Home | Databases | WorldLII | Search | Feedback New Zealand Law Commission Reports

The use of DNA in criminal investigations. Te whakamahi I te Ira Tangata I nga matai taihara [2020] NZLCR 144; The use of DNA in criminal investigations. Te whakamahi I te Ira Tangata I nga matai taihara [2020] NZLCR 144

New Zealand Law Commission Reports

The use of DNA in criminal investigations. Te whakamahi I te Ira Tangata I nga matai taihara [2020] NZLCR 144 (30 October 2020); The use of DNA in criminal investigations. Te whakamahi I te Ira Tangata I nga matai taihara [2020] NZLCR 144

Last Updated: 24 November 2020

October 2020 Wellington, New Zealand

Report | Pūrongo 144

The Use of DNA in Criminal Investigations

Te Whakamahi i te Ira Tangata i ngā Mātai Taihara

II THE USE OF DNA IN CRIMINAL INVESTIGATIONS LAW COMMISSION

Te Aka Matua o te Ture | Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the people of New Zealand.

The Commissioners are:

Amokura Kawharu – Tumu Whakarae | President

Helen McQueen – Tumu Whakarae Tuarua | Deputy President Donna Buckingham – Kaikōmihana | Commissioner

Te Aka Matua o te Ture | Law Commission is located at: Level 9, Solnet House, 70 The Terrace

Wellington 6011

Postal address: PO Box 2590, Wellington 6140, Aotearoa New Zealand

Document Exchange Number: SP 23534

Telephone: 04 473 3453 Email: com@lawcom.govt.nz Internet: www.lawcom.govt.nz

The te reo Māori version of this Report’s title was developed for Te Aka Matua o te Ture | Law Commission with assistance from Kiwa Hammond and members of the Commission’s Māori Liaison Committee, Te Ripowai Higgins and Tā Hirini Mead.

Kei te pātengi raraunga o Te Puna Mātauranga o Aotearoa te whakarārangi o tēnei pukapuka. A catalogue record for this title is available from the National Library of New Zealand.

ISBN 978-1-877569-96-8 (Print)

ISBN 978-1-877569-95-1 (Online)

ISSN 0113-2334 (Print)

ISSN 1177-6196 (Online)

This title may be cited as NZLC R144. This title is available on the internet at: www.lawcom.govt.nz

Copyright © 2020 Te Aka Matua o te Ture | Law Commission.

This work is licensed under the Creative Commons Attribution 4.0 International licence. In essence, you are free to copy, distribute and adapt the work, as long as you attribute the work to Te Aka Matua o te Ture | Law Commission and abide by other licence terms. To view a copy of this licence, visit https://creativecommons.org/licenses/by/4.0/
iii FOREWORD

LAW COMMISSION THE USE OF DNA IN CRIMINAL INVESTIGATIONS III

President Amokura Kawharu

Commissioners Donna Buckingham Helen McQueen (Deputy President)

PO Box 2590

Wellington 6140 New Zealand Phone 04 473 3453

lawcom.govt.nz

Hon Andrew Little
Minister Responsible for the Law Commission Parliament Buildings
WELLINGTON


30 October 2020


Dear Minister


NZLC R144 – The Use of DNA in Criminal Investigations | Te Whakamahi i te Ira Tangata i ngā Mātai Taihara

I am pleased to submit to you the above Report under section 16 of the Law Commission Act 1985.



Yours sincerely,

Amokura Kawharu

Tumu Whakarae | President

iiiiii FOREWFOREWOORDRD

LAW COMMISSION THE USE OF DNA IN CRIMINAL INVESTIGATIONS IV

Foreword

Aotearoa New Zealand was the second country to create a legislative regime for DNA sample collection and profiling for criminal justice purposes.
The Criminal Investigations (Bodily Samples) Act 1995 focuses on the use of a DNA profile to identify an individual offender – either by offering an investigative lead in relation to unsolved criminal offending or by providing evidence in the prosecution of an offence.
For that reason, a DNA profile has sometimes been referred to as the ‘modern fingerprint’ in terms of the function it performs in the criminal justice context.
But while fingerprints are literally unique, DNA by its very nature is shared with ancestors, siblings and children, and the science has now surpassed that concept of individual identification that underpinned the legislation.
For example, DNA profiling can provide information that goes beyond identification of an individual person via the technique of familial searching – looking for a near match as an investigative lead where a direct match is not able to be obtained.
The paths to using DNA profiling as a criminal investigative tool are also becoming more varied.
The legislation is silent on, for example, drawing inferences as to the ethnicity of an unknown offender by matching a profile obtained from a crime scene sample to an ethnicity databank. It provides no guidance on other paths to genetic profiles yet to be taken in Aotearoa New Zealand – such as accessing public genealogical databases to provide investigative leads.
Nor does it say how we should approach the prospect that whole genome sequencing may ultimately become the standard method of analysing a DNA sample in criminal investigations, generating a complete genetic picture of a person.
The original legislative challenge was how best to support the value of DNA profiling in the law enforcement context and, at the same time, address the significant privacy and human rights concerns that arise.
Twenty-five years on, the challenge must be approached more broadly – not only to address the science that has developed and will continue to develop but also the need for the recognition of tikanga Māori and for consistency with te Tiriti o Waitangi | the Treaty of Waitangi.
This Report therefore makes the case for new legislation that comprehensively addresses the use of DNA in criminal investigations.

Amokura Kawharu

Tumu Whakarae | President
iii FOREWORD

LAW COMMISSION THE USE OF DNA IN CRIMINAL INVESTIGATIONS V

Acknowledgements

The Law Commission is grateful to all those who have assisted during the course of this review. In particular, we acknowledge the generous contributions of time and expertise from our expert advisory group and officials’ advisory group. These groups provided guidance on the issues we selected for our Issues Paper and also engaged in rigorous discussion of the preliminary policy proposals.
Our advisory group members offered expertise in legal, scientific and tikanga Māori issues:

• Vanessa Blackwood
• Emily Bruce
• Judge Denise Clark
• Jonathan Eaton QC
• Jo Hayward
• Associate Professor Māui Hudson
• Joy Liddicoat
• Associate Professor Nessa Lynch
• Paige McElhinney
• Sue Petricevic
• Dr Anna Sandiford
• Dr Armon Tamatea
• Judge Arthur Tompkins

The officials’ group included representatives of New Zealand Police, the Institute of Environmental Science and Research (ESR), Crown Law, the Public Defence Service and the Ministry of Justice.
We thank the National Forensic Services Centre of New Zealand Police, and ESR and the Independent Police Conduct Authority for their ongoing cooperation.
We acknowledge the guidance of Associate Professor Māmari Stephens from the Faculty of Law, Victoria University of Wellington and we are grateful for the advice and assistance of the Commission’s Māori Liaison Committee.
We are also grateful to Oranga Tamariki for providing an opportunity to seek the views of young people with experience in the criminal justice system. Most importantly, we thank the young people of Korowai Manaaki for agreeing to share their views with us.
The Commissioner responsible for this reference is Donna Buckingham, who led the reference after the departure of Commissioner Wayne Mapp in mid-2017.
The legal and policy advisers who worked on this Report are Sam Coad, Nichola Lambie, Kate McKenzie-Bridle, Samuel Mellor, Kate Slankard-Stone, Clair Trainor and Jesse Watts.
We also acknowledge the valuable contributions made to this reference by former legal and policy advisers Kristen Ross, Kate Salmond, Clare Tattersall and Chrystal Tocher. The clerks who worked on this reference were Eve Bain, Fady Girgis, Rebecca McMenamin, Jessica Sutton, Natalie Vaughan, Tom White and Kate Wilson.

Contents
Glossary

Key abbreviations and terms used in this Report are set out below. Key Māori terms and concepts are described in Chapter 2.

Executive summary

AN OVERVIEW

1. Our DNA is the blueprint for our individual physical development and represents our family and whānau, providing the genetic link to past and future generations. Every individual has a unique DNA sequence, and DNA analysis can identify a particular individual with a high degree of accuracy. Unsurprisingly, DNA analysis has become an important tool in criminal investigations worldwide.
2. Aotearoa New Zealand was the second country to enact legislation establishing a DNA databank for use in criminal investigations. It has been 25 years since the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act) came into force. Over that time DNA technology has developed rapidly and shows no signs of slowing. The utility of DNA in criminal investigations has grown in ways not anticipated in 1995. Not only can DNA reveal more information about an individual than was previously possible, but increasingly sensitive analysis techniques can be used to obtain information from tiny traces of DNA, such as a few skin cells. Successive amendments to the CIBS Act have also expanded Police’s use of DNA in criminal investigations. Now, close to 200,000 people have a profile on the DNA Profile Databank.
3. Our review has surveyed the expansion of the collection and use of DNA in criminal investigations. We conclude that new DNA legislation is needed. The CIBS Act is no longer fit for purpose, constitutionally sound or accessible to users.
4. We have identified six fundamental problems with the CIBS Act:

(a) It lacks a clear, robust purpose to guide the collection and use of DNA in criminal investigations.

(b) It fails to recognise and provide for tikanga Māori and te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty). It is out of step with other legislation that has a significant impact on Māori rights and interests.

(c) It fails to properly accommodate human rights values. This is inconsistent with other legislation concerning the relationship between the State and individuals, such as the Search and Surveillance Act 2012 and the Intelligence and Security Act 2017.

(d) It is not comprehensive. The increasing use of DNA in criminal investigations, both in Aotearoa New Zealand and elsewhere, as well as scientific advances in DNA analysis have highlighted significant gaps in its provisions.

(e) It is confusing and complex. A steady history of amendments has made the legislation difficult to apply in practice.

(f) There is no statutory provision for independent oversight. This is inconsistent with international best practice.

5. This Report contains 193 recommendations that address these and other concerns. Together they provide a comprehensive regulatory framework for the collection and use of DNA in criminal investigations and the investigation of missing and unidentified people. This summary highlights some of those recommendations by reference to the fundamental problems with the CIBS Act and our objective of fit for purpose, constitutionally sound and accessible legislation.
6. We recognise that navigating the change from the existing DNA regime that Police use every day to a more comprehensively regulated regime poses a challenge. We do not therefore include draft legislation in this Report. Instead our recommendations describe the content of legislation that would enable the continued use of DNA in criminal investigations in Aotearoa New Zealand in a principled, transparent and accountable way.

A CLEAR PURPOSE

7. A fundamental problem identified in this review is that the CIBS Act lacks a clear and robust purpose to guide how DNA should be collected and used in criminal investigations. We recommend that the new DNA legislation include a purpose statement that identifies the policy objectives: to facilitate the collection and use of DNA in the investigation and prosecution of offences and the investigation of missing and unidentified people in a manner that:

(a) minimises interference with a person’s privacy and bodily integrity;

(b) recognises and provides for tikanga Māori; and

(c) is otherwise consistent with human rights values.

8. The purpose provision will guide a principled approach to the collection and use of DNA samples, as part of the wider impetus for a fairer and more effective criminal justice system in Aotearoa New Zealand.
9. The purpose provision will also guide the exercise of functions and powers under the proposed new DNA legislation by police officers, the forensic services provider, the courts and other bodies exercising oversight, as we discuss below.

RECOGNISING AND PROVIDING FOR TIKANGA MĀORI AND THE TREATY

10. DNA holds special significance in te ao Māori. DNA contains whakapapa information, which is considered a taonga, and its collection for use in criminal investigations gives rise to certain rights and responsibilities according to tikanga Māori. Whanaungatanga, mana, tapu, manaakitanga and kaitiakitanga are other aspects of tikanga engaged by the DNA regime. The collection and use of DNA in criminal investigations also engages rights and obligations under the Treaty, including the right to exercise tino rangatiratanga.
11. There is, however, no statutory recognition in the CIBS Act of tikanga Māori or the Treaty, no provision for tikanga in the collection and use of DNA and no provision for the exercise of Treaty rights and obligations.
12. In our view, for DNA legislation to be constitutionally sound, it should, at a minimum, provide a framework for Māori to articulate their rights and interests in the DNA regime and to participate in oversight. We therefore recommend that new DNA legislation should recognise that tikanga Māori may be engaged by various aspects of the regime and make provision for its operation, where appropriate.

13. Another concern is that the CIBS Act fails to recognise the over-representation of Māori in the DNA regime. Māori comprise around 16.5 per cent of the general population but since 2009 Māori have provided between 38 and 41 per cent of all DNA samples obtained on arrest or intention to charge. The Crown has an obligation under the Treaty to reduce inequalities between Māori and non-Māori. There are, however, no measures in the CIBS Act to support this obligation, such as independent oversight or reporting requirements.
14. To ensure the Crown does not breach its duties under the Treaty to act fairly to reduce inequities between Māori and non-Māori, we make recommendations that would provide the means for the Crown, working in partnership with Māori, to meet its obligations to take active steps to reduce inequities and promote equity in the DNA regime.
15. A key recommendation is independent oversight of the DNA regime through the establishment of a DNA Oversight Committee. We recommend that at least 3 members of that Committee be Māori to facilitate Māori participating in oversight of the DNA regime. We discuss oversight further below.
16. We recommend that new DNA legislation include more comprehensive reporting requirements for Police, broken down by ethnicity and other relevant factors. This will facilitate effective oversight, including monitoring the impact of the DNA regime on Māori.
17. We also recommend that new DNA legislation should prohibit the use of analysis techniques that predict the likely ancestry of a person whose DNA was found at a crime scene.

INCREASED RECOGNITION OF HUMAN RIGHTS VALUES

18. There is no recognition in the CIBS Act of the need to accommodate human rights values, including privacy and bodily integrity, alongside law enforcement values. Advances in DNA technology have only served to increase the intrusive nature of DNA analysis on fundamental human rights values.
19. We are also concerned that some of the broad powers granted to police officers under the CIBS Act appear inconsistent with human rights values. For example, the power to require a DNA sample from a young person or an adult when arrested or intended to be charged with a qualifying offence appears inconsistent with the right to be secure against unreasonable search and seizure under section 21 of the New Zealand Bill of Rights Act 1990. We adopt the view of the Attorney-General at the time the CIBS Act was amended in 2009 to introduce this power: that section 21 requires both a sufficient and specific basis for the taking of a sample and prior independent approval (except for emergency or other special circumstances).
20. A re-balancing is required so that intrusions on human rights values are reasonable and proportionate to the public interest in law enforcement. We consider the CIBS Act is out of step with more recent legislation in the wider law enforcement and security and intelligence contexts in terms of setting that balance. We seek to address this in a number of ways. Some are set out below.
21. We recommend that suspect samples should only be obtained from young people where, as is already the case with children, an order is made by a Youth Court Judge.

22. We recommend that suspect samples should not be obtained by consent from adults lacking the ability to give informed consent and that there are improved safeguards generally when samples are being obtained from adults.
23. We recommend constraining Police discretion in the collection of pre-conviction samples by establishing statutory considerations, such as the nature and seriousness of the suspected offending and any history of prior offending. We also recommend that the comparison of pre-conviction DNA profiles to profiles from unsolved cases should only occur if a court makes an order.
24. We recommend lifting the offence threshold for storage of a DNA profile upon conviction (which means it may be searched in future criminal investigations) to an offence punishable by imprisonment for two years or more.
25. We recommend removal of certain adult DNA profiles after a seven year period without reoffending and, otherwise, that an offender’s profile should be removed upon their death rather than being retained indefinitely.
26. We suggest a separate regime for retaining the DNA profiles of youth offenders that is consistent with the rehabilitative focus of the youth justice system and seeks to take advantage of the specialist skills of the Youth Court.
27. We recommend prohibiting any external research of the databank.

A COMPREHENSIVE REGIME

28. Our view is that a fit for purpose, constitutionally sound and accessible statutory regime must regulate, or provide a framework for regulating, all significant aspects of the DNA regime. The CIBS Act does not regulate many of the uses of DNA in criminal investigations such as the analysis of crime scene samples or the processes of elimination sampling, mass screening or familial searching. Their legal foundation for use lies outside the Act, resulting in a fragmented legal picture. The Act is also silent on the forensic services provider who has a central role in the operation of the DNA regime, analysing DNA samples, generating DNA profiles, maintaining the profile databanks and managing the retention and destruction of samples and profiles.
29. One key recommendation is for a new comprehensive DNA databank (the proposed DNA databank). This will replace the current DNA Profile Databank and the Temporary Databank established by the CIBS Act and provide a statutory basis for the Crime Sample Databank that is currently unregulated.
30. We recommend the proposed DNA databank contains indices to enable comparisons that are currently conducted outside the legislation to be conducted within the new legislative regime, where that is permitted by matching rules. We also propose the inclusion of a set of indices to assist in the identification of missing and unknown people to close a gap in the current legislation.
31. The proposed DNA indices are listed below:

(a) Elimination index: for profiles derived from elimination samples and mass screen samples in the course of criminal casework.

(b) Pre-conviction index: for profiles from samples obtained from suspects and on arrest or intention to charge with a qualifying offence.

(c) Offenders index: for profiles from people convicted of an offence punishable by imprisonment for two years or more.

(d) Crime scene index: for profiles obtained from DNA samples collected at crime scenes.

(e) Missing and unidentified index: for profiles of people who are missing and people who are unable to identify themselves due to incapacity.

(f) Unidentified deceased index: for profiles of unidentified deceased people and from human remains.

(g) Relatives index: for profiles of relatives of missing people obtained for the purpose of assisting identification.

32. We also recommend that only those DNA analysis techniques that have been approved and set out in regulations may be used in the investigation and prosecution of offences (and in the investigation of missing and unidentified people). We recommend that the DNA Oversight Committee should assess any proposals from the forensic provider or Police to add or remove analysis techniques and advise the Minister regarding these proposals. We discuss oversight further below.
33. We propose regimes to regulate elimination sampling (the taking of DNA samples to exclude people as suspects) and for mass screening (the taking of samples from a class of people who share characteristics with the suspected offender to identify a suspect).
34. We also provide a regulatory basis for familial searching (the use of DNA databank profiles to identify a near match with a crime scene profile which might identify a potential family member). We recommend authorisation by court order before such a search can be conducted. We also propose regulating the future use of genetic genealogy searching, where an external genetic ancestry database can similarly be searched for a near match, as we consider it inevitable that Police will seek to use this as an investigative technique.
35. We also recommend that the role and obligations of the forensic services provider should be set out in the proposed DNA legislation.

REPAIRING THE OVERSIGHT GAP

36. The absence of independent oversight of the DNA regime is a fundamental regulatory gap and places Aotearoa New Zealand out of step with most comparable jurisdictions. This gap also results in a lack of Māori participation in oversight of the regime, inconsistent with the Treaty guarantee of tino rangatiratanga, the principles of partnership, active protection and equity, and the responsibilities that arise for Māori in this context in accordance with the applicable tikanga.
37. We address the question of independent oversight in several ways: increasing the role of judicial authorisations for the exercise of certain powers to collect and use DNA, providing for the establishment of the new DNA Oversight Committee and external auditing.
38. We recommend an increased role for the judiciary in authorising some investigative practices that are currently not regulated by the CIBS Act; for example, decisions whether to authorise a mass screen, a familial search or, in future, a genetic genealogy

search. This restores judicial oversight as a more central part of the DNA regime, a feature of the original legislation.

39. As mentioned, we recommend a new DNA Oversight Committee be established. This recommendation is key. It is intended both to mitigate existing problems or gaps and to serve as a future proofing mechanism, monitoring developments in the operation of the proposed DNA legislation and contributing to the recalibration of the regime to ensure it remains properly aligned to its purpose.
40. The DNA Oversight Committee will perform a broad set of functions including: evaluating proposals to make or amend regulations under new DNA legislation (including those related to new DNA analysis techniques as outlined above); advising Police and the forensic services provider on the development of practice, policy and procedure in numerous areas, including to provide for tikanga Māori; monitoring the operation of the DNA regime, including its impact on Māori; approving applications for the use of the proposed DNA databank for permitted internal research; promoting awareness and understanding of the DNA regime; and advising the Minister of Justice on any issues the Committee is notified of or self-identifies.
41. We propose that membership of the DNA Oversight Committee requires expertise in forensic science, ethics, criminal law and procedure, te ao Māori and tikanga Māori, privacy, or human rights. We recommend between five to seven members with, as noted above, at least three being Māori (the Māori caucus). We think a strong Māori membership will facilitate a partnership approach to oversight and avoid issues inherent in a dual-committee structure.
42. We recommend that the DNA Oversight Committee should have the power to determine its own procedures, including whether the Māori caucus should have specific responsibilities within the Committee’s broad functions, such as advising on Māori interests or tikanga, or exercising a form of kaitiakitanga over Māori DNA and data.
43. We also propose that a member of the Independent Police Conduct Authority be an additional member of the DNA Oversight Committee. We do not propose that Police and the forensic services provider be members but consider they should have a right of attendance at Committee meetings.
44. We also propose that auditing of the operation of the proposed DNA databank be carried out by the Independent Police Conduct Authority.

A FINAL COMMENT

45. We conclude with a matter that falls outside our Terms of Reference. We note the rapid pace of technological developments in relation to other biometric information, such as facial recognition software, remote iris recognition and other behavioural biometrics (for example, voice pattern analysis). We are also aware of concerns in relation to existing and emerging forensic science techniques other than DNA analysis. Many of these are largely unregulated in Aotearoa New Zealand. In light of such developments, and concerns that have arisen in other jurisdictions, we recommend that the Government considers the adequacy of existing oversight arrangements in the fields of biometrics and forensic science.

Recommendations

CHAPTER 3: A NEW ACT

^R1 The CIBS Act should be repealed and replaced with a new statute that comprehensively regulates the collection and use of DNA in the investigation and prosecution of offences and the investigation of missing and unidentified people (new DNA legislation).

^R2 New DNA legislation should include a provision that identifies the specific measures that give practical effect to the Crown’s responsibility to consider and provide for Māori rights and interests under the Treaty. Specific measures identified should include:

1. providing that the purpose of the new DNA legislation includes facilitating the collection and use of DNA in a manner that recognises and provides for tikanga Māori (see R3);
2. establishing a multi-disciplinary DNA Oversight Committee, which must include Māori members (see R8–R11);

100. requiring the development of practice, policy and procedure in consultation with the DNA Oversight Committee to ensure the collection and use of DNA is consistent with the purpose of the new DNA legislation (see R38, R44, R59, R73, R80, R96, R104, R134, R150, and R187);

4. requiring Police to report on how the collection and use of DNA under the Act affects Māori (see R23); and
5. empowering the DNA Oversight Committee to monitor the operation of the DNA regime on Māori (see R14.c).

^R3 New DNA legislation should include a purpose statement that confirms that the purpose of the Act is to facilitate the collection and use of DNA in the investigation and prosecution of offences and the investigation of missing and unidentified people in a manner that:

1. minimises interference with a person’s privacy and bodily integrity;
2. recognises and provides for tikanga Māori; and

100. is otherwise consistent with human rights values.

CHAPTER 4: A NEW DNA DATABANK

The Government should consider whether the proposed DNA databank should

include a law enforcement elimination index.
R7
No comparison between a crime scene profile and any other profile on the proposed DNA databank should be permitted outside the proposed DNA
databank.
R6
The proposed DNA databank should be used to store all DNA profiles that are generated from DNA samples obtained in the investigation and prosecution of
offences and the investigation of missing and unidentified people.
R5
The existing DNA Profile Databank, Temporary Databank and Crime Sample Databank should be replaced with a single DNA databank with an index system
(the proposed DNA databank).
R4

CHAPTER 5: OVERSIGHT OF THE DNA REGIME
b. one member who is a member of the Independent Police Conduct Authority

(IPCA).
New DNA legislation should require the Minister of Justice to appoint members of the DNA Oversight Committee comprising:

1. between five and seven members who, between them, have expertise in the areas of:
   1. forensic science;
   2. ethics;
   3. criminal law and procedure;
   4. te ao Māori and tikanga Māori;
   5. privacy;
   6. human rights; and
   7. any other area the Minister considers relevant having regard to the Committee’s functions; and

R9
New DNA legislation should establish a DNA Oversight Committee to exercise

independent oversight of the DNA regime.
R8

R10

R11

R12

R13

R14

R15

No less than three members of the DNA Oversight Committee must be Māori members.

The Minister should consult with Māori before appointing any Māori members.


A representative of Police and a representative of the forensic services provider should be able to attend each meeting of the DNA Oversight Committee, but these representatives are not members of the Committee and may be excluded from deliberations and decision making.

The primary function of the DNA Oversight Committee should be to support and promote the operation of the DNA regime in a manner that is consistent with the purpose of the new DNA legislation.

In order to carry out its primary function, the DNA Oversight Committee should have the following statutory functions:

1. Evaluating proposals to make or amend regulations under new DNA legislation, including proposals to approve new DNA analysis techniques, and advising the Minister of Justice about whether regulations should or should not be made.
2. Advising (with or without a request) Police and the forensic services provider on practice, policy and procedure relating to the operation of the DNA regime to support and promote the purpose of the new DNA legislation.

100. Monitoring the operation of the DNA regime, which should include monitoring the impact of the DNA regime on Māori.

4. Approving applications for the use of the proposed DNA databank for research purposes.
5. Promoting awareness and understanding of the DNA regime.
6. Advising (with or without a request) the Minister of Justice on any aspect of the operation of new DNA legislation and the desirability of any amendments to the legislation or regulations.

Police (and the forensic services provider, if relevant) must have regard to the advice of the DNA Oversight Committee and notify it of any action taken to give effect to that advice. When advice is not acted on, Police (or the forensic services provider) must give reasons for not doing so and explain any alternative action taken.

R16

R17

R18

R19

R20

R21

R22

R23

R24

The DNA Oversight Committee should have all the powers necessary to perform its functions, including powers to regulate its own procedures, require information from Police and the forensic services provider, establish subcommittees or advisory panels on a standing or ad hoc basis and consult with members of the public or any person or body who, in the opinion of the Committee, can assist it to perform its functions.

The DNA Oversight Committee should report annually on the performance of its functions, and that report should be published (including online) and tabled in Parliament.

New DNA legislation should give IPCA the function of conducting audits of the collection, use, storage and retention of DNA samples and profiles by Police and the forensic services provider to ensure compliance with new DNA legislation and any relevant policy, practice or procedure. IPCA must convey the results of audits to Police and the forensic services provider and make any recommendations it considers appropriate to facilitate compliance.

Audits should be conducted at regular intervals and at any other time as IPCA may decide.

In performing its audit function, IPCA should regularly consult with the DNA Oversight Committee and brief it on its audit findings and outcomes.

IPCA should provide a briefing to the DNA Oversight Committee, at least once a year or at more regular intervals, on any complaints received in relation to the DNA regime and the outcome of such complaints.

New DNA legislation should deem DNA samples obtained in the investigation and prosecution of offences and the investigation of missing and unidentified people to be “personal information” for the purposes of the Privacy Act.

New DNA legislation should include comprehensive reporting requirements that require Police to publicly report annually on the collection, use, storage and retention of DNA samples well as on the operation of the proposed DNA databank.

The Government should consider whether there is a need to improve oversight of the use of other forms of biometric data and forensic science techniques.

CHAPTER 6: REGULATING DNA ANALYSIS

R25

R26

R27

R28

R29

R30

New DNA legislation should regulate the analysis of all DNA samples obtained in the investigation and prosecution of offences and the investigation of missing and unidentified people.

New DNA legislation should provide that only those DNA analysis techniques that have been approved in regulations made under that Act may be used in the investigation and prosecution of offences and the investigation of missing and unidentified people.

Regulations approving the use of DNA analysis techniques should describe the purpose for which their use has been approved and any other parameters or conditions on their use. Any new ways of using approved techniques outside of these limitations should require separate approval.

Regulations approving DNA analysis techniques or new uses of such techniques should only be made or amended on the recommendation of the Minister of Justice after the Minister has received and considered advice from the DNA Oversight Committee.

New DNA legislation should require that, when evaluating proposals relating to new DNA analysis techniques, the DNA Oversight Committee should consider:

1. to what extent scientific validity has been established;
2. the extent to which the proposal is consistent with the purpose of the new DNA legislation (see R3);

100. whether the proposal has any implications for the Crown’s obligations under the Treaty; and

4. any other matters including ethical, legal or cultural considerations that it considers appropriate.

When advising the Minister on new DNA analysis techniques, the DNA Oversight Committee should advise on the purpose for which the technique should be approved and any other parameters or conditions that should be put in place.

R31

R32

R33

R34

New DNA legislation should define “DNA profile”, for the purposes of that Act, as information, in relation to a person, that comprises a set of identification characteristics generated from DNA analysis of a sample of biological material obtained from that person that:

1. is clearly identifiable as relating to that person;
2. reveals the least amount of information possible about that person’s personal genetic characteristics; and

100. is able to be compared with information obtained from an analysis (using the same technique) of another sample of biological material for the purpose of determining, with reasonable certainty, whether or not the other sample is from that person.

Consideration should be given to amending the Solicitor-General’s prosecution guidelines to require caution in relation to a case based on DNA evidence alone.

Consideration should be given to amending the Evidence Act 2006 to require that a Judge in a criminal proceeding warn a jury of the special need for caution before finding a defendant guilty in reliance on DNA evidence alone.

New DNA legislation should anticipate and provide for the regulation of other types of genetic or genome-based analysis.

CHAPTER 7: THE FORENSIC SERVICES PROVIDER

1. act impartially in performing any functions under the Act;
2. hold and maintain accreditation to the accepted international standard, together with any relevant additional requirements considered broadly applicable to forensic services providers and laboratories; and

100. apply all quality standards and assurance processes required by accreditation.

New DNA legislation should require the forensic services provider to:
R36
New DNA legislation should expressly provide for a forensic services provider to perform functions under the Act on behalf of Police, which may include forensic
analysis and databank administration services.
R35

R37

R38

R39

R40

New DNA legislation should permit the forensic services provider to access DNA samples obtained from known people under that Act and profiles generated from those samples to complete internal validation for any proposed new DNA analysis techniques.

The forensic services provider, in consultation with Police and the DNA Oversight Committee, should be required to develop and publish (including online) policy on how it obtains and stores anonymised population data for the purpose of assessing allele frequencies in subpopulation groups within Aotearoa New Zealand to ensure that data is obtained and stored in a manner that:

1. is consistent with the purpose of the new DNA legislation (see R3); and
2. ensures proper recognition of and respect for cultural and spiritual values.

New DNA legislation should require the proposed DNA databank to be maintained in a way that:

1. complies with all relevant requirements in new DNA legislation;
2. ensures the security of the databank, including the maintenance of appropriate back-up and disaster recovery procedures; and

100. keeps information held on the proposed DNA databank secure from inappropriate access or misuse.

Comparison of profiles within and between the offenders and pre-conviction indices of the proposed DNA databank should be permitted for the purposes of administering the databank.

CHAPTER 8: SUSPECT SAMPLING

1. there are reasonable grounds to suspect that the suspect has committed an imprisonable offence;
2. there are reasonable grounds to believe that analysis of the suspect sample would tend to confirm or disprove the suspect’s involvement in the commission of the offence; and

100. the request is reasonable in all the circumstances.

A police officer should only be able to request a suspect sample from an adult

suspect if satisfied that:
R42
The adult suspect sampling regime should continue to be based on informed

consent, with the improved safeguards outlined in R42–R46.
R41

R43

R44

R45

R46

R47

R48

Subject to R46, an adult suspect should only be deemed to have provided their informed consent to the obtaining of a suspect sample if:

1. they have agreed to the obtaining of a suspect sample after a police officer has:
   1. given them a notice containing specified information;
   2. explained the information in the notice in a manner and language that is appropriate to their level of understanding;
   3. given them a reasonable opportunity to consult privately with a lawyer; and
   4. given them a reasonable opportunity to nominate an adult to act as a support person during the consent process and the obtaining of the suspect sample; and
2. the request for the suspect sample, giving of information at R43.a.i and R43.a.ii and giving of consent is, where reasonably practicable, recorded on a video record or otherwise recorded in writing.

Procedures and practices for explaining the specified information should be developed in consultation with the DNA Oversight Committee and should include visual aids and materials produced in English, te reo Māori and other languages commonly spoken in Aotearoa New Zealand.

Consideration should be given to further ways of supporting suspects with brain and behaviour issues to provide informed consent to the obtaining of a suspect sample, within the Government’s broader work on responding to brain and behaviour issues in the criminal justice system.

A suspect sample should not be obtained by consent from any adult who lacks the ability to give informed consent.

Suspect samples and the results of any analysis of suspect samples should only be used for the criminal investigation for which they are obtained unless a High Court or District Court Judge authorises a one-off comparison against the crime scene index of the proposed DNA databank under R145.a.

A suspect should be able to withdraw their consent, orally or in writing, before, during or immediately after the sample is obtained and while the suspect is still in the presence of the police officer supervising the sampling procedure. If consent is withdrawn, the suspect should be deemed to have refused to give consent, and any sample obtained should be destroyed immediately.

R49

R50

R51

R52

A police officer should be able to apply to a High Court or District Court Judge for a compulsion order in respect of an adult suspect if the suspect:

1. has refused to consent to the obtaining of a suspect sample; or
2. has failed to give their informed consent within two working days of the request for the suspect sample being made; or

100. lacks the ability to give informed consent; or

4. was the subject of an indirect sample obtained or analysed in accordance with R88–R91.

A Judge should be able to issue a compulsion order in respect of an adult suspect if satisfied that:

1. there are reasonable grounds to suspect that the suspect has committed an imprisonable offence;
2. there are reasonable grounds to believe that analysis of the suspect sample would tend to confirm or disprove the suspect’s involvement in the commission of the offence; and

100. making an order is reasonable in all the circumstances.

A suspect sample should only be obtained from a prosecutable child or a young person if a compulsion order is issued by a Youth Court Judge. The Judge may issue a compulsion order if satisfied of the matters in R50.a–R50.c.

For the purposes of legal aid, legal services provided under new DNA legislation in relation to the investigation and prosecution of offences should be classified as “criminal legal aid”.

CHAPTER 9: ELIMINATION SAMPLING

In the investigation into the commission of an imprisonable offence, a police
officer should be able to request an elimination sample in relation to any person who is not a suspect in that investigation.
R54
New DNA legislation should prescribe an elimination sampling regime based on

informed consent.
R53

R55

R56

R57

R58

An elimination sample should only be obtained from a person (the donor) if informed consent is given to the collection of that sample. Informed consent should usually be given by the donor, subject to the following situations where the informed consent of another responsible adult is required:

1. If the donor is under the age of 14, informed consent must be given by a parent or guardian.
2. If the donor is aged between 14 and 18, informed consent must be given by both the donor and a parent or guardian.

100. If the donor lacks the ability to give informed consent, informed consent must be given by a parent or guardian (if the donor is aged between 14 and 18) or by a welfare guardian or principal caregiver (if the donor is aged over 18).

If informed consent is given on behalf of a donor under R55.a or R55.c, new DNA legislation should also provide that:

1. the requesting officer must ensure that, where reasonably practicable, the request for the elimination sample, the procedure for obtaining the elimination sample and how the sample will be used is explained to the donor in a manner and language that they are likely to understand; and
2. no sample shall be taken if the donor objects or resists.

In limited circumstances, a District Court or High Court Judge should be able make an order authorising the collection of an elimination sample from a child or young person or from a donor who lacks the ability to consent. An order would replace the need for informed consent to be obtained from the responsible adult identified in R55 but would not displace the provisions in R56 or, if the donor is a young person who does not lack the ability to consent, the requirement that the young person give informed consent in R55.b. An order should only be able to be issued if the Judge is satisfied that the informed consent of a responsible adult cannot be reasonably obtained or that the responsible adult is a suspect in the investigation and that making the order is reasonable in all the circumstances.

A person should be deemed to have provided their informed consent to the collection of an elimination sample only if:

1. they have agreed to the obtaining of an elimination sample after a police officer has:
   1. given them a notice containing specified information;
   2. explained the information in the notice in a manner and language that they are likely to understand;
   3. given them a reasonable opportunity to consult privately with a lawyer; and

4. where the person giving informed consent is the donor, given them a reasonable opportunity to nominate an adult to act as a support person during the consent process and the obtaining of the elimination sample; and

2. the request for the elimination sample, giving of the specified information at R58.a.i and R58.a.ii and the giving of consent is recorded on a video record, where reasonably practicable, or otherwise recorded in writing.

R59

R60

R61

R62

R63

R64

Procedures and practices for explaining the specified information should be developed in consultation with the DNA Oversight Committee and should include visual aids and materials produced in English, te reo Māori and other languages commonly spoken in Aotearoa New Zealand.

Elimination samples and the results of any analysis of elimination samples should only be used for the criminal investigation for which they are obtained.

An elimination sample or the results of any analysis of that sample should not be permitted to be used as evidence against the donor except by order of a High Court, District Court or Youth Court Judge that authorises an elimination sample to be treated as a suspect sample in the criminal investigation for which the sample was obtained.

A Judge may order that an elimination sample is to be treated as a suspect sample if satisfied that:

1. the elimination sample was lawfully obtained;
2. analysis of the elimination sample has produced information that tends to confirm the donor’s involvement in the commission of the offence;

100. if the donor is a child, the offence is one for which the child may be prosecuted; and

4. in all the circumstances, it is reasonable to make the order.

A person who gives consent to the obtaining of an elimination sample should be able to withdraw their consent at any time, orally or in writing, and in these circumstances, consent shall be deemed to have been refused.

If consent is withdrawn before or during the taking of the elimination sample, any sample obtained shall be destroyed immediately.

A donor’s refusal to consent or withdrawal of consent should not be used as

evidence against them in any proceedings.
R67
A Judge may order the retention of an elimination sample and any information obtained from the analysis of that sample for the purposes of the investigation for which it was obtained if:

1. there are reasonable grounds to believe that analysis of the elimination sample would tend to confirm or disprove a suspect’s involvement in the commission of the offence; and
2. in all the circumstances, it is reasonable to make the order.

R66
If consent is withdrawn after the elimination sample has been obtained, the sample and any information obtained from the analysis of that sample shall be destroyed as soon as practicable, subject to an order of a High Court, District Court or Youth Court Judge that the elimination sample is to be treated as a
suspect sample under R62 or is to be otherwise retained under R66.
R65

CHAPTER 10: MASS SCREENING

1. the nature and seriousness of the suspected offending;
2. the stage of the investigation and the availability of alternative investigative methods;
3. the size and scope of the class of people who may be affected by the mass screen;

A Judge may issue a mass screen order in relation to a profile on the crime scene index if satisfied that:

1. a databank search has failed to identify a suspect;
2. there are reasonable grounds to believe that the mass screen is likely to further an investigation into the commission of an imprisonable offence; and

100. the mass screen is reasonable in all the circumstances, having regard to:

R70
Any mass screen should be authorised by order of a High Court or District Court

Judge (mass screen order).
R69
New DNA legislation should prescribe a mass screening regime based on

informed consent.
R68

4. the evidential basis on which the class is proposed; and
5. any other matter that the Judge considers relevant.

R71

R72

R73

R74

R75

R76

R77

R78

R79

The Judge must set out the class of people who may be screened pursuant to the order and may impose any conditions on the mass screen that they think fit.


No mass screen order shall authorise the collection of DNA samples from any person under the age of 18 years.

Police should develop practice guidelines on when to consider applying for a mass screen order and how a specified class of people should be defined. These guidelines should be developed in consultation with the DNA Oversight Committee.

A police officer should be able to request a DNA sample from any person to whom the mass screen order applies (mass screen sample), subject to R76.

The requirements for obtaining informed consent to provide a mass screen sample should be consistent with the requirements that apply to the collection of elimination samples (set out in R58), with the necessary modifications.

A mass screen sample should not be obtained from any person who lacks the ability to give informed consent.

Mass screen samples and the results of any analysis should only be used in the criminal investigation for which they are obtained.

A person who provides a mass screen sample should be able to withdraw their consent before, during or immediately after the sample is obtained, and the provisions for withdrawing consent to the obtaining of suspect samples (R48) should apply, with the necessary modifications.

A donor’s refusal to consent or withdrawal of consent to the collection of a mass screen sample should not be used as evidence against them in any proceedings nor to support reasonable grounds to suspect that person of committing the offence under investigation.

CHAPTER 11: CASEWORK SAMPLING PROCEDURES

R80

R81

R82

R83

R84

R85

R86

Police should develop policy in consultation with the DNA Oversight Committee to ensure that sampling procedures under the new DNA legislation are carried out in a manner that is consistent with the purpose of the new DNA legislation (see R3).

New DNA legislation should continue to provide for DNA samples to be obtained by buccal sample, fingerprick sample or venous sample. New sampling methods should be authorised by regulations made under new DNA legislation.

Any person who provides a DNA sample should be given the opportunity to elect one of the sampling methods referred to in R81. If no election is made, the least intrusive method should be used.

Any person who provides a DNA sample should be entitled to have the following people present during the sampling procedure:

1. a lawyer or another adult of the donor’s choice;
2. if the donor is under the age of 18, a parent or guardian; and

100. if the donor is over the age of 18 and lacks the ability to understand the general nature and effect of the sampling procedure, a welfare guardian or principal caregiver.

The use of reasonable force to obtain a DNA sample from a person who refuses to comply with a compulsion order should continue to be available, subject to any conditions imposed by a Judge when issuing the compulsion order.

Any exercise of reasonable force to obtain a DNA sample from a person under R84 must be reported to the Commissioner of Police no later than three days after the sample is obtained, and Police should report annually on the use of reasonable force to obtain a suspect sample including:

1. whether the person is a child, young person or adult; and
2. the ethnicity of the person.

No inference should be able to be drawn from a person’s refusal to comply with a compulsion order in any criminal proceedings against that person for the offence for which the suspect sample was ordered or a related offence.

CHAPTER 12: INDIRECT SAMPLING

R87

R88

R89

R90

R91

New DNA legislation should prescribe a regime for indirect sampling in criminal investigations.

New DNA legislation should not permit the analysis of a DNA sample obtained indirectly from a suspect unless a High Court or District Court Judge has granted:

1. a search warrant to obtain a physical object or stored sample that is believed to contain or consist of the suspect’s biological material for DNA analysis (DNA search warrant); or
2. an order authorising the analysis of a DNA sample that has already been obtained (DNA analysis order).

New DNA legislation should include the power to issue a DNA search warrant in relation to a place, vehicle or other thing if the Judge is satisfied that:

1. there are reasonable grounds to believe that a physical object or stored sample that contains or consists of the suspect’s biological material will be found;
2. there are reasonable grounds to suspect that the suspect has committed an imprisonable offence;

100. there are reasonable grounds to believe that analysis of the physical object or stored sample would tend to confirm or disprove the suspect’s involvement in the commission of the offence;

4. requiring a police officer to obtain a DNA sample directly from the suspect would prejudice the maintenance of the law, including the prevention, detection, investigation, prosecution and punishment of offences; and
5. in all the circumstances, it is reasonable to make the order.

A DNA analysis order should only be issued if the Judge is satisfied that:

1. there are reasonable grounds to believe that the DNA sample obtained indirectly contains or consists of the suspect’s biological material; and
2. the requirements in R89.b to R89.e are satisfied.

A DNA sample obtained indirectly from a suspect and the results of the analysis of that DNA sample should only be used for the criminal investigation for which it was obtained and should not be used as evidence, except in respect of an application for a suspect compulsion order.

informed consent has been given under R55 by a responsible adult on behalf of the donor because the donor is under the age of 14 or lacks the ability to give informed consent; and

2. the donor objects to or resists the taking of an elimination sample directly from them.

A police officer should be able to obtain an elimination sample indirectly from a physical object or stored sample that is believed to contain or consist of the
donor’s biological material if:
R94
New DNA legislation should prohibit the collection of a DNA sample from a close genetic relative of a suspect for the purpose of obtaining a suspect sample
indirectly.
R93
The Memorandum of Understanding: The Disclosure of Newborn Blood Spot Samples and Related Information between Ministry of Health and Police should be amended to remove the provision for Police to obtain samples relating to a
suspect in a criminal investigation under search warrant.
R92

CHAPTER 13: CRIME SCENE EXAMINATIONS

Consideration should be given to the need for a separate regime or policy for the

collection of other forms of forensic evidential material from suspects.
R97
Police should develop, in consultation with the DNA Oversight Committee, practice guidelines on the exercise of powers under the Search and Surveillance Act 2012 to collect biological material for DNA analysis from the body of a person.
These guidelines should be published (including online).
R96
A specific authority to seize items or material for DNA analysis should be prescribed in legislation. This authority should provide that, when exercising a search power under the Search and Surveillance Act 2012 in relation to any place, vehicle or thing or when collecting evidential material in a public place, a police officer may seize any item or material for the purpose of analysis pursuant to new DNA legislation to determine the item’s or material’s relevance to the
investigation (whether by itself or together with other material).
R95

CHAPTER 14: FORENSIC DNA PHENOTYPING
New DNA legislation should prohibit the use of DNA analysis techniques to

conduct ancestry inferencing.
R99
DNA analysis techniques to infer evidentially visible characteristics should only be used if approved in regulations made under new DNA legislation under R26, and
only after following the process recommended in R28–R30.
R98

CHAPTER 15: GENETIC GENEALOGY SEARCHING

R100

R101

R102

R103

New DNA legislation should regulate the use of genetic genealogy searching in criminal investigations.

New DNA legislation should not permit the disclosure of any biological material obtained in the course of a criminal investigation, or any information derived from the analysis of that material (including a DNA profile), to a genetic ancestry database for genetic genealogy searching except by order of a High Court or District Court Judge (genetic genealogy search order).

A Judge may issue a genetic genealogy search order if satisfied that:

1. a databank search of the proposed DNA databank has failed to identify a suspect; and
2. conducting a genetic genealogy search is reasonable in all the circumstances, having regard to:
   1. the purpose of the new DNA legislation;
   2. the nature and seriousness of the suspected offending;
   3. the stage of the investigation and the availability of alternative investigative methods (including a familial search of the proposed DNA databank); and
   4. any other matter the Judge considers relevant.

