Law Commission review of the Criminal Investigations (Bodily Samples) Act 1995
The Law Commission completed its review of the Criminal Investigations (Bodily Samples) Act 1995. The report revealed significant gaps in the operation of the current law, including insufficient independent oversight and a failure to accommodate human rights values, tikanga Māori and the Treaty of Waitangi | te Tiriti o Waitangi.
The Commission says that since 1995, when Aotearoa New Zealand became only the second country to establish a legal regime for the use of DNA in criminal investigations, time and technology have moved on. A tiny amount of DNA can reveal much more about a person now.
The Commission recommends a new, comprehensive regime to control how DNA is obtained, used and retained for criminal investigations. Core recommendations include:
- Improving protections for adults from whom Police seek to obtain DNA by consent or on arrest.
- Requiring a court order to obtain DNA from suspects who are children or young people or who lack the ability to provide consent.
- Regulating the use of DNA where the current law is either silent or fragmented. This includes elimination sampling, mass screening, familial searching, and genetic genealogy searching.
- Establishing a single DNA databank to hold all DNA profiles obtained by Police with clear rules on how these DNA profiles can be used.
- Restricting the retention of offenders’ DNA profiles and aligning any retention of youth offender profiles more closely with the rehabilitative focus of the youth justice regime.
- Creating an independent mechanism for the assessment of new DNA analysis techniques and whether these should be approved for use.
- Improving oversight by increasing the role of the judiciary, establishing a new DNA Oversight Committee (with mandatory Māori representation), and providing for external auditing by the Independent Police Conduct Authority.