UN Convention on the
Rights of the Child,
which recognises that children and young people are especially vulnerable and
require special treatment by legal
systems in a manner which “takes into
account the child's age and the desirability of promoting the child's
(they also have an additional right to privacy under art 16
of that instrument). In light
of the above-mentioned concerns about stigmatisation and rehabilitation, young
offenders ought to be subject to especial
protections to protect their rights,
yet the Police Association was eager to expand the regime to fully encompass
as well. The Police Association submitted to Select Committee
that the limitations on the arrestee regime for youth offenders were
“given known patterns of youth
offending”; they wished
to remove the “arbitrary limitation” which restricts DNA sampling to
“serious” youth offenders.
The Police Association even opposed the
CIAA’s “clean slate” provision for the removal of youth DNA
the databank after 4-7 years on the grounds that “this
arbitrary youth regime is
unnecessary”. In fact,
however, research by the ESCR Genomics Network has indicated that low-level
offending behaviour is relatively common in
young people but rarely carried on
into adulthood, which means that “in most cases, indefinite or prolonged
retention of DNA
profiles obtained from young people is ... unlikely to have
much forensic utility in
Fortunately, however, the Justice and Electoral Select Committee made a number of amendments in relation to the process for taking a DNA sample from young persons, limiting the range of offences for which a sample can be taken to the more serious “relevant offences” rather than all imprisonable offences and providing for the same protections in respect of DNA sampling as young persons enjoy generally under New Zealand’s existing care and protection legislation whilst in custody. This seems entirely reasonable given the particular vulnerability of children and the need to promote their rehabilitation before their behaviour hardens into a repeat pattern of offending. The Privacy Commissioner told Select Committee that the removal of minor offenders’ information from the NDD after a suitable period of time would provide a “small but notable incentive towards law-abiding behaviour”. Children and youth offenders should not be treated in the same fashion as adults given the potential for the above human rights issues to affect them more severely, and thus any move to include them in the general adult DNA scheme should be resisted. That the period of retention be limited in relation to the age of the suspected person was also one of the recommendations of the ECtHR in S and Marper, , and already the UK has taken steps to remove the DNA of children under the age of 10 (estimated at around 70 profiles) from the NDNAD, although an estimated 39,000 profiles from children and young people remain.
The new Criminal Investigations (Bodily Samples) Amendment Act regime has the
potential to assist police in the fight against serious
Breakthroughs in DNA technology, even since the original DNA legislation was
passed in 1995, are astounding –
but also give cause for considered
reflection on the capacity for the technology to be misused or abused, or to
erode some of New
Zealand’s long-established human rights protections. On
the one hand, some of the alarmist fears raised by opponents of the
the risk of gross informational privacy violations, or the supposed
authorisation of physical “assaults”
by police – are
exaggerated. On the other hand, we must ensure that adequate protections remain
in place to oversee the lawful
and proper application of the legislation, and to
ensure that it operates in a way proportionate to the goals it seeks to achieve.
Police are granted considerable discretion under the new regime to target
suspects for DNA samples. As with any such discretionary
particularly in the field of law and order– the greater the power granted
the more potential for that power to
be abused. Whether DNA profiling is used
to the benefit or detriment of New Zealand society depends on ensuring that the
utilise this powerful new tool in an appropriate and proportionate
manner. Any increase in police powers should be accompanied by
increase in oversight of that system to ensure that the potential for abuse and
harmful consequences is minimised.
Of the three key human rights issues considered above, the impact on informational privacy rights is the least concerning, even though it is the issue that springs most readily to mind in the public discourse. The system as it is designed to operate contains little potential risk for the disclosure or misuse of private genetic information. DNA profiles extracted from bodily samples are highly technical and contain negligible information of an intimate or personal nature. Effectively a DNA profile operates in the same manner as a fingerprint profile, using a small number of unique markers in a given sample to distinguish an individual from the population as a whole, while discarding the broader range of private information that a genetic sample can potentially reveal. Only if the sample itself is retained is the risk to informational privacy increased, and the legislative regime is designed to ensure that sample destruction takes place soon after the DNA profile is extracted – largely addressing the concerns of the ECtHR in S and Marper in respect of the unwarranted retention of DNA samples. The only real concern is that, by placing the responsibility for ensuring sample destruction fully in the hands of the police themselves, the government is effectively asking us to trust the police that this will actually occur. It is to be hoped, however, that the range of existing protections under the Privacy Act and the Criminal Investigations (Bodily Samples) Act 1995 itself will help reassure the public that avenues of redress are available should the police fail to discharge their statutory obligation. Strengthening the ability of the Privacy Commissioner to oversee and audit this process, as she suggested in her Select Committee submission, should be considered as a means of further strengthening those contingency protections.
In respect of the issue of equality, particular care must be taken to ensure that the impact of the legislation does not fall disproportionately on Māori and young people, given the particular vulnerability of these groups in society. It is reassuring therefore to see that youth offenders will continue to be subject to a separate regime in recognition of the need to protect vulnerable youth and promote their rehabilitation. The potential for the DNA regime to exacerbate existing systemic biases against Māori – resulting in their being subjected to increased suspicion or persecution by police – is a real risk, but ultimately the issue of institutional racism runs much more deeply than DNA profiling. DNA technology can work for or against Māori interests, exonerating as well as implicating Māori as criminal offenders, and which way it goes in practice depends entirely on whether the police are willing to address any underlying systemic disparities in their treatment of Māori offenders. In this respect, the requirement of ethnic statistics in DNA profiling in the police annual report is heartening recognition that an issue does exist here which needs to be monitored.