New DNA legislation should provide that the results of a genetic genealogy search order should not of itself constitute reasonable grounds to suspect a person of committing the offence under investigation.

CHAPTER 16: MANAGEMENT OF CASEWORK AND CRIME SCENE SAMPLES

R104

R105

R106

R107

R108

R109

Police and the forensic services provider, in consultation with the DNA Oversight Committee, should establish procedures to govern the storage and destruction of all DNA samples and related information to ensure that DNA samples and related information are managed in a manner that:

1. is consistent with the purpose of the new DNA legislation (see R3); and
2. ensures proper recognition of and respect for cultural and spiritual values; and

100. does not endanger the health and safety of any person.

Storage and destruction procedures should be published (including online) and the notice requirements for people providing a DNA sample should include information on these procedures.

The proposed DNA databank should include a pre-conviction index to store DNA profiles generated from suspect samples and indirect samples as well as samples required from a person arrested or intended to be charged (see R144).

The proposed DNA databank should include an elimination index to store DNA profiles generated from elimination and mass screen samples.

Subject to R110, suspect samples and indirect samples should be destroyed no later than three months after:

1. the expiry of 12 months from the date the sample was obtained if that person is not charged with the offence in relation to which the sample was obtained or a related offence in that time; or
2. the person is charged and the charge is withdrawn; or

100. the person is charged and the person is acquitted of the offence; or

4. the expiry of any appeal period if the person is convicted of an offence that does not meet the threshold for retention of that person’s DNA profile on the offenders index of the proposed DNA databank.

If a person is convicted of the offence in relation to which a suspect sample was obtained or a related offence and that offence is punishable by two or more years’ imprisonment, the suspect sample should be destroyed no later than three months after a DNA profile has been created for retention on the proposed DNA databank.

R110

R111

R112

R113

R114

R115

R116

A police officer of or above the position of inspector should be able to apply to a High Court, District Court or Youth Court Judge for an extension of the 12-month period in R108.a. A Judge may grant an extension if satisfied that:

1. there are still reasonable grounds to suspect that the person committed the offence or a related offence, there is a good reason for the person not having been charged and it is important to the investigation that the suspect sample and related records be retained; or
2. there are no longer reasonable grounds to suspect that the person committed the offence but it is important to the investigation of the offence, or to proceedings in relation to that offence that the sample and any related records be retained.

Elimination samples and mass screen samples should be destroyed no later than three months after the investigation is concluded or proceedings relating to that investigation are determined if consent has not already been validly withdrawn.

Any material extracted from a suspect sample (subject to R163), elimination sample or mass screen sample and any information derived from the analysis of that sample (including a DNA profile stored on the proposed DNA databank) should be subject to the same retention and destruction rules that apply to that sample.

Any person who provides a DNA sample by buccal (mouth) swab should be able to elect to retain the swab.

Any person who provides a DNA sample should be able to elect to be notified of the destruction of that that sample and any material derived from that sample.

New DNA legislation should require a crime scene sample to be retained for a period of 50 years from the date of collection if a person is convicted of the offence (or a related offence) in relation to which the sample was collected.

The retention period referred to in R115 may be extended by order of a High Court or District Court Judge on application from a police officer or the person convicted of the offence or their representative if the Judge is satisfied that it is in the interests of justice to do so. The Judge must have regard to:

1. whether the convicted person has exercised their rights of appeal against the conviction or the sentence;
2. any requests to have the crime scene sample(s) reanalysed;

100. the nature of any proceedings;

4. any investigation undertaken by the Criminal Cases Review Commission; and
5. any other matter the Judge considers relevant.

Legislation should provide for access to biological material held by or on behalf of

Police for reanalysis for exoneration purposes.
R117

CHAPTER 17: THE CRIME SCENE INDEX

R118

R119

R120

R121

R122

R123

R124

The proposed DNA databank should include a crime scene index to store profiles generated from samples collected from crime scenes (crime scene profiles) for:

1. databank searching; and
2. casework comparison.

Databank searching should be defined in new DNA legislation as the process of comparing a profile on the proposed DNA databank to another profile or index of profiles as permitted by the matching rules.

Casework comparison should be defined in new DNA legislation as the process of comparing a crime scene profile to a profile from a known person and determining the likelihood ratio resulting from that comparison.

New DNA legislation should require all profiles loaded to the crime scene index to be classified as:

1. available for databank searching; or
2. limited to casework comparison.

A crime scene profile should be classified as available for databank searching if:

1. the crime scene profile only contains the DNA of one person;
2. a comparison to any profiles on the elimination index that relate to that investigation does not result in a match; and

100. the crime scene profile meets the relevant quality requirements set out in the Crime Scene Index Protocol (see R134).

A crime scene profile that does not satisfy the requirements in R122 should be classified as limited to casework comparison.

No crime scene profile should be loaded to the crime scene index unless it relates to an investigation into the commission of an offence or an offence that is reasonably suspected to have been committed.

R125

R126

R127

R128

R129

R130

R131

Before classifying a crime scene profile as available for databank searching, all reasonable attempts must be made to obtain and analyse elimination samples from people who are not suspects but whose DNA may be present at the crime scene.

A databank search may be conducted between a crime scene profile classified as available for databank searching and:

1. other profiles on the crime scene index that are classified as available for databank searching; and
2. all profiles on the offenders index.

A one-off databank search may be conducted between a crime scene profile classified as limited to casework comparison and profiles referred to in R126.a and R126.b if:

1. a comparison between the crime scene profile and any profiles on the elimination index that relate to that investigation does not result in a match; and
2. a police officer of or above the position of inspector approves a one-off databank search on the basis that it meets the relevant requirements set out in the Protocol (see R134).

The results of any databank search should be used for intelligence purposes only and must not be used as evidence in support of any proceedings, except in support of an application for a suspect compulsion order (subject to R129).

If a databank search results in a match between two crime scene profiles and one or both of those profiles matches to a profile on the elimination index, the results of that databank search must not be used as evidence in support of any proceedings, including any application for a suspect compulsion order.

A casework comparison may be conducted between any crime scene profile on the crime scene index and:

1. profiles on the pre-conviction index generated from suspect samples or indirect samples that were obtained for the investigation to which the crime scene profile relates; and
2. profiles on the elimination index that relate to the investigation.

The result of a casework comparison should be presented as a likelihood ratio and may be used as evidence in support of any proceedings.

R132

R133

R134

A crime scene profile must be removed from the crime scene index upon the resolution of the investigation to which that profile relates.

When a crime scene profile is removed from the crime scene index upon the resolution of the investigation, it may be stored on a non-searchable electronic case file maintained by the forensic services provider and must not be reloaded to the crime scene index unless the relevant investigation is reopened.

The Crime Scene Index Protocol should be developed by Police and the forensic services provider in consultation with the DNA Oversight Committee and be published (including online). The Protocol should outline policy, practice and procedure in relation to the crime scene index and should include:

1. the minimum quality threshold that a crime scene profile must meet to be classified as available for databank searching under R122.c;
2. requirements for conducting a one-off databank search under R127 in respect of a crime scene profile that is classified as limited to casework comparison;

100. parameters for when a match will be reported by the forensic services provider to Police following a databank search; and

4. policy on when an investigation is “resolved” and “reopened” for the purposes of R132 and R133.

CHAPTER 18: DATABANK SAMPLING

If an adult is convicted of a qualifying offence, a police officer of or above the position of inspector should continue to have the power to issue a databank compulsion notice requiring that person to provide a DNA sample for the purpose of storing their DNA profile on the offenders index of the proposed DNA
databank.
R137

^R136 Profiles stored on the offenders index of the proposed DNA databank should be able to be compared against profiles on the crime scene index to identify

potential suspects in unresolved criminal offending.
^R135 The proposed DNA databank should include an offenders index to store the DNA

profiles of people convicted of a qualifying offence (see R141).

R138

R139

R140

R141

R142

R143

R144

R145

A databank compulsion notice should only be issued if the issuing officer is satisfied that storing the person’s DNA profile on the offenders index is reasonable, having regard to:

1. the nature and seriousness of the offence for which the person was convicted;
2. any history of prior offending; and

100. all other relevant circumstances.

A databank compulsion notice must be issued within one year of the date of conviction for the qualifying offence.

The current process for challenging a databank compulsion notice should remain but with the additional ground that issuing the notice was unreasonable.

A qualifying offence for databank purposes should be defined as any offence punishable by two or more years’ imprisonment.

A DNA sample should only be required from an adult arrested or intended to be charged with a qualifying offence if a police officer of or above the position of inspector is satisfied that requiring a sample is reasonable, having regard to:

1. the nature and seriousness of the suspected offending;
2. any history of prior offending; and

100. all other relevant circumstances.

No sample should be required under R142 from any adult who lacks the ability to understand the general nature and effect of providing a DNA sample.

Any DNA sample required under R142 must only be used to generate a DNA profile to be stored on the pre-conviction index of the proposed DNA databank (see R106).

Profiles on the pre-conviction index of the proposed DNA databank should not be compared against profiles on the crime scene index, subject to the following exceptions:

1. A High Court or District Court Judge should be able to authorise a one-off comparison of a profile on the pre-conviction index, generated from a suspect sample or a sample required from a person arrested or intended to be charged, against all profiles on the crime scene index if satisfied that:
   1. there are reasonable grounds to suspect that person has committed other offences;

2. there are reasonable grounds to believe that a comparison may result in a match; and
3. in all the circumstances, it is reasonable to make an order.

2. A profile on the pre-conviction index that is generated from a suspect sample or an indirect sample should be able to be compared against a profile or profiles on the crime scene index that relate to the investigation for which the suspect sample or indirect sample was obtained.

R146

R147

R148

R149

R150

R151

If an adult provides a suspect sample or a sample when arrested or intended to be charged and their DNA profile is stored on the pre-conviction index, a police officer of or above the position of inspector should be able to issue a databank transfer notice to that adult if they are subsequently convicted of the offence for which the DNA sample was obtained (or a related qualifying offence). A databank transfer notice must notify that person that their profile will be transferred to the offenders index on or after a specified date, which must be at least 14 days after the date on which the notice is served.

A databank transfer notice must only be issued if the issuing police officer is satisfied that retaining that person’s DNA profile on the offenders index is reasonable, having regard to the matters specified in R138.

The process for issuing and challenging a databank transfer notice should align with the databank compulsion notice process (including our recommendations in R139 and R140), with the necessary modifications.

There should no longer be any power to obtain a DNA sample for databank purposes from a volunteer.

Police should develop policy in consultation with the DNA Oversight Committee to ensure that databank sampling is carried out in a manner that is consistent with the purpose of the new DNA legislation (see R3). This policy should be published (including online).

A profile on the DPD should transferred to the offenders index of the proposed DNA databank if:

1. the profile was generated from a DNA sample obtained in relation to a qualifying offence and the person was aged 18 or over at the time the offence was committed; or
2. since the profile was loaded to the DPD, the person has been convicted of a qualifying offence and was aged 18 or over at the time that offence was committed.

^R154 If a databank compulsion notice hearing is requested in relation to a notice issued in respect of a military conviction, the hearing should be heard by the Court

Martial.

^R153 The regime for requiring DNA samples from offenders under new DNA legislation should apply to military convictions entered by the Court Martial for offences that

would constitute qualifying offences if entered by the District Court or High Court.
The Returning Offenders (Management and Information) Act 2015 should be amended to align the regime for requiring DNA samples from returning offenders with the regime for requiring DNA samples from offenders under new DNA
legislation.
R152

CHAPTER 19: DATABANK SAMPLING PROCEDURES

R155

R156

R157

If an adult refuses to provide a sample when arrested or intended to be charged under R142, a police officer should only use or cause to be used reasonable force to assist a suitably qualified person to take a sample if that use is authorised by a police officer of or above the position of inspector being satisfied that:

1. the person has been given a reasonable opportunity to consult privately with a lawyer;
2. the person has been informed of the intention to use reasonable force to obtain the sample;

100. taking the sample does not pose a serious risk to the health and safety of the person; and

4. the use of reasonable force is reasonable in all the circumstances.

If a person refuses to provide a sample pursuant to a databank compulsion notice under R137, or pursuant to an order made under R165, a police officer may use or cause to be used reasonable force to assist a suitability qualified person to take a sample.

Any exercise of reasonable force to assist a suitably qualified person to take a sample under new DNA legislation must only occur if:

1. the sample is taken in the presence of a lawyer or another person of the donor’s choice or, if the donor does not choose a person to be present, a person who is not a Police employee; and
2. the sampling procedure is recorded on a video record.

^R158 Any exercise of reasonable force under R155 or R156 must be reported to the Commissioner of Police no later than three days after the sample is taken, and Police should report annually on the use of reasonable force to obtain a databank sample, including:

1. whether the person is a child, young person or adult; and
2. the ethnicity of the person against whom reasonable force is used.

CHAPTER 20: STORAGE AND RETENTION OF DATABANK SAMPLES AND PROFILES

R159

R160

R161

R162

Databank samples should be destroyed as soon as practicable after a DNA profile has been obtained from the sample but no later than three months after the date the sample was obtained.

Subject to R168–R169 (relating to children and young people), a DNA profile stored on the offenders index of the proposed DNA databank should be removed and destroyed no later than three months after:

1. the conviction in respect of which the profile is stored on the offenders index is quashed; or
2. the expiry of seven years from the date of conviction if the offender was sentenced to a non-custodial sentence and has not been convicted of a subsequent qualifying offence during that time; or

100. the person’s death is registered under the Births, Death, Marriages, and Relationships Registration Act 1995.

A DNA sample required from an adult arrested or intended to be charged under R142 must only be sent to the forensic services provider for analysis once the person is charged with the offence in relation to which the sample was obtained. If that person is not charged within two months of the sample being obtained, the sample should be destroyed.

DNA profiles generated from samples required under R142 must only be stored on the pre-conviction index of the proposed DNA databank and should be removed from that index and destroyed no later than three months after:

1. the charge is withdrawn; or
2. the person is acquitted of the offence; or

100. the person is convicted of an offence that does not meet the threshold for retention of that person’s DNA profile on the offenders index of the proposed DNA databank.

If a person whose DNA profile is stored on the pre-conviction index is subsequently convicted of the qualifying offence for which the DNA sample was obtained (or a related qualifying offence), their DNA profile should be removed from the pre-conviction index of the proposed DNA databank and destroyed no later than 12 months after the date of conviction if a databank transfer notice has not been issued under R146 within that time or earlier if a databank transfer notice
is successfully challenged.
R163

CHAPTER 21: CHILDREN AND YOUNG PEOPLE AND THE DATABANK

R164

R165

R166

R167

The collection of a DNA sample from a child or young person (other than a suspect sample) and the loading of a child’s or young person’s DNA profile to the offenders index of the proposed DNA databank must only occur if a Judge makes an order under R165.

If an order is made against a child or young person under section 283 of the Oranga Tamariki Act in relation to a qualifying offence (see R141) or if a child or young person is convicted of a qualifying offence, the presiding Judge may make an order (databank order):

1. requiring that child or young person to provide a sample for the purposes of storing their DNA profile on the offenders index of the proposed DNA databank; or
2. authorising the transfer of that child’s or young person’s DNA profile from the pre-conviction index to the offenders index (if a suspect sample was already obtained from that child or young person).

A Judge may only make an order under R165 if they are satisfied that doing so is reasonable, having regard to:

1. the matters specified in R138; and
2. the considerations and principles that apply when exercising powers under Part 4 of the Oranga Tamariki Act.

No child’s or young person’s DNA profile should be loaded to the offenders index of the proposed DNA databank in respect of a charge that is discharged under section 282 of the Oranga Tamariki Act, whether or not that charge was proved.

^R169 If a databank order is made under R165, the retention rules in relation to adult offenders should apply (see R160) if:

1. a sentence of imprisonment was imposed in relation to the offending; or
2. during the five-year period referred to in R168, the child or young person is subject to a further section 283 order or conviction in respect of a qualifying offence.

If a databank order is made under R165 and no sentence of imprisonment was imposed in relation to the offending, that child’s or young person’s DNA profile should remain on the offenders index of the proposed DNA databank for a period
of five years from the date the order is made.
R168

CHAPTER 22: INVESTIGATING MISSING AND UNIDENTIFIED PEOPLE

^R173 If a person is unable to identify themselves (an unidentified person), a police officer may only obtain a DNA sample in relation to that person (either directly or indirectly) for the purpose of identifying that person if authorised by order of a

District Court or High Court Judge.

^R172 The procedure for requesting and collecting family reference samples should be prescribed in legislation and should be based on the elimination sampling regime

outlined in R53–R67, with the necessary modifications.
A police officer should be able to:

1. request a DNA sample from any person who is a close family member of a missing person for the purpose of assisting in the identification of the missing person (family reference sample); and
2. collect, with consent, a DNA sample from the personal items believed to belong to or to have been used by the missing person (indirect missing person sample).

R171
^R170 New DNA legislation should prescribe a regime for the collection and use of DNA

samples for identification purposes.

R174

R175

R176

R177

R178

R179

R180

The Judge should only authorise the collection of a DNA sample under R173 if satisfied that:

1. the unidentified person is unable to identify themselves and that this inability is likely to endure for a prolonged period;
2. if appropriate, the unidentified person has been consulted regarding the collection of a sample and, if so, does not object to a sample being obtained; and

100. it is in the best interests of that person to be identified.

If an order is made, a sample may be taken from the unidentified person provided they do not object or resist. In all other cases, an order should authorise the obtaining of an indirect sample from personal items believed to belong to or have been used by the unidentified person.

A coroner to whom the death of an unidentified person is reported may authorise a DNA sample to be taken for identification purposes.

A family reference sample should only be used to generate a DNA profile to be stored on the relatives index of the proposed DNA databank. The profile should only be compared against profiles on the missing and unidentified index or unidentified deceased index.

An indirect missing person sample or a sample obtained in relation to an unidentified person should only be used to generate a DNA profile to be stored on the missing and unidentified index of the proposed DNA databank.

A DNA sample obtained from an unidentified deceased person or human remains should only be used to generate a DNA profile to be stored on the unidentified deceased index.

A profile on the missing and unidentified index or the unidentified deceased index should only be able to be compared against:

1. all other profiles on the missing and unidentified index and the unidentified deceased index;
2. profiles on the relatives index; and

100. profiles on the offenders index and pre-conviction index if comparison with profiles under R180.a or R180.b does not result in the identification of an unidentified person or unidentified deceased person.

the missing person investigation is resolved, in which case, any related profiles should be removed from the proposed DNA databank and destroyed; or

2. the unidentified person, deceased person or human remains are identified, in which case, any related profiles should be removed from the proposed DNA databank and destroyed; or

100. a person who provided a family reference sample withdraws their consent to the retention of their profile on the relatives index, in which case, that profile should be removed from the proposed DNA databank and destroyed.

Profiles on the missing and unidentified index, unidentified deceased index and

relatives index should be retained indefinitely, unless:
R181

CHAPTER 23: OTHER USES OF THE PROPOSED DNA DATABANK

The effect of a familial search order is to permit a familial search of the offenders

index of the proposed DNA databank only.
R185

^R184 A Judge may issue a familial search order in respect of a profile on the crime scene index if satisfied that:

1. a databank search of the proposed DNA databank has failed to identify a suspect; and
2. conducting a familial search is reasonable in all the circumstances, having regard to:
   1. the purpose of the new DNA legislation (see R3);
   2. the nature and seriousness of the suspected offending;
   3. the stage of the investigation and the availability of alternative investigative methods; and
   4. any other matter the Judge considers relevant.

Any familial search of the proposed DNA databank for the purpose of identifying a potential suspect or suspects must be authorised by an order of a High Court or
District Court Judge (a familial search order).
R183
^R182 New DNA legislation should prescribe a regime for conducting familial searches of

the proposed DNA databank in criminal investigations.

R186

R187

R188

R189

R190

R191

R192

R193

A familial search order may be subject to any conditions the Judge considers appropriate, including conditions that relate to the time within which the familial search must be conducted, whether it can be conducted more than once during that time and any restrictions on the circulation of the results of the familial search order and related information.

Procedural and technical requirements relating to the conduct of familial searches pursuant to a familial search order and how the results of familial searches are investigated should be set out in practice guidelines developed by Police and the forensic services provider in consultation with the DNA Oversight Committee.

New DNA legislation should provide that the result of a familial search order does not of itself constitute reasonable grounds to suspect a person of committing the offence under investigation.

New DNA legislation should permit access to and disclosure of information on the proposed DNA databank for the purpose of:

1. assisting a foreign country to decide whether to make a request for assistance under the Mutual Assistance in Criminal Matters Act 1992 by reporting on a match/no-match basis; and
2. responding to a request under the Mutual Assistance in Criminal Matters Act 1992.

In line with permitted matching rules for domestic law enforcement, access to and disclosure of information on the proposed DNA databank under R189 should be limited to information on the crime scene index and the offenders index and must satisfy the applicable requirements for domestic use.

New DNA legislation should not permit familial searching on the proposed DNA databank on behalf of a foreign country.

New DNA legislation should permit access to and disclosure of information on the proposed DNA databank to conduct research only if that research:

1. is conducted internally by Police or the forensic services provider on Police’s behalf;
2. relates to the purpose of the new DNA legislation (see R3); and

100. is approved by the DNA Oversight Committee.

The DNA Oversight Committee will determine the process by which it will consider research requests, and a description of that process, a summary of any research proposals considered by the DNA Oversight Committee and the outcome of its considerations should be published (including online).

CHAPTER 1

Introduction

• 1.1 DNA analysis is an important law enforcement tool. When DNA is found at a crime scene, DNA analysis can help confirm or exclude the involvement of a known suspect. With the establishment of DNA databanks, DNA can also be used to identify suspects in unsolved crimes.
• 1.2 However, the collection and use of DNA in criminal investigations raises some important constitutional issues. Te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty), tikanga Māori and human rights values must be considered, particularly given the rapid pace of scientific advances. Much more information can be derived from DNA now compared to the mid-1980s, and this trend is likely to continue in future. Ultimately, the question is not whether DNA should be used in law enforcement but when and how it should be used.
• 1.3 In July 2016, the Government asked Te Aka Matua o te Ture | Law Commission (the Commission) to review the law governing the collection and use of DNA in criminal investigations in Aotearoa New Zealand. Our review has focused primarily on the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act).
• 1.4 This Report sets out our findings and recommendations for change.

THE ORIGINS OF OUR REVIEW

Early use of DNA in criminal investigations

• 1.5 DNA first started being used in criminal investigations in the mid-1980s through a technique known as DNA profiling.¹ This technique involves analysing biological material found at crime scenes, such as blood, saliva or skin cells, to generate a DNA profile, which is a unique series of numbers and letters. If that DNA profile (the crime scene profile) matches a DNA profile generated from a DNA sample taken from a known person, it is probable that the known person was the source of the DNA found at the crime scene.

1. The first reported use of DNA profiling in a serious criminal investigation was in the “Pitchfork case” in the United Kingdom in 1986. The Pitchfork case involved the rape and murder of two 15-year-old girls, three years apart, and other serious and violent offending. DNA was used to exonerate the person originally arrested for one of the murders and to implicate Colin Pitchfork. The police had organised mass screening of local males in 1987 and later discovered that Mr Pitchfork had bribed another person to provide a blood sample on his behalf. Mr Pitchfork was arrested, confessed and pleaded guilty to the murders and other charges. A summary of the facts is contained in R v Pitchfork [2009] EWCA Crim 963 at [4]–[11].

• 1.6 Initially, DNA profiling was only used within the confines of individual cases. Investigators needed to first identify a suspect and obtain a DNA sample from them to compare their DNA profile against the crime scene profile.
• 1.7 However, from 1995, several countries, including Aotearoa New Zealand, established DNA “databanks” to capitalise on the developing science.² By creating databanks of crime scene profiles and DNA profiles from known people (often those convicted of serious offending), investigators could conduct wide-ranging comparisons and identify suspects in unsolved crimes.
• 1.8 DNA databanks have continued to expand worldwide in three ways:

(a) More information is being included in each DNA profile as DNA analysis techniques improve.

(b) The number of crime scene profiles in DNA databanks has increased, as scientists can now generate crime scene profiles from a broader range of samples of biological material and can do so at a lower cost.

(c) The number of DNA profiles from known people in DNA databanks has increased as countries enable the collection and use of DNA samples for databank purposes from a wider range of known people, such as people convicted of less serious offending, people who are suspects or those who are arrested.

• 1.9 Aotearoa New Zealand has followed this expansion trend. In respect of DNA profiles from known people, the CIBS Act established the DNA Profile Databank (DPD) in 1996 and legislative amendments in 2003 and 2009 considerably expanded the collection criteria.³

Expanding use of DNA in Aotearoa New Zealand: the 2009 amendments

• 1.10 The 2009 amendments to the CIBS Act were significant. They granted police officers wide powers to require DNA samples for the DPD from any person convicted of an imprisonable offence and established a new DNA databank, named the Temporary Databank, to store DNA profiles of adults who are arrested or intended to be charged with any imprisonable offence.⁴ This covers a very wide range of behaviour. The European Court of Human Rights, in a decision released earlier this year, observed that regimes like these “could be characterised as applying whatever the nature or seriousness of the offence”.⁵
• 1.11 The 2009 amendments progressed quickly through Parliament as part of the Government’s post-election 100-day reform programme. At the time, the Attorney-

2. There are now at least 69 countries that have operational forensic DNA databases, and 34 other countries are in the process of implementation. See Helena Machado and Rafaela Granja Forensic Genetics in the Governance of Crime (Palgrave Pivot, Singapore, 2020) at 58.
3. The Criminal Investigations (Blood Samples) Act 1995 was enacted in 1995 and amended by the Criminal Investigations (Bodily Samples) Amendment Act 2003 and the Criminal Investigations (Bodily Samples) Amendment Act 2009.
4. Criminal Investigations (Bodily Samples) Act 1995, ss 24J and 39. These sections also authorise collecting samples in relation to the non-imprisonable offence of peeping or peering into a dwellinghouse. The 2009 amendments also introduced new powers to obtain DNA samples from a young person on arrest or intention to charge in relation to a smaller range of more serious offences: s 24K.
5. Gaughran v The United Kingdom ECHR 45245/15, 13 February 2020 at [83]. This comment was made in relation to the United Kingdom’s regime, which permits taking of DNA samples from people convicted of offences punishable by a term of imprisonment.

General reported to Parliament that, in his view, the amendments would be inconsistent with the right to be secure against unreasonable search and seizure, affirmed in section 21 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).⁶ Parliament passed the amendments in any event.

• 1.12 However, the Attorney-General’s concerns, as well as general concerns about the speed with which the amendments had been passed and their cost implications, prompted Cabinet to agree to a future review of the CIBS Act’s operation by the Ministry of Justice.⁷ This review was ultimately referred to the Commission as part of its work programme.

OUR REVIEW

• 1.13 Our review has been comprehensive. The terms of reference are set out in Appendix 1 and required consideration of whether the CIBS Act is fit for purpose and whether it is keeping pace with developments in forensic science, international best practice and public attitudes. We also had to examine whether the CIBS Act gives appropriate recognition to both law enforcement values and human rights values and whether Māori interests, including in relation to tikanga Māori, are appropriately recognised.
• 1.14 The terms of reference are focused on the use of DNA in criminal investigations and do not extend to the subsequent use of DNA analysis as evidence in criminal proceedings. However, the use of DNA evidence in proceedings is an implicit and often vital part of the criminal justice process. In Chapter 6 of this Report, we address some of the issues with relying on DNA evidence in proceedings and make recommendations in relation to the DNA analysis techniques that might assist in moderating those issues.

Our objectives

• 1.15 Our objectives in this review have been to ensure that the law governing the collection and use of DNA in criminal investigations has the following attributes:⁸

(a) Fit for purpose. To achieve this objective, legislation must have a clear purpose and provide certainty as to rights and obligations. The legislation must also be sufficiently flexible to enable the law to last and comprehensively address likely scenarios. Finally, to be fit for purpose, the legislation must work effectively with interrelated law in the wider criminal justice system.

(b) Constitutionally sound. The law should reflect fundamental constitutional principles and values of Aotearoa New Zealand law. This requires consistency with the Treaty, recognising and providing for tikanga Māori, and consistency with human rights values.

(c) Accessible for users. The law should be able to be easily found by individuals and easy to navigate and understand. This is particularly important for legislation like

6. Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Criminal Investigations (Bodily Samples) Amendment Bill (10 February 2009).
7. Tāhū o te Ture | Ministry of Justice Criminal Investigations (Bodily Samples) Amendment Bill: Regulatory Impact Statement (10 February 2009) at 5.
8. These objectives are adopted from the Legislation Guidelines approved by Cabinet and are considered the “core objectives for high quality law”: Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 8.

the CIBS Act that deals directly with the relationship between the State and individuals.

• 1.16 These objectives form the basis of our framework for reviewing the CIBS Act and underpin the recommendations made in this Report.

OUR PROCESS

• 1.17 Throughout the course of this project, we engaged with a wide range of stakeholders and experts both within Aotearoa New Zealand and overseas, including organisations, lawyers, forensic scientists and academics.
• 1.18 We have held frequent meetings with Police and ESR, the two agencies that use the CIBS Act daily. Both organisations generated substantial data to assist in our review and fact-checked both the Issues Paper and this Report. We also visited the ESR laboratories in Auckland to understand the physical context and process of forensic DNA analysis, and we observed the operation of Biotrak, the Police software tool for tracking the collection and analysis of DNA samples.
• 1.19 We received advice from two specially constituted advisory groups, one of experts and one of officials, with whom we met on several occasions throughout the project. Our Māori Liaison Committee⁹ convened a subcommittee for us to consult with on matters of particular concern to Māori, and we regularly presented on our progress to the Committee. We also engaged Associate Professor Māmari Stephens from Te Kauhanganui Tātai Ture | Faculty of Law, Victoria University of Wellington to peer review our approach to the question, stated in our terms of reference, of whether Māori interests, including in relation to tikanga Māori, were appropriately recognised in our research and writing.

Public consultation

• 1.20 In October 2017, we launched an educational website designed to engage the public in some of the broader public interest issues arising in our review. We invited general comment from website visitors and offered the opportunity to be contacted individually by email when the Issues Paper was published.
• 1.21 In December 2018, we published our Issues Paper,¹⁰ following extensive research and engagement with stakeholders and experts. The purpose of the Issues Paper was to facilitate consultation and foster public debate. Many of the issues and options we identified were legally and scientifically technical so our target audience was primarily those who worked in the criminal justice sector or a related legal, scientific or academic field.
• 1.22 At the same time, we launched a consultation website that built on our educational website and invited members of the public to have a say on the review. People could make a submission (anonymously, if they preferred) and answer some questions or

9. The Māori Liaison Committee supports the Commission in taking into account Māori perspectives in its work. See Te Aka Matua o te Ture | Law Commission “Engaging with Māori” <www.lawcom.govt.nz>.
10. Te Aka Matua o te Ture | Law Commission The Use of DNA in Criminal Investigations | Te Whakamahi i te Ira Tangata i ngā Mātai Taihara (NZLC IP43, 2018).

simply provide some general comments or feedback on their personal experience with DNA collection and use.

• 1.23 The Commission received 88 submissions on the Issues Paper, including 32 submissions through the consultation website. This included 16 submissions from organisations and 72 submissions from individuals. The organisations and lawyers, academics, researchers, ethicists and scientists who submitted on the Issues Paper are listed in Appendix 2. In addition to submissions, the Commission also received comments from Judges of the District Court and the Youth Court.
• 1.24 All submissions have been prepared for proactive release on the Commission website at the time of the publication of this Report. In accordance with the Privacy Act 1993, personal information has been redacted or the name of the submitter anonymised where necessary.

Preparing this Report

• 1.25 After the formal consultation period closed in March 2019, we analysed submissions and held further meetings with key stakeholders and our advisory groups. We also obtained advice from the Legislation Design and Advisory Committee on some legislative design aspects of our terms of reference.
• 1.26 To obtain the views of young people with experience in the criminal justice system, we visited Korowai Manaaki Youth Justice Residence in Auckland in October 2019. We presented a workshop on collection of DNA samples and retention of DNA profiles to each of the six units and recorded young people’s comments. The feedback we received from these young people is explored throughout this Report, in particular in Chapter 8 and Chapter 21.

MATTERS ADDRESSED IN THIS REPORT

• 1.27 We make 193 recommendations in this Report, addressing a wide range of matters. Our recommendations do not address every aspect of the DNA regime. Many aspects of the current law remain satisfactory and should continue. Our approach has been to make recommendations only where we consider that reform is required or where we think it is helpful to positively endorse the current law on key aspects of the DNA regime.
• 1.28 In developing these recommendations, we have drawn on the findings of our own research into how the DNA regime is operating in practice, the results of our consultation, and international developments both in forensic DNA analysis and in the regulation of DNA regimes. We have drawn in particular on the experiences in those jurisdictions that Aotearoa New Zealand is often compared with and which have similar constitutional arrangements (Australia, England and Wales, Scotland, Ireland and Canada).
• 1.29 This Report is divided into three parts:

(a) In Part A, we set out our recommendations for a new regulatory framework. We address the constitutional context of the CIBS Act, the case for new DNA legislation and a new DNA databank to replace the existing DNA databanks. We also address the need to improve oversight of the DNA regime and regulate important aspects of the DNA regime, including the use of DNA analysis techniques and the role of Police’s forensic services provider.

(b) In Part B, we examine the use of DNA in criminal casework. We consider the regimes for obtaining samples from suspects, obtaining samples for elimination purposes from people who are not suspects and conducting mass screens. We also consider emerging issues including indirect sampling, forensic DNA phenotyping and genetic genealogy searching.

(c) In Part C, we outline in detail our recommendations for the proposed DNA databank. We consider the crime scene index that should store crime scene profiles and the criteria for obtaining DNA samples from known people for databank purposes. We also explore other uses of the proposed DNA databank, including when investigating missing and unidentified people, familial searching, searching the databank on behalf of foreign countries and using the proposed DNA databank for research.

Terminology and other matters

• 1.30 In this Report, we refer to “the collection and use of DNA” and “the DNA regime” as umbrella terms that include:

(a) the criteria and process for collecting DNA samples;

(b) the analysis of DNA samples; and

(c) the storage, retention and destruction of DNA samples and the results of any analysis (including DNA profiles generated from DNA samples).

• 1.31 When discussing te Tiriti o Waitangi | the Treaty of Waitangi in this Report, we use “the Treaty” as a generic term that is intended to capture both the Māori text (te Tiriti o Waitangi) and the English text (the Treaty of Waitangi). When we are referring to the Māori text only, we either use the term “te Tiriti”, refer to “the Māori text” or make this clear in the context. When we are referring to the English text only, we refer to the “English text” or we make this clear in the context. To the extent that the principles of the Treaty, which have developed through jurisprudence, substantively reflect the rights and obligations arising from the texts, the principles may also be captured by the term “the Treaty”. Otherwise, we specifically refer to “the principles of the Treaty” or to specific principles. The Treaty and key Māori terms and concepts used in this Report are described in Chapter 2.
• 1.32 We make extensive references to the Police Manual throughout this Report. The Police Manual consolidates Police rules and policy, including relevant law, and contains chapters on each aspect of policing. The Police Manual contains the standard operating practice, principles and procedure that should be followed, although Police may work outside this standard operating practice where it is justified. The Police Manual is in the form of an electronic database and is not publicly available. In this Report, we cite the chapter name and page reference from the electronic database.
• 1.33 Much of our research has been informed by information and documentation provided to us by Police and ESR, including information set out in the Forensic Science Services Agreement between Police and ESR. As some of these documents have been provided to us on a confidential basis, we have not directly quoted from them.

PART A

A NEW REGULATORY FRAMEWORK

CHAPTER 2

Constitutionally sound DNA legislation

INTRODUCTION

• 2.1 As we explain in Chapter 1, this review has three objectives: to ensure the law governing the collection and use of DNA criminal investigations is fit for purpose, constitutionally sound and accessible. In this chapter, we explore the objective of constitutionally sound legislation. The Legislation Guidelines, approved by Cabinet, define “constitutionally sound” legislation as that which “should reflect the fundamental values and principles of a democratic society”.¹
• 2.2 We consider that, for legislation governing the DNA regime to be constitutionally sound, it should provide for the collection and use of DNA in the investigation and prosecution of offending in a manner that:

(a) is consistent with te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty);

(b) recognises and provides for tikanga Māori; and

(c) is consistent with human rights values.

• 2.3 Below, we discuss the relevant constitutional values and principles arising from the Treaty, tikanga Māori and human rights that are engaged by the DNA regime and their implications for this review. In Chapter 3, we then consider the performance of the CIBS Act against these values and principles.

The Commission’s previous work

• 2.4 Our discussion of tikanga Māori in this chapter draws on the Commission’s earlier work in its Study Paper on Māori custom and values in the law, published in 2001.² Since then, there have been important developments in the recognition of tikanga Māori by the

1. Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 8. The Legislation Design and Advisory Committee (LDAC) is a government committee, and its mandate is to promote quality legislation. LDAC is responsible for the Legislation Guidelines as part of its role in setting standards for good legislation: Legislation Design and Advisory Committee “The Role of the LDAC” (20 April 2020) <www.ldac.org.nz>. The Legislation Guidelines are “the government’s key point of reference for assessing whether draft legislation conforms to accepted legal and constitutional principles”: Cabinet Office Circular “Legislation guidelines – Cabinet requirements and expectations” (20 July 2018) CO (18) 1 at [1].
2. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001). See also Te Aka Matua o te Ture | Law Commission Converging Currents: Custom and Human Rights in the Pacific (NZLC SP17, 2006).

courts, Parliament and the community. There have also been important developments in the application of the Treaty, particularly in the criminal justice context. We reflect these developments in our discussion below.

• 2.5 This chapter also builds on the Commission’s previous work in its 2007 Report on search and surveillance powers and in its 2017 Report on its review of the Search and Surveillance Act 2012.³ These reports articulated a framework of law enforcement and human rights values that underpin Police’s investigative powers. As we explain below, the collection of DNA in criminal investigations is a form of “search”, and the retention of DNA on DNA databanks “enables the state to conduct ongoing surveillance ... with molecular precision”.⁴ Therefore, the values framework articulated in these earlier reports provides an appropriate framework for analysing the human rights and law enforcement values underpinning the DNA regime.

TE TIRITI O WAITANGI | THE TREATY OF WAITANGI

• 2.6 The Treaty is a foundation of government in Aotearoa New Zealand⁵ and has been described as “... simply the most important document in New Zealand’s history”.⁶ As recorded in Cabinet guidance:⁷

The Treaty creates a basis for civil government extending over all New Zealanders, on the basis of protections and acknowledgements of Maori rights and interests within that shared citizenry.

• 2.7 The Treaty was signed in 1840 by representatives of the British Crown and rangatira, representing many, but not all, hapū.⁸ It comprises a Māori text and an English text and there are differences between them, as we explain below. The meaning and significance of each text, the relationship between them and whether they can be reconciled through interpretation and the elaboration of Treaty principles are the subject of significant debate, scholarship and judicial consideration.⁹ This chapter does not seek to resolve these issues but rather endeavours to acknowledge these ongoing debates as necessary context for considering a constitutionally sound DNA regime.
• 2.8 Our discussion below draws on some of this scholarship and judicial consideration, as well as the findings of the Waitangi Tribunal (the Tribunal). The Tribunal was established under the Treaty of Waitangi Act 1975, and its functions include inquiring into and

3. Te Aka Matua o te Ture | Law Commission Search and Surveillance Powers (NZLC R97, 2007); and Te Aka Matua o te Ture | Law Commission Review of the Search and Surveillance Act 2012 | Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2017).

⁴ R v Toki [2017] NZCA 513, [2018] 2 NZLR 362 at [15] and [23].

5. Kenneth Keith “On the Constitution of New Zealand: An Introduction to the Foundations of the Current Form of Government” in Cabinet Office Cabinet Manual 2017 at 1.

⁶ Robin Cooke “Introduction” (1990) 14 NZULR 1 at 1.

⁷ Cabinet Office Circular “Te Tiriti o Waitangi/Treaty of Waitangi Guidance” (22 October 2019) CO (19) 5 at [7].

8. Te Puni Kōkiri | Ministry of Māori Development He Tirohanga ō Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (2001) at 14.
9. See, for example, Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (Victoria University Press, Wellington, 2016); Margaret Mutu “Constitutional Intentions: The Treaty of Waitangi Texts” in Malcolm Mulholland and Veronica Tawhai (eds) Weeping Waters – The Treaty of Waitangi and Constitutional Change (Huia Publishers, Wellington, 2010) 13; Ani Mikaere Colonising Myths: Māori Realities – He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011); and Ned Fletcher “A Praiseworthy Device for Amusing and Pacifying Savages? What the Framers Meant by the English Text of the Treaty of Waitangi” (PhD Thesis, University of Auckland, 2014). See also the Waitangi Tribunal reports referred to in the following discussion.

making recommendations on claims that acts or omissions of the Crown are inconsistent with “the principles of the Treaty”.¹⁰ In performing this function, the Tribunal must have regard to the texts and, for the purposes of the Treaty of Waitangi Act, has exclusive authority to determine the meaning and effect of the texts and issues raised by the differences between them.¹¹

The Treaty texts

• 2.9 In the Māori text, article 1 provides that Māori rangatira grant the Crown kāwanatanga, the right to govern. Article 2 provides that the Crown will protect the unqualified exercise of tino rangatiratanga, which has been variously described as chieftainship,¹² paramount authority¹³ or absolute authority¹⁴ of rangatira over their lands, villages and “taonga katoa”.
• 2.10 Article 1 of the English text provides that Māori rangatira cede the sovereignty they exercise over their respective territories to the Crown, while article 2 guarantees to Māori full exclusive and undisturbed possession of their lands and other properties.¹⁵
• 2.11 Under article 3 of the English text, the Crown’s protection and the rights and privileges of British subjects were imparted to Māori. A similar undertaking was conveyed in article 3 of the Māori text, which provides that the Crown would care for Māori and give them the same rights and duties of citizenship as the people of England.¹⁶ Article 3 has been understood as a guarantee of equity between Māori and other New Zealanders.¹⁷
• 2.12 At the time of signing the Treaty, Crown representatives made oral undertakings and assurances to Māori, including an undertaking to respect Māori customs and law.¹⁸ The Tribunal has held that these also form part of the agreement reached.¹⁹

Interpreting the meaning of the Treaty texts

• 2.13 The overwhelming majority of Māori signatories signed the Māori text rather than the English text.²⁰ As a result, the Tribunal has said that considerable weight should be given to the Māori text when there is a difference between them.²¹

¹⁰ Treaty of Waitangi Act 1975, ss 5(1) and 6(1).

¹¹ Preamble and s 5(2).

12. IH Kawharu (ed) Waitangi: Māori and Pākehā Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) at 319.
13. Margaret Mutu “Constitutional Intentions: The Treaty of Waitangi Texts” in Malcolm Mulholland and Veronica Tawhai (eds) Weeping Waters – The Treaty of Waitangi and Constitutional Change (Huia Publishers, Wellington, 2010) 13 at 19–22.
14. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Whaia te Mana Motuhake | In Pursuit of Mana Motuhake: Report on the Māori Community Development Act Claim (Wai 2417, 2015) at 26.

¹⁵ Article 2 also gave the Crown an exclusive right of pre-emption over any land Māori wanted to “alienate”.

16. IH Kawharu (ed) Waitangi: Māori and Pākehā Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) at 321.
17. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 27.

¹⁸ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 114.

19. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Whakaputanga me te Tiriti | The Declaration and the Treaty: Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 526–527.
20. Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (Victoria University Press, Wellington, 2016) at 7.

• 2.14 With respect to articles 1 and 2, the Tribunal has described the Treaty as a fundamental exchange of kāwanatanga, or the right of the Crown to govern and make laws for the country, for protection by the Crown of the right of Māori to exercise tino rangatiratanga over their land, resources and taonga. It is inherent in the nature of this exchange that the Crown’s right of kāwanatanga is not unfettered. It is qualified by the retention of tino rangatiratanga.²² As the Tribunal has observed:²³

The guarantee of tino rangatiratanga requires the Crown to acknowledge Māori control over their tikanga, resources, and people and to allow Māori to manage their own affairs in a way that aligns with their customs and values.

• 2.15 The Tribunal has also found that the article 2 guarantee of tino rangatiratanga over “taonga katoa” includes all highly prized things, both tangible and intangible, like values, traditions and customs.²⁴ Mātauranga (the system of Māori knowledge that underpins Māori society and tikanga practices)²⁵ is considered taonga,²⁶ and te ira tangata, the essence of life, has been described by the Tribunal as “the ultimate taonga”.²⁷
• 2.16 Tino rangatiratanga is exercised within te ao Māori every day and independently of state law, in accordance with tikanga Māori. However, in some situations, consistency with the Treaty may require that provision for its exercise be made in legislation.

The Treaty principles

• 2.17 The Tribunal has explained that, although its statutory role is to inquire into the consistency of the Crown’s acts and omissions against the Treaty principles, this “does not mean that the terms [of the Treaty] can be negated or reduced”.²⁸ Rather, the principles “enlarge the terms, enabling the Treaty to be applied in situations that were

21. Consistent with the contra proferentem rule of the law of treaties, where there is ambiguity, a provision should be construed against the party that drafted or proposed the relevant provision. See Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report of The Waitangi Tribunal on The Orakei Claim (Wai 9, 1987) at 180.
22. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 21. See also Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha i Pērā Ai? The Māori Prisoners’ Voting Report (Wai 2870, 2020) at 11–12; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity – Te Taumata Tuarua (Wai 262, 2011) at 78; and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Whanau o Waipareira Report (Wai 414, 1998) at 27.
23. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai 2575, 2019) at 28. See also Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 21; and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Whaia te Mana Motuhake | In Pursuit of Mana Motuhake: Report on the Māori Community Development Act Claim (Wai 2417, 2015) at 26.
24. For example, the Tribunal has found that te reo Māori, as an essential part of the culture, is a taonga, and this has also been recognised in legislation. See Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report of The Waitangi Tribunal on The Te Reo Māori Claim (Wai 11, 1986) at 20; and Te Ture mō Te Reo Māori Act 2016 | Māori Language Act 2016, s 4. The Tribunal defined taonga as things “possessed by or related to Māori that are valued or treasured” in Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 22.
25. Suzanne Duncan and Poia Rewi “Tikanga: How Not to Get Told Off!” in Michael Reilly and others (eds) Te Kōparapara: An Introduction to the Māori World (Auckland University Press, Auckland, 2018) 12 at 33 (“Tikanga Māori is ... procedural knowledge, which is the practice of the ideas, beliefs and knowledge of mātauranga Māori”).
26. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity – Te Taumata Tuarua (Wai 262, 2011) at 15.
27. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 28.

