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New Zealand Law Commission recommends new legal framework for police use of DNA

New Zealand Law Commission recommends new legal framework for police use of DNA

25.11.2020 | Nadia Murray-Ragg | Victoria U. Wellington Faculty of Law, NZ NOVEMBER 25, 2020 08:40:15 AM | 82

The New Zealand Law Commission recommended a new legal framework for police use of DNA in criminal investigations in a new 572-page report released Monday.

The Commission, an independent Crown entity, reviewed and reported on the Criminal Investigations (Bodily Samples) Act 1995 following a government request in July 2016. Its review found that the Act is out of date given how DNA science has progressed since its enactment more than two decades ago. Its finding was informed by six core issues the Commission identified with the Act. These included lack of purpose, inadequate accommodation of Tikanga Māori and the Treaty of Waitangi, lack of human rights values accommodation, poor comprehensibility, over-complexity and lack of accommodation for independent oversight, which is “inconsistent with international best practice.” Accordingly, the Commission proposed that the Act “be repealed and replaced with a new statute that comprehensively regulates the collection and use of DNA in the investigation and prosecution of offences and the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.”

The Commission made seven key recommendations for change. First, better protect adults whose DNA is sought by police. Second, make a court order necessary to obtain DNA from suspect minors unable to consent. Third, fill legislative gaps by introducing regulations upon the currently unregulated “elimination sampling, mass screening, familial searching, and genetic genealogy searching” DNA analysis methods. Fourth, create a “DNA databank” for police to store DNA profiles and establish rules to govern how police use the databank. Fifth, limit the holding of offenders’ DNA profiles and bring youth DNA profile-holding into line with the rehabilitation function of the country’s youth justice system. Sixth, provide for independent assessment of advances in DNA technology and whether such new technologies be permitted for use in the country. Seventh, increase judicial supervision over DNA use in criminal investigations.

The review’s lead commissioner Donna Buckingham said in a media release:

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. … The Law Commission is recommending a new legal framework to clarify how Police can use DNA in criminal investigations. Our recommendations also 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.

Although the New Zealand government has yet to respond to the Commission’s review, Minister of Justice Hon Kris Faafoi said in a media release that the government will consider the Commission’s recommendations.

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