1. The Outstanding Issue: The Continued Need for Judicial
It is the broad human rights issue of autonomy and due process that gives the
greatest cause for reservation. In light of the considerable
expansion of police
powers that the CIAA represents, it is all the more important for
independent judicial oversight of the process to be maintained. As the HGC puts
responsibility is to provide the “practical conditions for its
ethical acceptability and responsible development in the
future”. New Zealand
risks running against the international trend and our own Bill of Rights Act
legislation in discarding the role of the
judiciary in the DNA collection
process, and overseas examples like the UK provide a salutary example of the
consequences under international
law if a country is seen to overstep the
“margin of appreciation” in its international human rights
present lack of independent judicial oversight in our system
may not be looked kindly upon by the UN Human Rights Council.
The simple addition of a requirement for police to seek prior judicial authorisation before compelling a DNA sample in the absence of consent would go a long way to addressing these concerns. A system of judicial oversight has operated in respect of the DNA regime in the past, and continues to operate in respect of police seeking search and seizure warrants generally, with little indication that the system is overburdened or intolerably inefficient. Judicial oversight is not only an important rights issue, but also ensures that the DNA collection process is sufficiently robust and reliable to allow the databank system to function efficiently and to withstand evidential challenges at trial. An independent oversight committee of the DNA profiling regime, as operates in many jurisdictions overseas, is a further measure that should be given serious consideration.
Without those protections, however, it remains to be seen what consequences occur in practice, and how the police choose to use the powerful new tool which has been given to them. Informational privacy concerns may have been somewhat overstated, and equality issues have at least been recognised as an issue worthy of further investigation, but the question of autonomy and oversight remains the outstanding issue: the CIAA as it stands at present may come to haunt the police and the government with unanticipated challenges at a domestic and even international level. It is to be hoped that this issue is recognised and addressed before such an eventuality comes to pass.
 Hon Simon Power
“Parliament Passes DNA Law” (press release, 28 Oct
 (14 Oct 2009) 658 NZPD 7072-7073 (Chester Borrows).
 (10 Feb 2009) 652 NZPD 1119 (Clayton Cosgrove).
 (27 Oct 2009) 658 NZPD 7489 (Charles Chauvel).
 (27 Oct 2009) 658 NZPD 7493 (Rahui Katene).
 Privacy Commissioner “Supplementary Submission by the Privacy Commissioner to the Justice and Electoral Committee, Criminal Investigations (Bodily Samples) Amendment Bill” at 4. Amnesty International, for instance, was also concerned that insufficient reasons had been provided ‘to justify the mandatory collection of DNA on such a scale, and from people who are currently innocent of a crime’. ‘No justificatory material’, it noted, had been provided ‘to support the view that this expansion of powers is necessary in a democratic society’ – Amnesty International “Submission to the Justice and Electoral Committee, Criminal Investigations (Bodily Samples) Amendment Bill” at 4-5.
 Attorney-General, Report under the New Zealand Bill of Rights Act 1990 on the Criminal Investigations (Bodily Samples) Amendment Bill (2009) [Attorney-General’s Report].
 (27 Oct 2009) 658 NZPD 7506.
 (10 Feb 2009) 652 NZPD 1123 (Lianne Dalziel).
 Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at 1.
 (10 Feb 2009) 652 NZPD 1117 (Simon Power).
 (10 Feb 2009) 652 NZPD 1131 (Richard Worth).
 Human Genetics Commission Nothing to Hide, Nothing to Fear: Balancing Individual Rights and the Public Interest in the Governance and Use of the National DNA Database (Nov 2009) at 21. Micahel Lynch and Ruth McNally have termed the phenomenon “biolegality” whereby, they say, “developments in biological knowledge and technique are attuned to requirements and constraints in the criminal justice system, while legal institutions anticipate, enable and react to those developments” – Michael Lynch and Ruth McNally DNA, Biolegality and Changing Conceptions of Suspects (conference paper prepared for the ESCR Genomics Forum, University of Edinburgh, Oct 2008) at 5.
 (10 Feb 2009) 652 NZPD 1130 (Te Uroroa Flavell).
 Human Genetics Commission, above n 13, at 3.
 See (10 Feb 2009) 652 NZPD 1117; “ESR and DNA – A Partnership that Seeks the Truth” Institute of Environmental Science and Research <http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/default.aspx> . The UK NDNAD, the first DNA database in the world, was also established in 1995 – see Select Committee on the Constitution, House of Lords, Surveillance: Citizens and the State (2nd Report of Session 2008-09, Vol 1, 6 Feb 2009) at 43.
 Attorney-General’s Report, above n 7, at 2.
 Human Genetics Commission, above n 13, at 26.
 “How Forensic Scientists Use DNA” Institute of Environmental Science and Research <http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/forensicuseofDNA.aspx> .
 Human Genetics Commission, above n 13, at 26-27; Nuffield Council on Bioethics The Forensic Use of Bioinformation: Ethical Issues (Sept 2007) at 9-10.
 See Criminal Investigations (Bodily Samples) Act 1995, s 71A.