²⁸ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 385–386.

not foreseen or discussed at the time”.²⁹ However, it should be noted that some regard the Treaty principles as distorting or diminishing the clear terms of the Māori text.³⁰

• 2.18 The principles of the Treaty have been described by the Privy Council as follows:³¹

... the “principles” are the underlying mutual obligations and responsibilities which the Treaty places on the parties. They reflect the intent of the Treaty as a whole and include, but are not confined to, the express terms of the Treaty.

• 2.19 Given the Treaty’s constitutional significance, in the absence of clear words to the contrary, the courts will presume that Parliament intends to legislate in a manner that is consistent with the principles of the Treaty and will interpret legislation accordingly.³²
• 2.20 In several landmark cases, the courts have identified three broad Treaty principles: the principles of partnership, active protection and redress.³³ However, the nature of the Treaty as a living document means that Treaty principles are constantly evolving as the Treaty is applied to new issues and situations.³⁴ Neither the courts nor the Tribunal have sought to produce a definitive list of Treaty principles.³⁵ As the Court of Appeal has observed, “[t]he Treaty obligations are ongoing. They will evolve from generation to generation as conditions change”.³⁶
• 2.21 Consequently, over time, other principles and duties associated with these three broad principles have been developed by the Tribunal and the courts. The principles of partnership and active protection and the related principle of equity are particularly relevant to this review and are discussed below.

Partnership

• 2.22 The Treaty established a relationship akin to a partnership and imposed on both Treaty partners the duty “to act towards each other reasonably and with the utmost good faith”.³⁷ The partnership should be founded on “reasonableness, mutual cooperation and trust” and is imbued with the notion of reciprocity and “the acknowledgement that neither kāwanatanga nor tino rangatiratanga was unqualified or absolute”.³⁸ The principle of partnership requires Māori participation in decision making that impacts on the lives of Māori.³⁹ The Tribunal has found that partnership can mean many things. The

²⁹ At 386.

30. For example, see Ani Mikaere Colonising Myths: Māori Realities – He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011) at 263–264.

³¹ New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) [Broadcasting Assets] at 517 per Lord Woolf.

³² New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) [Lands] at 655–656 per Cooke P.

33. See New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) [Lands]; New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) [Broadcasting Assets]; and Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1992] NZCA 503; [1993] 2 NZLR 301 (CA).
34. Te Puni Kōkiri | Ministry of Māori Development He Tirohanga ō Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (2001) at 77.

³⁵ At 77.

³⁶ Te Runanga o Muriwhenua Inc v Attorney-General [1990] NZCA 7; [1990] 2 NZLR 641 (CA) at 656 per Cooke P.

³⁷ New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) [Lands] at 667 per Cooke P.

38. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown’s Review of the Plant Variety Rights Regime: Stage 2 of the Trans-Pacific Partnership Agreement Claims (Wai 2522, 2020) at 11.
39. This is also required by the principle of equity discussed below and derives from the guarantees contained in articles 2 and 3. See Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Whanau o Waipareira Report (Wai 414, 1998) at 231–232; and Mānuka Henare and Edward Douglas “Support for Māori Social Organisations especially

starting point should be shared decision making, but the form partnership takes will depend on what the rights and interests of the Treaty partners require in the circumstances. Both partners should participate in identifying the nature and extent of the rights and interests engaged and how they may be protected through the partnership.⁴⁰

• 2.23 The Crown is subject to a related duty to make informed decisions on matters that affect Māori interests.⁴¹ This requires the Crown to be fully informed of the rights and interests of Māori, other New Zealanders and the nation as a whole and the impact of its proposed course of action on these rights and interests so that those interests may be protected and balanced appropriately (although a conflict between the interests of Māori and others should not be assumed).⁴² The Tribunal has observed that, in making decisions on matters that may impact on the exercise of rangatiratanga over taonga, it is essential that the Crown engage with Māori in order to fully understand the nature of those interests.⁴³

Active protection

• 2.24 The principle of active protection emerges from the relationship between kāwanatanga and tino rangatiratanga in articles 1 and 2 of the Treaty.⁴⁴ It encompasses an obligation to actively protect tino rangatiratanga, including the exercise of authority in accordance with tikanga and over taonga.⁴⁵ As discussed in relation to the principle of partnership and the associated duty of informed decision making, to ascertain what the obligation of active protection requires in the given circumstances, the Crown must inform itself of

Whanaunga, Hapū, Iwi” in Report of the Royal Commission on Social Policy | Te Kōmihana A Te Karauna Mō Āhuatanga-Ā-Iwi: The April Report – Future Directions (Associated Papers, Volume III, Part One, April 1998) 172 at 173.

40. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity – Te Taumata Tuarua (Wai 262, 2011) at 341. See also Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown’s Review of the Plant Variety Rights Regime: Stage 2 of the Trans-Pacific Partnership Agreement Claims (Wai 2522, 2020) at 12.
41. This duty is also engaged by the principle of active protection discussed below. See Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Whakatōhea Mandate Inquiry Report (Wai 2662, 2018) at 21–22.
42. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha i Pērā Ai? The Māori Prisoners’ Voting Report (Wai 2870, 2020) at 12. See also New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) [Lands] at 683 per Richardson J; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 23; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity – Te Taumata Tuarua (Wai 262, 2011) at 86; and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity – Te Taumata Tuatahi (Wai 262, 2011) at 237.
43. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ngawha Geothermal Resource Report 1993 (Wai 304, 1993) at 101–102.
44. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown’s Review of the Plant Variety Rights Regime: Stage 2 of the Trans-Pacific Partnership Agreement Claims (Wai 2522, 2020) at 13; and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha i Pērā Ai? The Māori Prisoners’ Voting Report (Wai 2870, 2020) at 12. See also Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 26. In the English text of the Treaty, it is article 2 that provides that the Crown “guarantees” Māori the continued possession of their lands and other resources. Article 3 of both texts also includes an undertaking by the Crown to protect Māori rights and interests.
45. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha i Pērā Ai? The Māori Prisoners’ Voting Report (Wai 2870, 2020) at 13; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown’s Review of the Plant Variety Rights Regime: Stage 2 of the Trans-Pacific Partnership Agreement Claims (Wai 2522, 2020) at 13; and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ngāpuhi Mandate Inquiry Report (Wai 2490, 2015) at 30–31.

Equity

the nature of the Māori rights and interests engaged.⁴⁶ In this respect, the Tribunal has observed:⁴⁷

The Crown obligation actively to protect Māori Treaty rights cannot be fulfilled in the absence of a full appreciation of the nature of the taonga including its spiritual and cultural dimensions. This can only be gained from those having rangatiratanga over the taonga.

• 2.25 The principle of equity arises from article 3 of the Treaty and imposes an obligation on the Crown to act fairly between Māori and non-Māori.⁴⁸ In addition to the Crown’s duty to guarantee Māori freedom from discrimination, the principle of equity in conjunction with the principle of active protection imposes a duty on the Crown to act fairly to reduce inequities between Māori and non-Māori, which includes an obligation to positively promote equity.⁴⁹
• 2.26 In the criminal justice context, the Tribunal has held that this imposes an obligation on the Crown to take reasonable steps to reduce Māori reoffending to address current inequities between Māori and non-Māori reoffending rates.⁵⁰ This is significant for the purposes of our review given the over-representation of Māori in the collection and use of DNA, which we discuss in Chapter 3.

Implications of the Treaty for this review

• 2.27 This review engages the Treaty guarantee of tino rangatiratanga, because the collection and use of DNA samples impacts on Māori rights, interests and taonga, including te ira tangata, described by the Tribunal as “the ultimate taonga”. As we explain below, DNA contains whakapapa (genealogy) information, which is considered taonga,⁵¹ and some consider human tissue and DNA themselves to be taonga.⁵² The

46. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha i Pērā Ai? The Māori Prisoners’ Voting Report (Wai 2870, 2020) at 13; and Waitangi Tribunal Ngawha Geothermal Resource Report 1993 (Wai 304, 1993) at 101–102. See also Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 22.
47. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ngawha Geothermal Resource Report 1993 (Wai 304, 1993) at 102. See also Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity – Te Taumata Tuatahi (Wai 262, 2011) at 188, where the Tribunal emphasised that Māori are the kaitiaki of their own mātauranga and that the Crown should not assume that role for itself, but “[r]ather, the Crown must support Māori leadership of the effort to preserve and transmit mātauranga Māori, with both parties acting as partners in a joint venture”.
48. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 27.
49. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha i Pērā Ai? The Māori Prisoners’ Voting Report (Wai 2870, 2020) at 14; and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Kura Whenua ka Rokohanga: Report on Claims about the Reform of Te Ture Whenua Māori Act 1993 (Wai 2478, 2016) at 195.
50. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 60.
51. IH Kawharu (ed) Waitangi: Māori and Pākehā Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) at 320–321. See also Manatū Taonga | Ministry for Culture and Heritage “Read the Treaty” (18 June 2020) New Zealand History <https://nzhistory.govt.nz>; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity – Te Taumata Tuarua (Wai 262, 2011) at 537–538; and Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 47 and 53–54.

over-representation of Māori in the collection and use of DNA also engages the Treaty, including the guarantee of equity.

• 2.28 Constitutionally sound DNA legislation requires consistency with the guarantees under the Treaty and its principles.⁵³ Our approach in this review is to focus on providing a framework that will enable the Crown, in exercising kāwanatanga, to act in a manner consistent with its Treaty obligations. As a minimum, we consider that legislation governing the DNA regime should:

(a) provide for ongoing Māori participation in oversight of the DNA regime to enable Māori to exercise tino rangatiratanga in accordance with applicable tikanga (discussed below);⁵⁴

(b) enable Māori to articulate how their rights and interests are engaged by the DNA regime to ensure the Crown can act in accordance with its duty to make informed decisions on matters that affect Māori and to ensure the protection of Māori rights, interests and taonga (including Māori DNA, whakapapa information and applicable mātauranga Māori); and

(c) provide the means for the Crown, working in partnership with Māori, to meet its obligations to take active steps to reduce inequities and positively promote equity in the DNA regime.

• 2.29 Below, we explore the tikanga that is said to be engaged by the collection and use of DNA.

TIKANGA MĀORI

• 2.30 The place of tikanga in New Zealand’s constitutional arrangements is the subject of ongoing debate.⁵⁵ For present purposes, tikanga is constitutionally significant to the development of the law in four respects:

(a) First, as an independent source of rights and obligations in te ao Māori and the first law of Aotearoa.⁵⁶

52. Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake | Māori and Indigenous Governance Centre, October 2016) at 8. This accords with the views expressed by some in the context of our review – that DNA is a taonga. Others, however, considered that it is the whakapapa information contained within DNA that is a taonga: Issues Paper at [2.47(b)]. DNA was described as taonga in two submissions we received on the Issues Paper, including by Karaitiana Taiuru and one member of the public.
53. For discussion of current government expectations regarding the Treaty in government policy and legislation, see Cabinet Office Circular “Te Tiriti o Waitangi/Treaty of Waitangi Guidance” (22 October 2019) CO (19) 5; and Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 23. See also Cabinet Office Cabinet Manual 2017 at [7.65]–[7.66].
54. In Chapter 3, we explore recent initiatives to work in partnership with Māori to reduce over-representation in the criminal justice system.
55. See, for example, Matike Mai Aotearoa | Independent Working Group on Constitutional Transformation He Whakaaro Here Whakaumu mō Aotearoa: The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation (January 2016); Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1; Christian Whata “The Evolution of Legal Issues Facing Māori” (paper presented to Māori Legal Issues Conference, Legal Research Foundation, Auckland, 29 November 2013); Robert Joseph “Re-Creating Legal Space for the First Law of Aotearoa-New Zealand” [2009] WkoLawRw 5; (2009) 17 Wai L Rev 74; and Ani Mikaere Colonising Myths: Māori Realities – He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011).
56. See Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1 at 2–5.

(b) Second, where tikanga values comprise a source of the New Zealand common law⁵⁷ or have been integrated into law by statutory reference.⁵⁸

(c) Third, in terms of the Treaty rights and obligations that pertain to tikanga.

(d) Fourth, to give effect to New Zealand’s international obligations in relation to Māori as indigenous people, including under the United Nations Declaration on the Rights of Indigenous Peoples.⁵⁹

• 2.31 Tikanga includes a body of norms and values that guides and directs behaviour. Tikanga governs relationships by providing a “koru ... of ethics”⁶⁰ and a shared basis for “doing things right, doing things the right way, and doing things for the right reasons”.⁶¹ Like the common law, tikanga has evolved over time and continues to adapt to accommodate developments in society and technology. While each tribal grouping will have its own variations, it is considered that there are some central values that underpin tikanga Māori as a whole, including whanaungatanga, mana, tapu, utu and kaitiakitanga.⁶²

Tikanga values engaged in the DNA regime

• 2.32 The collection and use of DNA is said to engage several core aspects of tikanga Māori. We introduce these values below and explain their implications for this review. This discussion is based on our research and consultation with Māori.⁶³ We draw in particular on the Principles of Māori Data Sovereignty articulated by Te Mana Raraunga | Māori Data Sovereignty Network, which are designed to guide the collection, management and use of Māori data.⁶⁴ We also refer to He Tangata Kei Tua: Guidelines for Biobanking

57. As recognised by the Supreme Court in Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94]–[95]. In Ellis v R [2020] NZSC 89, submissions were sought on the application of tikanga on the question of whether the Court has jurisdiction to hear an appeal against conviction after the death of the appellant. The Court issued its judgment allowing the appeal to proceed, but reasons for that decision are to be provided with the judgment on the substantive appeal: at [5].
58. Statutes referencing tikanga include the Oranga Tamariki Act 1989 (see s 2 definitions of “tikanga Māori” and “mana tamaiti (tamariki)”); the Resource Management Act 1991; and Taumata Arowai – the Water Services Regulator Act 2020. See also Christian Whata “The Evolution of Legal Issues Facing Māori” (paper presented to Māori Legal Issues Conference, Legal Research Foundation, Auckland, 29 November 2013).
59. New Zealand affirmed the United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007) (UNDRIP) in 2010. UNDRIP recognises the importance of protecting the collective rights of indigenous peoples and contains various protections for indigenous customs. New Zealand courts have recognised the need to develop the law, so far as reasonably possible, consistently with both the Treaty and international human rights obligations: Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [16] and [253]; Tavita v Minister of Immigration [1993] NZCA 354; [1994] 2 NZLR 257 (CA) at 266; and New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at

289. See also Susan Glazebrook “The Declaration on the Rights of Indigenous Peoples and the Courts” [2019] AukULawRw 2; (2019) 25 Auckland U L Rev 11 at 23–25.

⁶⁰ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at [126].

61. Bishop Manuhuia Bennett “Pū Wānanga Seminar” (presented with Te Mātāhauariki Institute) as cited in Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 431.

⁶² Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at [125].

63. This discussion collates the results of initial consultation with Māori prior to the Issues Paper (outlined at [2.51] of the Issues Paper), submissions received from Māori during consultation and feedback received on this draft Report from Associate Professor Māmari Stephens from Te Kauhanganui Tātai Ture | Faculty of Law, Victoria University of Wellington.
64. Te Mana Raraunga | Māori Data Sovereignty Network Principles of Māori Data Sovereignty (October 2018). The principles are rangatiratanga, whakapapa, whanaungatanga, kotahitanga, manaakitanga and kaitiakitanga. Māori data

with Māori (Biobanking Guidelines), which articulate values and practices in tikanga Māori engaged by the use of human tissue, DNA and associated information in health research.⁶⁵

Whakapapa

• 2.33 Genetic material, DNA and genomes have all been described to us as “biological whakapapa”.⁶⁶ Whakapapa literally means “to place in layers”.⁶⁷ It describes the connections between people and their responsibilities to past, present and future generations. It is the key to identity and belonging in te ao Māori.⁶⁸ Whakapapa reflects the social component of ira (genes). Ira tangata refers specifically to a human life that has inherited a collection of genes from its parents.⁶⁹ Ira tangata descend from ira atua, the gods.⁷⁰ Thus ira represent a spiritual inheritance as well as a biological or physical inheritance. Put another way, an individual’s body can be conceived of as a physical manifestation of their whakapapa.⁷¹
• 2.34 At a physical and spiritual level, whakapapa is considered to be embodied within a person’s DNA, and therefore the storage and use of human tissue for genetic research becomes a “culturally significant activity”, as does the giving of consent to the storage of biological material and personal information in a biobank.⁷² Consequently, in the health research context, the Biobanking Guidelines explain that whānau, hapū and iwi have a responsibility to protect whakapapa when engaging with biobanking, which is exercised partly by managing the taking and use of human tissue and genetic information.⁷³ Aroha Mead explains the implications of whakapapa for human genetic research as follows:⁷⁴

refers to data produced by Māori or that is about Māori and the environments Māori have relationships with: Te Mana Raraunga | Māori Data Sovereignty Network Charter (2016) at 1.

65. Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake | Māori and Indigenous Governance Centre, October 2016). Hudson explains, at 1–2, that biobanking refers to collections of biospecimens used for health research and can include human biological material and/or genetic information generated from their analysis and extensive associated demographic and health information. See also Maui Hudson and others Te Mata Ira: Guidelines for Genomic Research with Māori (Te Mata Hautū Taketake | Māori and Indigenous Governance Centre, October 2016).

⁶⁶ Karaitiana Taiuru Submission to Law Commission at 4.

67. Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 504.

⁶⁸ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 47.

⁶⁹ At 46.

70. For a discussion of ira tangata and ira atua, see Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 46.
71. Robert Webb and Rhonda Shaw “Whanau, Whakapapa and Identity in Experiences of Organ Donation and Transplantation” (2011) 8(1) SITES: New Series 40 at 44.
72. Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake | Māori and Indigenous Governance Centre, October 2016) at 7.
73. At 7. For example, the Guidelines provide examples of iwi, hapū, whānau, kaumātua and kuia providing guidance to researchers on the development of kawa around the entry of human tissue into the laboratory environment (at 11), and iwi that have iwi entities with responsibility for consultation with health researchers to ensure research is “ethically sound and culturally appropriate” (Ngāti Porou at 12; and Ngāi Tahu at 13).
74. Aroha Te Pareake Mead “Human Genetic Research and Whakapapa” in Pania Te Whāiti, Mārie McCarthy and Arohia Durie Mai i Rangiātea: Māori Wellbeing and Development (Auckland University Press and Bridget Williams Books, Auckland, 1997) 126 at 128–129.

In stark contrast to the Western concept of isolating a human gene from any broader identity, for Māori, the physical human gene is inextricably linked to the metaphysical whakapapa, that is, the direct heritage from ancestors which must be transmitted to descendants. The general perception would be of considering human genes as collective cultural property and not the property of an individual.

• 2.35 Te Hunga Rōia Māori o Aotearoa | The Māori Law Society observed that the lack of clarity about the storage, retention and disposal of DNA samples and profiles under the current regime can be highly distressing to many Māori because of the connection to whakapapa, which is a taonga in relation to which the individual has a responsibility to the collective to protect.
• 2.36 Te Mana Raraunga identified some practical consequences for the DNA regime. It submitted that legislation and policies governing the use of bodily samples in criminal investigations need to include strong provisions requiring agencies to provide detailed documentation of the process and context of data collection and use, including transparency over what demographic details are collected and stored in the DNA databanks. In relation to whakapapa, Te Mana Raraunga’s Principles of Māori Data Sovereignty state that “[a] key goal of Māori data governance should be to protect against future harm”.⁷⁵ It submitted that legislation needs to be clear about what is acceptable future use of DNA and to consider the potential future harm for Māori, particularly in light of new DNA analysis methods such as forensic DNA phenotyping (discussed in Chapter 14).

Whanaungatanga

• 2.37 Whanaungatanga is linked to whakapapa and traditionally refers to the rights and responsibilities associated with being a relative.⁷⁶ These days, whanaungatanga is also used more widely to refer to other kin-like relationships when appropriate.⁷⁷ It denotes the ideas that, in te ao Māori, relationships among people and with the natural and spiritual worlds are fundamental to communal wellbeing, and all individuals owe certain responsibilities to the collective.⁷⁸ Maintaining whanaungatanga is fundamental to the framework for addressing wrongs and restoring balance according to tikanga.⁷⁹ Whanaungatanga is one of the principles of Māori data sovereignty articulated by Te Mana Raraunga. It explains that whanaungatanga involves balancing individuals’ rights (including privacy rights), risks and benefits in relation to Māori data with those of the groups of which they are a part. In some contexts, collective Māori rights will prevail over those of individuals.

75. Te Mana Raraunga | Māori Data Sovereignty Network Principles of Māori Data Sovereignty (October 2018) at principle 2.

⁷⁶ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 32.

77. Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 524.
78. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at [130]. See Māmari Stephens “Fires Still Burning? Māori Jurisprudence and Human Rights Protection in Aotearoa New Zealand” in Kris Gledhill, Margaret Bedggood and Ian McIntosh (eds) International Human Rights Law in Aotearoa New Zealand (Thomson Reuters, Wellington, 2017) 99 at [3.3.02], which suggests that the broader base of whanaungatanga has enabled the development of a sense of civic obligations whereby Māori individuals and collectives began to accept that decisions could be made for and on behalf of their groups outside of immediate kin- based connections.

⁷⁹ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 35.

• 2.38 In its submission on the Issues Paper, Te Mana Raraunga observed that familial searching raises particular issues in relation to the balance of individual and collective rights because of the potential for discriminatory impacts on a particular community.
• 2.39 Te Mana Raraunga also considers that whanaungatanga means that individuals and organisations responsible for the creation, collection, analysis, management, access, security or dissemination of Māori data are accountable to the communities, groups and individuals from whom the data derives.⁸⁰ Consideration must be given to how these accountabilities are incorporated into legislation and into the functioning of the relevant agencies and should include regular reporting back to Māori on how these accountabilities are being met.⁸¹

Personal tapu and mana

• 2.40 Tapu has been variously described as “sacred, under ritual restriction, prohibited”.⁸² Every Māori individual inherits personal tapu, which is their most important spiritual attribute. This attribute can be traced back to the divine primeval parents Ranginui and Papa-tū-ā-nuku.⁸³ Personal tapu is closely linked to mana, a social quality reflecting how people and their achievements are recognised and respected in society.⁸⁴ Thus tapu can fluctuate, depending on the actions of an individual and what happens to them. It reflects the state of the whole person.⁸⁵
• 2.41 The notion of the tapu of the person requires respect for an individual’s personal space and for their body.⁸⁶ Some parts of the body are more tapu than others. The head and blood are considered particularly tapu.⁸⁷ However, anything that comes from the body, like fingernails, hair and skin, is considered to have a mauri (often described as “life spark” or “essence”).⁸⁸ Maintaining the mauri can be thought of as maintaining the genetic or biological integrity of an organism or system.⁸⁹ Also relevant is the concept of wairua, which refers to the spiritual dimension as distinct from the physical body and the mauri of the person. Some consider that taking a biological sample involves taking wairua and that storing information derived from a biological sample involves storing wairua in a foreign system.⁹⁰

80. Te Mana Raraunga | Māori Data Sovereignty Network Principles of Māori Data Sovereignty (October 2018) at principle 3.

⁸¹ Te Mana Raraunga Submission to Law Commission at [27].

82. Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 404.

⁸³ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 49–50.

⁸⁴ At 56.

⁸⁵ At 51.

⁸⁶ At 43.

87. At 53–54; and Te Rangi Hīroa “Medicine Amongst the Maoris in Ancient and Modern Times” (Thesis for the degree of Doctor of Medicine, University of Otago, 1910). See also the discussion of hauora in Elsdon Best The Maori: Volume I (Board of Maori Ethnological Research, Wellington, 1924) at 308. Hauora denotes vital, physical and intellectual wellbeing. Best notes that a person who has infringed tapu cannot be in a hauora state.
88. Karaitiana Taiuru also considers that genomic data derived from a biological sample also contains mauri, although he observes that not all Māori agree that genomes have mauri: Karaitiana Taiuru Submission to Law Commission at 3.
89. Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake | Māori and Indigenous Governance Centre, October 2016) at 13.
90. Karaitiana Taiuru Submission to Law Commission at 4. The Biobanking Guidelines state that wairua is a concept to consciously address when using Māori human tissue, DNA and data in health research, as it could both influence

• 2.42 Human tissue used in DNA sampling (including blood and mucus) and DNA profiles (that connect to whakapapa, as discussed above) have been described as taonga imbued with tapu.⁹¹ This status invokes an obligation of active protection and management.⁹² As discussed elsewhere in relation to whakapapa, whanaungatanga and kaitiakitanga, this gives rise to individual and collective responsibilities of Māori to protect these taonga and gives rise to questions about how informed consent can be obtained from Māori and effective governance exercised by Māori in this context.⁹³
• 2.43 Where an individual’s personal mana is diminished, this is understood to impact negatively on the wellbeing of the person and the collective and may require some action to be taken to restore balance in relationships between individuals, communities and their environments and ensure their wellbeing as a consequence.⁹⁴ As noted in relation to manaakitanga below, the issue of consent to the collection of Māori data is also considered relevant to upholding the mana of the person.
• 2.44 It has also been explained to us that, in certain circumstances, the state may be justified in intruding upon personal tapu, for example, where a person has driven while intoxicated⁹⁵ or is seeking to avoid their obligations as a parent.⁹⁶ In such cases, it remains important from a tikanga perspective that there is a good reason for the intrusion and that those affected understand what is happening and why. In the context of our review, this would include an explanation of what will happen to any DNA sample and any DNA profile. This dialogue may demonstrate respect for the person and can lessen the impact on personal tapu and mana. There is also scope to restore a measure of balance by complying with tikanga during the process of destroying the sample.

Manaakitanga

• 2.45 Manaakitanga describes the process of showing and receiving care, respect, kindness and hospitality.⁹⁷ It applies to all people, regardless of whether or especially when there is no pre-existing relationship. Thus, whanaungatanga may start with manaakitanga. This duty to nurture relationships, look after people and be very careful about how others are treated underpins all tikanga.⁹⁸

relationships and outcomes of genomic research as well as be impacted by them: Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake | Māori and Indigenous Governance Centre, October 2016) at 10.

91. See, for example, Aroha Te Pareake Mead “Genealogy, Sacredness, and the Commodities Market” Cultural Survival Quarterly Magazine (online ed, Cambridge (Mass), June 1996).
92. Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake | Māori and Indigenous Governance Centre, October 2016) at 7–8.
93. At 7. See also Aroha Te Pareake Mead “Genealogy, Sacredness, and the Commodities Market” Cultural Survival Quarterly Magazine (online ed, Cambridge (Mass), June 1996).
94. Suzanne Duncan and Poia Rewi “Tikanga: How Not to Get Told Off!” in Michael Reilly and others (eds) Te Kōparapara: An Introduction to the Māori World (Auckland University Press, Auckland, 2018) 12 at 37–42; and Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 51.
95. Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 252 discussing Police v Cooper DC Papakura CRN9055011094, 1 July 1999. See also Raharaha v New Zealand Police HC Whangarei CRI-2008-488-23, 31 July 2008.

⁹⁶ B v T (Paternity) (1997) 16 FRNZ 175 (DC).

97. Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 205.

⁹⁸ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 33.

• 2.46 Te Mana Raraunga identifies two important applications of manaakitanga in Māori data management. First, the collection, use and interpretation of data should uphold the dignity of Māori communities, groups and individuals.⁹⁹ Te Mana Raraunga notes the risk of collective harm of forensic DNA phenotyping, where statements or assumptions may be made about ethnic communities.¹⁰⁰ Second, free, prior and informed consent should underpin the collection and use of all data from or about Māori.¹⁰¹ Where consent is not present, including in the collection of DNA for criminal investigations, Te Mana Raraunga considers that strong governance and ethical arrangements must be in place, including independent oversight with Māori governance strongly embedded in that oversight.¹⁰²

Kaitiakitanga

• 2.47 Kaitiakitanga is a form of guardianship and has also been identified as a relevant value in tikanga Māori.¹⁰³ As Aroha Mead writes, commenting on human genetic research and whakapapa:¹⁰⁴

The most fundamental concern for Māori is to maintain the exclusive ‘guardianship’ rights and responsibilities of individuals to ensure the ‘safety’ of and non-interference with their multi-generational whakapapa.

• 2.48 In this context, kaitiakitanga also implies respectful conduct in relation to the use of biospecimens and all forms of information.¹⁰⁵ Te Mana Raraunga supports the exercise of kaitiakitanga by Māori over Māori data, including in stewardship arrangements for the collection, transfer and storage of data derived from Māori DNA.¹⁰⁶ It submits that Māori should have control over deciding the protocols and policies around Māori data, including control over deciding appropriate tikanga and kawa around bodily samples and derived data.¹⁰⁷

Recognising and providing for tikanga Māori in the DNA regime

• 2.49 Māori have an interest in common with all New Zealanders in the investigation and prosecution of crime in a manner that is fair, effective and proportionate. The responsibility of the individual to the collective, and the responsibility of the collective for addressing wrongs committed by an individual underpin the whanaungatanga-based system of tikanga and are also central to Pākehā notions of justice. Broadly, therefore,

99. Te Mana Raraunga | Māori Data Sovereignty Network Principles of Māori Data Sovereignty (October 2018) at principle 5.1.

¹⁰⁰ Te Mana Raraunga Submission to Law Commission at [31].

101. Te Mana Raraunga | Māori Data Sovereignty Network Principles of Māori Data Sovereignty (October 2018) at principle 5.2.

¹⁰² Te Mana Raraunga Submission to Law Commission at [29]–[31].

103. See Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake | Māori and Indigenous Governance Centre, October 2016) at 26; and Te Mana Rauranga Submission to Law Commission at [33]–[34].
104. Aroha Te Pareake Mead “Human Genetic Research and Whakapapa” in Pania Te Whāiti, Mārie McCarthy and Arohia Durie Mai i Rangiātea: Māori Wellbeing and Development (Auckland University Press and Bridget Williams Books, Auckland, 1997) 126 at 130.
105. Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake | Māori and Indigenous Governance Centre, October 2016) at 26.
106. Te Mana Raraunga | Māori Data Sovereignty Network Principles of Māori Data Sovereignty (October 2018) at principle 6.1; and Te Mana Raraunga Submission to Law Commission at [33].

¹⁰⁷ Te Mana Raraunga Submission to Law Commission at [34].

the objective of recognising and providing for tikanga Māori supports the adoption of a regime for the collection and use of DNA in criminal investigations as part of wider efforts to improve the criminal justice system and to deliver a fairer and safer community for all.

• 2.50 There are, however, some important differences between tikanga Māori and Pākehā values and concepts as they relate to the collection and use of DNA. Within the DNA regime, consideration needs to be given to how to address impacts on tapu, mana and whakapapa and, in this context, to provide for Māori to exercise tino rangatiratanga in accordance with tikanga, including whanaungatanga, manaakitanga and kaitiakitanga.
• 2.51 As we observed in the Issues Paper, tikanga Māori has much in common with human rights values.¹⁰⁸ In the next section, we consider the human rights values that are engaged in the collection and use of DNA in criminal investigations.

HUMAN RIGHTS VALUES

• 2.52 The third requirement of constitutionally sound law is consistency with human rights values. All law is made against a matrix of values and principles that are regarded as fundamentally important to our legal system.¹⁰⁹ This includes a broad range of human rights values that can be expressed in different ways but at their core are concerned with human dignity and liberty.¹¹⁰ Many human rights values are affirmed in the New Zealand Bill of Rights Act 1990 (Bill of Rights Act), while others are affirmed in the common law or in international instruments.¹¹¹ An important principle of statutory interpretation is the presumption that Parliament will intend to legislate consistently with fundamental human rights and New Zealand’s international obligations.¹¹²
• 2.53 The collection and use of DNA in criminal investigations engages several fundamental human rights values, which are:¹¹³

(a) the protection of privacy;

(b) the protection of bodily integrity;

108. Issues Paper at [2.52]–[2.57]. For an extensive discussion of the overlap between custom law in the Pacific and human rights values, see Te Aka Matua o te Ture | Law Commission Converging Currents: Custom and Human Rights in the Pacific (NZLC SP17, 2006) at chs 4–6.

¹⁰⁹ Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 23–25.

110. For example, the preamble to the Universal Declaration of Human Rights GA Res 217A (1948) begins: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
111. Including the following instruments: Universal Declaration of Human Rights GA Res 217A (1948); International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976); Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990) (discussed in Chapter 21); and United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007) (discussed above).
112. See Ngati Apa Ki Te Waipounamu Trust v The Queen [2000] NZCA 45; [2000] 2 NZLR 659 (CA) at [82]; Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [26]–[27]; New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR 948 at [292]–[308]; Tavita v Minister of Immigration [1993] NZCA 354; [1994] 2 NZLR 257 (CA) at 266; and Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [144].
113. The Law Reform Commission of Ireland, in its consideration of the establishment of a DNA databank for criminal investigations, also identified the rights to privacy and bodily integrity as being engaged, in addition to the privilege against self-incrimination, which we address at [2.76]. See Law Reform Commission of Ireland The Establishment of a DNA Database (LRC 78, 2005) at [1.16]; and Law Reform Commission of Ireland Consultation Paper on the Establishment of a DNA Database (LRC CP29, 2004) at ch 3.

(c) freedom from discrimination; and

(d) the rule of law.

• 2.54 We discuss these values below and how they must be accommodated alongside law enforcement values.

Privacy

• 2.55 Privacy is not a stand-alone statutory right in New Zealand law.¹¹⁴ Rather, privacy values underpin important rights and freedoms affirmed in the Bill of Rights Act, including the right to be secure against unreasonable search and seizure, discussed below.¹¹⁵ Privacy also informs the law in other ways. The Privacy Act 1993 (and its successor, the Privacy Act 2020) governs how agencies collect, use, disclose, store and give access to personal information.¹¹⁶ The common law tort of privacy enables a person to claim damages from another person for breaching their privacy.¹¹⁷ At an international level, Aotearoa New Zealand is committed to ensuring that no one is subjected to “arbitrary or unlawful interference with his privacy” and that everyone has the “right to the protection of the law against such interference or attacks”.¹¹⁸
• 2.56 Privacy “is an elastic and complex concept that is notoriously difficult to define”.¹¹⁹ The Law Commission, in 2008, observed that there are two dimensions to privacy:¹²⁰

(a) Informational privacy, which is concerned with control over access to private information or facts about ourselves.

114. The right to privacy is not affirmed in the New Zealand Bill of Rights Act 1990. However, s 28 of that Act states that existing rights and freedoms “shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights”. Privacy is discussed in detail in Te Aka Matua o te Ture | Law Commission Privacy Concepts and Issues: Review of the Law of Privacy Stage 1 (NZLC SP19, 2008).
115. Privacy values also underpin the right to freedom of thought, conscience and religion, the right to freedom of association, the right not to be subjected to medical experimentation and the right to refuse to undergo medical treatment: New Zealand Bill of Rights Act 1990, ss 10, 11, 13 and 17.
116. The Privacy Act 1993 will be replaced by the Privacy Act 2020 on 1 December 2020. In this Report, we refer to both statutes for completeness.
117. In Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA) at [117] per Gault P, the Court recognised the existence of a common law remedy for breach of privacy where there exists facts in respect of which there is a reasonable expectation of privacy and publicity is given to those private facts that would be considered “highly offensive to an objective reasonable person”. See discussion in Te Aka Matua o te Ture | Law Commission Invasion of Privacy: Penalties and Remedies – Review of the Law of Privacy Stage 3 (NZLC R113, 2010) at ch 7.
118. International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), art 17. New Zealand ratified the ICCPR on 28 December 1978, and the long title of the New Zealand Bill of Rights Act 1990 states that it is an Act to affirm New Zealand’s commitment to the ICCPR. See also Universal Declaration of Human Rights GA Res 217A (1948), art 12.
119. Te Aka Matua o te Ture | Law Commission Review of the Search and Surveillance Act 2012 | Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2017) at [2.11]. See also Te Aka Matua o te Ture | Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [2.12]–[2.18].
120. Te Aka Matua o te Ture | Law Commission Privacy Concepts and Issues: Review of the Law of Privacy Stage 1 (NZLC SP19, 2008) at [3.15]–[3.25]. For further discussion, see Te Aka Matua o te Ture | Law Commission Review of the Search and Surveillance Act 2012 | Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2017) at [2.13]. A similar approach is adopted in Canadian case law, recognising three categories of protection: informational privacy, bodily privacy and territorial privacy. For the Canadian position, see R v Spencer 2014 SCC 43, [2014] 2 SCR 212 at [35]. The Privacy Commissioner observes that a common understanding about privacy is that people need to be able to protect information about themselves, and people need the opportunity to withdraw – physically or mentally – from society. See Te Mana Mātāpono Matatapu | Office of the Privacy Commissioner “About Privacy”

<www.privacy.org.nz/>.

(b) Local or spatial privacy, which is concerned with control over access to our persons and to private spaces.

• 2.57 Both dimensions are engaged by the collection and use of DNA in criminal investigations.¹²¹ Obtaining DNA samples under the CIBS Act, even with a person’s informed consent, is recognised as a “substantial intrusion into an individual’s privacy”¹²² as DNA “contains a wealth of genetic information about a person with unlimited future utility”.¹²³ It is “capable of revealing the most intimate details of a person’s biological makeup”¹²⁴ such as information about a person’s health, ethnicity and family and whānau. Informational privacy rights are, therefore, clearly engaged. So too are local privacy rights or, as we describe it below, the right to bodily integrity.
• 2.58 The use of DNA might also engage collective privacy interests. This is because “genetic data, while a blueprint for an individual, are also representative of the collective”.¹²⁵ DNA can reveal information not just about an individual but about their wider family, whānau and ancestors. In tikanga Māori, collective privacy interests arise because DNA contains information about whakapapa.¹²⁶ The use of familial searching to identify a suspect through a relative’s DNA clearly illustrates the need to consider collective privacy interests in DNA.

Bodily integrity

• 2.59 Closely related to privacy is the concept of bodily integrity.¹²⁷ As Richardson J observed in R v B, “freedom from invasion of physical privacy and bodily integrity is a fundamental human right”.¹²⁸ Bodily integrity underpins rights affirmed in the Bill of Rights Act, but it is also broader than these rights.¹²⁹
• 2.60 Obtaining a DNA sample intrudes on a person’s bodily integrity. The degree of interference will vary depending on the sampling method used and whether the sample

121. Te Aka Matua o te Ture | Law Commission Privacy Concepts and Issues: Review of the Law of Privacy Stage 1 (NZLC SP19, 2008) at [6.91].

¹²² R v Toki [2017] NZCA 513, [2018] 2 NZLR 362 at [15]. See also Butland v R [2019] NZCA 376 at [50]; and R v Hoare

CA310/04, 21 April 2005 at [42].

¹²³ R v Toki [2017] NZCA 513, [2018] 2 NZLR 362 at [24].

¹²⁴ R v RC 2005 SCC 61, [2005] 3 SCR 99 at [27].

125. Maui Hudson, Dickie Farrar and Lesley McLean “Tribal data sovereignty: Whakatōhea rights and interests” in Tahu Kukutai and John Taylor (eds) Indigenous Data Sovereignty: Toward an Agenda (Australian National University Press, Canberra, 2016) 157 at 164.
126. Te Aka Matua o te Ture | Law Commission Privacy Concepts and Issues: Review of the Law of Privacy Stage 1 (NZLC SP19, 2008) at [5.28]–[5.30]; and Khylee Quince “Māori Concepts and Privacy” in Stephen Penk and Rosemary Tobin (eds) Privacy Law in New Zealand (2nd ed, Thomson Reuters, Wellington, 2016) 29 at 43.
127. Also referred to as personal or physical integrity or as local privacy in Te Aka Matua o te Ture | Law Commission Privacy Concepts and Issues: Review of the Law of Privacy Stage 1 (NZLC SP19, 2008). Bodily integrity can be regarded as a stand-alone human right or as an aspect of privacy: Te Aka Matua o te Ture | Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [2.19]–[2.20].
128. R v B [1995] 2 NZLR 172 (CA) at 182 per Richardson J. Affirmed in A v Council of the Auckland District Law Society [2005] 3 NZLR 552 (HC) at [26]. See also Naysmith v Accident Compensation Corporation [2005] NZHC 1206; [2006] 1 NZLR 40 (HC) at [80], where the Court observed that “the law has always afforded the highest protection to the physical integrity of the person; a lower protection to property rights; and still less protection to economic interests”.
129. R v B [1995] 2 NZLR 172 (CA) at 177 per Cooke P. In that case, the complainant’s right to have her privacy, dignity and bodily integrity protected from non-consensual medical procedure was:

... a right which may be wider than those assured by ss 10 and 11 of the Bill of Rights and which is certainly, having regard to s 28, not abrogated or restricted by those provisions.

is given by consent or is compulsorily acquired.¹³⁰ However, even if the physical intrusion is minimal, the very fact that information is being collected about a person’s body may feel like an intrusion into control over access to their body.¹³¹

• 2.61 Cultural beliefs about the sacred or restricted nature of the body or of certain parts of the body play an important role in determining the degree to which DNA sampling is considered intrusive.¹³² In tikanga Māori, the concept of personal tapu is engaged, which requires respect for an individual’s personal space and their body. It is important from a tikanga perspective that intrusions upon personal tapu are for good reasons and that those affected understand what is happening and why.
• 2.62 The greatest intrusions on bodily integrity will occur where force is used to take a sample from someone who is being detained in police custody. This also constitutes a grave intrusion on personal tapu. A person’s movement and use of their body is being restricted in order to obtain material that may incriminate that person and be used as evidence against them.¹³³

Freedom from discrimination

• 2.63 The right to equality and freedom from discrimination are core human rights values with a long history in international law.¹³⁴ In Aotearoa New Zealand, the Human Rights Act 1993 and the Bill of Rights Act affirm the right to be free from discrimination on prohibited grounds, including the grounds of race, ethnic origin, age (in respect of anyone aged 16 years or over) and family status (including being related to a particular person or class of people).¹³⁵ The courts have established that, for an act or omission to amount to discrimination on a prohibited ground, it must create a distinction (in the sense of treating a group of people differently from a comparator group) and the distinction must cause a material disadvantage.¹³⁶
• 2.64 Discrimination on prohibited grounds is a real risk in law enforcement and unconscious bias against Māori is a particular concern.¹³⁷ In 2019, Te Uepū Hāpai i te Ora | Safe and Effective Justice Advisory Group reported that a consistent message throughout its conversations with New Zealanders was that racism is embedded in every part of the criminal justice system and that individuals operating within the system hold biases

130. In Butland v R [2019] NZCA 376 at [48], the Court observed that an “unlawful and coercive obtaining of a bodily sample involves an intrusion on a person’s bodily integrity of the highest order”.
131. Te Aka Matua o te Ture | Law Commission Privacy Concepts and Issues: Review of the Law of Privacy Stage 1 (NZLC SP19, 2008) at [6.91].

¹³² At [6.91].

¹³³ Sampling methods and the use of reasonable force are discussed in Chapters 11 and 19.

134. See the Universal Declaration of Human Rights GA Res 217A (1948), arts 1, 2 and 7; International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), arts 2 and 26; and International Convention on the Elimination of All Forms of Racial Discrimination 660 UNTS 195 (opened for signature 7 March 1966, entered into force 4 January 1969).

¹³⁵ New Zealand Bill of Rights Act 1990, s 19(1); and Human Rights Act 1993, s 21(1).

¹³⁶ Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [55].

137. Bias in policing was explored in a survey of frontline police officers in the late 1990s. The resulting report concluded that, while cultural awareness was improving, bias continued to be an issue for some officers: Gabrielle Maxwell and Catherine Smith Police Perceptions of Maori – A Report to the New Zealand Police and the Ministry of Maori Development: Te Puni Kokiri (Institute of Criminology, Victoria University of Wellington, March 1998) at 36. While that survey is now over 20 years old, its ongoing relevance was recognised by the Court of Appeal in 2017, observing that the disparity in criminal justice outcomes that triggered the survey “remains unchanged, and in some respects has become worse”: Kearns v R [2017] NZCA 51, [2017] 2 NZLR 835 at [25].

against Māori, whether consciously or unconsciously.¹³⁸ Unconscious bias has been acknowledged by Police, who have observed that “structural and system bias within the justice system cannot be ruled out as an influence on the current levels of ethnic disparity”.¹³⁹ Police policies and decision making under the DNA regime must therefore actively protect against unlawful discrimination to ensure consistency with human rights values as well as with Treaty obligations, discussed above.

The rule of law

• 2.65 The rule of law is another fundamental principle underlying New Zealand’s constitutional arrangements. It is an expansive concept with many varying definitions and descriptions.¹⁴⁰ However, the Legislation Guidelines identify three core principles:¹⁴¹

(a) Everyone is subject to the law, including the government.

(b) The law should be clear and clearly enforceable.

(c) There should be an independent, impartial judiciary responsible for making certain decisions.

• 2.66 In its 2007 review of search and surveillance powers, the Commission identified the maintenance of the rule of law as a principal human rights value in operation when the regulation of search powers is in issue.¹⁴² The Commission observed that the rule of law requires that search powers be regulated “in such a manner as will best ensure that they are only exercised where they are genuinely required to be deployed”.¹⁴³ The Commission observed that search powers should:¹⁴⁴

(a) be expressed in objective, rather than subjective terms;

(b) be clearly expressed so that the person who is being subjected to a search and the law enforcement officer undertaking it can both understand whether there is in fact authority to undertake the search or seizure and what it is that the enforcement officers are entitled to search for and seize;

(c) be subject to judicial supervision, preferably in advance of the powers being exercised; and

(d) only be exercisable reasonably.

