Detailing significant “gaps” in current law, including lack of human rights values, the New Zealand Law Commission has released a 572-page report that recommends a completely new framework for police use of DNA in criminal investigations.
“DNA analysis is a valuable tool for police, but the current law has gaps and can also be confusing and complex to apply in practice,” said Donna Buckingham, lead commissioner of the review. “We are particularly concerned that the current regime has limited independent oversight. The lack of such monitoring falls short of international best practice.”
In 1995, New Zealand became the second country to establish a legal framework for the use of DNA in criminal investigations through the Criminal Investigations (Bodily Samples) Act 1995. In July 2016, however, the New Zealand government asked the Law Commission, an independent entity, to review the act and offer any needed recommendations.
The subsequent review and report, released last week, found the act is outdated given the exponential growth of DNA analysis technology over the past 25 years. Additionally, the commission found insufficient independent oversight of the current regime, a failure to accommodate human rights values and a disproportionate negative impact on the Māori community.
The report lists 7 core recommendations:
- Improve protections for adults whose DNA is sought by police
- Require a court order to obtain DNA from suspects who are minors or who lack the ability to provide consent
- Regulate the use of DNA where the current law is either silent or fragmented. This includes elimination sampling, mass screening, familial searching and genetic genealogy searching.
- Establish a single DNA database to hold all DNA profiles obtained by police with clear rules on how these DNA profiles can be used
- Restrict the holding of offenders’ DNA profiles and align the holding of youth offender profiles more closely with the rehabilitative focus of the country’s youth justice system
- Create an independent mechanism for the assessment of new DNA analysis techniques and whether these should be approved for use
- Improve oversight by increasing the role of the judiciary, establish a new DNA Oversight Committee (with mandatory Māori representation), and provide for external auditing by the Independent Police Conduct Authority
According to RNZ, a news radio station in New Zealand, of the 200,000 DNA samples currently in the country’s database, almost half belong to Māori persons. Roughly 80,000, or 40%, of the database comprises DNA obtained from the Māori community.
“Our recommendations seek to reduce the impact of collection and use of DNA on people’s privacy generally and to address the disproportionate impact of the current regime on Māori,” said Buckingham.
Genomics researcher Karaitiana Taiuru told RNZ she was surprised the commission’s recommendations went as far as they did, but it is necessary to “protect Māori from biases and other cultural insensitivities.” Taiuru pointed out that since profiles live forever in the database, DNA of both living and deceased persons are housed together, which is a cultural issue for many Māori.
The day the report was released the Minister of Justice, Kris Faafoi, thanked the Law Commission and said the government will further study and consider all 193 of the report’s recommendations.