 “How the ESR Uses DNA to Fight Crime” Institute of Environmental Science and Research <http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/fightingcrime.aspx> .
 The CSD is also matched against itself in order to identify any links between unsolved cases – Ibid.
 “The DNA Databank: A Crime-Solving Tool” Institute of Environmental Science and Research <http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/DNADatabankasacrime-solvingtool.aspx> .
 Human Genetics Commission, above n 13, at 62; Nuffield Council on Bioethics, above n 20, at 19.
 Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at 14.
 See Criminal Investigations (Bodily Samples) Act 1995, s 6.
 Ibid, ss 29 & 39.
 Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at 15.
 Simon Power, above n 1, at 2; Environmental Science and Research, above n 24. Of those, however, more than 8,000 are outstanding crime-scene profiles relating to unsolved crimes, including 595 cases of sexual assault and 397 of homicide – Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (Regulatory Impact Statement) at 5.
 Simon Power, above n 1, at 3.
 New Zealand Police Association “Submission to the Justice and Electoral Committee, Criminal Investigations (Bodily Samples) Amendment Bill” at 2.
 See Criminal Investigations (Bodily Samples) Act 1995, new s 24P.
 Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at 2; (27 Oct 2009) 658 NZPD 7487 (Nathan Guy).
 Attorney-General’s Report, above n 7, at 3.
 Ibid at 3.
 See Criminal Investigations (Bodily Samples) Act 1995, new s 60A.
 New Zealand Police Association, above n 32, at 3.
 See (10 Feb 2009) 652 NZPD 1117 (Simon Power); Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at 1.
 (10 Feb 2009) 652 NZPD 1117 (Simon Power).
 Human Genetics Commission, above n 13, at 47; Nuffield Council on Bioethics, above n 20, at 31-32.
 New Zealand Bill of Rights Act 1990, s 5. The need to balance the public interest proportionally against human rights is also required by the UN Declaration on the Human Genome and Human Rights, art 9 of which says that “in order to protect human rights and fundamental freedoms, limitations to the principles of consent and confidentiality may only be prescribed by law, for compelling reasons within the bounds of public international law and the international law of human rights”. See also art 8(2) of the European Convention on Human Rights (ECHR), a similar qualifying provision for measures “necessary in a democratic society”.
 Human Genetics Commission,
above n 13, at 9; Nuffield Council on Bioethics, above n 20, at xiii. In R v
Chief Constable of South Yorkshire Police, ex parte S & Marper 
UKHL 39,  1 WLR 2196, for instance, Lord Steyn at  called the taking of
DNA samples “a reasonable and proportionate response to the scourge of
 Human Genetics Commission, above n 13, at 9.
 Privacy Commissioner, above n 6, at 3; I Steward “New Law Used to Tackle 8000 Old Cases” The Press (Christchurch, 29 Oct 2009).
 Attorney-General’s Report, above n 7, at 4; Human Genetics Commission, above n 13, at 29. One might observe that the maintenance of a high degree of public safety is a prerequisite for the enjoyment of other civil liberties – an individual’s right to privacy becomes a somewhat academic consideration for the victim of a serial killer murdered because of failure by the government to protect its citizens from harm.
 Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at 2, 13, 15.
 (10 Feb 2009) 652 NZPD 1118 (Simon Power).
 Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at 2.
 (14 Oct 2009) 658 NZPD 7066 (Simon Bridges).
 (27 Oct 2009) 658 NZPD 7490 (Chester Borrows).
 (10 Feb 2009) 652 NZPD 1132 (Jacinda Ardern).
 S and Marper v The United Kingdom Applications nos. 30562/04 and 30566/04, 4 Dec 2008 (ECtHR) at . The decision was described by UK Human Rights group Liberty as “one of the most strongly worded judgments that Liberty has ever seen from the Court of Human Rights” – “DNA Database ‘Breach of Rights’” BBC News (4 Dec 2008) <http://news.bbc.co.uk/2/hi/uk_news/7764069.stm> .
 Ibid at . See also arts 8 and 14 of the European Convention on Human Rights.
 Human Genetics Commission, above n 13, at 4; (10 Feb 2009) 652 NZPD 1132 (Jacinda Ardern). The UK’s NDNAD is currently the largest in the world per capita, but the US CODIS database is actually the largest in respect of the absolute number of samples – Select Committee on the Constitution, House of Lords, above n 16, at 43.
 Likewise, GeneWatch in the UK has observed that DNA detections in the UK have stabilised at around 20,000 a year, despite increasing numbers of profiles being added to the database – Human Genetics Commission, above n 13, at 53.
 (10 Feb 2009) 652 NZPD 1124 (Lianne Dalziel). Analysis from the UK shows that from 2003-2009, while ten times the number of subject profiles was added to the NDNAD compared to crime-scene profiles, the number of matches rose by only 14%, suggesting that nine out of ten subject samples were redundant – Human Genetics Commission, above n 13, at 75.
 Human Genetics Commission, above n 13, at 44. See also Barry Steinhardt “Privacy and Forensic DNA Databanks” DNA and the Justice System: The Technology of Justice (ed. David Lazer) (MIT Press, Cambridge Mass, 2004).
 Nuffield Council on Bioethics, above n 20, at 33.