138. Te Uepū Hāpai i te Ora | Safe and Effective Justice Advisory Group He Waka Roimata: Transforming Our Criminal Justice System (9 June 2019) at 9.
139. Ngā Pirihimana o Aotearoa | New Zealand Police Te Huringa o Te Tai: A Whānau Ora Crime and Crash Prevention Strategy (November 2019) at 10. See also Interview with Mike Bush, Commissioner of Police (Lisa Owen, The Nation, Newshub, 28 November 2015) transcript provided by Scoop Independent News (Wellington). See also Nicholas Jones “Police Commissioner: Racial Profiling Perception ‘Concern We Need to Address’” The New Zealand Herald (online ed, Auckland, 8 June 2018).
140. Te Aka Matua o te Ture | Law Commission Review of the Search and Surveillance Act 2012 | Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2017) at [15.16]. See also Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 22; and Te Kāhui Tika Tangata | Human Rights Commission Human Rights in New Zealand | Ngā Tika Tangata o Aotearoa (2010) at 89. For general discussion, see also Brian Tamanaha On the Rule of Law (Cambridge University Press, Cambridge, 2012).

¹⁴¹ Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 23.

¹⁴² Te Aka Matua o te Ture | Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [2.11].

¹⁴³ At [2.22]–[2.23].

¹⁴⁴ At [2.23].

• 2.67 The Commission explained that:¹⁴⁵

The overall aim of these measures is to prevent unreasonable searches and seizures occurring in the first place and ensuring that both before and after intrusive search and seizure powers are exercised they are subject to a transparent and accountable form of public review.

• 2.68 As the collection and use of DNA for criminal investigations is a “search and seizure”,¹⁴⁶ we consider these principles apply equally to the DNA regime.

Providing for human rights values in the DNA regime

• 2.69 Human rights values, like other constitutional values and principles discussed in this chapter, are not absolute rights. They are “necessarily limited by membership of society and by the rights of others and the interests of the community”.¹⁴⁷ This is evident in the Bill of Rights Act, which only protects against “unreasonable” search and seizure and recognises that other rights and freedoms, including freedom from discrimination, can be subject to reasonable limits if they are “demonstrably justified in a free and democratic society”.¹⁴⁸
• 2.70 In 2007, the Commission observed that both human rights values and law enforcement values arise in the context of authorising and regulating search powers.¹⁴⁹ We consider that similar sets of values arise within the DNA regime. The relevant law enforcement values were summarised by the Commission then as follows:¹⁵⁰

The law enforcement values reflect the public interest in the detection and prosecution of crime. They include the principles of effectiveness (fitness for purpose); simplicity (search powers should be devoid of unnecessary complexity and simply expressed); certainty (enforcement officers should be able to exercise the powers with confidence); responsiveness (powers need to be able to meet the exigencies that arise from different operational circumstances); and the need for consistency with human rights (enforcement agencies exist ultimately to protect rather than to control the community).

• 2.71 In the search context, the Commission did not see law enforcement values and human rights values as necessarily competing with one another:¹⁵¹

[W]hile there is a balance to be struck, there is also a good degree of complementarity between the two sets of values, particularly in a strong democratic state such as New Zealand. Search powers that encroach too far on human rights values are unlikely to gain legislative or community support. Similarly, investigative powers that are too tightly controlled and that prevent law enforcement officers from doing their job effectively will bring human rights norms into disrepute.

• 2.72 We consider the same view holds true in the context of the DNA regime.

¹⁴⁵ At [2.23].

146. See, for example, R v Toki [2017] NZCA 513, [2018] 2 NZLR 362 at [15]. The Court of Appeal in R v Toki also cited the following two judgments: R v T [1999] 2 NZLR 602 (CA) at 613; and R v Shaheed [2002] 2 NZLR 377 (CA) at [166]. See also Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [165] per Blanchard J who gave “any physical examination of a person” and “the taking of bodily samples” as examples of actions that would qualify as searches.

¹⁴⁷ R v B [1995] 2 NZLR 172 (CA) at 182 per Richardson J.

148. New Zealand Bill of Rights Act 1990, ss 5 and 21. Similarly, the International Covenant on Civil and Political Rights only protects against “arbitrary or unlawful” interference with privacy: International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), art 17.

¹⁴⁹ Te Aka Matua o te Ture | Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [2.6].

¹⁵⁰ At [5].

¹⁵¹ At [2.7].

Right against unreasonable search and seizure

• 2.73 Section 21 of the Bill of Rights Act is the principal expression of human rights values in the law enforcement investigative context.¹⁵² Section 21 guarantees the right of everyone “to be secure from unreasonable search and seizure, whether of the person, property, or correspondence, or otherwise”. A section 21 inquiry is an exercise “in balancing legitimate state interests against intrusions on individual interests”.¹⁵³ In R v Grayson and Taylor, the Court of Appeal said:¹⁵⁴

The guarantee under s 21 to be free from unreasonable search and seizure reflects an amalgam of values. A search of premises is an invasion of property rights and an intrusion on privacy. It may also involve a restraint on individual liberty and an affront to dignity. Any search is a significant invasion of individual freedom. How significant it is will depend on the circumstances. There may be other values and interests, including law enforcement considerations, which weigh in the particular case.

• 2.74 In Hamed v R, Chief Justice Elias also explained the role of section 21 as follows:¹⁵⁵

The right protects privacy but, more fundamentally, it holds a constitutional balance between the State and citizen by preserving space for individual freedom and protection against unlawful and arbitrary intrusion by State agents.

• 2.75 Section 21 applies where there is an intrusion upon a “reasonable expectation of privacy”.¹⁵⁶ In R v Alsford, the Supreme Court described this concept as follows:¹⁵⁷

The reasonable expectation of privacy is directed at protecting “a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination by the state” and includes information “which tends to reveal intimate details of the lifestyle and personal choices of the individual”.

• 2.76 The collection and use of DNA samples in criminal investigations clearly engages reasonable expectations of privacy. As the Court of Appeal noted in R v Williams, “the highest expectation of privacy relates to searches of the person and particularly intimate searches ... or invasive procedures, such as DNA testing”.¹⁵⁸ The Court of Appeal has also observed that issues about self-incrimination might arise if the strict procedural requirements under the CIBS Act relating to the DNA profile databank are not followed, as the databank grants law enforcement an “enduring ability” to identify a person’s presence at a particular place.¹⁵⁹ For these reasons, non-compliance with the

¹⁵² At [2.10].

¹⁵³ R v Jefferies [1993] NZCA 401; [1994] 1 NZLR 290 (CA) at 302 per Richardson J.

154. R v Grayson and Taylor [1997] 1 NZLR 399 (CA) at 407 as cited in Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [161].

¹⁵⁵ Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [10] (citations omitted).

¹⁵⁶ R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710 at [63]–[64]; and Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at

[160] and [163]. The concept of “reasonable expectations of privacy” also informed the Law Commission’s recommendations on search and surveillance powers, which were largely adopted in the Search and Surveillance Act 2012. See Te Aka Matua o te Ture | Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [2.46]– [2.49]; and Search and Surveillance Bill 2009 (45-1) (explanatory note) at 1.

¹⁵⁷ R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710 at [63] (citations omitted).

¹⁵⁸ R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [113]. See also our discussion at [2.57].

159. R v Toki [2017] NZCA 513, [2018] 2 NZLR 362 at [24]. See also Butland v R [2019] NZCA 376 at [49]–[50]. In Butland, the Court of Appeal observed that the values underpinning s 36 of the Criminal Investigations (Bodily Samples) Act 1995, which concerns the right to withdraw consent to the retention of a DNA profile on the databank, “are those of privacy and also the right of a person not to incriminate himself or herself”: at [49]. However, while the right against self-incrimination might underpin some aspects of the CIBS Act, it does not appear that obtaining a DNA sample

“comprehensive and prescriptive” regime for obtaining DNA samples under the CIBS Act has been held to amount to an unreasonable search and seizure under section 21.¹⁶⁰

• 2.77 In our view, in order for legislation governing the regime to be constitutionally sound, any intrusions on human rights values, including in particular privacy and bodily integrity, should be reasonable and proportionate to the law enforcement value and public interest in the collection and use of DNA in criminal investigations.

Are property rights engaged?

• 2.78 It is unclear whether the collection and use of DNA samples also engage property rights.¹⁶¹ As the Law Commission observed in 2007, where interferences with privacy encroach on a person’s property rights, “values additional to purely privacy interests are implicated”.¹⁶²
• 2.79 Property interests in human tissue have been recognised in some jurisdictions in limited contexts.¹⁶³ In Aotearoa New Zealand, however, it is a long-standing principle of the common law that “there can be no property in the dead body of a human being”.¹⁶⁴ In Re Lee, the High Court held that this includes genetic material extracted from a dead body.¹⁶⁵ It remains uncertain whether a person retains a property interest in their human tissue samples while they are alive.¹⁶⁶
• 2.80 In our view, recognising a property interest in human tissue would be out of step with contemporary emphasis on human dignity, which underpins the current judicial approach in relation to genetic material extracted from a dead body and the treatment of human tissue in other legislation.¹⁶⁷ The Human Tissue Act 2008, for example, is

interferes with the privilege against self-incrimination in s 60 of the Evidence Act 2006 or the right to refuse to make a statement in s 23(4) of the New Zealand Bill of Rights Act 1990. Those rights are focused on oral or written statements rather than physical evidence such as DNA samples, as we discussed in the Issues Paper at 50. See also Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [47]. This is consistent with the approach in England and Wales, as described in the Law Reform Commission of Ireland Consultation Paper on the Establishment of a DNA Database (LRC CP29, 2004) at [3.33]. However, in that paper, the Law Reform Commission of Ireland observed that issues of self-incrimination may arise if there is reliance on a person’s refusal to consent to provide a DNA sample: at [3.34]. See also Data Banks, Criminal Investigations, and Civil Liberties (Columbia University Press, New York, 2011) at 50–52; and Jeremy Gans “Something to Hide: DNA, Surveillance and Self-Incrimination” (2001) 13 CICJ 168.

¹⁶⁰ R v Toki [2017] NZCA 513, [2018] 2 NZLR 362 at [15] and [23]–[24]. See also R v Shaheed [2002] 2 NZLR 377 (CA) at

[6], [166]–[167] and [194]; R v T [1999] 2 NZLR 602 (CA) at 613–614; and R v Hoare CA310/04, 21 April 2005 at [34]–

[42]. Although as Shaheed also held, non-compliance may not necessarily lead to exclusion of the evidence under s 30 of the Evidence Act 2006.

¹⁶¹ See discussion in Issues Paper at ch 9.

¹⁶² Te Aka Matua o te Ture | Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [2.21].

163. Most case law focuses on the extent of property interests in sperm. For example, in Australia a deceased’s sperm may be treated as property, “at least to the extent that there is an entitlement to possession”: Re H, AE (No 2) [2012] SASC 177 at [58]. In England and Wales, the Court of Appeal held that, for the purposes of claims in negligence and bailment following damage to sperm maintained in a storage bank, the sperm donors had a property interest in their sperm: Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1. Similarly, in Canada sperm was held to constitute property in the context of a division of relationship property following separation: JCM v ANA 2012 BCSC 584, (2012) 349 DLR (4th) 471.

¹⁶⁴ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [113] citing Williams v Williams [1882] UKLawRpCh 60; (1882) 20 Ch D 659.

¹⁶⁵ Re Lee [2017] NZHC 3263, [2018] 2 NZLR 731 at [83]–[90].

166. Whether a property interest might be recognised in genetic material extracted from a body while that person is still alive was left as an open question in Re Lee [2017] NZHC 3263, [2018] 2 NZLR 731 at [91].
167. In Re Lee [2017] NZHC 3263, [2018] 2 NZLR 731 at [82], the High Court expressly rejected the earlier line of authority established by Doodeward v Spence (1908) 6 CLR 40 that there could be property in a dead body if it has been the

premised on “the gift status of human tissue”,¹⁶⁸ and its purpose is to help ensure that the collection or use of human tissue occurs only with proper recognition of and respect for “the autonomy and dignity of the individual”.¹⁶⁹ Accordingly, the Human Tissue Act prohibits a person from selling their own tissue or tissue from a body they are responsible for.¹⁷⁰

• 2.81 Recognising property interests in human tissue also risks conflicting with tikanga Māori. The Biobanking Guidelines discussed above explain that Māori consider human tissue to be a taonga and is tapu.¹⁷¹ In the context of health research, the donation of human tissue to be stored on a biobank engages tākoha (a gifting of responsibility rather than a gifting of the human tissue itself) and kaitiakitanga (a form of guardianship with a responsibility to look after specific resources).¹⁷² These concepts are difficult to reconcile with traditional understandings of property rights such as rights of ownership, possession and quiet enjoyment of property.¹⁷³
• 2.82 Given the legal uncertainty and the significant implications of recognising property interests in DNA samples, we prefer to frame our analysis of the DNA regime through the lenses of privacy and bodily integrity.

CONCLUSION

• 2.83 This review raises important constitutional values and principles. In the discussion above, we have highlighted the implications arising from the Treaty, tikanga Māori and human rights values for our review. In the following chapter, we consider the CIBS Act against these values and principles. In the remainder of this Report, we then explore the implications of the Treaty, tikanga and human rights values for specific aspects of the DNA regime and make recommendations to ensure that the collection and use of DNA in criminal investigations is facilitated in a manner that is constitutionally sound.

subject of work and skill (that case concerned a dispute over whether the preserved body of a still-born baby, born 40 years earlier, was “property” in respect of which an action for detinue could be brought). The Court observed that “contemporary society views the use of human remains very differently”, and that comments made by the Court in Doodeward “insult ... the dignity of the still-born child” and “represent a view that differs significantly from modern New Zealand Law”: at [85] and [88]. The Court also observed that Doodeward is inconsistent with the scheme and purpose of the Human Assisted Reproductive Technology Act 2004: at [89] (see n 170 below).

¹⁶⁸ Human Tissue Bill 2006 (82-2) (select committee report) at 6.

¹⁶⁹ Human Tissue Act 2008, s 3(a)(i).

170. Sections 3(c) and 56. See also the Human Assisted Reproductive Technology Act 2004, which protects and promotes the dignity and rights of all individuals in the use of assisted reproductive procedures and human reproductive research (ss 3(a) and 4(b)) and prohibits certain commercial transactions in relation to human reproduction (s 3(c)).
171. Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake | Māori and Indigenous Governance Centre, October 2016) at 8.
172. At 25–26. Under kaitiakitanga, individuals and/or communities should retain veto rights over how human tissue or data are used.
173. In a submission to the Law Commission on its review of the Coroners Act 1988, Te Mana Hauora o Te Arawa submitted that “Māori will not agree to anyone lawfully possessing their body” and raised the common Māori unease about notions of “ownership”: Te Aka Matua o te Ture | Law Commission Coroners (NZLC R62, 2000) at [217].

CHAPTER 3

A new Act

INTRODUCTION

• 3.1 In this chapter, we outline the fundamental problems with the CIBS Act and propose a new comprehensive statute to regulate the collection and use of DNA in criminal investigations.
• 3.2 The rest of this Report considers in detail each aspect of the DNA regime and makes recommendations for reform to ensure the new statute meets our objectives of being fit for purpose, constitutionally sound and accessible.

FUNDAMENTAL PROBLEMS WITH THE CIBS ACT

• 3.3 There are six fundamental problems with the CIBS Act.¹ An underlying theme of these problems is the rapid pace of scientific development in DNA technology over the last 25 years. This has seen the utility of DNA in criminal investigations grow exponentially in ways not anticipated by the drafters of the original Act.
• 3.4 The fundamental problems are that the CIBS Act:

(a) lacks a clear, robust purpose;

(b) fails to recognise and provide for tikanga Māori and te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty);

(c) fails to properly accommodate human rights values;

(d) is not comprehensive;

(e) is confusing and complex; and

(f) makes no provision for independent oversight.

• 3.5 In light of these problems, we have formed the view that the CIBS Act is no longer fit for purpose, constitutionally sound or accessible. We discuss these problems below.

The CIBS Act lacks a clear, robust purpose

• 3.6 If legislation is to be fit for purpose, it must have a clearly defined and robust purpose, and its operative provisions should reflect the policy objectives that underpin that purpose.² Our view is that the purpose of the CIBS Act and its underpinning policy objectives are unclear.

1. The discussion in this section reflects and builds on our discussion of the fundamental problems identified in ch 4 of the Issues Paper.

² Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 8.

• 3.7 There is no purpose provision in the CIBS Act that explains what Parliament intended to achieve in passing the legislation.³ Our review of the parliamentary debates and surrounding policy documents indicates that the original policy objectives of the CIBS Act were to:⁴

(a) improve the identification and prosecution of offenders in sexual and serious violent offending;

(b) enable early elimination of suspects and exoneration of innocent people;

(c) deter criminal offending; and

(d) reduce policing costs.

• 3.8 These policy objectives are problematic for several reasons. The first objective does not reflect the changing role of DNA in criminal investigations over the past 25 years, which we explore below. In relation to the second objective, the early elimination of suspects is difficult to separate from the objective of identifying and prosecuting offenders (for example, suspect samples may be obtained to “confirm or disprove” a suspect’s involvement).⁵ These objectives are, in effect, different sides of the same coin rather than separate objectives. In relation to exoneration, it is unclear whether Parliament intended the CIBS Act to promote the exoneration of people wrongly convicted if new DNA evidence comes to light. If this was an objective, the CIBS Act fails to provide for this in its operative provisions.⁶ Finally, we have concerns regarding the merit of deterrence and reduced policing costs as stand-alone objectives for the reasons we explore further below.

The changing role of DNA in criminal investigations

• 3.9 There is no doubt that DNA has been used to identify and prosecute sexual and serious violent offenders who might otherwise not have been apprehended.⁷ However, what was not anticipated in 1995 is how instrumental DNA would become in resolving property crime, which includes less serious offending such as general theft, burglary or vehicle crime (unlawful taking of and/or theft from vehicles).
• 3.10 The increasing reliance on DNA to resolve property crime is largely due to improvements in DNA technology. When the CIBS Act was first enacted in 1995, the only reliable sampling methods involved taking a blood sample, which was considered a grave intrusion on bodily integrity. Therefore, Police was only given powers to require a

3. The long title of the Criminal Investigations (Bodily Samples) Act 1995 simply explains the legal effect of the legislation, rather than identifying broader objectives that the Act will achieve.
4. See Office of the Minister of Justice “Memorandum for Cabinet Social and Family Policy Committee: Enforcement, Prosecution and Sentencing – Part G Obtaining Blood Samples from Certain Convicted Offenders for the Purpose of a DNA Databank” (July 1994) at 2. See also (29 November 1994) 545 NZPD 5191; and (10 August 1995) 549 NZPD 8634. For further discussion of these objectives, see the Issues Paper at [2.20]–[2.31].

⁵ Criminal Investigations (Bodily Samples) Act 1995, s 6(1).

6. In Chapter 5, we discuss the role of the recently established Criminal Cases Review Commission in the oversight of the DNA regime. The primary function of the Commission is to “investigate and review convictions and sentences and decide whether to refer them to the appeal court”: Criminal Cases Review Commission Act 2019, s 11.
7. High-profile examples include the 2002 conviction of Jules Mikus for the abduction, rape and murder of Teresa Cormack in 1987 and the conviction of Jarrod Mangels for the murder of Maureen McKinnel, 16 years after her death. See ESR A Brief History of Forensic DNA 1990–2010: Marking 20 Years of DNA Analysis for the New Zealand Criminal Justice System (February 2010).

suspect or offender to provide a sample in respect of serious offending.⁸ The process of analysing DNA samples was also expensive, and a relatively large crime scene sample was needed in order to generate a DNA profile for comparison.⁹ For these reasons, it was still relatively novel for Police to use DNA in criminal investigations.

• 3.11 Improvements in DNA technology resulted in amendments to the CIBS Act in 2003.¹⁰ A new, less physically invasive form of sampling was introduced — buccal sampling — which involves rubbing a swab on the inside of a person’s mouth and can be self- administered by the person providing the DNA sample. At the same time, the scope of offences for which DNA samples could be required from suspects and offenders was broadened to include less serious offending. Further major amendments in 2009 lowered the offence threshold even further to enable police officers to require DNA samples in respect of any imprisonable offence.¹¹ Police officers were also given new powers to require a DNA sample from any person arrested or intended to be charged with a qualifying offence and to hold that person’s DNA profile on a temporary databank.¹² As sampling methods became less invasive, improvements in DNA technology also meant that scientists could generate a DNA profile from a crime scene sample as small as the traces of skin left in a fingerprint, making DNA an effective tool in identifying suspects in property offending.
• 3.12 These developments have broadened the operation of the DNA regime beyond the original policy intent of the CIBS Act. Around three-quarters of DNA profiles from crime scene samples uploaded to the Crime Sample Databank now relate to property crime.¹³ While there is a public interest in resolving property crime, the weight assigned to that interest and how it is accommodated alongside other values and interests engaged by the collection and use of DNA may be different compared to the interest in resolving sexual and serious violent offending.¹⁴

8. As enacted, Part A of the Schedule to the Criminal Investigations (Blood Samples) Act 1995 listed 32 serious sexual or violent crimes for which DNA samples could be taken pursuant to a suspect compulsion order. A databank compulsion order could be obtained in relation to those offences and two further offences listed in Part B of the Schedule: burglary and entering with intent. These were considered precursors to the more serious offences listed in Part A. Police could, however, obtain samples by consent for less serious offending.

⁹ For example, a blood stain at a crime scene would need to be about the size of an old 50 cent coin.

¹⁰ Criminal Investigations (Bodily Samples) Amendment Act 2003.

11. These amendments are reflected in ss 5(a) and 39 of the Criminal Investigations (Bodily Samples) Act 1995. These provisions authorise collection of a DNA sample in relation to any imprisonable offence or any offence listed in Part 3 of Schedule 1 of the Act. Part 3 of Schedule 1 was also introduced in 2009 and includes a range of minor offences. Notably, however, all but one of the offences listed in Part 3 are imprisonable. The single exception is the offence of peeping or peering into a dwellinghouse, which is an offence under s 30 of the Summary Offences Act 1981, punishable by a maximum fine of $500.
12. Police can require a sample on arrest or intention to charge from an adult in respect of any imprisonable offence, and from a young person in respect of a narrower range of “relevant offences”, the offences listed in Schedule 1, any offence punishable by a term of imprisonment of seven years or more and any attempts or conspiracies to commit such offences. See s 2 definition of “relevant offence” and ss 24J and 24K.
13. This is referred to as “non-suspect volume crime”, which describes cases involving general theft, burglary or vehicle crime where no suspect sample is available for comparison.
14. Public understandings and expectations regarding DNA in criminal investigations were explored in a New Zealand phone survey of 394 respondents. The survey asked respondents to indicate how important they thought DNA evidence would be, if they were a judge or juror, for four different types of crime. The more serious the crime, the more important the DNA evidence was seen to be. The results were as follows: 85.5 per cent said that DNA evidence would be vital or important in a sexual offence; 72.2 per cent in a major assault; 28 per cent in a major theft; and only

15.3 per cent in a minor theft: Cate Curtis “Public Understandings of the Forensic Use of DNA: Positivity, Misunderstandings, and Cultural Concerns” (2014) 34 BSTS 21 at 28.

Deterrence an unrealistic objective

• 3.13 The objective of deterrence is not reflected in the CIBS Act and in our view is an unrealistic policy objective. Evidence on whether a DNA regime deters offending is inconclusive. Some studies suggest that, to the extent DNA databanks deter offending at all, the effect is minimal, while others claim a significant deterrent effect.¹⁵ We have been unable to reconcile these studies given the different methodologies adopted and therefore do not draw any conclusions from them.¹⁶
• 3.14 In any event, deterrence depends on offenders undertaking a cost-benefit analysis before choosing to offend. This typically does not happen, especially in the context of spontaneous violent offending.¹⁷ Even when this mental calculation does occur, offenders often do not appreciate that DNA evidence increases the risk of apprehension.¹⁸ Alternatively, offenders may believe they can avoid forensic detection by employing countermeasures.¹⁹ Some research even suggests that retaining DNA profiles creates barriers for the rehabilitation of offenders, which may increase the risk of recidivism for some individuals.²⁰ For these reasons and in the absence of clear and compelling evidence that supports a DNA regime in Aotearoa New Zealand having a deterrent effect on offending, we do not support this as a policy objective.

Cost-effectiveness of the DNA regime unclear

• 3.15 We are not aware of any evidence to suggest that the collection and use of DNA in criminal investigations reduces policing costs. This is difficult to measure as very little information is routinely collected and analysed to show how efficient or effective the CIBS Act is in achieving the objectives of identifying and prosecuting offenders. For example, the number of matches between the Crime Sample Databank and the DNA Profile Databank and Temporary Databank are reported annually, but there is no data

15. Avinash Bhati and Caterina G Roman “Evaluating and Quantifying the Specific Deterrent Effects of DNA Databases” (2014) 38 Eval Rev 68 at 86–88. For a contrary view, see Jennifer L Doleac “The Effects of DNA Databases on Crime” (2017) 9 AEJ: Applied Economics 165 at 166–167; and Anne Sofie Tegner Anker, Jennifer L Doleac and Rasmus Landersø “The Effects of DNA Databases on the Deterrence and Detection of Offenders” (1 April 2020) Social Science Research Network <www.ssrn.com> at 24. These latter two studies found a high degree of deterrence.
16. Dr Russil Durrant, a criminologist based at Te Herenga Waka | Victoria University of Wellington, reviewed the articles above n 15 for the Commission. He concluded that the literature, as it stands, does not allow any clear conclusions to be drawn about the potential deterrent effect of DNA databases, as each study has used different methodologies, each producing different results. He noted that the results are not too dissimilar to research that has examined the putative deterrent effects of policy changes such as the death penalty and three-strikes laws in the United States where there are also highly variable findings, which appear to be strongly influenced by the specific methodology employed.
17. Nessa Lynch and Liz Campbell The Collection and Retention of DNA from Suspects in New Zealand (Victoria University Press, Wellington, 2015) at 59.
18. Marie-Amélie George “Gendered Crime, Raced Justice: A Critical Race Feminist Approach to Forensic DNA Databank Expansion” (2005) 19 Nat’l Black LJ 78 at 87 found that databanks are not a deterrent as humans are cognitively biased “towards optimism and overconfidence” and “underestimate the likelihood of a future negative outcome”.
19. See Carlos Jordi “Diminished Returns: The Exorbitance of Collecting DNA from all Arrestees” (2015) 26 St Thomas L Rev 346 at 367–368 where the author notes that offenders avoid detection in a number of ways such as intentionally contaminating DNA evidence so that it is unreadable by forensic scientists and avoiding leaving cigarette butts in the vicinity of their offending.
20. Jason Tarricone “‘An Ordinary Citizen Just Like Everyone Else’: The Indefinite Retention of Former Offenders’ DNA” (2005) 2 CRCL 209 at 243–254. See also Nessa Lynch and Liz Campbell The Collection and Retention of DNA from Suspects in New Zealand (Victoria University Press, Wellington, 2015) at 60.

on how often these matches assist in resolving the associated criminal investigations.²¹ As we explore in Chapter 4, this problem is not unique to Aotearoa New Zealand. Difficulties assessing the effectiveness of DNA regimes is a significant problem worldwide.

The CIBS Act does not recognise and provide for tikanga Māori and the Treaty

• 3.16 In Chapter 2, we explain that DNA holds special significance in te ao Māori and that its collection and use in criminal investigations engages rights and obligations under the Treaty, including the right to exercise tino rangatiratanga in accordance with tikanga. We identified applicable tikanga as including personal tapu and mana, whakapapa, whanaungatanga, manaakitanga and kaitiakitanga. As Māui Hudson observes:²²

The interaction of [Māori] cultural values and forensic practice has some potential to create offense. These concerns can only be resolved by firstly, recognizing that the concerns exist, and secondly, including affected parties (i.e., Māori) in the development of the processes and procedures aimed at managing the issues arising from conflicting values.

• 3.17 There is, however, no statutory recognition in the CIBS Act of tikanga Māori or the Treaty, no provision for tikanga in the collection and use of DNA and no provision for the exercise of Treaty rights and obligations. In Chapter 2, we say that, for DNA legislation to be constitutionally sound, it should, at a minimum, provide a framework for Māori to articulate their rights and interests in the DNA regime and to participate in oversight of the DNA regime. In our view, the CIBS Act’s failure to do so is inconsistent with the Treaty guarantee of tino rangatiratanga and with the Treaty principles of partnership and active protection of Māori interests.

Over-representation of Māori in the DNA regime

• 3.18 A further concern is that the CIBS Act fails to recognise the over-representation of Māori in the DNA regime. As we explore in Chapter 2, the Crown has an obligation under the Treaty to act fairly to reduce inequities between Māori and non-Māori. There are, however, no measures in the CIBS Act to support this obligation, such as reporting requirements or, as we discuss below, independent oversight of the DNA regime.
• 3.19 Māori are over-represented in the collection of DNA samples under the CIBS Act. While Māori comprise around 16.5 per cent of the general population,²³ since 2009, Māori have represented between 38 and 41 per cent of all DNA samples obtained from people on arrest or intention to charge.²⁴ Te Mana Raraunga | Māori Data Sovereignty Network

²¹ Reporting requirements are discussed further in Chapter 5.

22. Maui Hudson and others “The Impact of Māori Cultural Values on Forensic Science Practice in New Zealand” (2008) 53 JFS 380 at 382.
23. As reported in the 2018 Census: Tatauranga Aotearoa | Stats NZ “New Zealand’s population reflects growing diversity” (23 September 2019) <www.stats.govt.nz>.
24. This is based on data Police has been required to report on since 2009, pursuant to s 76(2) of the Criminal Investigations (Bodily Samples) Act 1995. Our calculations are based on data reported in Ngā Pirihimana o Aotearoa | New Zealand Police Annual Report 2010–2011 (October 2011) at 113; Ngā Pirihimana o Aotearoa | New Zealand Police Annual Report 2011–2012 (October 2012) at 95; Ngā Pirihimana o Aotearoa | New Zealand Police Annual Report 2012– 2013 (October 2013) at 113; Ngā Pirihimana o Aotearoa | New Zealand Police Annual Report 2013–2014 (October 2014) at 131; Ngā Pirihimana o Aotearoa | New Zealand Police Annual Report 2014–2015 (October 2015) at 153; Ngā Pirihimana o Aotearoa | New Zealand Police Annual Report 2015–2016 (October 2016) at 155; Ngā Pirihimana o Aotearoa | New Zealand Police Annual Report 2016–2017 (November 2017) at 143; Ngā Pirihimana o Aotearoa | New

analysed these statistics and identified that Māori are around five times more likely to have a DNA sample taken on arrest or intention to charge than a person of European ethnicity.²⁵ While this data provides an incomplete picture,²⁶ it is reasonable to infer that similar levels of over-representation exist across the DNA regime.²⁷

• 3.20 Māori over-representation in the DNA regime is part of a much broader problem of Māori over-representation in the criminal justice system, both as offenders and as victims. In 2019–2020, Māori represented 44.5 per cent of adults convicted of a criminal offence and 62.2 per cent of those sentenced to imprisonment.²⁸ The figures are even more alarming for Māori women, children and young people. Māori represent 51.4 per cent of adult women convicted of a criminal offence and 69.7 per cent of adult women sentenced to imprisonment.²⁹ In relation to children and young people, Māori also represent 61.9 per cent of those charged in court and 65.8 per cent of those given an order in court.³⁰
• 3.21 Māori are also significantly more likely to be victims of crime than non-Māori. A 2018– 2019 survey found that 38 per cent of Māori were victims of crime compared to the New Zealand average of 30 per cent.³¹
• 3.22 The causes of Māori over-representation in the criminal justice system are multiple and complex.³² In its first report, Te Uepū Hāpai i te Ora | Safe and Effective Justice Advisory Group observed:³³

Zealand Police Annual Report 2017–2018 (October 2018) at 148; and Ngā Pirihimana o Aotearoa | New Zealand Police

Annual Report 2018–2019 (November 2019) at 169.

25. Te Mana Raraunga Submission to Law Commission at [10]. This is based on data from the 2017–2018 reporting year, which shows that 5,699 DNA samples were taken under Part 2B of the CIBS Act from Māori, compared to 5,766 samples taken from European people. Using that same methodology and updating the figures with more up-to-date information reveals an even higher disparity, with the number of samples taken from Māori representing around 0.6 per cent of the Māori population, while the number of DNA samples taken from people with European ethnicity representing just 0.1 per cent of the European population. This calculation is based on data reported in Ngā Pirihimana o Aotearoa | New Zealand Police Annual Report 2018–2019 (November 2019) at 169 and uses 2018 Census results on population and ethnicity from Tatauranga Aotearoa | Stats NZ “New Zealand’s population reflects growing diversity” (23 September 2019) <www.stats.govt.nz>.
26. Police is not required to report on the ethnicity of people who provide suspect samples under Part 2 or databank samples under Part 3 of the CIBS Act and nor does Police report on the ethnic breakdown of all DNA profiles stored on the DNA Profile Databank.
27. Our review in the Issues Paper at [11.72]–[11.73] of additional data provided by Police on the ethnicity of profiles added to the DNA Profile Databank between the 2012–2013 and 2017–2018 reporting years identified a very similar ethnic breakdown to that of DNA samples taken on arrest or intention to charge under Part 2B. We also noted that the ethnicity breakdown of DNA samples taken on arrest or intention to charge broadly equated to the ethnicity percentages recorded by Tatauranga Aotearoa | Stats NZ regarding apprehensions: at [11.70]–[11.71].
28. Tatauranga Aotearoa | Stats NZ “Adults Convicted in Court by Sentence Type – Most Serious Offence Fiscal Year” (2019/20) <nzdotstat.stats.govt.nz>.
29. Tatauranga Aotearoa | Stats NZ “Adults Convicted in Court by Sentence Type – Most Serious Offence Fiscal Year” (2019/20) <nzdotstat.stats.govt.nz>.
30. Tatauranga Aotearoa | Stats NZ “Children and Young People Given an Order in Court – Most Serious Offence Fiscal Year” (2019/20) <nzdotstat.stats.govt.nz>. These are statistics for children and young people who are subject to an order under s 283 of the Oranga Tamariki Act 1989 in the Youth Court or who are convicted and sentenced in the District Court or High Court. See Chapter 21 for further discussion.
31. Tāhū o te Ture | Ministry of Justice New Zealand Crime and Victims Survey Key Findings Cycle 2 (October 2018– September 2019) Descriptive statistics (2020) at 3.
32. See Peter Gluckman It’s never too early, never too late: A discussion paper on preventing youth offending in New Zealand (Office of the Prime Minister’s Chief Science Advisor, 12 June 2018) at 24–25; and Peter Gluckman Using evidence to build a better justice system: The challenge of rising prison costs (Office of the Prime Minister’s Chief

The data tells the story that, at every point in their lives, and over generations, Māori experience disadvantage that increases the risk they will come into contact with the criminal justice system. Poorer physical and mental health, education, housing and employment outcomes significantly reduce their ability to participate in and contribute meaningfully to their whānau, communities and wider society.

• 3.23 Several initiatives are underway to address the broader problem of Māori over- representation in the criminal justice system.³⁴ The DNA regime is a small but important aspect of the wider criminal justice system. As the Court of Appeal has observed, retaining a person’s DNA on a DNA databank “enables the state to conduct ongoing surveillance ... with molecular precision”.³⁵ We therefore consider that constitutionally sound DNA legislation should provide a framework for enabling the Crown to take reasonable steps to reduce inequities in the collection and use of DNA as part of these wider efforts.

Recognition and provision for tikanga and the Treaty in other statutes

• 3.24 The CIBS Act’s failure to recognise tikanga Māori and the Treaty can be contrasted with statutes that regulate other areas where Māori have clear rights and interests. Traditionally, this has included statutes governing physical resources and the environment,³⁶ but more recently, Treaty obligations have been recognised in other areas such as health, education, housing and the wellbeing of children and young people.³⁷ Where legislation is recognised as engaging Māori rights and interests, it is common to require Māori participation in decision making or in an advisory capacity³⁸

Science Advisor, 29 March 2018) at 18. See generally Ara Poutama Aotearoa | Department of Corrections Over- representation of Māori in the criminal justice system: An exploratory report (September 2007).

33. Te Uepū Hāpai i te Ora | Safe and Effective Justice Advisory Group He Waka Roimata: Transforming Our Criminal Justice System (9 June 2019) at 23.
34. The Government announced a new direction for criminal justice reform in response to recommendations made in Te Uepū Hāpai i te Ora | Safe and Effective Justice Advisory Group Turuki! Turuki! Move Together! (December 2019). See Andrew Little “New direction for criminal justice reform” (12 December 2019) Beehive: The Official Website of the New Zealand Government <www.beehive.govt.nz>. In addition, in November 2019, Police launched its refreshed strategy to address Māori over-representation in the criminal justice system through a whānau ora approach to crime prevention: Ngā Pirihimana o Aotearoa | New Zealand Police Te Huringa o Te Tai: A Whānau Ora Crime and Crash Prevention Strategy (November 2019). Te Huringa o Te Tai recognises the need to adopt a te ao Māori view, to focus on a whānau ora approach of co-design and to involve Māori at all levels of designing, planning and delivery: at 16–17.

³⁵ R v Toki [2017] NZCA 513, [2018] 2 NZLR 362 at [24].

36. See, for example, the Environmental Protection Authority Act 2011, s 4; Climate Change Response Act 2002, s 3A; Crown Minerals Act 1991, s 4; Resource Management Act 1991, s 8; and State-Owned Enterprises Act 1986, s 9.
37. See, for example, the New Zealand Public Health and Disability Act 2000, s 4; and Kāinga Ora – Homes and Communities Act 2019, s 4. The Education and Training Bill 2019 (193-2) received Royal Assent on 31 July 2020 and included amendments “aimed at giving better effect to” te Tiriti o Waitangi | the Treaty of Waitangi: Education and Training Bill 2019 (193-1) (explanatory note) at 6. The purpose of the Education and Training Act 2020 is to establish and regulate a system that, amongst other things, “honours Te Tiriti o Waitangi and supports Māori-Crown relationships”: s 4(d). See also the Mental Health and Wellbeing Commission Act 2020, s 3 (not yet in force); and s 7AA of the Oranga Tamariki Act 1989 (which came into force on 1 July 2019).
38. For example, s 19 of the Environmental Protection Authority Act 2011 establishes a Māori Advisory Committee to provide advice and assistance from the Māori perspective to the Environmental Protection Authority (EPA) on various matters relating to the EPA’s role. Section 17 of Taumata Arowai – the Water Services Regulator Act 2020 similarly provides for the establishment of a Māori Advisory Group to advise the new water services regulator on Māori interests and knowledge. In the area of health, the Health (Cervical Screening (Kaitiaki)) Regulations 1995 establish the National Kaitiaki Group, responsible for considering and granting applications to disclose, use or publish information held on the National Cervical Screening Register that belong to Māori women. Section 116A of the Coroners Act 2006 also requires that the suicide and media expert panel, responsible for advising the chief coroner, includes at least one member with expertise in tikanga Māori and at least one member with expertise in Māori youth suicide.

and to ensure all decision makers have the capability and capacity to uphold the Treaty, to engage with Māori and to understand the perspectives of Māori.³⁹ In areas where Māori are experiencing inequitable outcomes, additional measures such as special reporting requirements and setting measurable outcomes might also be used.⁴⁰

• 3.25 Other legislation that governs the use of human tissue, including the Human Tissue Act 2008 and the Coroners Act 2006, discussed at paragraph 3.36 below, recognises that the collection and examination of human tissue can have cultural and spiritual implications, including for Māori, and provide opportunities for tikanga-based practices where appropriate.⁴¹

The CIBS Act does not accommodate human rights values

• 3.26 We consider that the CIBS Act fails to properly accommodate the human rights values engaged by the collection and use of DNA in criminal investigations highlighted in Chapter 2, including the rights to privacy, bodily integrity, freedom from discrimination and the rule of law. In doing so, the CIBS Act is out of step with other, more recent legislation in comparable areas.
• 3.27 The CIBS Act fails to address human rights values in three key respects.
• 3.28 First, there is no statutory recognition of the need to accommodate human rights values alongside law enforcement values. There is no purpose provision in the CIBS Act, as discussed above, and no statement of guiding principles. While the CIBS Act grants police officers broad powers to request and, in some situations, require a person to provide a DNA sample, there is no statutory guidance on how those powers should be exercised. Rather, these powers are exercised pursuant to internal Police policy, which is not easily accessible to others or subject to robust independent oversight. We also have concerns that current Police policy risks discriminating against suspects on grounds of ethnicity and age.⁴² In addition, the CIBS Act fails to provide adequate guidance to the courts on the matters relevant to the exercise of judicial discretion, particularly in relation to granting suspect compulsion orders.⁴³
• 3.29 Second, some of the broad powers granted to police officers under the CIBS Act to collect, use and retain DNA appear to be inconsistent with human rights values. As noted above, in 2009, amendments to the CIBS Act granted police officers the power

39. See, for example, Kāinga Ora – Homes and Communities Act 2019, ss 4(a) and 11(1)(b); Criminal Cases Review Commission Act 2019, ss 9(2) and 15(3); Climate Change Response Act 2002, s 5H(1)(d); Mental Health and Wellbeing Commission Act 2020, ss 3 and 9(1); and Taumata Arowai – the Water Services Regulator Act 2020, ss 5 and 19.
40. For example, in 2018, the Children’s Act 2014 was amended to require the Minister responsible for the Child and Youth Wellbeing Strategy to include special reporting requirements in relation to Māori children in its annual reports “in order to recognise and provide a practical commitment to the Treaty of Waitangi (te Tiriti o Waitangi)”: s 4A. See also s 7AA(2)(a) of the Oranga Tamariki Act 1989.
41. For example, s 18 of the Human Tissue Act 2008 provides that a person collecting or using human tissue “must take into account ... the cultural and spiritual needs, values, and beliefs of the immediate family of the individual whose tissue is collected or used”. Section 26(2)(ea) of the Coroners Act 2006 requires a coroner to take into account customs or spiritual beliefs when considering whether to authorise a person to view, touch or remain with or near a body under s 25 of the Act. This includes consideration of “the customary requirement that immediate family members be able to view, touch, or remain with or near the body according to tikanga Māori”.
42. Our concerns relating to internal Police guidance (set out in the Police Manual) and its potential to discriminate on the grounds of ethnicity and age are discussed in Chapters 18 and 21.
43. Under ss 16 and 23 of the Act, a District Court or High Court Judge may make an order requiring a suspect to give a bodily sample if satisfied that, among other things, “it is reasonable to make the order”, but there is no express reference to the need to consider human rights values when undertaking this assessment.

to require a DNA sample from any person arrested or intended to be charged. In addition, the power to require a DNA sample from an offender and retain their DNA on a DNA profile databank indefinitely was broadened to include all offenders convicted of any imprisonable offence. At the time these amendments were introduced, the Attorney-General reported to Parliament that the amendments appeared to be inconsistent with the right to be secure against unreasonable search and seizure affirmed in section 21 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).⁴⁴ The Attorney-General’s view was that section 21 (alongside broader privacy rights and the rule of law) requires “a specific and sufficient basis” for taking a DNA sample and, absent emergency or other special circumstances, prior independent approval.⁴⁵ The Attorney-General affirmed this view in 2015 when the CIBS Act was extended to returning offenders.⁴⁶ We explore this issue in detail in Chapter 18.

• 3.30 Third, advances in DNA technology raise unique human rights concerns that the CIBS Act fails to address. In 1995, when the legislation was first introduced, there was a stronger emphasis on protecting intrusions on bodily integrity rather than on informational privacy.⁴⁷ There was little consideration of what DNA analysis involved.⁴⁸ Initially it was believed that DNA profiling targeted “junk” DNA that revealed no personal information beyond sex. However, scientists’ understanding of DNA has grown exponentially in recent years. It is now understood that there is no such thing as “junk” DNA.⁴⁹ Further, as we explain in Chapter 6, vast amounts of information about a person can now be generated from a DNA sample as small as a few skin cells. The CIBS Act does not impose any limits on the amount of information that can be derived from a DNA sample or regulate how a DNA sample should be analysed.
• 3.31 New DNA analysis techniques and ways of using DNA profiles have also been developed and will continue to develop in future. This includes forensic DNA phenotyping (discussed in Chapter 14), which aims to predict a person’s physical appearance, and familial searching (discussed in Chapter 23), which aims to identify suspects through their family members. As we discuss in Chapter 6, it is even possible that whole genome sequencing will become a routine part of the DNA analysis process.

44. Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Criminal Investigations (Bodily Samples) Amendment Bill (10 February 2009).

⁴⁵ At [2.2] and [7]–[8].

46. Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Returning Offenders (Management and Information) Bill (18 December 2015) at [35]–[36].
47. Under the Criminal Investigations (Blood Samples) Act 1995 as enacted, only blood samples could be taken, and these could only be taken by a medical practitioner or, with the agreement of the person providing the sample, a registered nurse: s 49. A person providing a blood sample was entitled to have a medical practitioner, a lawyer and one other person present with them when the sample was taken (s 50(1)(a)) and a blood sample had to be taken “in circumstances affording reasonable privacy” to the person providing the sample: s 53. While the duty to afford a person reasonable privacy remains, the introduction of buccal sampling, which can be self-administered under the supervision of a police officer, and Part 2B, which provides for DNA samples to be taken on arrest or intention to charge, have resulted in a softening of these procedural safeguards.
48. During the extensive debates on the original Criminal Investigations (Blood Samples) Bill, only three Members of Parliament commented on the amount of personal information that DNA analysis could potentially reveal. Judith Tizard (25 July 1995) 549 NZPD 8079 and (10 August 1995) 549 NZPD 8630 expressed concerns about access to health information and information about genetic relationships; Tau Henare (10 August 1995) 549 NZPD 8636 highlighted that victims’ DNA profiles could be used against them in later investigations and commented that the profiles could be used to define who is Māori; and Richard Northey (12 October 1995) 551 NZPD 9724 alluded to the possibility of familial searching.

