Wednesday, February 11, 2009

DNA bill breaches BORA

The government's bill allowing DNA to be taken from anyone arrested breaches the Bill of Rights Act [PDF].

The Criminal Investigations (Bodily Samples) Amendment Bill would allow police to forcibly take DNA from anyone arrested or intended to be charged with a "relevant offence" without having to first apply to a judge. The list of offences police consider "relevant" - currently rape, murder, child abuse, serious assaults and burglary - will be initially expanded to include firearms offences, ordinary assault, "threatening acts", receiving stolen property, killing someone with a car, peeping or peering, cruelty to a child (so smackers are in) and cruelty to animals (yes, really). Eventually it will be expanded to include any imprisonable offence - which means (for example) disorderly behaviour (a standard charge for protestors), breaching the RMA, and blasphemous libel. The relevance of DNA to these sorts of offences can charitably be described as "tenuous", but that's not the point. The police want to go fishing, and so are looking for any excuse to take your data and stick it in their database.

The problem, as the Attorney-General points out - is that this is a gross violation of the right against unreasonable search and seizure. Our entire legal tradition is predicated on the idea that if the police want to invade your privacy by e.g. searching you or your house, they must have specific and reasonable grounds which apply particularly to you; they can't just strip search you for the hell of it or kick in your door at random. They have to have something specific pointing specifically at you, suggesting they will find the evidence they are looking for.

This bill throws all that out the window. It makes the mere fact of suspicion itself (rather than the grounds for suspicion) enough to take evidence and conduct searches which may have no connection to the original offence. And it does this for a particularly invasive form of search. Taking a DNA sample is not like taking a fingerprint (something which can be done to anyone arrested). It yields far more - and far more private - information, and uses far more invasive methods. It requires them to stick needles into you. That should require a very high threshold. Instead, the police want to do it to anyone who comes into their hands as a routine procedure.

Yes, it would make the police's job easier. Yes, it would probably result in them catching a few more burglars (because that's what the database is primarily used for: not rapists, but people who nick TV's). But this is akin to letting them strip-search people at random. And to that, I say "fuck off".

It is telling that the only state which allows this sort of uncontrolled dragnet for DNA is the panopticon UK - and they've just been told to stop by the European Court of Human Rights. Every other country requires strong judicial safeguards. They have it right. By taking this step, we will be abandoning core judicial and human rights principles and engaging in widespread human rights violations. We should not be doing so.