 Amnesty International, above n 6, at 4. See also Viktor Mayer-Schönberger “Strands of Privacy: DNA Databases, Informational Privacy, and the OECD Guidelines” DNA and the Justice System: The Technology of Justice (ed. David Lazer) (MIT Press, Cambridge Mass, 2004).
 Henry Porter and Afua Hirsch “The House of Lords Report: A Devastating Analysis” The Guardian (London, 6 Feb 2009).
 Privacy Commissioner, above n 6, at 4.
 Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at 13.
 Human Genetics Commission, above n 13, at 17-18; Nuffield Council on Bioethics, above n 20, at 39. A dedicated Fingerprint Branch was first established at Scotland Yard in London in 1901.
 Human Genetics Commission, above n 13, at 16.
 Nuffield Council on Bioethics, above n 20, at 8.
 Attorney-General’s Report, above n 7, at 5. In fact, fingerprinting is still the most commonly used method of identification, and in one respect at least fingerprint profiling is still more reliable as a marker of individual identity than DNA, as fingerprints are 100% unique where DNA is not, and fingerprints can also distinguish between identical (monozygotic) twins where DNA cannot. This means, statistically, that DNA cannot distinguish between one pair of individuals in every 250 births – Institute of Environmental Science and Research, above n 19.
 Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (Regulatory Impact Statement) at 1.
 Human Genetics Commission, above n 13, at 44.
 Human Genetics Commission, above n 13, at 46.
 Ibid at 9.
 Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (Vol 1, 2003) at [3.41]; Nuffield Council on Bioethics, above n 20, at 29.
 The current rate of technological advancement is startling too – the first human genome was only fully sequenced in 2003, but private companies are now offering individuals the opportunity to have their genome presented to them on a flash drive for only US$399 – “Top 10 Medical Breakthroughs 2008” Time Magazine <http://www.time.com/time/specials/2008/top10/article/0,30583,1855948_1863993_1864000,00.html> .
“Frequently Asked Forensic DNA Questions” Institute of Environmental Science and Research <http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/DNAfaq.aspx> . Scientists are presently working on identifying a gene sequence, known as the MC1R gene, which codes in 84% of cases for red-headedness – Nuffield Council on Bioethics, above n 20, at 21.
 Human Genetics Commission, above n 13, at 46. Moreover, as the Economic and Social Research Council (ESRC) Genomics Network has observed, the necessary privacy of the information is increased by the fact that much of this information may be unknown even to the individual concerned – cited by Human Genetics Commission, above n 13, at 46.
 Nuffield Council on Bioethics, above n 20, at 87. The UK law reform organisation JUSTICE has described DNA as ‘the most intimate medical data an individual may possess’ – JUSTICE “Keeping the Right People on the DNA Database: Science and Public Protection” (response to Home Office Consultation, July 2009) at 2.
 R v RC 2005 SCC 61,  3 SCR 99.
 Ibid at ; also cited by the European Court of Human Rights in S and Marper, above n 55, at .
 Article 17 of the International Covenant on Civil and Political Rights says that “[e]veryone has the right to privacy”.
 Privacy Act 1993, s 6.
 Ibid. It would also constitute a breach of art 4 of the Universal Declaration on the Human Genome and Human Rights, that “the human genome in its natural state shall not give rise to financial gains”.
 Criminal Investigations (Bodily Samples) Act 1995, s 27(1)(a)&(c).
 Privacy Act 1993, ss 67, 68, 82.
 Ibid, ss 74, 77, s 88(1)(c). Again, this is required under the UN Declaration on the Human Genome and Human Rights, art 8 of which says that “every individual shall have the right, according to international and national law, to just reparation for any damage sustained as a direct and determining result of an intervention affecting his or her genome”.
 Hosking v Runting  NZCA 34;  1 NZLR 1 (CA).
 Criminal Investigations (Bodily Samples) Act 1995, s 77(2)(d). The CIAA now also provides the same protection in respect of the new Part 2B temporary databank (see s 28). In the UK, a specific criminal offence of “DNA theft” was created in 2004 at the recommendation of the Human Genetics Commission – see Human Tissue Act 2004 (UK), s 45 – for taking or having an individual’s biological sample with the intention to analyse their DNA without their consent. In Australia, it is an offence to recklessly or intentionally cause matching that is not permitted – see Crimes Act 1914 (Cth), s 23YDAF.
 New Zealand Police Association, above n 32, at 10.
 Consider, e.g., the incident in Auckland in 2008 where a Department of Corrections folder entitled “High Risk/High Profile Offenders – Pending New Zealand Parole Board Hearings” containing private information about serious criminal offenders, including their post-release addresses and other personal information, was discovered near a park bench in Auckland – Patrick Gower “Police Still Trying to Retrieve ‘Top Secret’ File” NZ Herald (Auckland, 20 June 2008) http://www.nzherald.co.nz/blogging/news/article.cfm?c_id=1501095&objectid=10517325.
 (14 Oct 2009) 658 NZPD 7066 (Moana Mackey).
 “Current DNA Techniques” Institute of Environmental Science and Research <http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/currenttechniques.aspx> Nuffield Council on Bioethics, above n 20, at 6.
 Human Genetics Commission, above n 13, at 9, 27.
 The Human Genetics Commission gives an example of what a person’s DNA profile would look like when stored on a DNA databank, to give an indication of how technical and unrevealing it truly is – a typical profile looks something like this (each discrete number representing the number of short tandem repeats found at each locus on the DNA): “X Y 18 27 38 38 10 58.2 21 28.2 13 23 10.2 19 11 19 2 5 14 23 11.2 21” – Ibid at 20.