⁴⁹ This is discussed in Chapter 6.

Whether these advances in technology should be utilised in the context of criminal investigations raises significant human rights issues that the CIBS Act fails to address.

Comparing CIBS Act to statutory regimes in comparable areas

• 3.32 The inadequate focus on human rights values in the CIBS Act is out of step with more recent legislation in the wider law enforcement and security and intelligence contexts.
• 3.33 The Search and Surveillance Act 2012 was introduced in response to the Commission’s 2007 report on search and surveillance powers and was intended to “provide a coherent, consistent and certain approach in balancing the complementary values of law enforcement and human rights”.⁵⁰ The purpose of the Search and Surveillance Act is described in section 5:

The purpose of this Act is to facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values by—

(a) modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies; and

(b) providing rules that recognise the importance of the rights and entitlements affirmed in other enactments, including the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, and the Evidence Act 2006; and

(c) ensuring investigative tools are effective and adequate for law enforcement needs.

• 3.34 More recently, Parliament enacted the Intelligence and Security Act 2017 to reform the law applying to New Zealand’s intelligence and security agencies to reflect “New Zealand’s long-standing commitment to human rights, democracy, accountability and the rule of law”.⁵¹ The purpose of the Intelligence and Security Act “is to protect New Zealand as a free, open, and democratic society”, including by:⁵²

... ensuring that the functions of the intelligence and security agencies are performed—

(i) in accordance with New Zealand law and all human rights obligations recognised by New Zealand law; and

(ii) with integrity and professionalism; and

(iii) in a manner that facilitates effective democratic oversight ...

• 3.35 The Intelligence and Security Act further recognises the importance of human rights values by elevating human rights considerations amongst new principles and decision- making criteria.⁵³ The role of the oversight body, the Inspector-General of Intelligence and Security, was also expanded to include conducting inquiries into any matter relating to compliance with human rights law.⁵⁴
• 3.36 The CIBS Act can also be contrasted with other legislation that governs the collection and use of human tissue. The Human Tissue Act recognises that the collection of human tissue by the State engages human rights values of individual autonomy and dignity. It also recognises that the collection and use of human tissue will have cultural, ethical and

⁵⁰ Search and Surveillance Bill 2009 (45-1) (explanatory note) at 1.

⁵¹ New Zealand Intelligence and Security Bill 2016 (158-1) (explanatory note) at 2.

⁵² Intelligence and Security Act 2017, s 3(c). ⁵³ Sections 10(3), 12(7), 18(b) and 158(1)(a). ⁵⁴ Section 158(1)(a).

spiritual implications that should be recognised and respected.⁵⁵ Similarly, the Coroners Act recognises the cultural and spiritual needs of family and whānau in circumstances where a person has died, including considerations around retention of bodily samples.⁵⁶

The CIBS Act is not comprehensive

• 3.37 A further fundamental problem with the CIBS Act is that it does not comprehensively regulate all aspects of the DNA regime. Significant gaps include the following:

(a) DNA samples collected from crime scenes. The CIBS Act does not regulate the collection and retention of DNA samples from crime scenes or the retention of crime scene profiles on a databank. Such a databank has existed since the CIBS Act was enacted and is an integral part of the DNA regime. These issues are discussed in Chapters 13, 16 and 17.

(b) DNA analysis techniques. There are no limits on the nature or amount of information that can be included in a DNA profile nor how DNA samples and profiles can be analysed. This means important decisions about the use of new DNA analysis techniques such as forensic DNA phenotyping are made outside the CIBS Act, without parliamentary approval, and are typically motivated by law enforcement objectives. These issues are discussed in Chapter 6. Forensic DNA phenotyping is also discussed in Chapter 14.

(c) The role of the forensic services provider. There is no regulation of the provision of forensic science services to Police including DNA analysis, conducting casework comparisons, administering the DNA databanks or undertaking databank searching, even though these services are central to the CIBS Act’s operation. The role of the forensic services provider is discussed in Chapter 7.

(d) Elimination sampling. The CIBS Act does not provide a regime for collecting DNA samples for elimination purposes (for example, to identify and isolate a victim’s or third party’s DNA from the suspected offender’s DNA). As a result, Police has had to develop a voluntary elimination sampling regime outside the CIBS Act. This lacks transparency and legal certainty. It also fails to adequately safeguard a person who is not a suspect and is asked to provide an elimination sample to assist in the investigation. Elimination sampling is discussed in Chapter 9.

(e) Indirect sampling. The CIBS Act only regulates the direct collection of DNA samples from suspects in criminal investigations. It does not regulate indirect sampling methods, such as obtaining a suspect’s DNA sample from a discarded item like a coffee cup or using samples stored in other biobanks. Use of such indirect sampling methods raises significant privacy concerns and lacks legal certainty and transparency. We discuss indirect sampling in Chapter 12.

(f) Mass screening. The regime in the CIBS Act for obtaining DNA samples from suspects is premised on there being individualised suspicion. It is not designed to be used in situations where Police wants to obtain samples from a class of people who share characteristics with the suspected offender in order to identify a suspect. Mass screening raises unique issues and should be subject to tailored regulation, as we discuss in Chapter 10.

⁵⁵ Human Tissue Act 2008, s 3.

56. Coroners Act 2006, s 3. See also s 50 of the Act, which requires a coroner to notify immediate family and whānau of retention and rights to request return of bodily samples.

(g) Permitted ways of using DNA profiles. There are several gaps in the regulation of how DNA profiles can be used. For example, the CIBS Act does not regulate how DNA profiles on the DNA databanks can be compared to crime scene profiles. This has allowed the introduction of familial searching, discussed in Chapter 23, which aims to identify suspects through their family members by searching for a “near match” on the DNA databanks. There is also no regulation of the use of crime scene profiles, which is significant given the emerging technique of genetic genealogy searching discussed in Chapter 15. There is also a gap in the legislation that could permit the use of anonymised information on the DNA databanks to be disclosed to third parties for research purposes, as we discuss in Chapter 23.

(h) Missing and unidentified person investigations. The CIBS Act only applies to criminal investigations. It does not address the use of DNA in missing and unidentified person investigations to identify an unidentified deceased person or human remains, or to identify a person who is unable to identify themselves due to incapacity. While the use of DNA in Police investigations other than criminal investigations is technically outside the scope of this review, we consider that the CIBS Act’s failure to regulate the collection and use of DNA in missing and unidentified person investigations creates legal uncertainty and results in a lack of transparency and accountability. It also restricts Police’s ability to utilise the DNA databanks in ways that might assist such investigations. We address these issues in Chapter 22.

• 3.38 Our view is that a fit for purpose, constitutionally sound and accessible statutory regime must regulate or provide a framework for regulating all significant aspects of the DNA regime.

The CIBS Act is confusing and complex

• 3.39 The CIBS Act is confusing and complex. Successive amendments have increased the complexity and overlap of the CIBS Act and have resulted in considerable uncertainty. This makes the law difficult to navigate and apply. For example:

(a) The structure of the CIBS Act does not reflect Police practice. It is not immediately obvious how Parts 2, 2B and 3 fit together. At first glance, the suspect sampling regime in Part 2 appears to be the focal point of the CIBS Act, as it provides for Police to obtain and analyse samples for casework and includes a range of safeguards for suspects. However, Police uses the CIBS Act differently. Since 2009, the vast majority of DNA samples are taken under Part 2B of the CIBS Act when a person is arrested or intended to be charged. Very few samples are obtained under Part 2.⁵⁷

(b) The safeguards built into the CIBS Act are inconsistent and depend on whether a sample is collected under Part 2, 2B or 3. For a sample to be compulsorily acquired under Part 2, a court must be satisfied that such an order is reasonable in all the circumstances. This safeguard does not apply to collection on arrest or intention to charge under Part 2B or following conviction under Part 3. The introduction of Part 2B effectively permits Police to circumvent the safeguards in Part 2 and obtain a sample for comparison with a crime scene profile on the Crime Sample Databank without proving to a court that collection is reasonable in the

⁵⁷ See Table 2 in Appendix 3.

circumstances. Even if a suspect sample is subsequently required for evidential purposes, an application for a suspect compulsion order based on a databank link has now become “routine in nature”.⁵⁸

(c) The periods for retaining DNA profiles on the DNA Profile Databank are complex and vary depending on how the sample was collected. If a sample is obtained following conviction, it is retained indefinitely. In contrast, if a sample was originally obtained from a suspect or on arrest or intention to charge, the retention period may only be 10 years. In our view, these differences are unjustified. The differences are even more pronounced for young people, as detailed in Chapter 21.

(d) The procedural rules are overly complex. The procedural rules a police officer must follow when obtaining a DNA sample vary depending on whether it is obtained under Part 2, 2A, 2B or 3 of the CIBS Act. In addition, each sampling method has different procedural rules, and these are difficult to navigate. Different rules also apply depending on whether the person providing a sample is a child, young person or adult and whether a sample is being provided by consent or compulsion. In total, 70 possible sampling notices exist, 36 for suspect sampling alone.⁵⁹ To manage this complexity, Police introduced its own computer system in 2010 (Biotrak) to automatically generate the correct DNA sampling notice.

(e) The offence thresholds are unnecessarily complex. Successive amendments to the offence thresholds for obtaining DNA samples have resulted in unnecessary overlap and complexity. For example, suspect samples, samples taken from adults on arrest or intention to charge and samples from offenders may be obtained in relation to “any imprisonable offence or offence against any of the provisions listed in Part 3 of Schedule 1”.⁶⁰ There is, however, extensive overlap in the offence threshold because all but one of the 22 offences listed in Part 3 of Schedule 1 are imprisonable offences.⁶¹ The long list of offences specified in Parts 1 and 2 of Schedule 1 are now only relevant where a DNA sample is taken from a young person on arrest or intention to charge. In that situation, a sample can only be taken in relation to a “relevant offence”, which is defined to include the offences listed in Parts 1, 2 and 3 of Schedule 1, any offence punishable by a term of imprisonment of seven years or more and any attempt or conspiracy to commit an otherwise qualifying relevant offence.⁶² There is considerable overlap between the various limbs of the definition of relevant offence, as 58 of the 62 offences in Parts 1 and 2 of Schedule 1 are already punishable by seven years’ imprisonment or more.

The CIBS Act lacks independent oversight

• 3.40 The final fundamental problem identified in this review is the lack of independent oversight of the DNA regime. As we explain in Chapter 5, independent oversight is fundamental to ensuring the integrity, transparency and public confidence in any regulatory regime. Unlike many comparable jurisdictions, there is no independent body

⁵⁸ Fitzgerald v McClintock HC Christchurch CRI-2008-409-95, 28 July 2008 at [6].

59. This includes the forms pursuant to the regulations, affidavits and applications, procedural forms, forms for methods of sampling and general Police forms.

⁶⁰ Criminal Investigations (Bodily Samples) Act 1995, ss 5(a), 24J and 39.

61. The exception is the offence of peeping or peering into a dwellinghouse, which is an offence under s 30 of the Summary Offences Act 1981 and is punishable by a maximum fine of $500.

⁶² Criminal Investigations (Bodily Samples) Act 1995, s 2 definition of “relevant offence” and s 24K.

with exclusive oversight of the DNA regime. Instead, oversight is fragmented across a range of existing bodies that lack the necessary functions, powers and expertise to ensure that the collection and use of DNA (including the use of new DNA technology) is lawful and appropriate. The lack of independent oversight also results in a lack of Māori participation in the oversight of the DNA regime. This is inconsistent with the Treaty guarantee of tino rangatiratanga, the principles of partnership, active protection and equity, and the responsibilities that arise from tikanga Māori applicable to the collection and use of DNA.

RESULTS OF CONSULTATION

• 3.41 There was strong support among submitters for replacing the CIBS Act with new legislation to ensure the law governing the DNA regime meets our objectives of being fit for purpose, constitutionally sound and accessible. In fact, all 13 submissions that addressed the question of whether the CIBS Act should be repealed and replaced with a new Act answered in the affirmative. We summarise the key themes of these submissions below.
• 3.42 Several submitters considered the CIBS Act is no longer fit for purpose in light of successive legislative amendments and the improvements in DNA technology over the past 25 years. Te Hunga Rōia Māori o Aotearoa | The Māori Law Society submitted that this is illustrated by the following whakataukī:

Ka pū te ruha ka hao te rangatahi – As the old net withers, a new one is remade.

• 3.43 The New Zealand Law Society (NZLS) and the New Zealand Bar Association (supporting NZLS’s submission in its entirety) submitted that the use of DNA in criminal investigations “has outstripped the statutory scheme”, with the result that the current system does not provide consistent or thorough safeguards. Rather, NZLS considered practices in this area “are driven by law enforcement objectives and opportunities rather than public, broadly informed and balanced debate”. In order for the law to be constitutionally sound, NZLS submitted that it is necessary to ensure that the costs and benefits of investigatory techniques are adequately considered in a publicly accountable way, as they apply to both individual and potentially competing public interests. This includes considering the effectiveness of investigatory techniques, the extent to which they intrude into individual privacy or impinge on tikanga Māori, whether techniques have any adverse side effects or consequences, such as distorting investigative procedures or giving rise to bias, and how individual investigations and new procedures or techniques are to be governed.
• 3.44 Similarly, Associate Professor Nessa Lynch noted that the CIBS Act “has been added to a number of times without a pause for reflection on the totality of the principles”. Nessa Lynch agreed that the current legislation is out of date and that it is time for a first principles review of how the public interest in effective and efficient investigation of crime is balanced with the individual rights of suspects and offenders.
• 3.45 Some submitters, including the Public Defence Service (PDS), the Auckland District Law Society Criminal Law Committee (ADLS) and Sue Petricevic, pointed to the gaps in the current regime identified at paragraph 3.37 above and emphasised the need for new legislation to comprehensively regulate the collection and use of DNA in criminal investigations. PDS expressed concern with the attempt to fill these gaps with Police and ESR policy, noting that this “is a dangerous precedent” and that it may not be

possible to challenge decisions or processes where they simply involve a failure to follow Police or ESR policy as opposed to the law. PDS submitted that the law should cover all aspects of DNA collection, retention and use, to ensure transparency and provide a means to challenge decisions or processes where necessary.

• 3.46 The Privacy Commissioner emphasised the important privacy considerations raised by the DNA regime and submitted that Aotearoa New Zealand needs a comprehensive framework with a clear purpose statement, effective governance and oversight and robust procedural checks and safeguards to ensure that the collection and use of DNA is necessary, justifiable, reasonable and proportionate. The Privacy Commissioner considered that a fundamental weakness of the CIBS Act is that its original purpose has been blurred and the policy rationale for the collection and retention of DNA is no longer clear. A clear purpose statement, the Privacy Commissioner submitted, is necessary to both provide a test for decision making and to inform the design of relevant safeguards. Furthermore, the Privacy Commissioner submitted that:

In my view, a legitimate reason needs to be articulated for the State to collect and retain the DNA profiles of some people and not others. The incremental changes to the CIBS Act implemented over time mean there is a risk ... that the scheme has become a de facto databank of those citizens who have come to the attention of the Police for a variety of reasons (where through being charged with an offence, being excluded as a suspect, being present in crime scene DNA analysis, or as a victim).

• 3.47 Without proper safeguards, there is a clear risk of gradual “function creep” if DNA gathered for one law enforcement purpose ends up being used for a broader range of purposes than originally articulated or intended. The Privacy Commissioner observed that this function creep can intensify privacy intrusions and erode trust and confidence.
• 3.48 The CIBS Act’s failure to recognise tikanga Māori and the Treaty was a key concern for some submitters. Te Hunga Rōia considered that the CIBS Act does not accord properly for the place of the Treaty or for Māori, which is especially important in the context of Māori over-representation in the criminal justice system. It submitted that, in order to be constitutionally sound, new legislation must give due consideration not only to the principles of the Treaty but also to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Te Hunga Rōia submitted that this requires providing Māori with a central role in the oversight of the DNA regime as well as considering the role of the Treaty in the rule of law in Aotearoa New Zealand.⁶³ It also supported recommendations to ensure Police is attuned to issues such as unconscious bias against Māori and consideration of tikanga Māori in the context of DNA collection, although it doubted the cultural competency of the police force as a whole to be able to follow tikanga Māori whenever DNA is obtained from a Māori suspect.
• 3.49 Te Mana Raraunga considered that any legislation that deals with Māori DNA and associated data must explicitly recognise Māori rights and interests, including individual and collective rights and governance rights. Te Mana Raraunga submitted that new legislation needs to strengthen Māori governance, align with Treaty obligations and relevant international conventions (including UNDRIP), provide for independent oversight and provide clarity and certainty around acceptable practice. It suggested that new legislation should include express reference to government obligations in relation to the Treaty. Te Mana Raraunga also emphasised the need for new legislation to be considered within the context of “documented institutional racism in the criminal

⁶³ The rule of law is discussed in Chapter 2.

justice system that over-polices and over-incarcerates Māori”, otherwise it will likely reinforce existing bias in the system. Te Mana Raraunga supported requiring Police to report statistics for Māori on every indicator that is monitored in order to fully monitor impacts of the DNA regime on Māori.

• 3.50 Karaitiana Taiuru also submitted that the CIBS Act is not fit for purpose, reflective of the Treaty or open to a Māori world view. He supported replacing the CIBS Act with more comprehensive legislation that acknowledges that DNA is a taonga, recognises Māori customary rights to DNA and ensures DNA is obtained and stored in accordance with tikanga and customary rights. Karaitiana Taiuru also submitted that new DNA legislation should recognise Treaty rights and ensure adequate Māori representation in all decision making relating to DNA in criminal investigations.
• 3.51 The lack of clarity in the CIBS Act was also identified as a concern by several submitters. PDS submitted that the CIBS Act is “difficult to interpret for those who apply it daily”. Te Hunga Rōia also submitted that, from experience working within and around the criminal justice system, there is lack of clarity that creates confusion. For example, it is unclear if, how or when a DNA profile can be removed from the DNA Profile Databank. Te Hunga Rōia observed that this can be highly distressing for many Māori, as DNA samples represent their whakapapa, tūpuna and atua, all of which are taonga. DNA samples should be treated and disposed of with this in mind. Te Hunga Rōia further pointed to the confusion and complexity of the DNA collection process, observing that:

It is not uncommon for adults as well as young people to be confused by the language provided for in Police forms which explain DNA rights and Police obligations. It would seem that in this area, the temptation is to focus on the science, procedure, and process, however the law is not drafted in a way that considers who it is that is actually impacted by these laws, i.e who are the people that are subject to its Policing? It doesn’t appear that consideration is given to their background, and how that may impact on their engagement in that process.

• 3.52 Police and ESR also submitted in favour of repealing the CIBS Act and replacing it with new legislation. ESR agreed that the science has advanced significantly since 1995, and Police pointed to the anomalies resulting from successive amendments identified at paragraphs 3.39(c) and 3.39(e) above and the lack of regulation of crime scene sampling, elimination sampling, familial searching, forensic DNA phenotyping and mass screening, also discussed above.
• 3.53 We also received comments from the Chief District Court Judge, Judge Jan-Marie Doogue, on behalf of the Judges of the District Court. They agreed that the CIBS Act is out of date, overly complex and badly structured and contains material gaps and omissions. The Judges observed that:

[The CIBS Act] is difficult to interpret and apply by many who are regularly called upon to do just that (including District Court Judges), and inaccessible to many in the wider New Zealand community who are directly or indirectly affected by decisions made pursuant to it.

• 3.54 The Judges of the District Court considered that the courts would be materially assisted if new legislation regulating the DNA regime:

(a) expressly states the purposes of the legislation;

(b) enumerates the criteria, both compulsory and permissive, for the discretionary decisions that the legislation empowers;

(c) is comprehensive (addressing existing omissions such as the regulation of the Crime Sample Databank and elimination sampling) but also flexible and future- oriented;

(d) addresses issues arising from the intersection of the DNA regime with the Bill of Rights Act and the Search and Surveillance Act; and

(e) is appropriately and demonstrably cognisant of and consistent with the ongoing Treaty partnership and tikanga Māori.

• 3.55 The Judges commented that the District Court is acutely aware of the over- representation of Māori in the criminal justice system and that this ongoing imbalance, also reflected in the over-representation of Māori on the DNA databanks, requires addressing and reducing.

RECOMMENDATIONS

RECOMMENDATION
The CIBS Act should be repealed and replaced with a new statute that comprehensively regulates the collection and use of DNA in the investigation and prosecution of offences and the investigation of missing and unidentified people
(new DNA legislation).
R1

Enacting new legislation to regulate the DNA regime

• 3.56 There is a clear public interest in enabling Police to use DNA in criminal investigations to confirm or exclude the involvement of known suspects and to identify new suspects in unsolved crimes. However, DNA contains a wealth of information about an individual and their family and whakapapa, and its use in criminal investigations engages a range of important constitutional values and principles arising from the Treaty, tikanga Māori and human rights. It is therefore important that the DNA regime is carefully regulated to ensure it is constitutionally sound.
• 3.57 We recommend the CIBS Act is repealed and replaced with a new Act. In our view, the fundamental problems identified above cannot be remedied by targeted amendments to the CIBS Act. DNA plays a vastly different role in criminal investigations than was anticipated in 1995 due to developments in DNA technology and successive amendments to the CIBS Act over the years. A new, comprehensive statute is required to promote consistency with the Treaty, to ensure proper recognition and provision for tikanga Māori, to properly address the significant human rights values engaged by the DNA regime and to provide a framework for responding to future developments in DNA technology.
• 3.58 We recommend that the new DNA legislation extend to investigations into missing and unidentified people. Currently, the CIBS Act only applies to criminal investigations. As explained at paragraph 3.37(g), there is no statutory regime that governs the collection and use of DNA in non-criminal investigations to identify an unidentified deceased person or human remains, or to identify a person who is unable to identify themselves due to incapacity. Extending new DNA legislation to missing and unidentified people investigations would ensure Police has clear and consistent powers and duties in relation to the collection and use of DNA and would promote transparency and

accountability. We discuss investigations into missing and unidentified people in detail in Chapter 22.

Upholding the Treaty and providing for tikanga Māori
RECOMMENDATION

1. providing that the purpose of the new DNA legislation includes facilitating the collection and use of DNA in a manner that recognises and provides for tikanga Māori (see R3);
2. establishing a multi-disciplinary DNA Oversight Committee, which must include Māori members (see R8–R11);

100. requiring the development of practice, policy and procedure in consultation with the DNA Oversight Committee to ensure the collection and use of DNA is consistent with the purpose of the new DNA legislation (see R38, R44, R59, R73, R80, R96, R104, R134, R150, and R187);

4. requiring Police to report on how the collection and use of DNA under the Act affects Māori (see R23); and
5. empowering the DNA Oversight Committee to monitor the operation of the DNA regime on Māori (see R14.c).

New DNA legislation should include a provision that identifies the specific measures that give practical effect to the Crown’s responsibility to consider and provide for Māori rights and interests under the Treaty. Specific measures
identified should include:
R2

• 3.59 We recommend that the new Act include specific measures to give practical effect to the Crown’s obligations to Māori under the Treaty as they are relevant to the DNA regime. These measures, which would be reflected in the relevant operational provisions of the DNA legislation, should also be identified in a separate provision of the new Act.⁶⁴ This will provide certainty as to what is required in order to promote consistency with the Treaty and its principles and is consistent with guidance in the Legislation Guidelines.⁶⁵
• 3.60 These measures are discussed elsewhere in this Report in detail. As an overarching point, the participation of Māori in the oversight of the DNA regime will be central to achieving constitutionally sound legislation. In Chapter 5, we recommend that the DNA Oversight Committee include Māori members who can operate as a Māori caucus and may have specific responsibilities, such as advising on Māori rights and interests and how tikanga may be provided for in regulations, practices, policies and procedures.

64. For example, see Taumata Arowai – the Water Services Regulator Act 2020, s 5; Kāinga Ora – Homes and Communities Act 2019, s 4; and Oranga Tamariki Act 1989, s 7AA.
65. The Legislation Guidelines explain that including specific measures in legislation that tie the Treaty and its principles to specific mechanisms has been the usual approach since 2000 and that this approach has:

... the advantage of demonstrating that the Government has actively worked through what is required in order to recognise and safeguard what the principles of the Treaty mean in a particular context.

See Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 30–31.

These recommendations provide for the exercise of tino rangatiratanga by Māori and enable Māori to articulate their rights and interests in the DNA regime.

• 3.61 In addition, the recommended Police reporting obligations and empowering the DNA Oversight Committee to monitor the impact of the operation of the DNA regime on Māori provide practical means for the Crown to meet its obligation to take active steps to reduce inequities and positively promote equity in the DNA regime.

RECOMMENDATION

1. minimises interference with a person’s privacy and bodily integrity;
2. recognises and provides for tikanga Māori; and

100. is otherwise consistent with human rights values.

New DNA legislation should include a purpose statement that confirms that the purpose of the Act is to facilitate the collection and use of DNA in the investigation and prosecution of offences and the investigation of missing and
unidentified people in a manner that:
R3

Stating a clear legislative purpose

• 3.62 The new Act should include a purpose statement that clearly identifies the policy objective of the legislation, which is to facilitate the collection and use of DNA in a manner that minimises interference with privacy and bodily integrity, ensures proper recognition and provision for tikanga Māori and is otherwise consistent with human rights values. This would:

(a) signal a change in policy direction away from the (assumed) objectives of the CIBS Act identified at paragraph 3.7 above;

(b) guide the establishment of a principled approach to the collection and use of DNA by Police, which we consider is the best way to achieve consistent protection of human rights values and tikanga Māori while at the same time promote effective law enforcement;⁶⁶

(c) provide the basis for guidance on the exercise of functions and powers under the new Act, including by police officers, the forensic services provider (discussed in Chapter 7), the courts and other bodies exercising oversight of the DNA regime and advising on the use of new DNA technology; and

(d) broadly align with the Search and Surveillance Act and promote consistency with the Intelligence and Security Act (see paragraphs 3.33–3.35 above).

⁶⁶ Te Aka Matua o te Ture | Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [2.8].

• 3.63 We recommend that the purpose statement expressly refers to privacy, bodily integrity and tikanga Māori. This will clearly highlight their centrality in the DNA regime. It signals the need to ensure that intrusions on privacy and bodily integrity are no more than is required to meet legitimate law enforcement objectives and that tikanga Māori is recognised and provided for in the collection and use of DNA.⁶⁷

67. This is consistent with the focus on cultural, ethical and spiritual considerations in other legislation that regulates the collection and use of human tissue. The purpose of the Human Tissue Act 2008 includes helping to ensure that collection or use of human tissue occurs only with proper recognition of and respect for “the cultural and spiritual needs, values, and beliefs of the immediate family of that individual” and “the cultural, ethical, and spiritual implications of the collection or use of human tissue”: s 3(a)(ii)–(iii). Similarly, the Coroners Act 2006 recognises “the cultural and spiritual needs of family of, and of others who were in a close relationship to, a person who has died”: s 4(2)(b)(i). See also s 4 of the Human Assisted Reproductive Technology Act 2004.

CHAPTER 4

A new DNA databank

INTRODUCTION

• 4.1 In this chapter, we describe how DNA is currently used in criminal investigations and explain the role of DNA databanks.
• 4.2 We then identify the broad issues with Aotearoa New Zealand’s existing DNA databanks, explore DNA databanks in other countries and make recommendations for a single, comprehensive DNA databank.

THE USE OF DNA IN CRIMINAL INVESTIGATIONS

• 4.3 Currently, the value of DNA as a law enforcement tool lies in the ability to generate a DNA profile from a sample of DNA found at a crime scene. This DNA profile can then be compared with other DNA profiles from known people, and forensic scientists can determine, with a high degree of accuracy, the likelihood that the DNA profiles come from the same person.
• 4.4 Two different processes are used to compare DNA profiles. These processes are described in detail in Chapter 17, but in summary they are:

(a) Casework comparison. This process is used in criminal casework and is a one-to- one comparison that involves comparing DNA found at a crime scene against DNA from an individual believed to be involved in the offending. The objective of a casework comparison is to rule someone in or out of a criminal investigation. Often a casework comparison will involve comparing a crime scene profile with a suspect profile, but sometimes it will also be necessary to compare a crime scene profile with a profile from a victim or third party in order to eliminate them and isolate the likely offender’s DNA. The results of casework comparison can be used as evidence in any subsequent proceedings.

(b) Databank searching. This process is used to identify potential suspects in unsolved crimes by comparing a crime scene profile against a DNA databank of profiles from known people. A match between a crime scene profile and a known person profile indicates that the profiles are likely to be from the same person. Police must then confirm the match by obtaining a suspect sample from the known person and conducting a casework comparison.¹ Databank searching can also be used to identify links between unsolved crimes, by comparing a crime scene profile to crime scene profiles from other unsolved crimes.

1. Databank matches themselves are not admissible as evidence in criminal proceedings: Criminal Investigations (Bodily Samples) Act 1995, s 71(1)–(2). A suspect sample under Part 2 of the CIBS Act is therefore required. The reasons for requiring a suspect sample are discussed in Chapter 8.

• 4.5 In future, DNA may also become a valuable source of information without the need for comparison (analysis in isolation) or if comparison does not yield any results. The most advanced techniques for analysis in isolation is known as forensic DNA phenotyping and involves analysing DNA to predict likely physical characteristics of the person who is the source of the DNA. We discuss forensic DNA phenotyping in Chapter 14.

The DNA databanks

• 4.6 Currently, three DNA databanks are used for databank searching:

(a) The DNA Profile Databank (DPD). This contains DNA profiles from people who have been convicted of a qualifying offence (offenders) and adults who have agreed to have their profile stored on the DPD (volunteers). The DPD was established in 1996 under Part 3 of the CIBS Act.

(b) The Temporary Databank. This contains DNA profiles from young people² and adults who have had a DNA sample taken when arrested or intended to be charged with a qualifying offence. Profiles are stored on the Temporary Databank until the charge is resolved. If a person is convicted, their profile is transferred to the DPD. Otherwise, it is destroyed. The Temporary Databank was established in 2009 under Part 2B of the CIBS Act.

(c) The Crime Sample Databank (CSD). This contains crime scene profiles. The CSD was established alongside the DPD to give effect to Part 3 of the CIBS Act but is not regulated by that Act.

• 4.7 The DNA databanks are not currently used for casework comparison. Instead, DNA profiles generated from samples obtained for casework comparison are kept on an electronic case file, and the casework comparison is conducted on that file rather than on the DNA databanks.
• 4.8 In addition to the DNA databanks described above, ESR also maintains two elimination DNA databanks. One contains profiles from ESR staff and people who have visited ESR’s forensic laboratories. The second is the Police Criminal Investigators Elimination Database (CIED), which is established under Part 5 of the Policing Act 2008 and contains profiles from Police employees and forensic practitioners. We understand that few police officers have submitted profiles for retention on this database. It seems more common for police officers to submit a DNA sample for analysis on a case-by-case basis where necessary for a particular investigation. These databanks are used only in casework comparison to eliminate an investigator’s DNA in the event of contamination and are not used for databank searching.

2. Of or over 14 years of age but under 18 years of age: Criminal Investigations (Bodily Samples) Act 1995, s 2 definition of “young person”.

Types of DNA samples collected in criminal investigations

• 4.9 In Table 1 below, we summarise the different types of DNA samples that are currently obtained for casework comparison and databank sampling and how they are regulated, stored and used.

• 4.10 ESR is Police’s sole provider of forensic services and is responsible for DNA analysis, conducting casework comparison and databank searching and maintaining the DNA databanks.³

3. Under the Forensic Science Services Agreement between the New Zealand Police and the Institute of Environmental Science and Research Limited 2018–2021 (2018). The Services Agreement is negotiated every three years.

DNA DATABANKS IN COMPARABLE JURISDICTIONS

• 4.11 In 1995, Aotearoa New Zealand became the second jurisdiction in the world (after the United Kingdom) to establish a DNA databank for use in criminal investigations. All comparable jurisdictions reviewed in this Report have since followed suit.
• 4.12 Appendix 4 summarises the DNA databank regimes that operate in comparable jurisdictions. Our analysis identifies that Aotearoa New Zealand is falling behind jurisdictions with more recently established DNA databanks in several respects:

(a) First, Aotearoa New Zealand is the only jurisdiction that maintains separate DNA databanks for DNA profiles collected in different ways. All other comparable jurisdictions maintain a single DNA databank for criminal investigations. The more recent DNA databanks in Australia, Canada and Ireland operate an index system, with different indices (or divisions) for different types of DNA profiles and with statutory rules as to the loading and matching of profiles that may occur within and across different indices.

(b) Second, the CIBS Act only regulates the known people databanks (the DPD and the Temporary Databank), not the CSD. This is similar to the approach adopted in the United Kingdom, where a DNA databank was also established in the mid-1990s. However, this is out of step with the more common approach in recent years, which has been for crime scene profiles to be regulated in the same way as profiles from known people through the creation of a single, indexed DNA databank.

(c) Third, the CIBS Act does not address the use of DNA for identification purposes in missing and unidentified person investigations. This is out of step with the recent DNA databanks in Australia, Canada and Ireland. In the United Kingdom, a separate databank of missing people has been established, and profiles on that databank are regularly compared to profiles on the databank established for criminal investigations. The use of DNA databanks when investigating missing and unidentified people is discussed in Chapter 22.

(d) Fourth, Aotearoa New Zealand, like Australia, has no independent body with direct responsibility for oversight of the DNA databanks. This contrasts with the designated oversight bodies established in England and Wales, Ireland, Scotland and Canada. Oversight is discussed in Chapter 5.

• 4.13 The number of profiles from known people on the New Zealand DNA databanks (DPD and Temporary Databank) as a proportion of the population falls within the range of known people on databanks in comparable jurisdictions. As of 30 June 2019, approximately 4.1 per cent of the New Zealand population had a profile on the DPD or Temporary Databank.⁴ This is comparable to Australia, where the total number of profiles on the National Criminal Investigation DNA Database equates to 5.2 per cent of the population (although this includes crime scene profiles as well as known person profiles).⁵ Fewer profiles are retained in Canada, where profiles from offenders retained

4. Calculated using information reported in Ngā Pirihimana o Aotearoa | New Zealand Police Annual Report 2018–2019 (November 2019) at 168 and Statistics New Zealand’s population estimate of 4,911,600 for the second quarter of 2019: Tatauranga Aotearoa | Stats NZ “Estimated Resident Population (Mean Quarter Ended) by Sex (1991+) (Qrtly- Mar/Jun/Sep/Dec)” <archive.stats.govt.nz>.
5. Based on 1,324,575 profiles (including from known people and crime scenes) on the National Criminal Investigation DNA Database as of 30 June 2019 and a population estimate of 25,464,116 as of 30 September 2019. See Australian Criminal Intelligence Commission Annual Report 2018–2019 (October 2019) at 56; and Australian Bureau of Statistics “Australian Demographic Statistics” (September 2019) <www.abs.gov.au>.

on the DNA Index System equate to only 1.1 per cent of the population.⁶ In contrast, in England and Wales, the number of profiles from individuals on the National DNA Database equates to 8.5 per cent of the population.⁷ In Scotland, the number of profiles from individuals equates to 6.4 per cent of the population.⁸

BROAD ISSUES WITH THE DNA DATABANKS IN AOTEAROA NEW ZEALAND

• 4.14 We have identified three broad issues with the DNA databanks in Aotearoa New Zealand:

(a) Deficient regulation of the DNA databanks.

(b) Problems with measuring the effectiveness of the DNA databanks.

(c) Inadequate reporting requirements regarding the collection and retention of profiles for databank purposes.

• 4.15 We discuss these issues below.

Deficient regulation

• 4.16 We consider that the regulation of the DNA databanks is deficient in several respects.
• 4.17 First, the DNA databanks are only partially regulated by the CIBS Act. Significant gaps include the lack of any regulation of the CSD or of how databank searching can be undertaken. This results in a lack of certainty, transparency and accountability. As we explore in the following chapters, some unregulated aspects of the DNA databanks have the potential to raise significant privacy issues and conflict with important aspects of tikanga Māori, including the criteria for uploading crime scene profiles to the CSD and retaining those profiles on the CSD (see Chapter 17) as well as familial searching (see Chapter 23).
• 4.18 Second, maintaining separate DNA databanks adds an unnecessary level of administrative complexity and makes it difficult to apply consistent reporting obligations and storage protocols to DNA profiles.
• 4.19 Third, the exclusion of profiles obtained for casework (profiles derived from suspect and elimination samples) from the DNA databanks also means that profiles are stored in different locations and on different systems depending on how the sample was obtained. In casework, comparison occurs outside the databanks. This undermines transparency of the regime and makes it difficult to monitor or audit the use of DNA profiles in casework.
• 4.20 Fourth, as we explore in Chapter 5, there is no independent oversight or auditing of the operation of the DNA databanks. This undermines transparency and accountability of

6. Based on 401,546 profiles on the convicted offender index of the Combined DNA Index System (CODIS) as of 31 March 2020 and a population estimate of 37,894,799 as at 31 March 2020. See Royal Canadian Mounted Police “Statistics for National DNA Data Bank” (March 2020) <www.rcmp-grc.ca>; and Statistics Canada “Population Estimates, Quarterly” (June 2020) <www.150.statcan.gc.ca>.
7. Based on 5,038,468 DNA profiles of individuals in England and Wales on the National DNA Database as of 30 June 2019 and a population estimate of 59,439,840 as of 30 June 2019. See Home Office “National DNA Database Statistics, As of 30th June 2019” (2019) <www.gov.uk>; and Office for National Statistics “Estimates of the Population for the UK, England and Wales, Scotland and Northern Island” (6 May 2020) <www.ons.gov.uk>.
8. Based on 350,318 known person profiles on the Scottish DNA Database in 2019 and a population estimate of 5,438,100 as at 25 April 2019. See Scottish Police Authority “Scottish DNA Database Statistics 2019/2020” (2020)

<www.spa.police.uk>; and National Records of Scotland “Population of Scotland” (2019) <www.nrscotland.gov.uk>.

the DNA regime and is out of step with the approach taken in most comparable jurisdictions.

Challenges measuring the effectiveness of the DNA databanks

• 4.21 Measuring the effectiveness of the DNA databanks is important, as the more useful they are in criminal investigations, the greater the justification for maintaining them despite the intrusions on human rights and tikanga Māori. However, measuring the effectiveness of DNA databanks is a challenging task.
• 4.22 The CIBS Act attempts to measure the effectiveness of the DNA databanks by requiring Police to report on the number of profile matches between the CSD and the DPD and Temporary Databank each year.⁹ This information is set out in Table 5 of Appendix 3. This demonstrates that the number of databank matches vary year to year, dropping to 1,314 matches in 2011 and reaching a peak of 3,345 matches in 2017. In 2018 and 2019, the figures were 2,499 and 2,466 respectively.
• 4.23 ESR also monitors the ‘link rate’ as a measure of the effectiveness of the DNA databanks. The link rate is the percentage of profiles that have matched another profile on one of the databanks. ESR monitors and reports the link rates in its annual report. The most recent reported figures are a link rate of 30 per cent for crime scene profile to crime scene profile links (crime to crime links) and a link rate of 71 per cent for crime scene profile to known person links (crime to person links).¹⁰ These figures (especially in relation to the crime to person link rate) can be used to support two propositions. First, Aotearoa New Zealand has the most effective DNA databank regime in the world.¹¹ Second, the ‘right people’ are on the DPD and the Temporary Databank.
• 4.24 Internationally, however, relying on the number or rate of databank matches to measure the effectiveness of DNA databanks is widely criticised because it focuses on activity on the DNA databanks rather than on case outcomes.¹² As noted by an Australian law reform commentator:¹³

⁹ Criminal Investigations (Bodily Samples) Act 1995, s 76.

10. For the most recently reported crime to crime link rate, see ESR Annual Report 2018 (September 2018) at 62. For the most recently reported crime to person link rate, see ESR Annual Report 2019 (October 2019) at 13. The match may occur when a crime scene profile is first uploaded to the Crime Sample Databank (CSD) or at a later date when new profiles are added to the CSD, the DNA Profile Databank or the Temporary Databank. The link rates are aggregates – they can increase or decrease over time. The best link rates in the last five years were 75 per cent for crime to person links and 31 per cent for crime to crime links as reported in ESR’s annual reports in both 2015–2016 and 2016– 2017.
11. In ESR Annual Report 2018 (September 2018) at 62, ESR stated: “New Zealand leads the world in DNA matching with nearly 70% of all unsolved cases loaded to the crime sample databases successfully linked to individuals and 30% linked to another crime”. In ESR Annual Report 2015 (September 2015) at 14 it said: “We now have an international reputation for DNA matching, with 71% of all crime samples successfully linked to individuals, and 29% of samples linked to other crimes”.

¹² See, for example, Standing Committee on Law and Justice Review of the Crimes (Forensic Procedures) Act 2000

(New South Wales Legislative Council, Report 18, February 2002) at [3.135]:

The Committee has been unable to obtain satisfactory quantitative or qualitative data supporting claims about the effectiveness of DNA in solving crime, for New South Wales or for other jurisdictions. Overwhelmingly, available statistics relate to activity rather than outcomes. That is, figures are collated detailing numbers of profiles collected and analysed, incidences of database matches, and crimes involving DNA evidence. These statistics do not, however, identify the impact of DNA evidence in the solution and prosecution of crime.

See also Peter Ford and others DNA Forensic Procedures: Further Independent Review of Part 1D of the Crimes Act 1914 (30 June 2010) at [4.1.4]; Standing Senate Committee on Legal and Constitutional Affairs Public Protection, Privacy and the Search for Balance: A Statutory Review of the DNA Identification Act – Final Report (Canadian Senate, June 2010) at 48–49; Jeremiah Goulka and others Toward a Comparison of DNA Profiling and Databases in

Statistics on the number of ‘matches’ between DNA profiles and crime scene stains are, however, misleading in some crucial respects. Firstly, ‘matches’ do not signify guilt, nor do they represent arrests made or convictions secured. A match simply denotes that a particular person may have been – but was not necessarily – present at a particular crime scene at some point in time.

• 4.25 In addition, neither the number of databank matches nor the link rate reveal the extent to which matches are followed up. It is unknown whether a match results in the identification of a new suspect, the filing of charges against a suspect or their conviction in related criminal proceedings. Some reported matches may have little evidential value. For example, a match may be to the victim or someone else who was present at the crime scene but who Police has ruled out as a suspect. Additionally, a databank match may confirm the involvement of a person who has already been identified as a suspect. In these situations, the suspect sampling regime could have been used with the same result. The lack of available information about what happens after a databank link report is received therefore makes it difficult to assess how effective the databanks are in providing intelligence that assists the resolution of criminal investigations.
• 4.26 Gaps in the reporting requirements in the CIBS Act further undermine efforts to measure the effectiveness of the DNA databanks. For example, there is no requirement to report on the number of direct matches within the CSD nor the number of familial searches undertaken.
• 4.27 The CIBS Act requires Police to report on the number of occasions on which a profile “obtained under a Part 3 procedure has been used in support of an application for a suspect compulsion order”.¹⁴ This seeks to identify how often a databank match successfully identifies a suspect in an unsolved crime and is used to obtain a suspect sample that can be presented as evidence in court. However, the figures reported (32 in the year ended 30 June 2019) are likely to significantly underestimate the use of databank matches in criminal investigations. This is because this measure does not include:¹⁵

(a) the number of occasions on which a profile obtained under a Part 2B procedure (that is, on arrest or intention to charge) has been used in support of an application for a suspect compulsion order;

(b) the number of occasions on which a suspect consent sample is obtained based on a databank match; or

(c) the number of occasions on which a defendant enters a guilty plea following a databank match, and so no suspect sample is required to present as evidence in court.

the United States and England (Rand Corporation, 2010) at 20–22; Aaron Opoku Amankwaa and Carole McCartney “The effectiveness of the UK national DNA database” (2019) 1 FSI Synergy 45; and Roberta D Julian and others “What is the value of forensic science? An overview of the effectiveness of forensic science in the Australian criminal justice system project” (2011) 43 AJFS 217 at 220. Julian and others argue that the policing and forensic science community is “‘flying blind’ in terms of the true impact of its work” and that the continuing expansion of the databanks cannot be justified without more concrete evidence as to their utility: at 220.

¹³ Ben Saul “Genetic Policing: Forensic DNA Testing in New South Wales” (2001) 13 CICJ 74 at 93.

¹⁴ Criminal Investigations (Bodily Samples) Act 1995, s 76(1)(da).

15. This may have been a helpful reporting measure when the CIBS Act was enacted, as profiles generated from samples obtained under Part 3 procedures (from volunteers and offenders) formed the majority of profiles on the DNA Profile Databank. However, significant changes in Police practice have occurred since the introduction of Part 2B in 2009. Now, most profiles added to the DNA Profile Databank are derived from DNA samples obtained under Part 2B procedures.

Inadequate reporting requirements

• 4.28 While the CIBS Act includes a range of reporting measures that are designed to provide transparency as to the collection of DNA samples for databank purposes, there are several deficiencies in these measures. Specific gaps include:

(a) The number of crime scene profiles uploaded to, stored on and removed from the CSD (and the reasons for removal).

(b) The number of profiles transferred to the DPD that were derived from suspect samples obtained under Part 2 or from samples required on arrest or intention to charge under Part 2B.

(c) The number of profiles removed from the Temporary Databank and the DPD and the reasons for removal.

(d) The age and ethnicity of people who provide samples and whose DNA profiles are retained on the Temporary Databank and the DPD.

(e) A breakdown of the profiles on the DPD that were obtained from a volunteer under Part 3 and from a suspect by consent under Part 2 (Police reports on the total number of profiles on the DPD that were obtained by consent, but this is not further broken down).

