As the proportion of DNA swabs taken from rangatahi Māori rises, an indigenous data expert is demanding an audit into bias and the lack of protocols for taking and storing the information
The proportion of youth DNA samples collected by police that belong to rangatahi Māori continues to rise, while the figures for other ethnicities reduce.
For the year ended June 2020, 63 percent of bodily samples taken of people aged 14 to 17 were Māori, and 22 percent were European.
But for the year ended June 2022, that proportion for Māori had increased to 69 percent, while the European figures dropped to 18 percent.
The total number of young people providing bodily samples overall under the provisions in the Criminal Investigations Act has dropped, but the practice remains controversial.
“You can't argue with these numbers. It's shocking,” said Māori data expert Karaitiana Taiuru.
“I think first of all this reflects there is bias and probably racism in the police force.”
Police confirmed they have no specific cultural or tikanga protocols for the requesting of suspect samples.
"From a tikanga perspective, our body fluids are the most sacred thing in the world. Pre-colonisation it was highly regarded as being sacred, there was rituals to hide spit or blood ... DNA is our whakapapa," Taiuru said.
“If you look at Sir Mason Durie’s health model on the holistic wellbeing of a Māori individual it talks about a spiritual connection ... and if an individual's DNA is sitting in a freezer at ESR - from a te ao Māori perspective – they're at risk of having their spiritual wellbeing attacked or diminished.”
Taiuru said ignoring tikanga was a cultural risk.
“A lot of Māori just know DNA as my blood or my saliva or other body fluids. But then, once you sit down and explain what DNA is, from a Maori perspective, all of a sudden DNA is whakapapa.
“And it's not just your DNA, it’s your family's DNA it’s your ancestors' DNA.”
He said there were massive risks around privacy and what the information could be used for.
“These DNA samples could be sequenced to find out more about the criminals or alleged offenders... whole Māori communities could be quite easily targeted if the police were doing stuff with the DNA.
“So many things that could go wrong.”
“There’s some serious digging to be done, and we will do it.” – Kim Workman.
He wants an audit done.
“Like they did with the photos of youth and actually say well why do we have this DNA sample? Was the person actually convicted of a serious crime? Would they just go through and destroy those samples in a culturally safe manner?
“But I think the first thing that the police need to do is actually engage with Māori who are in this area, adapt or adopt cultural protocols, which have already been written and recommended. We need proper engagement with whānau, and hapū and iwi just on the cultural safety issues, what does actually happen?”
Under the Act a young person may be required to give a bodily sample if they have been arrested or if police have good cause to suspect them of committing an offence and intend to charge them.
There is, however, no statutory recognition of tikanga Māori or the Treaty.
More than 208,000 people have a profile on the DNA Profile Databank.
Police investigations assistance commissioner Lauano Sue Schwalger said it was important to note 98 percent of 10-17 years olds have no contact with the justice system.
“The raw figures for the number of occasions a bodily sample has been taken from a Māori young person are trending down, year on year, which is pleasing.
“However, there are still long-acknowledged differences between Māori and non-Māori involvement in the youth justice system, and opportunities remain for a number of agencies to work together to further reduce those differences over coming years.”
She said samples taken from any young person was by consent of them and their parent or caregiver, but there were no specific cultural or tikanga protocols.
“The Understanding Policing Delivery research will assist police in reviewing processes and practices, however it is too early to say what that might look like or what areas that will impact.”
The Understanding Policing Delivery programme, chaired by justice advocate Tā Kim Workman, was established in March 2021.
It is investigating police bias in their treatment of Māori, Pasifika and other communities.
Workman said this type of issue was exactly what the panel had been set up to work through.
“There’s some serious digging to be done, and we will do it.”
He said similar to the practice of photographing rangatahi, DNA collection was something the panel would probe and work with police on.
Te Pāti Maori co-leader Debbie Ngarewa-Packer said the figures were proof of continual profiling of Māori.
“Whether it’s photographs whether it’s DNA, the purpose of the use of those DNA is something we’ve always been really concerned about.
“So it comes on top of the extreme profiling that we see from the police about Māori and we continue to ask why, and what are you doing with [the information].”
Unfit for purpose
In 2020, the Law Commission released its recommendations for an overhaul of the law guiding the collection of DNA with regard to criminal investigations.
Among other issues it found the Criminal Investigations (Bodily Samples) Act 1995 did not recognise or provide for tikanga Māori or the Crown’s responsibility under the Treaty of Waitangi, despite the regime’s significant impact on the rights and interests of Māori.
"I am acutely aware of the many legal and ethical issues the use of DNA in criminal investigations raises." – Kiri Allan, Justice Minister.
It made 193 recommendations for improvement.
The then-Justice Minister Kris Faafoi agreed reform was required.
“Since the 1990s, DNA technology has developed rapidly in ways that were not anticipated or provided for in the CIBS Act. As technology permits DNA to reveal more information from tiny traces, poor-quality or mixed samples, the regime becomes more intrusive, raising questions relating to the rule of law, privacy, human rights, and tikanga Māori.
“The CIBS Act is now outdated as forensic science continues to advance, which is occurring alongside the rapid advancement of surveillance and biometric technologies. These developments are also set against a backdrop of public discourse that continues to pose questions about the impact of institutional bias on search and surveillance,” a paper he took to Cabinet in May 2021 noted.
Justice Minister Kiri Allan said a new Act, along with the oversight body recommended by the Law Commission, remained the plan, but it was a "substantial undertaking" with initial scoping suggesting it was likely to take several years.
"I am acutely aware of the many legal and ethical issues the use of DNA in criminal investigations raises. Not least, I am mindful of the Law Commission’s findings that the current Act fails to adequately accommodate human rights, tikanga Māori and the Crown’s responsibilities under the Treaty of Waitangi.
"In the context of rapidly-evolving scientific ability, the new law should support the value of DNA technology in the context of law enforcement, while also addressing the significant privacy, cultural and human rights concerns that arise through its use.
"Further, a new law would be more responsive to recognising DNA as a taonga carrying rights and responsibilities in terms of tikanga Māori, and requiring active protection under te Tiriti o Waitangi."