 Nuffield Council on Bioethics, above n 20, at xv; (10 Feb 2009) 652 NZPD 1118 (Simon Power).
 Institute of Environmental Science and Research, above n 74.
 Nuffield Council on Bioethics, above n 20, at 19, 21.
 Human Genetics Commission, above n 13, at 28.
 However, as with other DNA profiles, the resulting evidence is not admissible in court without a further DNA sample taken from the offending relative – Criminal Investigations (Bodily Samples) Act 1995, s 71. In the UK, statistics indicate that over 100 familial searches were conducted in 2006 alone – Nuffield Council on Bioethics, above n 20, at 78.
 Human Genetics Commission, above n 13, at 46. See also S & Marper v United Kingdom, above n 55, at , which held that the ability to identify genetic relationships between individuals ‘is in itself sufficient’ to conclude that retention interferes with the right to private life under art 8 of the European Convention.
 Nuffield Council on Bioethics, above n 20, at 78.
 Ibid at 79, 82; Human Genetics Commission, above n 13, at 81.
 See Criminal Investigations (Bodily Samples) Act 1995, new s 60A. Those provisions are also subject to s 61, however, which allow an application to the High Court to extend the 24-month retention period under Part 2 and the 2-month sample retention period under Part 2B. DNA profiles entered onto the temporary database must also be removed if a conviction does not result.
 Most European jurisdictions require the destruction of samples following DNA profiling – in Germany, for instance, the police must show a likelihood that someone will reoffend before a sample can be retained – and, following the ECtHR ruling in S v Marper, the UK government has also proposed destroying biological subject samples once the DNA profile has been obtained – Nuffield Council on Bioethics, above n 20, at 52, 100; Genewatch UK “Home Office Drags its Feet on DNA Database Removals” (press release, 7 May 2009). In Australia, likewise, it is an offence to record or retain any identifying information about a person obtained from forensic material after the material is required to be destroyed – see Crimes Act 1914 (Cth), s 23YDAG.
 Her Majesty’s Inspector of Constabulary “Under the Microscope: Thematic Inspectation Report on Scientific and Technical Support” (2000) at [2.23].
 Privacy Commissioner “Submission by the Privacy Commissioner to the Justice and Electoral Committee, Criminal Investigations (Bodily Samples) Amendment Bill” at 5-6. In Australia, the Commonwealth Attorney-General’s Department has commented that ‘in essence, such a proposal means that the decision when to destroy material is left entirely in the hands of the police’ – cited by the Australian Law Reform Commission, above n 72, at 1075.
 Ibid at 5. See Privacy Act 1993, s 13(1)(b) in respect of the Commissioner’s powers to audit the activities of an agency.
 Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at 2; Ibid at 3.
 Human Genetics Commission, above n 13, at 47. A study conducted by the HGC showed that 52% of people surveyed did not trust the police to keep their DNA profile information private – Human Genetics Commission, above n 13, at 89.
 Ibid at 93.
 Ibid at 56.
 See R v Pitchfork & Kelly  EWCA Crim 963; C Walker and I Cram “DNA Profiling and Police Powers” Criminal Law Review (July 1990) at 478-93, 480. The deception was only discovered when a woman overheard a colleague, Ian Kelly, boasting that he had substituted his DNA for Pitchfork’s – “Forensic Cases: Colin Pitchfork, First Exoneration Through DNA” Explore Forensics <http://www.exploreforensics.co.uk/forenisc-cases-colin-pitchfork-first-exoneration-through-dna.html> .
 Human Genetics Commission, above n 13, at 10.
 Attorney-General’s Report, above n 7. Similarly, Privacy Principle 4, concerning the “Manner of Collection of Personal Information”, says that personal information shall not be collected by an agency by means that “are unfair” or “intrude to an unreasonable extent upon the personal affairs of the individual concerned” – Privacy Act 1993, s 6.
 See, e.g., (27 Oct 2009) 658 NZPD 7496 (Metiria Turei); Walker & Cram, above n 111, at 493.
 See Crimes Act 1961, s 2.
 See Criminal Investigations (Bodily Samples) Act 1995, new s 48A. In the UK, the use of buccal swabs was re-classified in 1994 as a “non-intimate” means of sample taking under the Criminal Justice and Public Order Act 1994 – Human Genetics Commission, above n 13, at 30.
 New Zealand Police Association, above n 32, at 10.
 (14 Oct 2009) 658 NZPD
7066 (Simon Bridges). New sections 24M and 24N also require oral and written
information to be given to a person from whom a bodily sample is
to be taken, in
order to ensure that the suspect is fully informed of the reasons and procedure
for taking a bodily sample, which
accords with Privacy Principle 3 of the
Privacy Act requiring that individuals be informed, among other things, of the
the information is being collected, the purpose for which it is being
collected, the law under which collection is so authorised
and the agency
collecting the information – see Privacy Act 1993, s
 See Policing Act 2008, s 37(3). Moreover, the Police Annual Report 2008/09 indicates that during that period, on only one occasion did reasonable force have to be used to compel compliance with a suspect compulsion order – New Zealand Police Association Police Annual Report 2008/09 (30 June 2009) <http://www.police.govt.nz/sites/default/files/resources/2009-Annual-Report-Full-Version_e-version1.1.pdf> .