(f) The number of profiles on the DPD that were obtained from a volunteer under Part 3 that are retained indefinitely following a subsequent conviction for a qualifying offence.

• 4.29 The result of these gaps is that reporting on the collection and retention of samples and profiles for databank purposes is incomplete, undermining transparency and accountability.

RECOMMENDATIONS

RECOMMENDATIONS
The Government should consider whether the proposed DNA databank should

include a law enforcement elimination index.
R7
No comparison between a crime scene profile and any other profile on the
proposed DNA databank should be permitted outside the proposed DNA databank.
R6
The proposed DNA databank should be used to store all DNA profiles that are generated from DNA samples obtained in the investigation and prosecution of
offences and the investigation of missing and unidentified people.
R5
The existing DNA Profile Databank, Temporary Databank and Crime Sample Databank should be replaced with a single DNA databank with an index system
(the proposed DNA databank).
R4

Establishing a new and comprehensive DNA databank

• 4.30 We recommend a new DNA databank with an index system, similar to the databanks operated in Australia, Canada and Ireland. The new DNA databank would replace the existing CSD, DPD and Temporary Databank. The proposed DNA databank should be used to store all DNA profiles that are generated from DNA samples obtained in the investigation and prosecution of offences, including samples obtained in criminal casework and samples obtained for databank purposes. It should also include profiles generated from samples obtained in relation to any investigation of missing and unidentified people, as we explain in Chapter 22. No comparison between a crime scene profile and any other profile on the proposed DNA databank should be permitted outside the proposed DNA databank.
• 4.31 Such a model would meet our objectives of ensuring that the law governing the collection and use of DNA is fit for purpose, constitutionally sound and accessible. In particular, the proposed DNA databank would:

(a) provide a secure storage system for all DNA profiles obtained in relation to criminal investigations and investigations of missing and unidentified people;

(b) minimise interference with privacy and tikanga Māori by providing a structural framework that limits searches against a person’s profile to those reasonably necessary for effective law enforcement and imposes conditions on how profiles are stored and retained;

(c) simplify the regime, promote certainty and transparency and prevent misuses of DNA profiles by requiring all profiles to be stored in one place, setting clearly defined matching rules that regulate permissible searching between indices and requiring all comparisons to occur on the databank;

(d) enable easier reporting and improved oversight and auditing of the collection and use of DNA in criminal investigations;

(e) provide a structural framework for monitoring the impact of the DNA regime on Māori, consistent with the Crown’s obligations under te Tiriti o Waitangi | the Treaty of Waitangi; and

(f) retain sufficient flexibility to respond to future changes in policy, for example, if the creation of a new index becomes necessary, such as an elimination index for the forensic services provider’s employees or for police officers (discussed below).

• 4.32 We recommend that the proposed DNA databank include indices that distinguish the basis upon which a profile is being held. This will enable the setting of system-wide matching rules and conventions to prevent misuse of profiles. Other chapters address the indices that should make up the proposed DNA databank, the criteria for uploading profiles to an index, how profiles on the index can be used and how long profiles should be retained. The following indices are proposed for criminal investigations:

(a) Crime scene index: to include profiles from crime scenes (discussed in Chapter 17).

(b) Offenders index: to include profiles from people convicted of qualifying offences (discussed in Chapters 18 and 21).

(c) Pre-conviction index: to include profiles from samples obtained on arrest or intention to charge (see Chapter 18) as well as profiles generated from samples obtained from suspects in the course of a criminal investigation (see Chapter 16).

(d) Elimination index: to include profiles derived from elimination samples and mass screen samples in the course of criminal casework (see Chapter 16).

• 4.33 The following indices are proposed for the purpose of assisting identification when investigating missing and unidentified people and are discussed in Chapter 22:

(a) Missing and unidentified index: to include profiles of people who are missing and people who are unable to identify themselves due to incapacity.

(b) Unidentified deceased index: to include profiles of unidentified deceased people and human remains.

(c) Relatives index: to include profiles of relatives of missing people obtained for the purposes of assisting identification.

• 4.34 We have not recommended a separate elimination index for profiles obtained from forensic services provider employees, police officers and others involved in criminal investigations.¹⁶ Currently, ESR maintains separate elimination databases, including the CIED (see paragraph 4.8 above). We are not aware of the current arrangements creating problems in practice. Consideration should be given, however, to whether provision should be made in new DNA legislation for a separate law enforcement elimination index to store any profiles obtained from law enforcement agencies for elimination purposes. This could replace the CIED established under the Policing Act 2008 and would be consistent with the approach taken in comparable jurisdictions. Benefits of such an index would be increased transparency and security. However, such a proposal would involve cost and should not be considered without proper consultation with members of the police and employees of ESR. We do not, therefore, reach a conclusive view on whether such an index should be established.

¹⁶ The role of the forensic services provider is discussed in Chapter 7.

CHAPTER 5

Oversight of the DNA regime

INTRODUCTION

• 5.1 In Chapter 3, we identify the lack of independent oversight as a fundamental problem with the CIBS Act. We elaborate on this problem below, explore international best practice and make recommendations to improve oversight of the DNA regime.

BACKGROUND

The importance of oversight

• 5.2 Oversight is fundamental to the integrity and transparency of any regulatory regime. Effective accountability mechanisms perform several important functions. They:

(a) ensure robust policies and systems are in place, minimising the risk of errors and injustices;

(b) provide a framework for identifying and responding to isolated or systemic issues; and

(c) promote and maintain public confidence in the regime.

• 5.3 In relation to DNA regimes, independent oversight is consistently recognised as important, if not essential, for effective regulation. As the Australian Law Reform Commission has observed:¹

... the public interest in ensuring the operation of transparent and accountable DNA database systems requires that any oversight must be independent of the organisations operating or using them, and must be publicly accountable.

• 5.4 Guidance issued by the Forensic Genetics Policy Initiative similarly states:²

Best practice for DNA databases includes an independent and transparent system of governance, with regular information published (e.g. annual reports and minutes of oversight meetings). Multi-stakeholder governance is preferable, including civil society

1. Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC R96, 2003) at [43.72]. See also Tom Sherman and others Report of the Independent Review of Part 1D of the Crimes Act 1914: Forensic Procedures (Attorney-General’s Department, March 2003) at ch 5.
2. Forensic Genetics Policy Initiative Establishing Best Practice for Forensic DNA Databases (September 2017) at 25. The Forensic Genetics Policy Initiative is a collaboration of GeneWatch UK, Privacy International and the Council for Responsible Genetics. It undertook a seven-year project reviewing DNA profile databank legislation and media coverage from 132 countries and consulting widely, particularly with civil society groups.

and experts on genetic privacy. There must be adequate public and regulatory scrutiny to ensure the database is compliant with the law and to maintain public confidence.

• 5.5 The Nuffield Council in the United Kingdom also emphasises the need for independent oversight, observing that:³

The potential uses and abuses of forensic databases are considerable. Effective governance helps to ensure not only that their utility is maximised, but also that their potentially harmful effects – such as threatening privacy, undermining social cohesion and aggravating discriminatory practices – are minimised. Good governance can anticipate and respond to new challenges; it is not merely a means to impose sanctions once things go wrong. Moreover, open governance can address suspicion and promote support among the public for an enterprise which, after all, is essentially in the public interest.

Existing oversight of the DNA regime in Aotearoa New Zealand

• 5.6 A model of “distributed oversight” of the DNA regime operates in Aotearoa New Zealand. This means that oversight is split across a range of internal and external accountability mechanisms. External accountability mechanisms include judicial oversight as well as oversight roles performed by independent statutory bodies. We discuss these different mechanisms below.

Internal accountability mechanisms

• 5.7 Several internal accountability mechanisms are in place, most of which are non- statutory:

(a) Arm’s-length arrangements for provision of forensic services. ESR provides all forensic services, including DNA analysis and the maintenance of the DNA databanks, under the Forensic Science Services Agreement between Police and ESR (Services Agreement). It records the need for ESR scientists to remain impartial and objective in their forensic examinations and for Police to ensure the ESR scientists’ status as an independent expert is maintained. The DNA databanks themselves are stored on ESR systems rather than Police systems and are not accessible by Police employees.

(b) ESR laboratory accreditation. ESR’s biology laboratory is independently accredited by the internationally recognised accrediting body, ANAB,⁴ to the international standard ISO/IEC 17025.

(c) Internal policy. Police and ESR have developed a range of policies designed to ensure compliance with the CIBS Act and human rights law. These policies are outlined in the Police Manual, in specific policy agreements between Police and ESR and in memoranda of understanding. ESR also maintains its own policies and standard operating procedures in relation to DNA analysis and the DNA databanks.

3. Nuffield Council on Bioethics The forensic use of bioinformation: ethical issues (September 2007) at [7.1]. The Nuffield Council recommends a statutory framework of regulation, with a clear statement of purpose and specific powers of oversight delegated to an appropriate independent body or official: at [7.55].
4. This organisation is now known as the ANSI National Accreditation Board. It was formerly known as “American National Standards Institute American Society for Quality National Accreditation Board” and is referred to by that name in the Agreement between Police and ESR. For simplicity we refer to it as ANAB in this Report.

(d) Internal audit arrangements. Currently, Police and ESR rely on internal audits and management systems to ensure appropriate use, storage and destruction of DNA samples and profiles. The Services Agreement imposes formal reporting requirements on ESR and provides for Police to undertake an annual audit of the processes and procedures concerning the DNA databanks to ensure compliance with the requirements of the CIBS Act. Police may also ask to undertake an IT security audit of the DNA databanks and other audits related to casework from time to time.

(e) Public reporting requirements. Police is required to report on some key indicators relating to the collection of DNA samples and the maintenance of the DNA databanks. These are set out in the CIBS Act, and reporting occurs in each Police annual report.⁵

Judicial oversight

• 5.8 The judiciary performs a primary independent oversight role in the DNA regime. Judicial oversight can be exercised in several ways:

(a) Determining challenges to the admissibility of DNA evidence. Evidence can be challenged on the basis that it was improperly obtained, including if it was obtained unfairly or in breach of any enactment including the CIBS Act and the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).⁶ This avenue is often used to challenge Police conduct or policy in the collection and use of DNA. However, it is only available where criminal charges have been filed, the defendant has not pleaded guilty and the prosecution seeks to rely on DNA evidence.

(b) Determining applications made under the CIBS Act to obtain a DNA sample. If a suspect does not consent to provide Police with a DNA sample, a sample can only be obtained pursuant to a suspect compulsion order from a High Court or District Court Judge.⁷ The Judge can only grant a suspect compulsion order if, among other things, they are satisfied that, in all the circumstances, it is reasonable to make the order.⁸ This can act as an important check on the conduct of Police in the collection of DNA samples.⁹ However, the introduction of Part 2B of the CIBS Act in

⁵ Criminal Investigations (Bodily Samples) Act 1995, s 76.

6. Evidence Act 2006, s 30. Evidence might be obtained in breach of s 21 of the New Zealand Bill of Rights Act 1990 if it was obtained in consequence of an unreasonable search or seizure.
7. Criminal Investigations (Bodily Samples) Act 1995, ss 16 and 23. A more limited form of judicial oversight is exercised in relation to the collection of DNA samples from people who have already been convicted for the purpose of retaining their DNA profile on the DNA Profile Databank (DPD) for comparison against DNA profiles from unsolved crimes. If a police officer issues a databank compulsion notice to an offender under s 39, the recipient may request a databank compulsion notice hearing with a judge of the court before which that person was sentenced: s 41. However, the grounds for requesting a hearing (and for a judge to quash or vary a databank compulsion notice) are very narrow and are focused primarily on procedural irregularities: s 41(2). Very few databank compulsion hearings are requested. In 2018–2019, 599 samples were taken pursuant to a databank compulsion notice, but just four databank compulsion hearings were requested, and no orders were made that the databank compulsion notice was of no effect: Ngā Pirihimana o Aotearoa | New Zealand Police Annual Report 2018–2019 (November 2019) at 167. We discuss the process of obtaining DNA samples from offenders for the DPD in Chapter 19.

⁸ Criminal Investigations (Bodily Samples) Act 1995, ss 16(1)(e) and 23(1)(f).

9. See, for example, Police v SJ [2017] NZDC 17314, [2018] DCR 587 at [38], where the Judge concluded it would not be reasonable to grant an application for a suspect compulsion order, as requiring SJ to provide a DNA sample would amount to an unreasonable search and seizure under s 21 of the New Zealand Bill of Rights Act 1990. This case is discussed in Chapter 17.

2009 significantly undermined the effectiveness of this accountability mechanism. Under Part 2B, a sample can be required from a person arrested or intended to be charged without any form of judicial oversight and using reasonable force if necessary.¹⁰ In the 2018–2019 reporting year, only 62 applications for suspect compulsion orders were made, compared to the 13,056 DNA samples required under Part 2B of the CIBS Act.¹¹

(c) Judicial review. The exercise of discretionary powers under the CIBS Act is open to judicial review. If a police officer is found to have acted contrary to the CIBS Act, the collection or use of a DNA sample might be ruled unlawful and in breach of the right against unreasonable search and seizure affirmed in the Bill of Rights Act.¹² Such challenges are, however, rare. We are only aware of two judicial review applications. One successfully challenged the collection of a sample post-conviction on the basis that the conviction was not for a qualifying offence¹³ and one unsuccessfully challenged a police officer’s exercise of discretion to collect a sample post-conviction which was not found to be unreasonable.¹⁴

Independent statutory bodies exercising oversight

• 5.9 Several independent statutory bodies exercise some oversight of the DNA regime as part of their broader functions.¹⁵ These bodies are described below. We note that this does not include the Ombudsman, who has no jurisdiction to investigate any decision, recommendation, act or omission of any police officer.¹⁶

Independent Police Conduct Authority

• 5.10 The Independent Police Conduct Authority (IPCA) is responsible for receiving and investigating complaints alleging misconduct or neglect of duty by any Police employee or concerning any Police practice, policy or procedure.¹⁷ Following an investigation, IPCA forms an opinion as to whether the conduct, practice, policy or procedure was “contrary to law, unreasonable, unjustified, unfair, or undesirable”.¹⁸ IPCA can then make recommendations to the Commissioner of Police and, if it is not satisfied with the Commissioner’s response, may refer to the matter to the Attorney-General and the Minister of Police, along with a report for tabling in Parliament.¹⁹

10. Criminal Investigations (Bodily Samples) Act 1995, ss 24J–24K. This method of DNA sampling is discussed in Chapter 18.
11. Ngā Pirihimana o Aotearoa | New Zealand Police Annual Report 2018–2019 (November 2019) at 167–168. Of the 62 applications for a suspect compulsion order, 47 were granted, two were refused and the rest were either withdrawn, discontinued or outstanding at the time of reporting.

¹² Tairi v New Zealand Police HC Hamilton CIV-2006-419-1175, 21 December 2006 at [41] and [45]–[47].

¹³ Liston-Lloyd v Commissioner of Police [2015] NZHC 2614 at [43] and [51].

¹⁴ Tairi v New Zealand Police HC Hamilton CIV-2006-419-1175, 21 December 2006 at [41] and [45].

¹⁵ These bodies are all designated as Independent Crown Entities under the Crown Entities Act 2004.

16. Other than any matter relating to the terms and conditions of service of any constable: Ombudsmen Act 1975, s 13(7)(d).

¹⁷ Independent Police Conduct Authority Act 1988, s 12(1)(a).

¹⁸ Section 27(1).

¹⁹ Sections 27(2) and 29(2)–(3).

• 5.11 As part of this broad investigatory function, IPCA can consider complaints relating to a police officer’s decision to collect a DNA sample or any Police practice, policy or procedure regarding the collection and use of DNA in criminal investigations. It could then make recommendations regarding how practice, policy or procedure ought to change.²⁰ However, we understand that such complaints are rare. As IPCA has very narrow powers to initiate investigations of its own motion,²¹ the scope of oversight of the DNA regime exercised by IPCA is very much dependent on the nature of complaints it receives.

Privacy Commissioner

• 5.12 The Privacy Commissioner has a wide range of functions under the Privacy Act 1993 (and its successor, the Privacy Act 2020).²² The Privacy Act prescribes rules (the information privacy principles) around how personal information should be collected, used, stored and disclosed.²³ The Privacy Commissioner’s functions include promoting understanding and acceptance of the principles, conducting audits of personal information on behalf of agencies to assess compliance with the principles, receiving and inviting representations from members of the public on any matter affecting the privacy of individuals, inquiring into any matter if it appears that the privacy of individuals is being or may be infringed and providing advice on any matter relevant to the operation of the Act.²⁴
• 5.13 The Privacy Act 2020 also gives the Privacy Commissioner new powers to issue compliance notices to agencies to require them to remedy a breach of the Act, including a breach of an information privacy principle, and to direct agencies to provide individuals with access to their personal information.²⁵
• 5.14 Under these broad functions, the Privacy Commissioner can perform an oversight role in relation to privacy issues that arise in the DNA regime, both at a policy level and an operational level. Many aspects of the DNA regime raise potential privacy issues, such as the use of forensic DNA phenotyping, familial searching, mass screens, indirect sampling, sharing information with foreign law enforcement agencies and using the DNA databanks for research purposes. Privacy issues might also arise through the collection, use and storage of DNA samples and DNA profiles.
• 5.15 However, the Privacy Commissioner receives few complaints relating to the DNA regime.²⁶ While the Commissioner actively engages in policy development and draft

20. In the past, IPCA has drafted policy recommendations on issues such as Police pursuit practices, pre-charge warnings and the use of excessive force. See, for example, Mana Whanonga Pirihimana Motuhake | Independent Police Conduct Authority Death of Calum Meyer following Police pursuit in Whanganui (March 2016); Mana Whanonga Pirihimana Motuhake | Independent Police Conduct Authority Review of pre-charge warnings (September 2016); and Whanonga Pirihimana Motuhake | Independent Police Conduct Authority Complaint of excessive force following arrest in Hokitika (October 2016).
21. The power to initiate own motion investigations is limited to incidents of death or serious bodily harm where they are caused or appear to be caused by a Police employee: Independent Police Conduct Authority Act 1988, ss 12 and 13.
22. The Privacy Act 1993 will be replaced by the Privacy Act 2020 on 1 December 2020. In this Report, we refer to both statutes for completeness.

²³ Privacy Act 1993, s 6; and Privacy Act 2020, s 22.

²⁴ Privacy Act 1993, s 13; and Privacy Act 2020, s 17.

²⁵ Privacy Act 2020, ss 92 and 123.

26. The Office of the Privacy Commissioner identified 12 complaints received relating to DNA databanks and/or the CIBS Act: Email from Vanessa Blackwood (Office of the Privacy Commissioner) to the Law Commission regarding follow-up on 21 May meeting (28 June 2019).

legislation related to the DNA regime,²⁷ the Privacy Commissioner’s role is focused on providing specialist advice on privacy issues. As we explore below, there is also uncertainty as to whether DNA samples constitute “personal information” under the Privacy Act. If DNA samples are not personal information, the information privacy principles do not apply.
The Human Rights Commission

• 5.16 The Human Rights Commission (HRC) is responsible for promoting and protecting human rights within Aotearoa New Zealand.²⁸ It has a wide range of functions including making public statements that promote understanding and compliance with New Zealand’s human rights framework, promoting a better understanding of human rights dimensions of te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty) through research, education and discussion, preparing and publishing guidelines and voluntary codes of practice, inquiring into any matter, enactment, law, practice or procedure that appears to infringe human rights and receiving complaints of unlawful discrimination and resolving those disputes.²⁹
• 5.17 The DNA regime can engage significant human rights values. However, while the HRC has jurisdiction to receive and investigate human rights complaints relating to the DNA regime, we understand that such complaints are rare. Like the Privacy Commissioner, the HRC has a broad remit and is not designed to provide comprehensive or routine oversight of any one regulatory system.

The Criminal Cases Review Commission

• 5.18 The role of the Criminal Cases Review Commission is to review potential miscarriages of justice.³⁰ It investigates and reviews convictions and sentences and decides whether it is in the interests of justice to refer them to an appeal court.³¹ The Commission also has the power to initiate and conduct inquiries into general matters if, in the course of performing its functions and duties, it identifies a practice, policy, procedure or other matter that it considers may potentially relate to cases involving a miscarriage of justice.³² In addition, the Commission has a duty to promote public awareness of its functions by carrying out the activities it considers necessary to make its functions known to and understood by the public.³³

ISSUES WITH THE EXISTING OVERSIGHT ARRANGEMENTS

• 5.19 Under the current arrangements, oversight of the DNA regime is fractured across a range of different bodies. There is no independent body with exclusive responsibility for

²⁷ See, for example, submissions on the 2009 amendments to the CIBS Act as well as on our review.

²⁸ See Human Rights Act 1993, s 5.

²⁹ See pts 1A, 2 and 3 of the Human Rights Act 1993.

³⁰ Te Kāhui Tātari Ture | Criminal Cases Review Commission “About Us” (2019) <www.ccrc.nz>.

³¹ Criminal Cases Review Commission Act 2019, ss 11 and 17.

³² Section 12.

³³ Section 13.

oversight of the DNA regime. This falls short of international best practice and is out of step with the approach taken in most comparable jurisdictions, as we discuss below.³⁴

• 5.20 We have several concerns regarding the current oversight arrangements:

(a) Failure to provide a framework for Māori participation in oversight of the DNA regime.

(b) Lack of independent scrutiny of new DNA technologies and techniques.

(c) Lack of routine independent monitoring of the DNA regime.

(d) Lack of transparency in the existing oversight arrangements.

(e) Uncertainty as to whether the Privacy Act applies to DNA samples.

• 5.21 We discuss these issues below.

Failure to provide for Māori participation

• 5.22 In Chapter 2, we explain that Māori rights and interests are central to this review. DNA holds special significance in te ao Māori, and its collection and use in criminal investigations engages rights and obligations under the Treaty, including the right to exercise tino rangatiratanga in accordance with tikanga Māori. In Chapter 2, we say that, at a minimum, ‘constitutionally sound’ DNA legislation requires providing for ongoing Māori participation in oversight of the DNA regime. However, the CIBS Act provides no role for Māori in the oversight of the DNA regime and no framework to enable Māori to articulate how their rights and interests are engaged by the DNA regime.
• 5.23 In addition, the CIBS Act makes inadequate provision for the Crown, working in partnership with Māori, to meet its Treaty obligations to take active steps to reduce Māori over-representation in the collection and use of DNA in criminal investigations. Police is required to report on the ethnicity of some key indicators,³⁵ but these reporting requirements are not subject to any routine independent scrutiny to monitor the impact of the DNA regime on Māori.

Lack of independent scrutiny of new DNA analysis techniques

• 5.24 As we explain in Chapter 6, the CIBS Act does not regulate the use of new DNA analysis techniques. Currently, the decision as to whether to introduce a new form of DNA analysis into criminal casework is made by Police. It advises that any new technique would be discussed with Police’s National Forensic Services Centre which would consider the value of the new technique and undertake a cost-benefit analysis.³⁶ In

34. The Forensic Genetics Policy Initiative, a collaboration of GeneWatch UK, Privacy International and the Council for Responsible Genetics, has ranked New Zealand’s laws as contravening best practice on several fronts, including on matters of independent oversight, independence of forensic laboratories from Police, quality assurance procedures in relation to crime scenes and chain of custody, DNA profiling standards and provision for secure transfer of data: Forensic Genetics Policy Initiative DNA databases in Australia and New Zealand (May 2016) at 2–3 and 9–10.

³⁵ Criminal Investigations (Bodily Samples) Act 1995, s 76(2).

36. In September 2020, Police published a new policy. See Ngā Pirihimana o Aotearoa | New Zealand Police Proposals to test or trial use of emergent technologies (18 September 2020). Under that policy, Police must consider “any relevant ethical and human rights considerations, including public expectations and legal obligations surrounding the right to privacy” and any test or trial must be approved by Police’s Security and Privacy Reference Group and endorsed by Police’s Organisational Capability Governance Group: at 5. Police has also signed up to Statistics New Zealand’s Algorithm Charter for Aotearoa New Zealand which outlines standards for the use of algorithms by public agencies and embeds a te ao Māori perspective. Police Commissioner Andrew Coster has said that, to support the new policy on the use of emergent technologies and Police’s commitments under the Algorithm Charter, Police intends to

practice, from a scientific perspective, Police relies on ESR’s advice as to whether and when a new analysis technique has been sufficiently validated in the international community to be appropriate to be introduced into use in Aotearoa New Zealand. We discuss the validation process in Chapter 7.

• 5.25 There is, however, no independent oversight or statutory approval process that applies to the introduction of new DNA analysis techniques. Such techniques have the potential to raise significant privacy issues and impact on Māori rights and interests, including on tikanga associated with personal tapu, mana and whakapapa that pertains to DNA.³⁷ An example of a new DNA analysis technique is forensic DNA phenotyping, which is used to predict a person’s appearance from their DNA. This technology has been used in 12 cases in Aotearoa New Zealand to infer a person’s “biogeographical ancestry”, which raises particular concerns in the context of the over-representation of Māori in the criminal justice system. Forensic DNA phenotyping is discussed in Chapter 14.
• 5.26 The use of new and more sensitive DNA analysis techniques might also raise the risk of wrongful conviction if the probative value of information generated from these techniques is overestimated or misunderstood.³⁸ For example, the use of “trace DNA” (generating a DNA profile from tiny traces of DNA found at a crime scene using sensitive analysis techniques) could wrongly implicate someone if the presence of their DNA at the crime scene was due to contamination or transfer. Currently, the task usually falls to the courts to determine whether evidence generated using a particular technique is sufficiently reliable to be admitted in any given case. However, many question whether the courts are adequately equipped to make such determinations. As the United States’ National Research Council has observed:³⁹

The adversarial process relating to the admission and exclusion of scientific evidence is not suited to the task of finding “scientific truth.” The judicial system is encumbered by, among other things, judges and lawyers who generally lack the scientific expertise necessary to comprehend and evaluate forensic evidence in an informed manner, trial judges (sitting alone) who must decide evidentiary issues without the benefit of judicial colleagues and often with little time for extensive research and reflection ... Given these realities, there is a tremendous need for the forensic science community to improve. Judicial review, by itself, will not cure the infirmities of the forensic science community.

• 5.27 In Aotearoa New Zealand, the Court of Appeal has noted that considerable resources are needed to challenge the reliability of evidence and that this creates a tension with the right to a fair trial:⁴⁰

The notion that the robustness of cutting edge scientific techniques can be established before juries creates a clear tension with the right to a fair trial in the many cases that

“assemble a panel of experts who can externally peer review the use of emergent technologies, including algorithms that support decision-making by Police staff”: Ngā Pirihimana o Aotearoa | New Zealand Police “Police strengthen commitments to use technology safely and responsibly” (30 September 2020) <www.police.govt.nz/>.

³⁷ These tikanga Māori values are discussed in Chapter 2.

38. See, for example, President’s Council of Advisors on Science and Technology Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, September 2016) at 25.
39. National Research Council Strengthening Forensic Science in the United States: A Path Forward (National Academies Press, August 2009) at 12 (citations omitted).

⁴⁰ Lundy v R [2018] NZCA 410 at [247].

might arise where the defence would simply be unable, through lack of resources, to mount soundly based challenges to the science relied on by the Crown.

• 5.28 Given these concerns, which are explored in greater detail in Chapter 6, we consider that the introduction of new DNA analysis techniques must be subject to independent scrutiny to ensure they are used only when appropriate.

Lack of routine independent monitoring

• 5.29 There is no statutory provision for routine, independent monitoring of the DNA regime, either to keep the DNA regime under review generally or to identify systemic issues in internal policies or practices. While Police publicly report on some key measures regarding the collection, use and retention of DNA samples and profiles,⁴¹ these reporting measures are incomplete (as we explain in Chapter 4) and are not subject to any routine independent scrutiny.
• 5.30 The judiciary performs an important independent monitoring role. However, there are problems with relying solely on this form of monitoring. As one report on the Australian DNA regime observed:⁴²

It is not ordinarily the role of courts to examine the integrity of systems which underpin the evidence gathering process. They examine matters on a case by case basis and usually only examine the means of obtaining evidence when a specific challenge or criticism is made. This means that the great bulk of DNA testing and analysis is never scrutinised by the courts. Moreover, successful matching of DNA profiles will often result in a plea of guilty and the processes leading up to that plea will rarely be examined by the courts.

• 5.31 The effectiveness of judicial oversight in exercising a monitoring role can also be limited by the cost of access to justice, including the cost of engaging forensic scientists to challenge DNA evidence.⁴³ Further, it will not always be readily apparent that there has been an error in analysis or an improper use of powers to collect and use DNA samples that warrants legal challenge.⁴⁴ Some argue that:⁴⁵

... it is not and cannot be the responsibility of the defendant and his or her lawyer to somehow identify errors, uncertainties and frailties retrospectively, possibly months or years after the original collection and analysis of materials. Those producing and relying on forensic science evidence are the only ones in a position to formally evaluate procedures and disclose limitations.

• 5.32 The lack of routine independent monitoring of the DNA regime is out of step with accountability arrangements in other jurisdictions, as we discuss below. It is also out of

⁴¹ Criminal Investigations (Bodily Samples) Act 1995, s 76.

⁴² Tom Sherman and others Report of the Independent Review of Part 1D of the Crimes Act 1914: Forensic Procedures

(Attorney-General’s Department, March 2003) at [5.9].

43. At [5.10]. A recent parliamentary review in England and Wales identified that cuts to legal aid had affected the ability of defendants to access forensic expertise, hampering fair access to justice. See House of Lords Science and Technology Select Committee Forensic science and the criminal justice system: a blueprint for change (House of Lords, 3rd Report of Session 2017–2019, 1 May 2019) at 3 and [117]–[123]. Concerns regarding defence resourcing have also been noted in New Zealand. See, for example, Jack Drummond “Fifty years of forensic medicine in New Zealand” (2020) 936 LawTalk 72 at 73. However, as noted in Chapter 1 of this Report, the use of DNA evidence in court is not within the terms of reference of this review.
44. Hannah Croucher “DNA ‘consent’ samples; overhauling the Criminal Investigations (Bodily Samples) Act 1995” [2019] NZLJ 279 at 280.
45. Gary Edmond, Kristy Martire and Mehera San Roque “Expert Reports and the Forensic Sciences” (2017) 40 UNSW Law Journal Volume 590 at 624 (citations omitted).

step with other regimes in Aotearoa New Zealand that involve significant intrusions on privacy and other human rights values by the State.

• 5.33 For example, the Inspector-General of Intelligence and Security (IGIS) provides independent oversight of the New Zealand Security and Intelligence Service and the Government Communications Security Bureau. The IGIS has broad functions that include investigating complaints and receiving protected disclosures, conducting inquiries, reviewing all warrants and authorisations issued to the intelligence and security agencies and annual reviews of compliance procedures and systems, including through unscheduled audits.⁴⁶ The Government Inquiry into Operation Burnham has also recommended the establishment of a similar mechanism to provide independent oversight of the New Zealand Defence Force.⁴⁷ Another example is IPCA’s special role in monitoring and reporting on places of Police detention under the Crimes of Torture Act 1989. This role includes regular examinations of the conditions of detention and the treatment of detainees, making recommendations for improving the conditions of detention and the treatment of detainees and reporting annually to Parliament and the relevant Minister on the exercise of these functions.⁴⁸
• 5.34 In a slightly different context that nonetheless engages significant human rights issues, the Children’s Commissioner exercises an oversight role in relation to Oranga Tamariki. This role includes investigating any decision or recommendation made in respect of any child or young person under the Oranga Tamariki Act 1989, monitoring and assessing Oranga Tamariki’s policies and practices, encouraging the development of policies and services that are designed to promote the welfare of children and young people, advising the Minister on any matter relating to the administration of the Oranga Tamariki Act or regulations made under that Act and keeping under review and making recommendations on the working of that Act.⁴⁹
• 5.35 In contrast, IPCA’s oversight role in relation to the DNA regime is limited to investigating complaints regarding Police employee misconduct and Police practice, policy or procedure. It has no power to initiate audits or otherwise conduct investigations or make recommendations of its own motion.
• 5.36 While we do not have any particular concerns with the range of internal accountability mechanisms currently in place, it is important to recognise that, in any regulatory system, errors and (to a lesser extent) misuse can and will occur.⁵⁰ While the judiciary

⁴⁶ Intelligence and Security Act 2017, s 158.

⁴⁷ Terence Arnold and Geoffrey Palmer Report of the Government Inquiry into Operation Burnham and related matters

(July 2020) at ch 12.

⁴⁸ Crimes of Torture Act 1989, s 27.

⁴⁹ Children’s Commissioner Act 2003, s 13.

50. See, for example, Wells v R [2014] NZCA 479 at [5], where it was reported that Police asked ESR to destroy biological samples taken from a complainant after they withdrew their complaint, but the samples were not destroyed and were not handled in accordance with the normal ESR procedures. We were also made aware of one instance where a comparison between a suspect profile and a crime scene profile was carried out without consent, in contravention of the requirements of the CIBS Act. ESR, upon investigation of the incident, also identified a separate instance of a suspect profile being compared with a crime scene profile in error. As a result, ESR has implemented refresher training on the CIBS Act for all staff involved in casework involving DNA, and this will continue to be provided on an ongoing basis: Letter from Jill Vintiner (Institute of Environmental Science and Research) to Law Commission regarding matters raised by The Forensic Group (13 January 2020).

performs an important check on Police conduct and procedure when challenged in court, this does not supplant the need for active independent monitoring through regular reviews and audits of all aspects of the DNA regime. While Police does have the ability to audit some aspects of ESR’s processes relating to forensic analysis and the DNA databanks, it is difficult for the agency involved in the day-to-day operation of the DNA regime to also be responsible for identifying and addressing systemic issues. Independent monitoring can be better placed to identify such issues, can assist in reducing error and misuse and, importantly, can promote public confidence in the regime.

Lack of transparency

• 5.37 For the DNA regime to operate effectively, there must be public understanding, trust and confidence in the regime. However, there are serious deficiencies in the transparency of key elements. Police and ESR policies are not readily available. ESR’s role as the forensic services provider is not provided for in legislation (see Chapter 7). No organisation has a clear role in promoting public awareness and understanding of the DNA regime. The current lack of transparency risks undermining public confidence in what is an important law enforcement tool.

Uncertain application of the Privacy Act to DNA samples

• 5.38 As noted above, it is uncertain whether the information privacy principles in the Privacy Act apply to DNA samples. The principles apply to “personal information”, which is defined as “information about an identifiable person”.⁵¹ It is not clear whether a DNA sample, which is a sample of a person’s human tissue, would amount to “personal information”. In 2012, the Office of the Privacy Commissioner considered this issue in respect of blood spot cards collected as part of the Ministry of Health’s Newborn Metabolic Screening Programme. At that time, the Office observed that:⁵²

The Privacy Act regulates information about identifiable individuals, rather than their bodily substances. The samples by themselves do not present any privacy risk ... However any use which might present privacy concerns would inevitably require the analysis of the samples, and the collection of information about them. This derived information will fall within the ambit of the Privacy Act ...

• 5.39 A similar view was expressed by the Australian Law Reform Commission, which considered this issue in the context of a comparable definition of personal information in the Australian Privacy Act.⁵³ The Commission concluded that “personal information” does not cover genetic samples, even when they are identifiable, because the samples themselves are not “information”.⁵⁴

51. Privacy Act 1993, s 2 definition of “personal information”; and Privacy Act 2020, s 7 definition of “personal information”.
52. Te Mana Mātāpono Matatapu | Office of the Privacy Commissioner Proposed Amendment No 7 to the Health Information Privacy Code 1994: Information Paper (29 February 2012) at 5–6.

⁵³ See Privacy Act 1988 (Cth), s 6(1) definition of “personal information”.

54. Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC R96, 2003) at [8.7]–[8.26]. The Commission made a distinction between samples that are labelled with a person’s name and other personal information, and samples that are not labelled. Samples that are labelled may constitute personal information but only by reason of the information on the label: at [8.20].

• 5.40 If DNA samples are not personal information, the information privacy principles would not apply to their collection, storage and destruction. This creates an arbitrary distinction between the samples themselves and the information generated from DNA samples, which would constitute personal information (including DNA profiles). When a DNA sample is from a known person, any DNA profile generated from that sample would be personal information as it is clearly information about an identifiable person. We also think that a DNA profile generated from an unknown DNA sample, such as a DNA sample collected from a crime scene, constitutes personal information because it is information that is generated for the sole purpose of identifying the source of the DNA sample and it can be used alongside other information to identify the person.⁵⁵ This interpretation was supported by the Privacy Commissioner in his submission on the Issues Paper. It may, however, be desirable to clarify this in legislation.
• 5.41 The uncertainty regarding DNA samples as personal information undermines the protections in place relating to DNA samples as well as the Privacy Commissioner’s role in the oversight of the DNA regime.⁵⁶ The Privacy Commissioner could not, for example, audit DNA samples held by or on behalf of Police or issue a compliance notice to require the information privacy principles to be complied with in respect of DNA samples.⁵⁷

OPTIONS FOR REFORM

• 5.42 In the Issues Paper, we identified a range of oversight functions that could be performed in relation to the DNA regime, specifically:⁵⁸

(a) case-specific approvals for certain DNA collection methods, analysis techniques or uses of DNA information;⁵⁹

(b) considering and determining complaints relating to the collection of suspect samples;

(c) reviewing convictions based solely on DNA evidence;

(d) reviewing cases where there is an unexpected match between an elimination sample and crime scene sample, resulting in that person becoming a suspect;

55. In Vidal-Hall v Google Inc (Information Commissioner intervening) [2015] EWCA Civ 311, [2016] QB 1003, the Court of Appeal in England and Wales found that identifiability hinges on whether a person can be individually distinguished from a group. It does not matter that the person’s name is not attached to the information, nor does it matter whether the person can recognise themselves in the information: at [115]. See the discussion of the case in Katrine Evans “Pressures on Personal Information: The Ever-Changing Field of Privacy” (paper presented to the New Zealand Law Society CPD Top-Up Day Conference, 20 March 2017) at 6–7. See also Paul Roth “What is ‘Personal Information’?” (2002) 20 NZULR 40 at 41–42 and n 4.
56. Similar concerns were identified regarding the gaps in privacy protection for DNA samples in Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC R96, 2003) at [8.30]– [8.54].
57. These powers can only be exercised in respect of personal information: Privacy Act 1993, s 13(1)(b); and Privacy Act 2020, ss 17(1)(l) and 123(1)(b).

⁵⁸ Issues Paper at 324–327.

59. Including approving the collection of DNA samples from a close genetic relative of a suspect, the use of forensic DNA phenotyping, mass screening or familial searching, the use of the CSD in a non-standard way, the use of any DNA profile databank for a secondary purpose and deciding any application by a defendant for analysis or reanalysis of DNA samples relating to their case.

(e) consultation on or approval of Police and ESR policies;

(f) approval of the use of new technologies or techniques;

(g) auditing and monitoring compliance with statutory requirements and policies, including the storage, retention and destruction of DNA samples and profiles;

(h) reporting; and

(i) public education/engagement.

• 5.43 As to who should perform these oversight functions, we identified two broad options:⁶⁰

(a) dividing the oversight functions between the existing bodies discussed above; or

(b) establishing a new body or bodies, such as an independent oversight committee, an ethics committee, a standing or ad hoc group with a kaitiaki role in relation to Māori interests and data and/or a new commissioner or regulator.

• 5.44 Our preliminary view was that none of the existing bodies could provide the full range of oversight functions that may be necessary, even if their functions and powers were amended. That is primarily because their structures do not accommodate the necessary tikanga, scientific and ethical expertise that would be required nor the specific representation of Māori interests.⁶¹

RESULTS OF CONSULTATION

• 5.45 We received 50 submissions that commented on oversight of the DNA regime from 13 organisations and 37 individuals. Of these, 43 submitters supported increased independent oversight, most favouring the establishment of a new independent oversight body.⁶² The Judges of the District Court also provided comments in support of an independent oversight body.

Support for increased oversight

• 5.46 Reasons given in support of increased oversight focused largely on the personal and sensitive nature of DNA information and the security, privacy and ethical issues that arise in relation to such information. The Privacy Commissioner considered that appropriate checks and safeguards are necessary to ensure that intrusions into the privacy of the individual are not unwarranted and to limit any unintentional adverse effects for individuals. HRC also noted that the DNA regime is inherently rights intrusive. The Innocence Project New Zealand and the Independent Forensic Practitioners Institute (IFPI) noted that forensic science is rapidly advancing, and independent oversight is needed to future-proof against errors resulting from the use of new techniques. The Public Defence Service (PDS) similarly submitted:

⁶⁰ Issues Paper at [15.95]–[15.105].

⁶¹ At [15.96].

62. Organisations supporting increased oversight included the Human Rights Commission, the Privacy Commissioner, the Independent Police Conduct Authority, Te Mana Raraunga | Māori Data Sovereignty Network, the Innocence Project New Zealand, the New Zealand Law Society (NZLS), the New Zealand Bar Association (endorsing NZLS’s submission in its entirety), Te Hunga Rōia Māori o Aotearoa | The Māori Law Society, the Auckland District Law Society Criminal Law Committee, the Public Defence Service and the Independent Forensic Practitioners Institute. Individuals supporting increased oversight included Associate Professor Nessa Lynch, Professor Dennis McNevin, Professor Carole McCartney, Dr Aaron Amankwaa, Sue Petricevic, Karaitiana Taiuru and 27 other individuals.

[I]ndependent oversight has the potential to decrease the risk of individual miscarriages of justice occurring and to ensure protection of privacy and appropriate limitations. The current situation where police, alongside ESR, self-regulate the use of DNA does not provide sufficient oversight, management, impartiality, scrutiny and safeguards.

• 5.47 Some submitters also pointed to inadequacies in the existing accountability mechanisms. The Innocence Project noted that errors can and do occur, reinforcing the need for independent oversight to ensure best-practice standards are being adhered to. The Innocence Project also pointed to the need for independent oversight to be prescribed in statute to counteract the competing incentives on ESR in developing commercial products. It submitted that:

There is always the possibility that the commercial interests are at odds with the public interests – or at least has the appearance of doing so – which independent oversight can mitigate against.

• 5.48 Five individuals did not support increased oversight of the DNA regime. Of these, two were concerned that it would result in over-administration, and one expressed concern that it removed control from individuals. That submitter did not think that DNA profiles should be kept at all.
• 5.49 Police did not comment on the need for oversight in its submission, although in subsequent engagement, Police expressed its desire to assist with improving oversight of the DNA regime on a more formalised basis, in particular where policing and crime prevention are concerned. It also expressed support for the inclusion of Māori at both governance and decision-making levels, in line with the Treaty. ESR submitted that, in principle, it is not averse to the introduction of an oversight body to independently oversee the use of DNA in criminal investigations.

Oversight functions

• 5.50 Many submitters, including HRC, IPCA, PDS, the Innocence Project, IFPI, the Auckland District Law Society Criminal Law Committee (ADLS) and Sue Petricevic supported the oversight functions and powers suggested in the Issues Paper (outlined at paragraph

5.42 above). HRC also submitted that an oversight body should be empowered to provide a restitutionary remedy in the event that its inquiry into a complaint determines that an individual’s rights have been breached or that due process requirements have not been followed. This, HRC submitted, should include orders that enable profiles to be removed from the databank and samples destroyed.

• 5.51 Several submitters commented specifically on the need for independent oversight of the operation and use of the proposed DNA databank, including the Privacy Commissioner, Associate Professor Nessa Lynch, Professor Carole McCartney and Dr Aaron Amankwaa. The Privacy Commissioner submitted that robust procedural checks and safeguards are required so that the databank is maintained in a manner that ensures the use of DNA in criminal proceedings is necessary, justifiable, reasonable and proportionate. Nessa Lynch considered that oversight functions should include auditing patterns of sample collection, such as ethnicity of people sampled and trends in the use of reasonable force to obtain samples, and the destruction of samples. Oversight should also include the use of samples and profiles in research and monitoring statistics on the efficacy of DNA evidence for securing convictions.
• 5.52 Carole McCartney and Aaron Amankwaa proposed that oversight functions should include the development of a code of practice on the retention, use and destruction of

DNA records, the development of governance rules for the database, regular review of the actual effectiveness and efficiency of the databank, making recommendations for improvement, ensuring compliance with the law and code of practice through regular audits and investigations, conducting regular ethical reviews and data protection impact assessments and producing annual reports for Parliament on the exercise of these functions.

• 5.53 The New Zealand Law Society (NZLS) considered that the two key functions of an oversight body should be standard setting, which must entail some mechanism for community-wide consultation, and auditing/monitoring/reporting. NZLS noted that retention of samples and profiles beyond their legislative “use-by” date can significantly increase the risk that samples are used for collateral and inappropriate purposes and that independent auditing is more likely to garner the necessary public confidence that processes are being correctly followed than a self-reporting regime. The provision of public information, NZLS considered, would also appropriately sit with an oversight body. NZLS further submitted:

Developments in DNA technology are likely to be contentious in their scope for application, and without monitoring, may inadvertently result in State or Police powers being significantly extended. As such, it is important for the purposes of State accountability, that the implementation of new DNA techniques in criminal investigations is subject to legislative amendment or subordinate legislation, with scrutiny provided by the Regulations Review Committee where appropriate. It would also be sensible for an oversight body to be involved where new techniques are adopted.

• 5.54 NZLS did not, however, support an oversight body being responsible for case-specific functions. It considered these are most appropriately dealt with by a judicial warrant system. Further, it considered complaints processes are already adequately provided by existing mechanisms, through the IPCA or the courts, and that complaints regarding criminal convictions will be addressed through the creation of the Criminal Cases Review Commission.
• 5.55 ESR submitted that the functions of any independent oversight body need to be clearly defined, with a focus on monitoring compliance with policy. The forensic services provider should be enabled to function on a business-as-usual basis, and the oversight body should accept the forensic services provider’s laboratory accreditation status as satisfying the general requirements for the laboratory to operate. ESR also made several comments on some of the suggested oversight functions. In terms of case- specific applications, ESR considered these would be better managed by policy, with compliance being demonstrated and audited by an oversight body. It noted that crime scene examinations, laboratory procedures and the reporting of quality concerns are already catered for under ESR’s accreditation process using an international third party. ESR also noted that some changes to DNA techniques, such as a change to or the introduction of a new DNA extraction method, would be part of the day-to-day running of the laboratory and should therefore be outside the scope of the oversight body.
• 5.56 Te Mana Raraunga | Māori Data Sovereignty Network and Te Hunga Rōia Māori o Aotearoa | The Māori Law Society supported specific reporting obligations on the use of Māori data. Te Mana Raraunga supported regular reporting back to Māori on how accountabilities to the communities, individuals and groups from whom Māori data derive are being met, including how Māori samples and data are collected, managed, analysed, reported, stored and disposed of. It also supported mechanisms for

monitoring and recording data harm, including mandatory reporting of data breaches. Te Hunga Rōia supported reporting obligations in respect of compliance with te Tiriti and monitoring the impact of DNA legislation on Māori, similar to section 7AA of the Oranga Tamariki Act 1989. It considered that such a provision would ensure the commitment to giving Māori a central role in oversight is transparent and enforceable.

• 5.57 A few submitters also commented on the wider context of biometric information. NZLS saw merit in establishing a new commissioner, like the recently established Biometrics Commissioner in Scotland (see paragraph 5.71 below), with jurisdiction to oversee the use of DNA and potentially other biometric information by Police and other state agencies. Te Hunga Rōia also noted the potential inconsistency in the regulation of biometric information if an enhanced regime is put in place for DNA but not for other biometrics such as fingerprints.

The form of increased oversight

• 5.58 As noted above, many submitters favoured the establishment of a new independent oversight body. Various models were proposed. HRC suggested a model similar to IGIS (discussed at paragraph 5.33). NZLS and the Judges of the District Court supported a small, independent, multi-disciplinary panel led by a specialist commissioner. NZLS argued that the creation of such a panel was justified given the scale of data collection and access, the involvement of significant public interest issues and a small number of critical stakeholders, together with the highly technical nature of some of the suggested functions. PDS supported an oversight committee but noted that it may need to be full- time in the initial establishment stage.
• 5.59 Some submitters considered that some or all of the suggested oversight functions could be undertaken by existing accountability bodies. HRC considered that IPCA would be best placed among existing accountability bodies to perform the oversight functions. IPCA also submitted that there was a strong case for bringing the suggested oversight functions within the umbrella of the ICPA. Its reasons included that most of the suggested functions relate to Police decision making, which is the everyday function of IPCA, and that IPCA has detailed knowledge and understanding of the operational environment within which those decisions are taken. IPCA also noted that there is a high degree of symmetry and some indirect overlap between IPCA’s existing functions and the suggested case-specific approval and review functions.
• 5.60 While IPCA recognised that some of the skills required for the suggested oversight functions would require IPCA to develop new expertise, particularly in forensic science, ethics, prosecution and defence, and tikanga Māori, this additional range of expertise would not only ensure the new oversight functions are undertaken robustly but would also enhance the quality and efficiency of the Authority’s existing functions. IPCA submitted that:

In short, by combining the two sets of overlapping functions within one operational body, there would be economies of scale that would enable the recruitment of the optimal range of high quality staff.

• 5.61 The Privacy Commissioner recognised the challenge in creating an effective and efficient oversight framework commensurate with New Zealand’s needs, size and machinery of government. One important reform, in the Privacy Commissioner’s view, is to affirm in legislation that DNA is “personal information” as defined in the Privacy Act.

The Commissioner observed that this is necessary to ensure that the privacy principles in the Privacy Act underpin the collection, analysis, use and disclosure of DNA samples as well as the DNA profiles derived from them. The Privacy Commissioner also suggested exploring options for strengthening internal governance arrangements to achieve some of the policy objectives, noting that external oversight will be more efficient and effective if the underlying governance arrangements are robust.

• 5.62 The Privacy Commissioner also questioned whether one oversight body should provide a “one-stop shop” or whether the oversight functions could be shared across different bodies. The Privacy Commissioner noted that a distributed model may be more efficient and may bring a broader set of oversight skills and experience. However, this would require effective coordination and “joined up” oversight between various entities so that issues do not fall between the cracks. The Privacy Commissioner noted that an oversight board could be considered, which could be made up of representatives of the existing accountability bodies and other relevant stakeholders.
• 5.63 Several other submitters supported a model of distributed oversight comprising a new independent body and strengthened oversight functions of existing accountability bodies. IFPI proposed that IPCA should continue to oversee Police and forensic science providers and that the Office of the Privacy Commissioner should have an increased oversight role, particularly in relation to the security, privacy and administration of the proposed DNA databank. Nessa Lynch suggested that the Privacy Commissioner could be given a statutory role in auditing information held by Police.
• 5.64 Other submitters, however, did not support a distributed oversight model. HRC did not think this would be as effective as a sole focal-point statutory office. It considered that the existing accountability bodies would struggle to meet the additional demands that such an approach would bear upon their existing baselines. HRC also argued that the complexity and narrower focus of the DNA regime warrants a specialist oversight approach. Similarly, ADLS and Sue Petricevic did not favour reliance on existing accountability mechanisms. They had concerns due to the very specific and complex technical considerations that arise in the DNA regime. These submitters considered that existing bodies such as the HRC, the Privacy Commissioner and the Criminal Cases Review Commission are important contributors with specialist knowledge in other areas.

A central role for Māori

• 5.65 Many submitters, including Te Mana Raraunga, Te Hunga Rōia, HRC, NZLS, the Innocence Project, Karaitiana Taiuru and several other individuals, commented on the need for a central role for Māori in any oversight arrangements. Te Mana Raraunga submitted that strong Māori governance should be embedded in the independent oversight of the system to support collection and use of data in ways that uphold the dignity of Māori and minimise its use in ways that are stigmatising and harmful to Māori collectives and individuals. It supported Māori governance of Māori data, including stewardship arrangements for the collection, transfer and storage of data. Māori should have control over deciding the protocols and policies around Māori data, including control over deciding appropriate tikanga and kawa around bodily samples and derived data, consistent with the principles of kaitiakitanga and manaakitanga.
• 5.66 Karaitiana Taiuru made a similar submission, supporting the creation of a new specialist commissioner or a Māori advisory group and a tikanga expert to be appointed to manage all storage and requests for samples from the systems, allowing the customary

tikanga aspects and kaitiakitanga to be respected. HRC suggested an independent advisory panel or similar to advise on the impact of practices on tikanga and the rights of Māori over their DNA as guaranteed under the Treaty. The Innocence Project supported a kaitiaki role or something similar in order to take account of Māori interests.

The need for specialist expertise

• 5.67 Many submitters commented on the need for any new oversight body to include a range of expertise, including in criminal investigations and court procedures, forensic science, tikanga, ethics and compliance monitoring. PDS also submitted that cultural specialists and community members should be represented. In addition, Nessa Lynch supported the body including representation from the Office of the Children’s Commissioner to represent children and young people. Alternatively, some submitters, including NZLS and the Judges of the District Court, noted that an oversight body could be supported by a separate ethics advisory group.

OVERSIGHT IN COMPARABLE JURISDICTIONS

• 5.68 Most comparable jurisdictions have established one or more bodies with the express purpose of providing independent oversight of the DNA regime and specifically the operation of DNA databanks. Many comparable jurisdictions have also made statutory provision for one-off or regular reviews of the operation of the legislation after its commencement.⁶³ We summarise the approach taken to oversight in comparable jurisdictions below.⁶⁴

England and Wales

• 5.69 England and Wales operate a complex system of oversight that comprises:

(a) The Forensic Information Database (FIND) Strategy Board provides governance and oversight of the National DNA Database (NDNAD) and the National Fingerprint Database.⁶⁵ The FIND Strategy Board comprises a core voting membership of representatives of the Association of Chief Police Officers of England, Wales and Northern Ireland, the Home Secretary and the Association of Police and Crime Commissioners.⁶⁶ The Board also includes representatives from the Biometrics and Forensics Ethics Group, the Information Commissioner and the Forensic Science

63. See Scottish Biometrics Commissioner Act 2020, s 6 (providing for an initial review after five years and the opportunity for subsequent five yearly reviews of the Commissioner’s functions); Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), ss 11(6) and 95 (providing for an initial review after six years and subsequent reviews when the Minister considers appropriate); Crimes (Forensic Procedures) Act 2000 (NSW), s 122 (provides for a review after 18 months); DNA Identification Act SC 1998 c 37, s 13 (provides for annual reviews within three months after the end of each fiscal year); and Crimes Act 1914 (Cth), s 23YV (repealed).

⁶⁴ See also the Issues Paper at [15.19]–[15.59].

65. The Forensic Information Database Strategy Board was recently renamed and is still referred to in legislation by its old name, the National DNA Database Strategy Board. See Police and Criminal Evidence Act 1984 (UK), s 63AB; and National DNA Database Strategy Board Annual Report 2017–2018 (Home Office, February 2019) at 3. The objectives and specific responsibilities of the FIND Strategy Board are set out in its governance rules: Home Office Governance Rules for the National DNA Database Strategy Board (June 2014).

⁶⁶ Home Office Governance Rules for the National DNA Database Strategy Board (June 2014) at [5(a)].

Regulator. However, these members cannot cast votes, and the representative from the Information Commissioner attends in the capacity as observer only.⁶⁷ The FIND Strategy Board’s responsibilities include issuing guidance on certain aspects of the DNA regime including on the destruction of DNA profiles, exercising oversight of the collection, use, retention and destruction of DNA samples and profiles and reporting annually to Parliament.⁶⁸

(b) The Commissioner for the Retention and Use of Biometric Material is an independent, statutory Commissioner responsible for keeping under review the retention and use of biological samples, DNA profiles and fingerprints.⁶⁹

(c) The Forensic Science Regulator is an independent, non-statutory appointee responsible for ensuring that the provision of forensic science services across the criminal justice system is subject to an appropriate regime of scientific quality standards.⁷⁰ The Regulator is advised by a number of expert subgroups, including the Forensic Science Advisory Council and the DNA Analysis Specialist Group.⁷¹

(d) The Biometrics and Forensics Ethics Group (BFEG) is a non-statutory, independent advisory group appointed to advise on ethical aspects of the collection, retention and use of biological samples and biometric identifiers for purposes that fall within the purview of the Home Office.⁷² BFEG members are appointed on the basis of their independent expertise, not as representatives of any particular organisation, employer, profession or interest group.⁷³

• 5.70 In 2019, the House of Lords Science and Technology Committee published a report on forensic science, which criticised the “piecemeal nature of oversight of and responsibility for forensic science in England and Wales”.⁷⁴ The report made a number of recommendations on oversight, including recommending the creation of an independent Forensic Science Board to be responsible for the coordination, strategy and direction of forensic science and for creating and delivering a strategy that aims to promote proper understanding of forensic science in the criminal justice system.⁷⁵ The Committee also recommended giving the Forensic Science Regulator statutory powers to monitor and enforce compliance with forensic science standards.⁷⁶

⁶⁷ At [5(b)].

68. Police and Criminal Evidence Act 1984 (UK), s 63AB(2), (4) and (7); and Home Office Governance Rules for the National DNA Database Strategy Board (June 2014) at 2.

⁶⁹ Protection of Freedoms Act 2012 (UK), s 20.

⁷⁰ Home Office “Forensic Science Regulator: About Us” <www.gov.uk>.

71. Forensic Science Regulator Terms of Reference: Forensic Science Advisory Council (Home Office, FSR-T-C01 Issue 3, September 2020); and Forensic Science Regulator Terms of Reference: DNA Analysis Specialist Group (Home Office, FSR-T-C05 Version 4, September 2020).
72. Biometrics and Forensics Ethics Group Code of Practice including Terms of Reference and Working Protocol (Home Office, November 2018) at [2.1.2].

⁷³ At [2.4.1].

74. House of Lords Science and Technology Select Committee Forensic science and the criminal justice system: a blueprint for change (House of Lords, 3rd Report of Session 2017–2019, 1 May 2019) at [14]–[39].

⁷⁵ At [38]–[39].

⁷⁶ At [109].

Scotland

• 5.71 In Scotland, legislation establishing a Scottish Biometrics Commissioner will come into effect on 1 December 2020.⁷⁷ The Commissioner’s general statutory function is to support and promote the adoption of lawful, effective and ethical practices in relation to the acquisition, retention, use and destruction of biometric data for criminal justice and police purposes, including DNA samples and profiles.⁷⁸ In exercising this function, the Commissioner must have regard to the interests of children and young people as well as vulnerable people.⁷⁹
• 5.72 The Commissioner’s specific functions will include:

(a) developing a code of practice on the acquisition, retention, use and destruction of biometric data for criminal justice and police purposes;⁸⁰

(b) keeping under review the law, policy and practice relating to the acquisition, retention, use and destruction of biometric data by policing bodies;⁸¹

(c) promoting public awareness and understanding of the powers and duties those persons have in relation to the acquisition, retention, use and destruction of biometric data, how those powers and duties are exercised and how the exercise of those powers and duties can be monitored or challenged;⁸² and

(d) promoting, and monitoring the impact of the code of practice, including receiving and determining complaints about a police officer or policing body’s failure to comply with the code of practice.⁸³

77. The Scottish Biometrics Commissioner Act 2020 (Commencement) Regulations 2020, reg 2. This legislation is based on recommendations made in Independent Advisory Group on the Use of Biometric Data in Scotland (Scottish Government, March 2018).
78. Scottish Biometrics Commissioner Act 2020, s 2(1). Under s 2(2) of the Act, the Commissioner’s general function does not extend to biometric data in which the Commissioner for the Retention and Use of Biometric Material has a function (discussed at [5.69(b)]). The Act defines “biometric data” in s 34(1) as:

... information about an individual’s physical, biological, physiological or behavioural characteristics which is capable of being used, on its own or in combination with other information (whether or not biometric data), to establish the identity of an individual.

Section 34(2) expressly includes samples taken from any part of an individual’s body from which information can be derived and information derived from such samples, as biometric data.

79. Section 2(6). The term “vulnerable persons” means individuals who, by reason of their personal circumstances or characteristics, may have difficulty understanding matters relating to the acquisition, retention, use and destruction of their biometric data by or on behalf of policing bodies: s 2(8).
80. Section 7. Under s 8 of the Act, when preparing a draft code of practice, the Commissioner must have regard to the importance of promoting and protecting human rights; promoting and protecting an individual’s right to privacy; promoting and protecting public confidence in the acquisition, retention, use and destruction of biometric data for criminal justice and police purposes; and ensuring the safety of individuals and communities.
81. Section 2(3)(a). In doing so, the Commissioner may prepare and publish a report about any matter relating to its functions and may make recommendations in relation to the technology used or capable of being used for the purposes of acquiring, retaining, using or destroying biometric data and about any other matter relating to the Commissioner’s functions: s 20.

⁸² Section 2(3)(b).

83. Sections 2(3)(c) and 15. The Commissioner must prepare and publish a report about any failure to comply with the code, unless the Commissioner considers the failure is sufficiently minor not to merit it: s 20(1). Reports may include recommendations in relation to compliance: s 20(5)(a). In addition, the Commissioner can issue compliance notices requiring a person to take steps set out in the notice in order to address a failure to comply with the code: s 23.

• 5.73 The Commissioner must establish and maintain an advisory group to give advice and information to the Commissioner related to its functions.⁸⁴ It will have broad powers to carry out its functions, including information-gathering powers and powers to carry out or support any research it considers appropriate.⁸⁵

Ireland and Canada

• 5.74 Ireland and Canada both operate one independent statutory committee that has oversight of the operation of each jurisdiction’s DNA databank.
• 5.75 In Ireland, the DNA Database System Oversight Committee oversees the management and operation of the DNA Database System for the purposes of “maintaining the integrity and security of the System”.⁸⁶ For those purposes, the Committee must satisfy itself that statutory requirements are being complied with.⁸⁷ The Committee also has a range of statutory functions including overseeing arrangements, practices and procedures relating to receipt, handling, transmission and storage of samples, generation of DNA profiles, the security of the DNA Database System, the reporting of search results, destruction of samples, removal of profiles and international cooperation arrangements.⁸⁸ The Committee must be chaired by a serving or retired judge, and its members include the Director of Forensic Service Ireland (the forensic services provider responsible for administering the DNA database), a representative from the Data Protection Commission and three other members.⁸⁹
• 5.76 In Canada, the DNA Data Bank Advisory Committee has a similar role. It has a broad function to provide advice, on its own motion or following a request from the Commissioner responsible for the National DNA Data Bank, on “any matter related to the establishment and operation of the National DNA data bank”.⁹⁰ This enables the Committee to carry out a wide range of activities to assist the responsible Commissioner in ensuring the Data Bank operates in compliance with legislation and regulations.⁹¹ The Committee also provides strategic guidance and direction concerning scientific advancements, matters of law, legislative changes, privacy issues and ethical practices.⁹² In addition, it monitors the implementation of the spirit of DNA legislation to ensure that the privacy rights of Canadians are not being infringed upon and invites

⁸⁴ Section 33.

⁸⁵ Sections 2(5), 4 and 16.

⁸⁶ Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), s 72(1).

⁸⁷ Section 72(1).

⁸⁸ Section 72(2).

89. Schedule 1, cl 1. The Data Protection Commission assumed any functions of the Data Protection Commissioner pursuant to s 14 of the Data Protection Act 2018 (Ireland).

⁹⁰ DNA Data Bank Advisory Committee Regulations SOR/2000-181, reg 5.

91. National DNA Data Bank Advisory Committee Annual Report 2014–2015 (October 2015) at Introduction. Some of its previous work-streams include training police and court personnel on proper procedures for collecting samples; adopting and implementing new processes and technologies such as robotic workstations, testing kits and DNA database software; carrying out assessments of the privacy implications of the NDDB in conjunction with the Privacy Commissioner; and approving recommendations regarding the use of new DNA analysis techniques. The Advisory Committee has also undertaken long-term projects such as promoting research into the probative value of forensic DNA and the role it plays in promoting public safety.

⁹² National DNA Data Bank Advisory Committee Annual Report 2014–2015 (October 2015) at Introduction.

complaints around privacy issues surrounding the National DNA Data Bank.⁹³ The Committee must include a representative of the Office of the Privacy Commissioner and up to six other members who may include representatives of the police, legal, scientific and academic communities.⁹⁴

Australia

• 5.77 Australia, like Aotearoa New Zealand, stands out among other comparable jurisdictions for the lack of any independent body with exclusive oversight of the DNA regime. Instead, Australia relies on a distributed oversight model that includes ombudsmen, police conduct authorities, privacy commissioners and the judiciary.⁹⁵ This model provides a degree of oversight in relation to police conduct by providing mechanisms for the independent investigation of complaints regarding the collection, use or retention of DNA samples and profiles. However, there is no broader statutory oversight regime. For example, there are no statutory arrangements for the independent oversight of new DNA analysis techniques or routine independent monitoring or auditing to identify systemic issues.
• 5.78 There have, however, been several calls for a more integrated system of complaint handling, monitoring and auditing to be carried out by existing independent bodies such as ombudsmen, privacy commissioners and police conduct authorities.⁹⁶ As one report concluded:⁹⁷

Without a coordinated and integrated complaint handling, monitoring and audit framework supplemented with continuous improvement, the Review considers it likely that law enforcement agencies will miss opportunities to learn from particular incidents. Indeed, there is considerable risk that incidents will not be properly investigated.

• 5.79 That report also noted the need for independent scrutiny and community approval of new DNA technology or analysis techniques:⁹⁸

93. Royal Canadian Mounted Police “The Privacy Implications of Forensic DNA Analysis” (24 November 2004) <www.grc- rcmp.gc.ca>.

⁹⁴ DNA Data Bank Advisory Committee Regulations SOR/2000-181, reg 2.

95. For an overview, see discussion in Tom Sherman and others Report of the Independent Review of Part 1D of the Crimes Act 1914: Forensic Procedures (Attorney-General’s Department, March 2003) at 63–72.
96. See Tom Sherman and others Report of the Independent Review of Part 1D of the Crimes Act 1914: Forensic Procedures (Attorney-General’s Department, March 2003) at 75–80; Peter Ford and others DNA Forensic Procedures: Further Independent Review of Part 1D of the Crimes Act 1914 (30 June 2010) at Recommendation 25; Victorian Parliament Law Reform Committee Forensic Sampling and DNA Databases in Criminal Investigations (2004) at 462 and Recommendation 14.2; Mark Findlay Independent Review of the Crimes (Forensic Procedures) Act 2000 (Attorney-General’s Department, 2003) at 1; and Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC R96, 2003) at 51.

⁹⁷ Tom Sherman and others Report of the Independent Review of Part 1D of the Crimes Act 1914: Forensic Procedures

(Attorney-General’s Department, March 2003) at [5.103].

98. At [7.24]. See also Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC R96, 2003) at [39.59]–[39.60]. Similarly, the NSW Ombudsman has called, on two separate occasions, for the NSW Parliament to consider what, if any, regulation is required of the way in which material obtained from forensic procedures may be analysed and compared: NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 (October 2006) at 285 and Recommendation 104; and NSW Ombudsman The Forensic DNA Sampling of Serious Indictable Offenders under Part 7 of the Crimes (Forensic Procedures) Act 2000 (August 2004) at 212 and Recommendation 48.

The whole issue of as yet undiscovered or undeveloped uses of DNA material is a sensitive one and care needs to be taken to ensure that the use of DNA material in law enforcement is carefully circumscribed. Any suggestion that DNA material is used for purposes such as genetic testing will quickly undermine public confidence in the system. This is not to say that at some time in the future parliament may not wish to legislate on the use of DNA for purposes other than identification. It is inevitable that this capability will develop and commercial services are already emerging. It is the opinion of this Review that as more becomes known about human DNA it will be essential to have an ongoing debate and consideration about how these new developments should be used by law enforcement. However, the use of these new developments should result from the deliberative action of parliament and not as a result of unaccountable function creep.

RECOMMENDATIONS

RECOMMENDATION
New DNA legislation should establish a DNA Oversight Committee to exercise

independent oversight of the DNA regime.
R8

Establishing a new DNA Oversight Committee

• 5.80 We recommend establishing a DNA Oversight Committee to be responsible for providing independent oversight of the DNA regime. The Committee should be established in new DNA legislation to ensure its permanence and to promote transparency and clarity around its functions.
• 5.81 In our view, there is a clear and compelling case for improving oversight of the DNA regime to identify the issues addressed above. While a wide range of different oversight frameworks could be adopted in this context, we favour a new independent body with a committee structure. We think this would best achieve our goal of constitutionally sound DNA legislation by providing a framework for Māori participation in the oversight of the DNA regime. Establishing a new independent DNA Oversight Committee would also:

(a) ensure the body responsible for oversight of the DNA regime has the right mix of skills and expertise to perform the functions proposed below, which is not found in any existing body;

(b) promote best practice consistent with the approach taken in other regulatory regimes in Aotearoa New Zealand (discussed at paragraphs 5.32–5.34) and in DNA regimes in most comparable jurisdictions (discussed at paragraphs 5.69–5.76);

(c) ensure flexibility, with the Committee being able to meet as frequently as required and its membership able to change over time to ensure it retains the appropriate mix of expertise to address emerging issues;

(d) minimise establishment and operating costs to what is reasonable and proportionate, given the Committee’s specialist focus on the DNA regime; and

(e) likely receive broad stakeholder support, given the strong support for increased oversight in our consultation (discussed above) and previous calls for the establishment of such a committee.⁹⁹

Relationship between DNA Oversight Committee and other accountability mechanisms

• 5.82 We recommend a new DNA Oversight Committee rather than allocating all the proposed oversight functions to an existing body such as IPCA. We recognise there is a degree of alignment between some of the oversight functions proposed below and IPCA’s existing functions. However, some proposed functions, such as advising on the use of new DNA analysis techniques, would represent a fundamental shift in IPCA’s role. This might undermine or obscure the proposed oversight functions or negatively impact on IPCA’s existing functions.¹⁰⁰
• 5.83 There are, however, practical advantages in aligning the roles of the DNA Oversight Committee and IPCA. We therefore recommend below that IPCA should be represented on the Committee, and that IPCA should have an additional auditing function related to the DNA regime to complement its existing complaints function. This would support the DNA Oversight Committee in performing its functions while maintaining a distinction between the Committee’s strategic oversight role and IPCA’s regulatory role.
• 5.84 In relation to other accountability mechanisms, below we recommend clarifying the application of the Privacy Act to DNA samples (and, by extension, the role of the Privacy Commissioner). The judiciary will also have a broader oversight role on a case- by-case basis under our recommendations in other parts of this Report, which will include approving mass screens, familial searching and the use of DNA for a different purpose than that for which it was collected.¹⁰¹ Other existing accountability mechanisms including HRC and the Criminal Cases Review Commission will continue to play a role in oversight of the DNA regime pursuant to their broader functions.
• 5.85 We do not recommend establishing a separate statutory ethics committee. Ethics committees in comparable jurisdictions typically have a broader mandate to consider ethical issues arising from the use of biometrics more generally. We do not think it is necessary to establish a separate ethics committee solely to address ethical issues arising from the DNA regime. Rather, we consider that such issues should always be a core consideration of the DNA Oversight Committee itself.

99. In 2009, the Privacy Commissioner Marie Shroff called for improved oversight of the DNA regime and supported the establishment of an independent oversight committee: Te Mana Matapono Matatapu | Privacy Commissioner “Submission to the Justice and Electoral Committee on the Criminal Investigations (Bodily Samples) Amendment Bill 2009” (6 April 2009) at 5.
100. Similar concerns were identified in Scotland when considering whether the Biometric Commissioner’s functions should instead be conducted by one of the existing bodies responsible for the independent oversight of police. See Scottish Government Scottish Biometrics Commissioner Bill: Policy Memorandum (May 2019) at [39] (considering the existing regulatory bodies, Her Majesty’s Inspectorate of Constabulary in Scotland and the Police Investigations and Review Commissioner).
101. Mass screens are discussed in Chapter 10, and familial searching is discussed in Chapter 23. We also recommend requiring judicial approval to use an elimination sample against a person (if the results of analysis implicate the person who provided the sample as a suspect) (discussed in Chapter 9) and to use a sample required on arrest or intention to charge to conduct a databank search before that person is convicted (discussed in Chapter 18).

RECOMMENDATIONS
A representative of Police and a representative of the forensic services provider should be able to attend each meeting of the DNA Oversight Committee, but these representatives are not members of the Committee and may be excluded
from deliberations and decision making.
R12
The Minister should consult with Māori before appointing any Māori members.
R11
No less than three members of the DNA Oversight Committee must be Māori

members.
R10
New DNA legislation should require the Minister of Justice to appoint members of the DNA Oversight Committee comprising:

1. between five and seven members who, between them, have expertise in the areas of:
   1. forensic science;
   2. ethics;
   3. criminal law and procedure;
   4. te ao Māori and tikanga Māori;
   5. privacy;
   6. human rights; and
   7. any other area the Minister considers relevant having regard to the Committee’s functions; and
2. one member who is a member of the Independent Police Conduct Authority (IPCA).

R9

Nature and composition of the DNA Oversight Committee

• 5.86 We recommend that new DNA legislation requires the Minister of Justice (as the Minister responsible for administering the new DNA legislation) to establish the DNA Oversight Committee.¹⁰² We consider that a statutory committee is the most appropriate form for the new oversight body, given the proposed functions below are advisory in nature and have a specialist focus on the DNA regime and given the importance of the DNA Oversight Committee operating independently of Police and the forensic services provider, discussed in Chapter 7. The alternative would be to establish a new independent Crown entity. However, this would involve greater establishment costs.¹⁰³

102. Similar to the Advisory Committee on Assisted Reproductive Procedures and Human Reproductive Research, which must be established by the Minister pursuant to s 32 of the Human Assisted Reproductive Technology Act 2004.
103. Establishing a new Crown entity requires the appointment of a board by the Governor-General and establishing an independent secretariat function to support the board, including the appointment of a chief executive. Crown entities are also subject to a range of governance, accountability and reporting provisions in the Crown Entities Act 2004. By

• 5.87 The size of comparable oversight committees varies,¹⁰⁴ but given the broad range of expertise the DNA Oversight Committee must hold and its proposed functions, we consider it is appropriate that membership sits between six and eight members.
• 5.88 We recommend that one member of the DNA Oversight Committee should be a member of IPCA. Members are appointed to IPCA by the Governor-General on the recommendation of the House of Representatives and must include a Judge or retired Judge who acts as chairperson.¹⁰⁵ We consider that providing for one member of IPCA (either the chairperson or another member) to also be a member of the DNA Oversight Committee will appropriately align the roles of the two bodies in the oversight of the DNA regime and promote a collaborative and coordinated approach. It also has the practical advantages of enabling the DNA Oversight Committee to draw on IPCA’s specialist expertise in Police’s operational environment and providing a clear communication line between IPCA’s complaints and (proposed) audit functions (discussed below) and the DNA Oversight Committee.
• 5.89 Other members of the Committee should be appointed based on their relevant expertise. We suggest this should include those with experience in forensic science, ethics, criminal law and procedure, te ao Māori and tikanga Māori, privacy and human rights. We note that several comparable jurisdictions require a representative of the Privacy Commissioner (or equivalent office) to be appointed as a member of the Committee¹⁰⁶ and consider that such an approach may also be appropriate here to ensure the Board has the appropriate expertise in privacy issues. Representatives or nominees of the Human Rights Commission and the Office of the Children’s Commission could also be considered.¹⁰⁷

way of example, the Criminal Cases Review Commission will be a Crown entity, and it is estimated to cost approximately $2.3 million to establish and $3.9 million per year in operating expenditure: Tāhū o te Ture | Ministry of Justice Regulatory Impact Assessment: Criminal Cases Review Commission (September 2018) at 3.

104. In Ireland, the Committee shall be comprised of six members: Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), sch 1, cl 1(1). In Canada, the DNA Databank Advisory Committee can be comprised of up to nine members: DNA Data Bank Advisory Committee Regulations SOR/2000-181, reg 2. In New Zealand, the size of advisory or oversight committees varies depending on the functions of the committee and their specialist expertise. For example, the proposed water services regulator, Taumata Arowai, shall be comprised of between five and seven board members: Taumata Arowai – the Water Services Regulator Act 2020, s 12. Similarly, the Criminal Cases Review Commission shall be comprised of between three and seven members: Criminal Cases Review Commission Act 2019, s 9. Finally, the Advisory Committee on Assisted Reproductive Procedures and Human Reproductive Research is comprised of between eight and twelve members: Human Assisted Reproductive Technology Act 2004, s 33.

¹⁰⁵ Independent Police Conduct Authority Act 1988, ss 5–5A.

106. This is a requirement in Ireland and Canada. See DNA Data Bank Advisory Committee Regulations SOR/2000-181, reg 2; and Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), sch 1, cl 1. In England and Wales, the FIND Strategy Board must also include a representative of the Information Commissioner in the capacity of an observer: Home Office Governance Rules for the National DNA Database Strategy Board (June 2014) at [5(b)(ii)].
107. By way of example, the Human Assisted Reproductive Technology Act 2004 requires the Advisory Committee on Assisted Reproductive Procedures and Human Reproductive Research to include one or more members with the ability to articulate the interests of children (s 34(4)(g)), and any person appointed pursuant to that subsection must, at the time of his or her appointment, hold the office of Children’s Commissioner or be a representative or employee of the person who holds that office (s 34(5)).

The Māori caucus

• 5.90 We recommend that no less than three members of the DNA Oversight Committee must be Māori members. Māori members should only be appointed after appropriate consultation with Māori has been undertaken.
• 5.91 We considered the alternative option of establishing a separate Māori advisory committee to operate alongside the DNA Oversight Committee and advise on tikanga and Māori interests in the DNA regime. This could ensure a wide range of different Māori views are represented and would align with the approach taken in other areas where Māori have significant interests, such as in the regulation of natural resources.¹⁰⁸ However, further consideration and engagement revealed a range of concerns with a dual-committee approach, including the risk of overlapping functions, confusion of roles or gaps in oversight. This could result in tension emerging between the committees, especially if they become competing sources of advice. We are also concerned that a separate Māori committee that is simply advisory in nature would lack the mana to truly give effect to the Treaty guarantee of tino rangatiratanga and the Treaty principle of partnership.¹⁰⁹
• 5.92 We have therefore recommended a single DNA Oversight Committee with a strong Māori membership (the Māori caucus) which will support a partnership approach to oversight and avoid issues inherent in a dual-committee structure. This is consistent with the broader recommendation of a mana ōrite (equal power) governance model for criminal justice sector decision making made by Te Uepū Hāpai i te Ora | Safe and Effective Justice Advisory Group.¹¹⁰ Below we explain that the Committee should have the power to regulate its own procedures, including on matters such as whether the Māori caucus should have specific responsibilities on behalf of the Committee, such as advising on Māori interests or tikanga or exercising a form of kaitiakitanga over Māori DNA and data as part of the Committee’s broad functions. We also note below that we

108. Sections 18 and 19 of the Environmental Protection Authority Act 2011 establish a Māori Advisory Committee (Ngā Kaihautū Tikanga Taiao) to provide advice and assistance from the Māori perspective to the Environmental Protection Authority (EPA) on various matters relating to the EPA’s role. Sections 14 and 17 of Taumata Arowai – the Water Services Regulator Act 2020 similarly provide for the establishment of a Māori Advisory Group, which will advise the new water services regulator, Taumata Arowai, on Māori interests and knowledge as they relate to the objectives, functions and operating principles of Taumata Arowai and the duties of the board.
109. Similar concerns were identified in submissions on Taumata Arowai – the Water Services Regulator Bill 2019, which proposed to establish a Māori Advisory Group to advise the board of Taumata Arowai and require the board to have regard to that advice. See Te Tari Taiwhenua | Department of Internal Affairs Taumata Arowai – the Water Services Regulator Bill: Departmental Report (April 2020) at [215]–[227]. The Select Committee reported that some submitters “expressed concern that these provisions were not strong enough” and were concerned “that the advice might not be followed and that there would be no way to see how the board had followed the advice”: Taumata Arowai – the Water Services Regulator Bill 2019 (202-2) (select committee report) at 4. The Select Committee agreed that there should be more accountability and transparency as to how the board considers the group’s advice and recommended amendments to the Bill accordingly. Section 17(3)(b) of the Taumata Arowai – the Water Services Regulator Act 2020 requires the board to demonstrate how it has had regard to the group’s advice in its annual report and report on situations in which it did not act on the group’s advice, the reasons for that and alternative actions taken if any. The board must also provide the group with the opportunity to include commentary in the annual report on its role and the advice it has provided the board over the period of the annual report: s 17(3)(c). The Select Committee also made amendments to enable dual membership of both the Māori Advisory Group and the board in order to facilitate more effective collaboration and information sharing and enhance the relationship between the board and the group: Taumata Arowai – the Water Services Regulator Bill (202-2) (select committee report) at 4.
110. Te Uepū Hāpai i te Ora | Safe and Effective Justice Advisory Group Turuki! Turuki! Move Together! (December 2019) at Recommendation 2.

expect the Māori caucus would be able to meet separately and consult with Māori to enable it to fulfil any specific responsibilities it has.

Role of Police and the forensic services provider

• 5.93 We recommend that a representative of Police and the forensic services provider should be able to attend meetings of the DNA Oversight Committee and engage in Committee discussions, where appropriate, but that they should be excluded from the Committee’s deliberations and decision making.¹¹¹ This will enable Police and the forensic adviser to provide information and advice to the Committee and enable the Committee to ask questions and seek clarification on operational matters to ensure it is able to make informed decisions. We do not consider it would be appropriate for the Committee’s membership to include representatives from the forensic services provider or Police, as this would undermine the Committee’s independent status.

Functions of the DNA Oversight Committee

RECOMMENDATIONS

R13

R14

The primary function of the DNA Oversight Committee should be to support and promote the operation of the DNA regime in a manner that is consistent with the purpose of the new DNA legislation.

In order to carry out its primary function, the DNA Oversight Committee should have the following statutory functions:

1. Evaluating proposals to make or amend regulations under new DNA legislation, including proposals to approve new DNA analysis techniques, and advising the Minister of Justice about whether regulations should or should not be made.
2. Advising (with or without a request) Police and the forensic services provider on practice, policy and procedure relating to the operation of the DNA regime to support and promote the purpose of the new DNA legislation.

100. Monitoring the operation of the DNA regime, which should include monitoring the impact of the DNA regime on Māori.

4. Approving applications for the use of the proposed DNA databank for research purposes.
5. Promoting awareness and understanding of the DNA regime.
6. Advising (with or without a request) the Minister of Justice on any aspect of the operation of new DNA legislation and the desirability of any amendments to the legislation or regulations.

Similar to the model adopted under s 33(2) of the Human Assisted Reproductive Technology Act 2004 whereby each meeting of the Advisory Committee on Assisted Reproductive Procedures and Human Reproductive Research may be attended by a member of the ethics committee (which considers and determines applications relating to assisted reproductive procedures or the conduct of human reproductive research).

Police (and the forensic services provider, if relevant) must have regard to the advice of the DNA Oversight Committee and notify it of any action taken to give effect to that advice. When advice is not acted on, Police (or the forensic services provider) must give reasons for not doing so and explain any alternative action
taken.
R15

• 5.94 We recommend that new DNA legislation should prescribe a clear set of functions for the DNA Oversight Committee to promote transparency and certainty. The primary function of the Committee should be to support and promote the operation of the DNA regime in a manner that is consistent with the purpose of the new DNA legislation that is, to support and promote the collection and use of DNA in a manner that minimises interferences with privacy and bodily integrity, recognises and provides for tikanga Māori and is otherwise consistent with human rights values.
• 5.95 The Committee will achieve this primary function through six specific functions. We discuss these functions below.

Evaluating and advising on new DNA analysis techniques

• 5.96 The DNA Oversight Committee should be responsible for evaluating any proposed regulations to introduce new DNA analysis techniques or to remove a DNA analysis technique from existing regulations and advising the Minister accordingly. In Chapter 6, we explain this function in detail and recommend that regulations should only be made on the recommendation of the Minister after the Minister has received and considered advice from the DNA Oversight Committee.¹¹² This would address the current lack of independent scrutiny of new DNA analysis techniques identified at paragraph 5.24 above. The Committee should also have a role in advising on any other regulations made under new DNA legislation, including any regulations to introduce a new sampling procedure, discussed in Chapter 11.
• 5.97 We consider that an advisory role rather than an approval function is an appropriate degree of oversight for the DNA Oversight Committee to exercise in relation to this function. Approval would require a more formal process including rights of appeal, and we are not satisfied that the problems identified with the current lack of oversight warrant such a heavy-handed approach.

Advising on practice, policy and procedure relating to the DNA regime

• 5.98 The DNA Oversight Committee should have a role in advising on practice, policy and procedure developed by Police and the forensic services provider as it relates to the operation of the DNA regime to support and promote the purpose of new DNA legislation.
• 5.99 As we note in Chapter 3, this will enable the DNA Oversight Committee (or the Māori caucus on behalf of the Committee, as noted below) to advise Police and the forensic services provider on the collection and use of DNA in a manner that recognises and

112. Similar to the statutory requirement on the responsible Minister to consult with and receive advice from the Advisory Committee on Assisted Reproductive Procedures and Human Reproductive Research before making regulations relating to assisted reproductive procedures: Human Assisted Reproductive Technology Act 2004, s 76(2).

provides for tikanga Māori. It also provides an opportunity for the DNA Oversight Committee to advise generally on the impacts of the DNA regime on privacy, bodily integrity and other human rights values.

• 5.100 Throughout this Report, we identify the need for the DNA Oversight Committee to be consulted in relation to the development of:

(a) policy by the forensic services provider in relation to obtaining and storing anonymised population data (Chapter 7);

(b) procedures and practices for explaining information to suspects who are asked to consent to provide a suspect sample (Chapter 8) and to people asked to consent to the collection of an elimination sample (Chapter 9);

(c) practice guidelines for police officers on applying for mass screen orders (Chapter 10);

(d) policy on sampling procedures (Chapter 11);

(e) practice guidelines for police on collecting crime scene samples from a person (Chapter 13);

(f) procedures to govern the storage and destruction of DNA samples and related information (Chapter 16);

(g) policy, practice and procedure relating to the crime scene index (the Crime Scene Index Protocol) of the proposed DNA databank (Chapter 17);

(h) policy on databank sampling (Chapter 18); and

(i) practice guidelines setting out procedural and technical requirements applying to the conduct of familial searches (Chapter 23).

• 5.101 Consideration should also be given to whether this function should extend to laboratory operating procedures of the forensic services provider. As noted above, ESR’s biology laboratory is independently accredited to the international standard ISO/IEC 17025. However, as we explain in Chapter 7, this standard is not specific to forensic science or to DNA analysis in particular and it does not confer accreditation on individuals working within an accredited organisation (although individuals must participate in proficiency testing). This means that, while accreditation with international standards goes some way to ensuring consistency with analytical processes, this “cannot ensure the accuracy of every result of any given examination of forensic materials”.¹¹³ We note that, in Ireland, the oversight committee must oversee the procedures relating to the generation of DNA profiles and “the quality control and quality assurance of those procedures” to ensure that they comply with international best practice.¹¹⁴ While we have not identified any systemic concerns relating to ESR’s practices and procedures in its work as Police’s forensic services provider, it may be appropriate for the DNA Oversight Committee to perform a similar function in relation to the forensic services provider and Police.

113. House of Lords Science and Technology Select Committee Forensic science and the criminal justice system: a blueprint for change (House of Lords, 3rd Report of Session 2017–2019, 1 May 2019) at [79]–[80].

¹¹⁴ Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), s 72(2)(b).

• 5.102 We note that, in some comparable jurisdictions, the oversight body has a more active role in this area. For example, the Scottish Biometrics Commissioner must develop and publish a code of practice that police officers and policing bodies must comply with.¹¹⁵ The FIND Strategy Board in England and Wales must also issue guidance on aspects of retention and destruction of DNA profiles.¹¹⁶ Also in England and Wales, the Forensic Science Regulator has developed codes of practice that forensic service providers must comply with in addition to ISO/IEC 17025, including a code of practice in relation to DNA analysis.¹¹⁷ However, in our view, Police and the forensic services provider are best placed and resourced to develop such policies and procedures themselves. The DNA Oversight Committee, rather than developing a code or guidance itself, should have the role of providing independent, specialist advice on such policies and procedures.
• 5.103 We recommend that Police and the forensic services provider should be required to have regard to any advice of the DNA Oversight Committee, to notify the Committee of any action taken to give effect to its advice and to give reasons for any decision not to act on that advice.¹¹⁸ The DNA Oversight Committee would then be able to publicly report on the advice it provides and the outcome of that advice in its annual report (discussed below). We consider that this would provide an appropriate degree of oversight without requiring the DNA Oversight Committee to formally approve what will invariably be operational policy, practice and procedures.

Monitoring the operation of the DNA regime on an ongoing basis

• 5.104 Another function of the DNA Oversight Committee should be to monitor the operation of the DNA regime by Police and the forensic services provider through its consideration of:

(a) reports from IPCA on the exercise of its broadened functions in relation to the DNA regime (discussed below);

(b) information reported by Police pursuant to its reporting obligations (discussed below);

(c) any issues identified by the DNA Oversight Committee in the performance of its functions; and

(d) any other matter raised with the DNA Oversight Committee by any other person.

• 5.105 This function, like all of the DNA Oversight Committee’s functions, has the objective of supporting and promoting the operation of the DNA regime in a manner consistent with the purpose of the new DNA legislation. However, in light of the disproportionate impact of the DNA regime on Māori, the Treaty guarantee of tino rangatiratanga and the Treaty principles of partnership, active protection and equity, we consider it is appropriate to highlight a specific role for the DNA Oversight Committee in relation to

¹¹⁵ Scottish Biometrics Commissioner Act 2020, s 7.

¹¹⁶ Police and Criminal Evidence Act 1984 (UK), s 63AB.

¹¹⁷ Forensic Science Regulator Codes of Practice and Conduct: DNA Analysis (Home Office, FSR-C-108 Issue 2, 2020).

118. Similar to the powers of the Independent Police Conduct Authority (IPCA) to make “recommendations” to Police following an investigation and the duty on Police to notify IPCA of the action (if any) proposed to be taken to give effect to the recommendation and give reasons for any proposal to depart from or not to implement any such recommendation: Independent Police Conduct Authority Act 1988, s 29(1). See also s 17(3) of the Taumata Arowai – the Water Regulator Act 2020, under which the Board must “have regard to” the advice of the Māori Advisory Group and demonstrate how it has had regard to that advice in its annual report, including information on situations in which it did not act on the advice and reasons for that and the alternative actions taken, if any.

monitoring the impact of the DNA regime on Māori. This would promote accountability and transparency and would provide an information basis for Police to address disparities.¹¹⁹

• 5.106 If an issue came to the attention of the DNA Oversight Committee through its monitoring function, it would be able to provide advice to Police and the forensic services provider in the first instance on any aspect of practice, policy and procedure to resolve that issue. If the issue is one that requires a legislative solution, the Committee should advise the Minister on the need for reform pursuant to its proposed function discussed below.

Approving applications to use the proposed DNA databank for research

• 5.107 In Chapter 23, we recommend that the DNA Oversight Committee approves any internal use of the proposed DNA databank for research purposes (by Police and/or the forensic services provider on behalf of Police). Research must relate to the purpose of the new DNA legislation, and external use of the proposed DNA databank for research purposes should be prohibited.