 See Criminal Investigations (Bodily Samples) Act 1995, s 49A(1); and s 2(1) for the definition of a “suitably qualified person”. Interestingly, however, s 79 of the Act provides an indemnity for people taking samples – no proceedings can lie against a person in respect of the taking of a fingerprick sample by force, except on grounds of negligence.
 In R v SAB 2003 SCC 60,  2 SCR 678, the Supreme Court of Canada held that the seizure of a blood sample for DNA analysis was a seizure for the purposes of s 8 of the Charter of Rights and Freedoms.
 R v Jeffries  1 NZLR 290 at 300.
 Attorney-General’s Report, above n 7, at 6. There remains an unresolved debate about whether the test for reasonableness needs to be conducted twice under both s 21 and s 5 of the NZBORA in such circumstances. Entry into that particular debate is beyond the scope of this paper, and so the two issues will be treated herein as synonymous.
 Andrew Butler & Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis NZ, Wellington, 2005) at 566.
 See, for example, the discussion in R v Grayson & Taylor  1 NZLR 399.
 Attorney-General’s Report, above n 7, at 4.
 In fact, prior judicial authorisation has not been a necessity since 2003, when the Labour government’s Criminal Investigations (Bodily Samples) Amendment Act 2003 removed that requirement, but this has become a much more concerning issue in light of the police’s new power to take samples from mere suspects, and for a broader range of offences.
 See s 198 of the Summary Proceedings Act 1957. Exceptions to this principle do exist, however, such as under s 18 of the Misuse of Drugs Act 1975.
 See Law Commission Search and Surveillance Powers (NZLC R97, 2007) at 41, 43.
 R v Rodgers 2006 SCC 15,  1 SCR 554 at -; Attorney-General’s Report, above n 7, at 6.
 R v SAB 2003 SCC 60,  2 SCR 678 at .
 DPP v Woolmington  AC 462 (HL) at 481 per Viscount Sankey LC.
 The presumption of innocence is also now recognised internationally under art 111 of the Universal Declaration of Human Rights.
 Human Genetics Commission, above n 7, at 98. The Nuffield Council on Bioethics has described the net effect of including a greater proportion of individuals on the databank as “shift[ing] the relationship between the individual and the state insofar as it treats all individuals as potential offenders rather than as citizens of good will and benign intent” – cited by the Human Genetics Commission at 48.
 Privacy Commissioner, above n 6, at 4.
 Editorial “Vague DNA Bill is a Law Unto Itself” Manawatu Standard (Palmerston North, 29 Oct 2009).
 (10 Feb 2009) 652 NZPD 1125 (Keith Locke).
 See Criminal Investigations (Bodily Samples) Act 1995, new s 24J.
 National Council of Women of New Zealand “Submission to Justice and Electoral Select Committee on the Criminal Investigations (Bodily Samples) Amendment Bill” at 2.
 The UK Association of Chief Police Officers (ACPO), however, has dismissed the claim as “plainly wrong” – “Police Arrests ‘Made to Get DNA’” BBC News (24 Nov 2009) <http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/uk_news/8375567.stm> Human Genetics Commission, above n 13, at 21-22.
 On a practical level, the new regime may expose the police to numerous complaints by discharged suspects challenging that the police ever possessed an intention to charge them with an offence, as noted by the Manawatu Standard, above n 136.
 National Council of Women of New Zealand, above n 141, at 2.
 New Zealand Police Association, above n 32, at 11.
 Criminal Investigations (Bodily Samples) Amendment Bill (14-1) (explanatory note) at 15-16.
 Ibid at 16.
 Attorney-General’s Report, above n 7, at 2. Australia has such oversight of its National Criminal Investigation DNA Database (NCIDD), incidentally, even though there is no Commonwealth constitutional protection of the right against unreasonable search and seizure as in New Zealand.
 Ibid at 2. The UK regime, moreover, with which our government is increasingly aligning itself, has been described as “effectively an ‘outlier’ in international terms”, and is currently undergoing review following the ECtHR’s highly critical ruling in 2008 – Privacy Commissioner, above n 6, at 6.
 Ibid at 2, 6-7.
 Privacy Commissioner, above n 105, at 5; see Summary Proceedings Act 1957, s 198 – the test for search warrants is “reasonable grounds for believing” that an offence has been committed or is intended to be committed.
 Australian Law Reform Commission, above n 74, at 1088; Human Genetics Commission, above n 13, at 6-8.
 See, e.g., (27 Oct 2009) 658 NZPD 7486 (Nathan Guy).
 Police Annual Report, 2008/09, above n 124, at 76. Of course, this might also show that police obtaining DNA samples in the absence of both judicial oversight and consent will be relatively uncommon, but the point of principle is nonetheless important.
 Ibid at 77.
 See Crimes Act 1961, s 219; Summary Offences Act 1981, ss 3, 6, 13A, 15, 27; Land Transport Act 1998, s 56; Misuse of Drugs Act 1975, s 7(2). In the UK, the list of “recordable offences” contains even more trivial offences, such as “failing to give advanced notice of a procession”, “taxi touting”, and “persistent begging” – Nuffield Council on Bioethics, above n 20, at xiv, 10.
 Privacy Commissioner, above n 6, at 3.