Promoting understanding and awareness of the DNA regime

• 5.108 The DNA Oversight Committee should also have a role in promoting awareness and understanding of the DNA regime. There is some evidence that the public in Aotearoa New Zealand does not have enough information to understand and evaluate Police’s use of DNA.¹²⁰ We consider it is important that people are able to access clear and accurate information, to promote public trust and confidence in the DNA regime and to minimise the risk of reliance on misinformation. This function should include promoting awareness and understanding of the powers and duties Police has in relation to the collection and use of DNA, how those powers and duties are exercised and how the exercise of those powers and duties can be monitored or challenged.¹²¹

Advising the Minister on the operation of new DNA legislation

• 5.109 Finally, we recommend that the DNA Oversight Committee has a role in advising the Minister of Justice on the operation of new DNA legislation and the need for any amendments to the legislation or regulations, as its monitoring function will put it in a good position to identity any issues that require a legislative solution.

119. See, for example, the obligations on the Chief Executive of Oranga Tamariki under s 7AA of the Oranga Tamariki Act 1989, including the obligation to ensure that policies and practices of the department “have the objective of reducing disparities” by setting measurable outcomes for Māori children. These policies and practices are subject to independent oversight by the Children’s Commissioner, pursuant to s 13 of the Children’s Commissioner Act 2003.
120. In a public survey of 394 respondents on public understanding of the use of DNA in criminal investigations, the most common source of information was television fiction or drama (30.2 per cent) or television news or documentaries (29.4 per cent): Cate Curtis “Public Understandings of the Forensic Use of DNA: Positivity, Misunderstandings, and Cultural Concerns” (2014) 34 BSTS 21 at 28–29.
121. Similar to the function of the Scottish Biometrics Commissioner under s 2(3)(b) of the Scottish Biometrics Commissioner Act 2020.

Powers and duties of the DNA Oversight Committee

RECOMMENDATIONS
The DNA Oversight Committee should report annually on the performance of its functions, and that report should be published (including online) and tabled in
Parliament.
R17
The DNA Oversight Committee should have all the powers necessary to perform its functions, including powers to regulate its own procedures, require information from Police and the forensic services provider, establish subcommittees or advisory panels on a standing or ad hoc basis and consult with members of the public or any person or body who, in the opinion of the Committee, can assist it to
perform its functions.
R16

• 5.110 We do not make detailed recommendations on how the Committee should perform its functions on a day-to-day basis. Rather, the Committee itself should have the power to regulate its own procedures, including on matters such as voting, the appointment of the chair and whether the Māori caucus should have particular responsibilities. The Māori caucus could, for example, have responsibility for advising on Māori interests and how to recognise and provide for tikanga in the DNA regime (as part of the Committee’s advisory function) or to exercise a form of kaitiakitanga over Māori DNA and associated data (as part of the Committee’s broad monitoring function). The Māori caucus could then meet separately and consult with Māori and others to support its performance of such responsibilities.
• 5.111 The DNA Oversight Committee should have all the powers necessary to perform its functions. This should include the power to require relevant information from Police and the forensic services provider¹²² and to establish subcommittees or advisory panels to support its performance of its functions, either on a standing basis or as required. For example, if the Committee is asked to consider an application to approve a new DNA analysis technique, it may wish to establish an advisory panel of independent experts.
• 5.112 In the performance of its functions, the DNA Oversight Committee should also have the power to consult broadly where appropriate, including with Māori, the general public when appropriate and key stakeholders such as IPCA, the Office of the Privacy Commissioner, HRC and the Office of the Children’s Commissioner.
• 5.113 The DNA Oversight Committee should be responsible for reporting annually on its activities. Annual reports should be published and tabled in the House of Representatives.¹²³ The DNA Oversight Committee should also have the power to

122. Similar to the obligation on the Commissioner of Police to provide the Independent Police Conduct Authority relevant information under s 21 of the Independent Police Conduct Authority Act 1988. See also Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), s 73.
123. As required in relation to the Advisory Committee on Assisted Reproductive Technology: Human Assisted Reproductive Technology Act 2004, s 42(4).

publish periodic reports on the results of any work undertaken pursuant to its functions.¹²⁴

RECOMMENDATIONS
IPCA should provide a briefing to the DNA Oversight Committee, at least once a year or at more regular intervals, on any complaints received in relation to the
DNA regime and the outcome of such complaints.
R21
In performing its audit function, IPCA should regularly consult with the DNA

Oversight Committee and brief it on its audit findings and outcomes.
R20
Audits should be conducted at regular intervals and at any other time as IPCA

may decide.
R19
New DNA legislation should give IPCA the function of conducting audits of the collection, use, storage and retention of DNA samples and profiles by Police and the forensic services provider to ensure compliance with new DNA legislation and any relevant policy, practice or procedure. IPCA must convey the results of audits to Police and the forensic services provider and make any recommendations it
considers appropriate to facilitate compliance.
R18

Independent Police Conduct Authority to exercise broader functions

• 5.114 We recommend broadening the role of IPCA to include audits of the collection, use, storage and retention of DNA samples and profiles.¹²⁵ We agree with the observation at paragraph 5.78 made in an Australian review that, without a coordinated and integrated complaint handling, monitoring and audit framework, it is likely that opportunities to learn from incidents will be missed and that such investigations may not be properly investigated.¹²⁶ We therefore propose that IPCA should have the additional responsibility of conducting audits of the DNA regime alongside its existing complaints function.

124. Similar to the requirements on the DNA Database System Oversight Committee in Ireland: Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), s 74.
125. As we noted above, the Independent Police Conduct Authority already performs a monitoring role in relation to places of Police detention under the Crimes of Torture Act 1989.

¹²⁶ Tom Sherman and others Report of the Independent Review of Part 1D of the Crimes Act 1914: Forensic Procedures

(Attorney-General’s Department, March 2003) at [5.103].

• 5.115 IPCA should convey the results of any audits to Police and the forensic services provider, along with any recommendations it considers appropriate to facilitate compliance with new DNA legislation and any relevant policy, practice or procedure.¹²⁷
• 5.116 IPCA should also regularly consult with the DNA Oversight Committee on the performance of its audit function, for example, by preparing briefings for the Committee on a periodic basis. This should include consulting the Committee on IPCA’s proposed audit programme so that the Committee can provide feedback, if any, on areas of the DNA regime that it considers might require particular focus. IPCA should also regularly brief the Committee on the findings and outcomes of its audits, including any action taken by Police and the forensic services provider in response to audit findings. This will support the Committee’s performance of its strategic oversight role in the DNA regime.
• 5.117 This function will require IPCA to acquire appropriate expertise in forensic science. Such expertise will put IPCA in a better position to identify general or systemic issues in the DNA regime through both its complaint-handling and auditing roles.
• 5.118 We also recommend requiring IPCA to regularly brief the DNA Oversight Committee on any complaints received in relation to the DNA regime and the outcome of such complaints to support the Committee’s strategic oversight role.

RECOMMENDATION
New DNA legislation should deem DNA samples obtained in the investigation and prosecution of offences and the investigation of missing and unidentified people
to be “personal information” for the purposes of the Privacy Act.
R22

Clarifying the application of the Privacy Act

• 5.119 We recommend clarifying the application of the Privacy Act and its information privacy principles relating to the collection, use, storage and disclosure of personal information. We consider that it is appropriate that the same safeguards that apply to personal information derived from DNA samples also apply to the samples themselves.¹²⁸ As the Australian Law Reform Commission noted, when recommending a similar clarification be made to Australian legislation:¹²⁹

Bodily samples constitute such an immediate source of personal information (a ‘virtual medical record’) that they demand similar comprehensive privacy protection.

• 5.120 The Privacy Commissioner supported clarifying that DNA samples constitute personal information under the Privacy Act (see paragraph 5.61 above).

127. Like its existing powers to make recommendations following the outcome of a complaint (Independent Police Conduct Authority Act 1988, s 27(2)) and following audits of places of Police detention (Crimes of Torture Act 1989, s 27(b)).
128. This is consistent with the recommendations made by the Australian Law Reform Commission, although the Commission recommended amending privacy legislation to clarify that all bodily samples be treated as personal information. Given the confined scope of our review, we prefer a deeming provision in new DNA legislation to clarify the situation with respect to DNA samples collected in the investigation and prosecution of offences and the investigation of missing and unidentified people only. The recommendations made by the Australian Law Reform Commission have not, to date, been adopted. See Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC R96, 2003) at 55–56 and Recommendation 8-2.

¹²⁹ At [8.100].

RECOMMENDATION
New DNA legislation should include comprehensive reporting requirements that require Police to publicly report annually on the collection, use, storage and retention of DNA samples well as on the operation of the proposed DNA
databank.
R23

Improving reporting requirements

• 5.121 We recommend that new DNA legislation include comprehensive reporting requirements that require Police to publicly report annually on all aspects of the DNA regime. This should include ethnic breakdowns and breakdowns based on whether a person is a child, young person or an adult who lacks the ability to consent. This will ensure the DNA Oversight Committee can exercise its strategic monitoring role discussed above, particularly its monitoring of the impact of the DNA regime on Māori.

Oversight of other biometrics and forensic science techniques

RECOMMENDATION
The Government should consider whether there is a need to improve oversight of

the use of other forms of biometric data and forensic science techniques.
R24

• 5.122 While our review is limited to the use of DNA in criminal investigations, we note the rapid pace at which technology is developing in relation to other biometric information, such as facial recognition software, remote iris recognition and behavioural biometrics such as voice pattern analysis. Such techniques are finding favour not only with Police but also with other state agencies such as the Department of Internal Affairs, the New Zealand Customs Service and Immigration New Zealand. We are also aware of concerns in relation to existing and emerging forensic science techniques other than DNA analysis,¹³⁰ many of which are largely unregulated in Aotearoa New Zealand.¹³¹
• 5.123 In light of the rapid pace of technological development and concerns noted in other jurisdictions,¹³² the Government should consider the adequacy of existing oversight arrangements in the fields of biometrics and forensic science.

130. See, for example, concerns raised in a United States report: President’s Council of Advisors on Science and Technology Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, September 2016).
131. See, for example, discussion of forensic brainwave analysis and the need for independent verification of its validity in: Robin Palmer “Time to take brain-fingerprinting seriously?” [2017] 316-365 Te Wharenga | NZ Crim L Rev 330.
132. See House of Lords Science and Technology Select Committee Forensic science and the criminal justice system: a blueprint for change (House of Lords, 3rd Report of Session 2017–2019, 1 May 2019).

CHAPTER 6

Regulating DNA analysis

INTRODUCTION

• 6.1 In Chapter 3, we say that a fundamental problem with the CIBS Act is that it does not comprehensively regulate all aspects of the DNA regime. One important aspect that lacks adequate regulation is the use of DNA analysis techniques.
• 6.2 In this chapter, we explain the main methods of DNA analysis currently used, how future advances in DNA technology are anticipated to change DNA analysis and why the lack of adequate regulation is a problem. We then expand on our recommendation in Chapter 5 that the new DNA Oversight Committee should evaluate proposals to make or amend regulations under new DNA legislation approving new DNA analysis techniques.

CURRENT LAW AND PRACTICE

The CIBS Act

• 6.3 There is little regulation of DNA analysis in the CIBS Act. Part 2 of the CIBS Act governs the collection of DNA samples from suspects (suspect samples) for casework comparison and is based on the premise that “the analysis of the sample will tend to confirm or disprove the suspect’s involvement in the commission of the offence”.¹ However, there is no definition of what constitutes “analysis” of a suspect sample and no reference to the DNA analysis techniques that may be used.
• 6.4 It can be inferred from the CIBS Act that analysis of a suspect sample involves generating a DNA profile.² The CIBS Act defines DNA profile as follows:³

DNA profile in relation to any person, means information derived from an analysis of a sample of genetic material obtained from that person, being information—

(a) that is clearly identifiable as relating to that person; and

(b) that is able to be compared with information obtained from an analysis (using the same technique) of another sample of genetic material for the purpose of determining, with reasonable certainty, whether or not the other sample is from that person

¹ Criminal Investigations (Bodily Samples) Act 1995, s 6(1).

2. See, for example, s 76(1)(d) and (g), which impose reporting requirements on Police in relation to DNA profiles “obtained under a Part 2 procedure”. See also ss 16(3)–(4) and 23(3)–(4), which, among other things, require the Judge considering an application for a suspect compulsion order to have regard to whether or not the respondent has offered or been given an opportunity to provide a DNA sample other than by one of the prescribed sampling procedures “from which a DNA profile may be obtained”.

³ Section 2 definition of “DNA profile”.

• 6.5 Because the CIBS Act does not regulate the collection and use of DNA samples from crime scenes, it is arguable whether this definition was intended to apply to crime scene profiles.
• 6.6 The CIBS Act is clearer in terms of the use of DNA samples obtained for databank searching under Parts 2B and 3 of the CIBS Act. These samples are used to generate a DNA profile that is then stored on a DNA databank.⁴ Part 3 of the CIBS Act establishes the DNA Profile Databank (DPD), which can be used “for the purpose of forensic comparison in the course of a criminal investigation by the Police”,⁵ while the Temporary Databank established by Part 2B is used:⁶

... to compare with unidentified DNA information obtained from the scenes of offences under investigation or otherwise in respect of which a conviction or further conviction is yet to be obtained, for the purpose of a criminal investigation by the Police into the triggering offence or any other offence ...

• 6.7 Although the CIBS Act provides for regulations to prescribe procedures for the analysis of DNA samples, no such regulations have been made.⁷ There are, therefore, no restrictions on the type of DNA analysis that can be used to generate a DNA profile for casework comparison or databank searching.
• 6.8 There are also no parameters in the CIBS Act on how much DNA needs to be present within a sample before analysis is permitted and what information resulting from analysis may be recorded in a DNA profile.

Other legal limitations on DNA analysis

• 6.9 While there is minimal regulation of DNA analysis under the CIBS Act, the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) may be relevant. Section 21 of the Bill of Rights Act protects against unreasonable search and seizure by the State. As we explain in Chapter 2, section 21 applies whenever there is an intrusion upon a “reasonable expectation of privacy”,⁸ and the Court of Appeal has held that, because DNA contains a “wealth of genetic information”, section 21 applies when obtaining a DNA sample directly from a known person.⁹ We also think that a person could have a reasonable expectation of privacy in relation to the analysis or “search” of their DNA even if it is obtained in other ways, such as DNA collected from a crime scene. The question then is whether the search or seizure is reasonable.¹⁰ In our view, to avoid inconsistency with section 21, any DNA analysis techniques used must be reasonable and proportionate to

⁴ Sections 24O and 26.

⁵ Section 27(1)(a). The term “forensic comparison” is defined in s 2 to mean:

... the comparison of a DNA profile stored in a DNA profile databank with another DNA profile, where that comparison is undertaken for the purpose of confirming or disproving the involvement of any person in the commission of an offence

⁶ Section 24R(1)(a).

⁷ Sections 58 and 80(a).

⁸ R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710 at [63]–[64]; and Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at

[160] and [163].

9. R v Toki [2017] NZCA 513, [2018] 2 NZLR 362 at [15]. The Court of Appeal in R v Toki also cited the following two judgments: R v T [1999] 2 NZLR 602 (CA) at 613; and R v Shaheed [2002] 2 NZLR 377 (CA) at [166].

¹⁰ R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710 at [17] and [64].

the law enforcement value and public interest in the investigation and prosecution of criminal offending.¹¹

• 6.10 The Privacy Act 1993 (and its successor, the Privacy Act 2020) might also have implications for DNA analysis. The Privacy Act prescribes rules (the information privacy principles) about how personal information should be collected, stored and disclosed.¹² As we explain in Chapter 5, these information privacy principles should apply to all DNA samples obtained in the investigation and prosecution of offences and the investigation of missing and unidentified people, and any information generated from the analysis of these samples, including DNA profiles. One of these principles is that an agency that holds personal information must take steps to ensure personal information it uses or discloses is accurate, up to date, complete, relevant, and not misleading.¹³

Methods of DNA profiling for casework comparisons and databank searching

• 6.11 We discuss below the different DNA analysis techniques currently used for casework comparisons and databank searching in Aotearoa New Zealand. These methods all focus analysis on areas of the human genome (that is, the complete set of genetic information contained in DNA) that are known to vary among humans, rather than sequencing a person’s entire genome. However, it is now possible to do exactly that. Whole genome sequencing and its implications for DNA analysis in criminal investigations are discussed below in the section on future analysis techniques.
• 6.12 ESR is responsible for conducting DNA analysis, casework comparisons and databank searching although its role is not provided for in the CIBS Act. We explore these roles in Chapter 7. In any given case, ESR and the police officer in charge of the investigation will consider together which DNA analysis technique to use. Ultimately, however, it is ESR’s responsibility to decide on the method used, and it is not required to inform Police of its decision on the method used unless specifically requested.¹⁴ As we discuss in Chapter 5, ESR also has a role in recommending to Police what new analysis techniques should be introduced and when a new DNA analysis kit is available for use in casework comparisons and databank searching.

STR profiling

• 6.13 The main method of analysis in criminal investigations, both in New Zealand and elsewhere, is short tandem repeat (STR) profiling. This is used to generate DNA profiles both for casework comparisons and for databank searching.¹⁵

¹¹ See discussion of these concepts in Chapter 2.

¹² Privacy Act 1993, s 6; and Privacy Act 2020, s 22.

13. Privacy Act 2020, s 22 (information privacy principle 8). This reflects the language of information privacy principle 8 as expressed in the Privacy Act 2020, which differs slightly from the Privacy Act 1993 in that it includes “or disclose” after the words “use”.
14. Pursuant to the Forensic Science Services Agreement between the New Zealand Police and the Institute of Environmental Science and Research Limited 2018–2021 (2018). As we discuss in Chapter 7, ESR holds accreditation as a forensic services provider. It is an accreditation requirement that the scientist discusses with the client what methods will be used. ESR advises that, as this is not practicable, an exemption from this requirement is in place that allows the scientist to proceed. However, this does not preclude discussions with police officers involved in a case as to what the scientific approach may involve.
15. The analysis process involves a number of steps that lead up to a profile being generated. First, a sample may be screened for bodily fluids. A forensic scientist then extracts any DNA found, separating it from other cellular material. This may involve using “laser microdissection” to separate out cells. The next step is quantification, where the

• 6.14 STR profiling targets a number of locations (or “loci”) on the autosomal chromosomes (the 22 non-sex-marking chromosomes) where STRs are known to occur and measures how many times the STRs repeat at those loci.¹⁶ There are two STRs at each locus (one inherited from each parent) known as “alleles”. A DNA profile then records the number of times the STRs repeat at each allele of the loci analysed. The current STR analysis kit used by ESR for analysing samples from known people targets 21 loci (42 alleles), and the kit used for crime scene samples targets 15 loci (30 alleles).¹⁷ Both kits also analyse sex.
• 6.15 Until recently, the regions on the genome targeted by STR profiling were thought to be “non-coding” or to contain only “junk” DNA. It was therefore assumed that analysis would not reveal specific genetic information about a person, such as information about a person’s health or physical characteristics.¹⁸ It is now acknowledged that personal genetic information could be derived from particular STRs (including, for instance, information that a person may have Down syndrome).¹⁹ However, it is still “not possible to make useful inferences regarding a person’s externally visible traits or disease risk based on an STR profile”.²⁰

forensic scientist ensures the sample contains an appropriate quantity of DNA for analysis. From this point, the analysis process is automated. The DNA is amplified using the chosen DNA analysis kit, which involves the DNA being cut into tiny fragments, each portion being tagged fluorescently and then replicated millions or even billions of times. This “genetic photocopying technique” is known as polymerase chain reaction (PCR) and works by alternating cycles of heating and cooling (typically 28 to 32 cycles). The next step is to measure the size of the DNA fragments through capillary electrophoresis. This process separates clusters of like material and measures the fragments. The results appear as data on an electropherogram. The forensic scientist then interprets the electropherogram results and records the profile. The results of extraction, quantification and amplification are stored on the electronic case file by ESR.

16. Short tandem repeats (STRs) are repetitive chains of the four chemical bases that make up DNA. See The Forensics Library “DNA Analysis” (22 August 2017) About Forensics UK <www.aboutforensics.co.uk>; and John M Butler and Dennis J Reeder “Short Tandem Repeat DNA Internet DataBase” (2 October 2020) STRBase – National Institute of Standards and Technology <https://strbase.nist.gov>.
17. The loci are determined by the scientific community and incorporated by the DNA kit manufacturers into analysis kits. Currently, ESR uses a kit called GlobalFiler for analysing profiles from known people and a kit called Identifier for analysing profiles from crime scenes.
18. See Kat Arney Herding Hemingway’s Cats: Understanding How Our Genes Work (Bloomsbury Publishing, London, 2016) at 23–24.
19. In May 2009, Dr Martin Somerville, President of the Canadian College of Medical Geneticists, testified before the Canadian Senate stating:

The information that is obtained from the analysis of the 13 DNA markers used for identification purposes can have direct medical relevance. There are numerous claims that these regions are anonymous and, other than gender, do not provide specific medical or physical information about the donor, but the use of these markers can, in fact, detect the presence of changes in the copy number of very large segments of DNA. In other words, it is not designed to do this, but it can do it by circumstance. It is not a very sensitive way of getting medical information, but it can. The list of conditions that this type of profiling can detect includes, but is not limited to, any difference in the number of sex chromosomes as well as Down syndrome or what is commonly known as trisomy 21. DNA profiling will very effectively detect that. No DNA information is truly anonymous, since any portion of the DNA has potential to reveal personal details about an individual. It is only since the completion of the human genome project in 2003 that the complexity and relevance of what was previously labelled as junk DNA has been realized. In essence, that term has fallen out of favour.

See Standing Senate Committee on Legal and Constitutional Affairs Public Protection, Privacy and the Search for Balance: A Statutory Review of the DNA Identification Act – Final Report (Canadian Senate, June 2010) at 52 (citations omitted). See also Manfred Kayser “Forensic DNA Phenotyping: Predicting human appearance from crime scene material for investigative purposes” (2015) 18 FSI Genetics 33 at 46.

20. National DNA Database Ethics Group (United Kingdom) Ethical Dimensions of the Application of Next Generation Sequencing Technologies to Criminal Investigations (March 2017) at 12; and The Royal Society and The Royal Society of Edinburgh Forensic DNA analysis: A primer for courts (November 2017) at 29.

Risk of adventitious matches

• 6.16 Because STR profiling only targets certain loci for analysis, there is a risk that a DNA profile generated through STR analysis may match a DNA profile from another person. Some of these matches may be what are known as “adventitious matches” or “false positives” and can occur within a sizeable databank.²¹ In 1995 when the CIBS Act was enacted, STR analysis only targeted six loci (12 alleles) for analysis, for both samples from known people and from crime scenes. The risk of an adventitious match has decreased as the number of loci targeted in STR profiling has increased. ²²

Partial profiles

• 6.17 Unlike DNA samples obtained from known people, which will usually contain biological material rich in DNA,²³ DNA samples collected from a crime scene are often of poor quality. They may:

(a) be degraded by environmental factors (such as moisture or heat), meaning the sample has been broken down into small pieces so only parts of the DNA may be available to analyse;²⁴

(b) contain only a small amount of DNA such as only a few skin cells (small amounts of DNA are known as “trace DNA”); or

(c) contain a mixture of DNA from different people (mixed crime scene samples).

• 6.18 In these cases, it may not be possible to generate a complete DNA profile using STR profiling. It may only be possible to generate a partial DNA profile (if one can be generated at all). A partial profile could range from having results at nearly all the loci to having results at only one allele at one locus.
• 6.19 When a partial crime scene profile is compared to another profile, a match at only a few loci may prove to be significant. However, there is also an increased risk of an adventitious match.²⁵ The more partial the profile, the greater the risk. Below is a simplified image of what a match between a partial and complete profile could look like as compared to a match between two complete profiles.

²¹ Forensic Genetics Policy Initiative Establishing Best Practice for Forensic DNA Databases (September 2017) at 22:

The likelihood of errors increases the larger the database is, because more samples are being analysed and more computer searches are being conducted. The expected number of false matches that will occur by chance (“adventitious matches”), assuming there are no errors or mix-ups at the crime scene or the lab, is given by the probability of a false match (i.e. a match with a DNA profile from the wrong person) times the total number of comparisons made between DNA profiles.

22. In 1999, when samples were analysed at six loci, an adventitious match led to the arrest of Raymond Easton in the United Kingdom, a 49-year-old man living with advanced Parkinson’s disease. Easton was arrested and charged for a burglary approximately 175 miles away from his home. The charges were based on his DNA profile (held in the UK National DNA Database) matching a DNA sample from the crime scene, despite the fact he was unable to walk more than 10 metres without help. His DNA profile had been loaded onto the database four years earlier following a domestic dispute. The crime scene sample matched Mr Easton’s DNA profile “at six loci, which was considered enough to secure an identification at that time. The chances of a match was reported as 37-million-to-one.” Mr Easton spent several months in custody before further DNA tests eliminated him as a suspect: Sense About Science and EUROFORGEN Making Sense of Forensic Genetics: What can DNA tell you about a crime? (2017) at 25.
23. The sampling procedures for obtaining DNA samples from known people are discussed in Chapter 11 (for casework comparison) and in Chapter 19 (for databank searching).

²⁴ Sense About Science and EUROFORGEN Making Sense of Forensic Genetics: What can DNA tell you about a crime?

(2017) at 15.

25. 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 (November 2009) at [3.19]–[3.22]; and Peter Gill Misleading DNA Evidence: Reasons for Miscarriages of Justice (Academic Press, London, 2014) at 125–128.

A match between a partial profile and complete profile is shown in the left hand diagram. A match between two complete profiles is shown in the right hand diagram.

A full casework comparison: determining the likelihood ratio

• 6.20 To counter the risk that a match may be adventitious, a full casework comparison between the profiles can be conducted by a forensic scientist to statistically determine the strength of a match. The forensic scientist calculates the likelihood of achieving certain results when a number of propositions (commonly two) are compared, for instance:

(a) the likelihood of obtaining the DNA profiling results if the crime scene sample came from the person in question (usually the suspect/defendant);

as compared to:

(b) the likelihood of obtaining the DNA profiling results if the crime scene sample came from someone in the general population of Aotearoa New Zealand.

• 6.21 In making the overall likelihood ratio assessment,²⁶ the forensic scientist uses anonymised population frequency datasets to assess how common a particular allele is within the population and makes a statistical calculation of the likelihood of a match at that allele.²⁷ This ensures that DNA evidence is not overstated or understated by including allowances for the different population substructures within New Zealand. This assessment is made for each locus, and then all the ratios are multiplied together to obtain an overall likelihood ratio.
• 6.22 The likelihood ratio is then explained using an equivalent verbal scale²⁸ — for example, the likelihood of obtaining these DNA profiling results is at least 1 million times greater if

26. Ngā Pirihimana o Aotearoa | New Zealand Police “DNA evidence at crime scenes” in Police Manual at 17 defines “likelihood ratio” as:

A statistical term that measures the value of a piece of evidence. Equal to the probability of seeing a piece of evidence given the prosecutor’s hypothesis, divided by probability of seeing a piece of evidence given the defence hypothesis.

²⁷ The anonymised frequency sets are discussed in Chapter 7.

28. This is based on the “verbal equivalent scale” for expressing likelihood ratios that is used in Aotearoa New Zealand, which is as follows (this differs to the scale used in some other jurisdictions):

the DNA in this sample originated from Person X rather than from someone selected at random from the general population of Aotearoa New Zealand. On the verbal equivalent scale, this would provide extremely strong support for the proposition that the DNA evidence came from the person of interest. In a population of 5 million people, a likelihood ratio of 1: 1,000,000 means that there would be approximately five people with the same DNA profile. However, this does not take into account the gender of those people or their opportunity to commit the crime.²⁹

• 6.23 When providing findings of a full casework comparison (of a suspect profile to a crime scene profile) to be used in a court setting, ESR sets out the likelihood ratio assessment in a “likelihood ratio statement”, which can be relied on as evidence in court proceedings.

Y-STR profiling

• 6.24 The other method of analysis used to generate DNA profiles is Y-STR profiling, a type of STR profiling. Rather than analysing the autosomal (non-sex-marking) chromosomes, the Y chromosome (the male sex chromosome) is analysed at different points. Y-STR profiling can be useful in investigations into male sexual offending against a female when the crime scene sample is a mixture of male and female DNA and there is insufficient male DNA to conduct standard STR profiling. It might also be used if the crime scene sample is degraded and only the Y chromosome can be analysed.³⁰ Y-STR analysis can be used to generate profiles from both the crime scene sample and a sample from a known person and the profiles then compared. The results of comparison may rule the known person in or out of the investigation.
• 6.25 Like standard STR profiling, a full Y-STR casework comparison involves making a statistical calculation to obtain an overall likelihood ratio. In order to do this, scientists refer to anonymised Y-STR population datasets. The forensic scientist making the assessment can then identify how many times the exact same Y-STR profile as that obtained from the crime scene sample appears within each population databank.
• 6.26 ESR has routinely used Y-STR profiling for casework comparisons since 2006. In late 2018, Police gave ESR permission to begin loading crime scene profiles analysed using

1 is neutral.

1–10 provides slight support.

10–100 provides moderate support.

100–1,000 provides strong support.

1,000–1,000,000 provides very strong support. Over 1,000,000 provides extremely strong support.

29. Even if the suspect’s DNA was found at the crime scene, the presence of DNA by itself, however, does not indicate guilt but rather that someone may have been present at a crime scene. In addition, as we discuss below, it has now been found that DNA can be transferred from one surface to another or stay on a surface for some time. Therefore, without other evidence, the presence of DNA at a crime scene may not even indicate someone had been present there.
30. Y-STR profiling was used in Wallace v R [2010] NZCA 46. Mr Wallace was found guilty at trial of murder. DNA taken from the victim’s boots was linked to the appellant using Y-STR analysis (yielding a partial profile of five alleles with a likelihood ratio of 13 times more likely to have originated from the appellant’s family). See also Carseldine v R [2016] NZCA 573. Mr Carseldine was convicted at trial of sexual violation by unlawful sexual connection. DNA found on the complainant’s labia was 70 times more likely to have come from Mr Carseldine or a paternal relative than from any other male selected at random from the New Zealand population. For another example, see R v Kerr [2016] NZHC

416. Mr Kerr was found guilty at trial of blackmail. DNA was found on an envelope and letter that retracted statements made in an earlier blackmail letter. The DNA was 260 times more likely to have come from Kerr (or one of his brothers or sons) than any other males sourced from the New Zealand population.

Y-STR profiling to the Crime Sample Databank (CSD) for each new crime scene sample, alongside the usual STR profile (if one could be generated).³¹ The aim of loading Y-STR profiles to the CSD is to find linked offending. However, Y-STR profiling is not as useful in distinguishing between individuals as standard STR profiling. This is because the Y chromosome passes down the male line largely unchanged. Therefore, male members of a family or whānau can have very similar Y-STR profiles.³² A Y-STR likelihood ratio statement therefore contains a caution that it “should be noted that paternal male relatives of Mr X may not be excluded by this Y-STR DNA evidence alone”.³³

Supplementary DNA analysis techniques for crime scene samples

• 6.27 Scientists have developed additional DNA analysis techniques to supplement standard STR profiling in relation to degraded DNA, trace DNA and mixed crime scene samples. We describe below the main supplementary techniques in use in Aotearoa New Zealand.

MiniSTR analysis

• 6.28 Using a special analysis kit (MiniFiler), additional genetic information known as miniSTR information, can be generated at each STR. Analysing miniSTRs is useful when a crime scene sample is degraded and a complete crime scene profile cannot be generated from analysis of the STRs. MiniFiler targets eight of the same loci as with the standard STR profiling analysis kit, but as it is a more sensitive analysis technique, it is able to provide the miniSTR information. The results of analysis can be used in conjunction with results from standard STR profiling to make a “composite” crime scene profile that can be used in casework or loaded to the CSD, provided it meets ESR’s guideline criteria.³⁴

31. ESR advises that a profile generated using early analysis kits would have only narrowed someone down to approximately a third of the Polynesian male populations of Aotearoa New Zealand. However, the Y-STR analysis kit now used (Yfiler Plus) targets parts of the Y chromosome that are rapidly mutating. ESR’s view, based on its research, is that the profiles generated from Yfiler Plus provide sufficient basis to distinguish between profiles, particularly those with similar ancestry. Due to this added discrimination ESR advises that it was deemed suitable to begin adding Y-STR profiles to the CSD. However, ESR accepts there is still a risk that the profiles of family members may not be able to be distinguished from each other and it continues to provide a caution to this effect as part of its likelihood ratio statement (see [6.26]).
32. National DNA Database Ethics Group (United Kingdom) Ethical Dimensions of the Application of Next Generation Sequencing Technologies to Criminal Investigations (March 2017) at 18.

³³ An example provided by ESR is as follows:

Either a) the male DNA determined from this sample originated from Mr X; or (b) this DNA has originated from a male paternally unrelated to Mr X, selected at random from the New Zealand population and the match has occurred by chance. When considered in this way, the Y-STR profiling evidence is at least one million million (1x10¹²) times more likely if the male DNA determined from the sample originated from Mr X, rather than from another male paternally unrelated to him and selected randomly from the New Zealand population. This finding provides scientific support for the proposition that the male DNA determined from the sample originated from Mr X. It should be noted that paternal male relatives of Mr X may not be excluded by this Y-STR DNA evidence alone.

ESR has advised that, to date, the highest possible likelihood ratio for a matching Y-STR profile in New Zealand is approximately 1:430. This is significantly lower than the likelihood ratios in the millions that are common in relation to standard STR profiling.

34. According to ESR’s guidelines, composite profiles can be used for casework only if there is zero (or close to zero) “allelic drop-in” – that is, there are no random alleles in the results that may be due to contamination or effects of the testing. Each profile that makes up the composite profile has to have some of the same alleles as are in the other profiles. See Chapter 17 for discussion on the quality threshold for loading profiles to the Crime Sample Databank.

Mitochondrial analysis

• 6.29 Mitochondrial (MtDNA) analysis can also be undertaken on degraded crime scene samples and on cells that have no nucleus (such as cells in a hair that has no root attached).³⁵ Mitochondria (also found in cells) have their own DNA, different from nuclear DNA which is used in STR profiling. It is inherited maternally so is the same for a mother and all her biological children. Therefore, similar issues arise as with Y-STR profiling in that it may be difficult to distinguish between profiles of family members. At present MtDNA analysis this is not conducted in Aotearoa New Zealand. Instead, ESR sends any samples overseas to be analysed. The Police Manual specifies that MtDNA is only to be used if “conventional DNA analysis is not possible”, for serious offences and in consultation with ESR. It also notes that it could be used for “body identification if reference samples from maternal relatives are available”.³⁶

Analysis of trace or low template DNA

• 6.30 In 2006, ESR introduced low copy number (LCN) analysis to analyse trace DNA (sometimes known as “low level” or “low template” DNA). This is a sensitive DNA analysis technique that enables a full or partial DNA profile to be generated from trace DNA such as the skin cells left behind in fingerprints. The Police Manual states that LCN analysis may be useful for analysing clothing that has been grabbed at by an offender or where someone has smudged a window.³⁷
• 6.31 LCN analysis uses the same analysis process as with STR profiling using polymerase chain reaction to rapidly replicate a piece of DNA, generating thousands to millions of copies. With LCN analysis, cells are copied extra times. The results of LCN analysis can be used in combination with STR profiling to produce a composite profile, either for casework comparison³⁸ or databank searching.³⁹ We understand that it is more often used in casework comparisons, but only around 50 times per year.
• 6.32 There are several risks with the use of LCN analysis:⁴⁰

(a) First, there is a risk of contamination, either by the investigator collecting the sample or the forensic scientist conducting the analysis.⁴¹ To address contamination

35. See, for example, Mikus v R [2011] NZCA 298. Mikus was found guilty at trial of the murder of Teresa Cormack. Fourteen years after the investigation began, scientists found a potential match between the DNA in a small amount of semen found on the victim and the DNA of Mikus. To confirm the match, scientists analysed the mitochondrial DNA in three hairs that had been found on the victim’s body. These also matched Mikus.

³⁶ Ngā Pirihimana o Aotearoa | New Zealand Police “DNA evidence at crime scenes” in Police Manual at 5.

³⁷ At 4–5 and 15.

38. In Manoharan v R [2015] NZCA 237 at [35]–[39] (an aggravated burglary case), the crime scene sample was of such poor quality that it was only possible to obtain a partial DNA profile containing STR results at three alleles. To obtain this result, ESR had to use LCN analysis as well as standard STR profiling. The partial profile that resulted was compared to Manoharan’s full profile (results at 15 loci or 30 alleles). The three alleles in the crime scene profile and Manoharan’s profile had the same number of STRs. Manoharan was found guilty. He unsuccessfully appealed the conviction based in part on a challenge to LCN analysis.
39. However, as we discuss in Chapter 17, ESR has a quality threshold for loading profiles to the Crime Sample Databank, including composite profiles using LCN. Due to their nature, LCN crime scene profiles are less likely to reach the quality threshold. However, a one-off speculative search might be conducted.

⁴⁰ Other issues relevant to sensitive DNA analysis techniques generally are discussed below.

41. Contamination or effects of the testing process may result in allelic drop-in: John M Butler and Carolyn R Hill “Scientific Issues with Analysis of Low Amounts of DNA” (2010) Promega Corporation <www.promega.com.au>.

risks, ESR advises that it has an entirely separate facility for LCN analysis. Police also issues guidance to investigators swabbing for trace DNA.⁴²

(b) Second, due to the sensitivity of the analysis technique most samples are a mixture of DNA, and therefore some DNA revealed through analysis may be unrelated to the offence. It may be “background” DNA already present at the scene or it could have been transferred there by some other means.

(c) Third, random alleles can appear or disappear due to the additional copying process.⁴³ The analysis can be rerun (sometimes a number of times) to check whether the alleles appear in repeated tests. If a result is repeated, that may then be recorded in what is known as a consensus profile.

• 6.33 Due to these risks, a likelihood ratio statement for a LCN casework comparison will contain a caveat that the scientist cannot say when and how the DNA came to be at the scene and that the results may be unconnected with the offence.⁴⁴
• 6.34 The Police Manual recommends that LCN should only be used in serious cases where other analysis techniques have failed to produce results and after consultation with an ESR scientist. It states that discussions need to be held “between the investigator and ESR scientist to understand the evaluation and evidential relevance of the findings”.⁴⁵

Mixed crime scene samples

• 6.35 Approximately half of all crime scene samples analysed by ESR contain DNA from more than one contributor. For example, a sample might contain DNA from a victim, the victim’s partner and the likely offender. Laser microdissection is a physical technique that can be used to separate mixed samples. It involves using a microscope with a laser to cut a particular cell type from a mixture of cells on a microscope slide.⁴⁶ The cells are then analysed using STR, Y-STR, miniSTR or LCN analysis.
• 6.36 Another option is to use algorithmic software to calculate which are the most likely profiles present in the DNA mixture. ESR uses a software programme called STRmix that it co-developed. Using statistical methods, STRmix builds “millions of conceptual DNA profiles” and finds the combinations “that best explain the profile”.⁴⁷ Specially trained forensic scientists then look at the results and determine from the information which are the most likely profiles. Those profiles can then be used in casework comparison or loaded to the CSD for databank searching as individual profiles.

⁴² Ngā Pirihimana o Aotearoa | New Zealand Police “DNA evidence at crime scenes” in Police Manual at 11.

43. This is known as “stochastic effect” or “allelic drop-out”: John M Butler and Carolyn R Hill “Scientific Issues with Analysis of Low Amounts of DNA” (2010) Promega Corporation <www.promega.com.au>.
44. ESR in its submission gave two examples of such caveats: “Where DNA profiling results have been obtained, it is not possible to identify the type of cells from which the DNA has originated, neither is it possible to state when or how the cells were deposited on the item” and “[t]he relevance of these results requires careful consideration in the context of this case given the sensitivity of the techniques employed and the possibility that the DNA tested is unconnected with the offender under investigation”.

⁴⁵ Ngā Pirihimana o Aotearoa | New Zealand Police “DNA evidence at crime scenes” in Police Manual at 5.

⁴⁶ At 6.

⁴⁷ ESR “STRmix: Resolve More DNA Mixtures” (September 2020) at 2.

• 6.37 ESR’s policy is that mixtures that contain DNA from up to five contributors can be “resolved” using STRmix (that is, separated into individual profiles).⁴⁸ Some mixtures, however, cannot be fully resolved using STRmix, and ESR may therefore load a mixed crime scene profile to the CSD if it otherwise meets the quality threshold. The use of mixed profiles in casework comparison and databank searching is discussed in Chapter 17.

FUTURE ANALYSIS TECHNIQUES

• 6.38 Forensic scientists, academics and commentators acknowledge we are at a significant juncture in the evolution of forensic science.⁴⁹ Ethical decisions will need to be made regarding certain techniques now on the horizon. As we are reliant on the commercial manufacturers of DNA analysis kits, worldwide trends will impact DNA analysis in Aotearoa New Zealand.

Massively parallel sequencing and whole genome sequencing

• 6.39 One of the most significant approaching challenges relates to the use of massively parallel sequencing (MPS), also known as next generation sequencing. This technology allows large sections of the human genome to be rapidly sequenced. It targets for analysis the single nucleotide polymorphisms (SNPs) in the genome. SNPs occur at the level of the nucleotides (the four chemical bases that make up DNA) and are the simplest and most common form of genetic variation, accounting for about 90 per cent of variations in humans. Analysing one SNP on its own would not be particularly helpful in identifying a particular person but analysing large numbers of “SNP panels” or “SNP arrays” can provide useful distinguishing information.⁵⁰ MPS technology is able to sequence multiple SNPs at the same time, very quickly and to a high degree of sensitivity.⁵¹ This means MPS technology can provide significantly more information than standard STR profiling.
• 6.40 It is expected that MPS technology will enable whole genome sequencing to become cheaper and therefore more readily available in future. Whole genome sequencing involves identifying and recording the order of all 3 billion base pairs that make up the human genome. A profile generated using whole genome sequencing would reveal an individual’s entire genetic blueprint. This technology was not available when the CIBS Act was first enacted, as the human genome was not fully mapped until 2003. It is not a preferred analysis technique currently because it is expensive and time-consuming and the resulting profile requires considerable storage space. However, with the

48. The FBI has published a study validating the use of STRmix with up to five contributors: Tamyra R Moretti and others “Internal validation of STRmix for the interpretation of single source and mixed DNA profiles” (2017) 29 FSI Genetics

126. ESR has informed us that, as of November 2019, it has validated resolution of five-person mixtures when the initial analysis kit used with the crime scene sample was Identifiler Plus.

49. National DNA Database Ethics Group (United Kingdom) Ethical Dimensions of the Application of Next Generation Sequencing Technologies to Criminal Investigations (March 2017) at 1–3 and 11-12; and Victor Toom and others “Approaching ethical, legal and social issues of emerging forensic DNA phenotyping (FDP) technologies comprehensively: Reply to ‘Forensic DNA phenotyping: Predicting human appearance from crime scene material for investigative purposes’ by Manfred Kayser” (2016) 22 FSI Genetics e1 at e3.

⁵⁰ See The Forensics Library “DNA Analysis” (22 August 2017) About Forensics UK <www.aboutforensics.co.uk>.

51. See generally Tracy Tucker, Marco Marra and Jan M Friedman “Massively Parallel Sequencing: The Next Big Thing in Genetic Medicine” (2009) 85 AJHG 142.

introduction of MPS technology, whole genome sequencing could become the preferred DNA analysis method internationally.⁵² Whole genome sequencing analysis could be a first step in casework, with scientists then destroying information unnecessary for the purpose of the criminal investigation.⁵³

• 6.41 DNA analysis kits that use MPS technology are already commercially available. These kits target the same STRs as those used in standard STR profiling so the analysis will produce profiles that can be compared to existing profiles on DNA databanks. These kits also provide additional genetic information by targeting SNPs. This could be useful in enhancing STR profiling by “enabl[ing] STR-based identification of known offenders with increased predictive value”.⁵⁴ It will also provide more information to assist in analysing degraded DNA samples and trace DNA and enable mixed crime scene samples to be separated into individual profiles.⁵⁵
• 6.42 ESR is currently conducting validation of a DNA analysis kit that uses MPS technology.⁵⁶ Alongside the STR information, this kit would also target the genetic markers that determine hair colour, eye colour and ancestry. Targeting such personal genetic information is known as forensic DNA phenotyping, and this has significant implications which we discuss in Chapter 14.
• 6.43 Once validated, the new MPS analysis kit could be in use within one or two years. ESR advises that, initially at least, this kit would not replace all STR profiling kits due to cost and the time MPS analysis takes.⁵⁷ Instead, it would likely be used for analysing profiles for casework comparisons rather than for use in databank searching. However, this may change if it were to become more efficient to use MPS analysis kits for all profiling purposes.

Other possible uses of MPS technology

• 6.44 In addition to whole genome sequencing, within the next 10 years, it is anticipated that MPS technology could be used for the following forms of analysis, some of which have already been conducted but will be more readily accessible with MPS technology:

52. In England and Wales, the National DNA Database Ethics Group (now the Biometric Forensics Ethics Group) wrote in 2017 that “[i]t is likely that whole genome sequencing of individuals will be cost effective for forensic application within a few years”: National DNA Database Ethics Group (United Kingdom) Ethical Dimensions of the Application of Next Generation Sequencing Technologies to Criminal Investigations (March 2017) at 14.

⁵³ At 19.

⁵⁴ At 15.

⁵⁵ At 4 and 13–14.

56. Validation is of the MiSeq kit developed by the company Illumina. Validation involves conducting testing to ensure that the results claimed by the manufacturers can be reproduced in the New Zealand environment using samples from different population groups. This testing takes several years. See ESR Forensic: Crime Science and Intelligence 2016–2017 (2017) at 7.
57. ESR advises that it may take half a day to conduct STR analysis of a sample, whereas massively parallel sequencing analysis currently takes two to three days.

(a) Conducting whole exome sequencing: sequencing of the protein coding genes in the genome.⁵⁸

(b) Mitochondrial sequencing: sequencing of the mitochondria, which is maternally inherited.⁵⁹

(c) Epigenetics: a form of analysis that looks at the chemical modification of the DNA sequence, affecting how DNA is expressed. This analysis is useful, for instance, in determining someone’s age or distinguishing between identical twins.⁶⁰