 (27 Oct 2009) 658 NZPD 7498 (Metiria Turei).
 S & Marper v United Kingdom, above n 55, at .
 Nuffield Council on Bioethics, above n 20, at 52.
 Institute of Environmental Science and Research, above n 24; see, e.g., Michael Townsley, Chloe Smith & Ken Pease “First Impressions Count: Serious Detections Arising from Criminal Justice Samples” Genomics, Society and Policy (Vol. 2, No. 1, 2006) at 28-40, whose research into “criminal careers” highlights the “significant link” between those providing a DNA sample and further offending – 80% of whom went on to commit offences different from the initial offence for which their DNA was taken (at 29-30).
 About 80%, in fact, of reported links between the NDD and the CSD have come from burglaries – Institute of Environmental Science and Research, above n 24.
 S & Marper v United Kingdom, above n 55, at .
 (27 Oct 2009) 658 NZPD 7487 (Nathan Guy).
 Cited by the Privacy Commissioner, above n 6, at 5.
 Attorney-General’s Report, above n 7, at 3.
 Privacy Commissioner, above n 6, at 5 (original emphasis).
 It should be noted, however, that s 71 of the Criminal Investigations (Bodily Samples) Act 1995 continues to provide that a DNA profile derived under Part 2 or the new Part 2B arrestee regime is not itself admissible in criminal proceedings, which means a fresh DNA sample must still be taken to adduce as evidence in court.
 (14 Oct 2009) 658 NZPD 7067 (Moana Mackey).
 New Zealand Police Association, above n 32, at 4.
 See, e.g., Simpson v Attorney-General (Baigent’s Case)  3 NZLR 667 (CA); R v Shaheed  2 NZLR 377 (CA).
 Hon Justice Michael Kirby “DNA Evidence: Proceed with Care” (speech given at Seminar on Science and Digital/Cyber Crime, University of Technology Sydney, 16 March 2000). Kirby J served as a member of the Ethics Committee of the Human Genome Organisation (HUGO) from 1995-2005.
 Human Genetics Commission, above n 7, at 28.
 Mark Findlay and Julia Grix “Challenging Forensic Evidence? Observations on the Use of DNA in Certain Criminal Trials” Current Issues in Criminal Justice (Vol. 14, 2003) at 269-82, 274; Michael Lynch, Simon A Cole, Ruth McNally & Kathleen Jordan, Truth Machine: The Contentious History of DNA Fingerprinting (University of Chicago Press, Chicago, 2008) at x.
 Michael Briody “The Effects of DNA Evidence on Homicide Cases in Court” Australia and New Zealand Journal of Criminology (Vol. 37, No.2, 2004) at 231-52, 242. Conversely, studies have also observed a reluctance among modern juries to convict in the absence of DNA evidence against the accused. DNA evidence, Lynch et al say, has effectively become “... reified as a machinery of truth for determining guilt and innocence.” – Lynch, Cole, McNally & Jordan, above n 173, at 346.
 Human Genetics Commission, above n 13, at 28-29.
 Australian Law Reform Commission, above n 74, at 1097. Studies on the “prosecutor’s fallacy” have observed that juries tend to assume that statistical odds of “1 in a million” that the DNA match has not correctly identified the offender indicates a “1 in a million” chance that the accused is not guilty of the offence. Such a conclusion is clearly not logically defensible, but increased reliance on DNA evidence makes such distortions of juries’ reasoning increasingly likely to occur – Nuffield Council on Bioethics, above n 20, at 70. See R v Keir  NSWCCA 30 for an example where the prosecutor’s fallacy was held to have led to a miscarriage at trial.
 Nuffield Council on Bioethics, above n 20, at xiii, 22-23; Australian Law Reform Commission, above n 74, at 1092-3. A study conducted by the California Association of Crime Laboratory Directors (CACLD) found a 1 per cent error rate in DNA testing in the laboratories it reviewed – cited by the Committee on DNA Technology in Forensic Science, National Research Council (US) DNA Technology in Forensic Science (1992), <http://www.nap.edu/catalog.php?record_id=1866> . Indeed, even in New Zealand a DNA profile obtained from an assault victim in the South Island matched the profiles from two separate homicide scenes in the North Island, and although police were satisfied that the assault victim had not been present at either homicide scene and was not the offender, an independent inquiry could not account for the false positive results – cited by the Australian Law Reform Commission, above n 74, at 1094.
 Nuffield Council on Bioethics, above n 20, at 22.
 See Greg Newbold Crime in New Zealand (Dunmore Press, Palmerston North, 2000) at 241-243.
 Walker & Cram, above n 116; Human Genetics Commission, above n 13, at 94. This also constitutes an offence under s 77(2)(b) of the Act punishable by up to 3 years’ imprisonment to “knowingly provide false information with the intent that it should be stored on a DNA profile databank”).
 The Labour opposition sought to introduce an amendment to provide for judicial oversight during the Committee of the Whole House stage, but the amendment was defeated – see 2009 JHR 531 (Criminal Investigations (Bodily Samples) Amendment Bill).
 Attorney-General’s Report, above n 7, at 7.
 “HRC and Privacy Concerned About Increased Police DNA Sampling” Guide2.co.nz: Politics (May 14 2009) <http://www.guide2.co.nz/politics/news/hrc-and-privacy-concerned-about-increased-police-dna-sampling/11/7855> .
 See, e.g., (10 Feb 2009) 652 NZPD 1128 (David Garrett) and 1131 (Richard Worth); (14 Oct 2009) 658 NZPD 7502 (Simon Bridges). The Nuffield Council also suggests that the “nothing to hide, nothing to fear” argument also cannot be used per se to justify the regime because the starting point must still be the presumption of innocence – Nuffield Council on Bioethics, above n 20, at 34. Similarly, the Privacy Commissioner observes that “some might say that people with nothing to hide have nothing to fear – I would turn that round. If a person has done nothing serious wrong, then the Police don’t need his or her DNA” – Privacy Commissioner, above n 6, at 7.
 Cited by the Human Genetics Commission, above n 13, at 48.
 Ibid at 48. The applicants in S & Marper complained of just such a stigmatisation effect – see S & Marper v United Kingdom, above n 55, at -, . In the Court of Appeal hearing, Waller LJ observed that “persons who have been acquitted and have their samples taken can justifiably say this stigmatises or discriminates against me – I am part of a pool of acquitted persons presumed to be innocent, but I am treated as though I was not” – see R v Chief Constable of South Yorkshire Police/Secretary of State for the Home Department (ex parte S & Marper)  EWCA Civ 1275,  1 WLR 3223 at  per Waller LJ.
 Human Genetics Commission, above n 13, at 48.
 Privacy Commissioner, above n 6, at 4.
 Ibid at 7.
 Human Genetics Commission, above n 13, at 33; Nuffield Council on Bioethics, above n 20, at 44.
 Nuffield Council on Bioethics, above n 20, at 29.
 Privacy Commissioner, above n 6, at 6.
 Criminal Records (Clean Slate) Act 2004, ss 7 & 14.
 Ibid, s 3.
 Human Genetics Commission, above n 13, at 51.
 See (10 Feb 2009) 652 NZPD 1129 (Te Ururoa Flavell); (27 Oct 2009) 658 NZPD 7495 (Rahui Katene). The use of DNA profiling on Māori subjects calls for a particular sensitivity by police because many Māori see the taking of bodily samples as a “breach of their spiritual belief systems and therefore as a moral and cultural offence”. Māori, as well as many Pacific Island groups, consider bodily samples – even hair and fingernails – to be tapu. Their sacredness arises from the Māori belief in the sanctity and respect for life, and that because every part of a person’s body contains their life force – or wairua – it can even be used to cause harm to that person under the process of mākutu. This cultural sensitivity is also reflected in the aversion amongst Māori to the practice of familial and ethnic profiling. Whakapapa – ancestry and geneological connections – are considered to be particularly sacred taonga in Māori culture – see W Hemara Tikanga Māori, Mātauranga Māori & Bioethics: A Literature Review (report for the Toi te Taiao, NZ Bioethics Council, Aug 2006) at 31-32. As long ago as 1993, the Indigenous People’s Council on Biocolonialism was established to oppose such bioprospecting or “biopiracy”, such as research into the supposed Māori ‘warrior gene’ several years ago.
 Department of Corrections Policy, Strategy and Research Group Overrepresentation of Māori in the Criminal Justice System: An Exploratory Report (Sept 2007) at 7.
 DM Fergusson, LJ Horwood
& MT Lynskey “Ethnicity and Bias in Police Contact Statistics”
Australian and New Zealand Journal of Criminology (Vol. 26, No. 3, 1993)
at 202-203; Ibid at 14.
 Nuffield Council on Bioethics, above n 20, at 20.
 Ibid at 81.
 Cited by the Human Genetics Commission, above n 13, at 53.
 Ibid at 54. In London, 55% of the total number of innocent people on the NDNAD (i.e. those suspected but never convicted) are black or Asian, even though they constitute only 29% of the London population – Nuffield Council on Bioethics, above n 20, at 56.
 Greer McDonald “DNA Bill Raises Maori Party Concerns’ Dominion Post (Wellington, 29 Oct 2009) at 1. It should be borne in mind, however, that the vast majority of DNA samples were taken by consent rather than force – see Police Annual Report 2008/09, above n 124.
 Home Affairs Select Committee, UK House of Commons Young Black People and the Criminal Justice System (Second Report of Session 2006-2007, Vol. 1, June 2007) at 15.
 “Facts on Post-Conviction DNA Exonerations” The Innocence Project, <http://www.innocenceproject.org/Content/351.php> .
 See Criminal Investigations (Bodily Samples) Act 1995, s 76.
 See United Nations Convention on the Rights of the Child, arts 16, 40.
 New Zealand Police Association, above n 32, at 2.
 Ibid at 8.
 Cited by the Human Genetics Commission, above n 13, at 51.
 See Criminal Investigations (Bodily Samples) Act 1995, s 24K, and Children, Young Persons and Their Families Act 1989.
 See Children, Young Persons, and Their Families Act 1989, s 208 on the principles of youth justice, which provides that proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter “unless the public interest requires otherwise”.
 Privacy Commissioner, above n 6, at 4.
 UK Home Secretary “Protecting Rights, Protecting Society” (speech to the Intellect Trade Association, 16 Dec 2008); S & Marper v United Kingdom, above n 55, at  – “the court further considers that the retention of the unconvicted persons’ data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society”.
 Human Genetics Commission, above n 13, at 104.