I wrote this twaddle

Submission on the Criminal Investigations (Bodily Samples) Amendment Bill

To the Justice and Electoral Select Committee

21 April 2009

1. Statement

This submission wishes to address the amendments to the Criminal Investigations (Bodily Samples) Act 1995, in the Amendment bill introduced 12 Feb 2009 by Simon Power.

That the amendment bill in of itself addresses the requirements of crime solving from the scientific perspective of the collection of bodily samples. There is the assumption of science as a culturally neutral idea, but it will be argued that in this context, the scientific realm is a western socio-cultural view, which does not address any other cultural paradigm.

That the amendment bill does not consider or consult the concerns of tangata whenua about the collection of DNA and genetic technologies , in accordance with Maori world views and belief systems of whakapapa and tikanga maori. To be specific, the way in which body tissue or living matter are treated or regarded by tangata whenua of New Zealand.

This submission will address the specifics of the amendments set down, allowing police to collect DNA from a person of suspicion whom they intend to charge with an offence without prior judicial approval. What does this mean for Maori who are disproportionately represented in criminal statistics? Does allowing police to have discretion to take bodily samples under broadened criteria of any imprisonable offence, potentially impact upon Maori prison populations, apprehensions and convictions, and subsequently the Maori community at large? It is felt this broadening of criteria along with relaxing the judicial approval may result in unfair and biased practices.


2. Maori Worldview and Genetic Technology

The construct of the Maori world is contrasted to that of the preferred non maori normative worldview. This is the Western / European view, and by its self appointed positioning it is the dominant cultural perspective in New Zealand. By stating the aims of the amendment bill from an ethnocentric perspective, the Maori paradigm is marginalized, whilst the normative viewpoint of crime solving using DNA is legitimized through governmental action and policy. Such action further alienates Maori from their own cultural practices and belief systems whilst conversely strengthening the beliefs of the dominant group.

In a discussion of these cultural differences Thomas states:

‘there are inherent difficulties in attempting to describe the concepts and values of one culture using the language of another. However, the most basic contrast between Māori and European world views is that Māori culture puts spiritual and communal matters ahead of material and individual needs. It emphasises the primacy of nature and the need for man to tread carefully when interfering with natural laws and processes.


The emphasis on spirituality, or interference in the natural world in the above description, is not given any weight in this modern legislation as the normative scientific approach is the preferred mode. Neither is there any attempt to remedy the differences so that a Maori voice is given to the amendment process. The amendment instead focuses on extending the powers of the state to take bodily samples beyond the set limitations currently in law. The pragmatism of science as crime solving method does not take into account the consequences for Maori spirituality and natural laws.

Concepts specific to Maori culture and ritual are outlined with the example of Tikanga:

“Tikanga Maori gives clear cultural guidelines about how we treat one another and how the human body is regarded. Every part of a human person or ira tangata is treated as tapu (sacred) and comes complete with the attributes of that person. Nowadays all body parts, even severed limbs, are buried at the urupä as each body part includes the human gene – it is a part of ira tangata and therefore tapu. As descendants of ira atua, Maori are of an inter-related universe. Tikanga shows that we have to respect all forms of life and take some responsibility as kaitiaki (guardians) over te ao marama (the world of light)”.


Te Momo quoting Mead uses Tikanga Maori or Maori customs as a frame for the way in which Maori treat the body and its parts. This explanation gives significance to the concerns over the bodily samples act 1995, the subsequent amendment 2009, and its absence of consideration for the Maori world view.

The introduction of genetic technology for law enforcement results in the introduction of scientific practices into the Maori realm via legislation. The tampering of genetic material holds grave consequences for Maori cultural ideals in that all parts of the body flesh, fluid have a genealogy inextricable from the person and that to tamper with this is to tamper with the ancestry of the person.




3. The Treaty of Waitangi

In accordance with the Treaty of Waitangi, the treaty states Maori should have self governance and that their lands, taonga and customs should remain protected . It is suggested that policy demanding bodily samples is in contravention to the crowns agreement with tangata whenua by legislating the surrender of tapu or sacred material to law enforcement agents. It is argued that the bill and contents is a further strengthening of the colonial power and ideation through policy. Further, in its notable absence of any clause or statements acknowledging Maori cultural practices, there is evidence of no consultation with Iwi and therefore no honouring of treaty agreements of partnership.

To further reiterate the points made regarding the lack of a Maori voice and influence in the policymaking process, in accordance with treaty obligations, the following is offered by Te Momo:

Maori continue to struggle within Aotearoa/New Zealand society to assert their right to share control over the land, sea, and air with the Crown (representing the New Zealand government) as tangata whenua. Decisions that impact or affect the natural state of the land, sea, and air Maori state breach Treaty of Waitangi Article II that guaranteed exclusive rights and protection of their land, sea, forest, and taonga.

Reynolds qualifies the importance of the Maori world perspective stating:

Indigenous and Maori world-views, contrastingly, respect all life and are based on hundreds of years of knowledge accumulation and experience. Indigenous people around the world have similar conceptions of life and existence.

The final point is made to give weight to the knowledge base and validity of other world views, and the assertion that Maori be heard in the policy making process.


4. Maori and Law Enforcement

Drawing now and expanding on points raised in parliament by Te Ururoa Flavell of the Maori Party. During his speech to Parliament with regards to the first reading of the Bodily Samples amendment, he highlighted the Department of Corrections report titled ‘Over –representation of Maori in the criminal justice system’. Mr Flavell brings to the floor very relevant issues in regards to allowing police to collect DNA from a person whom they intend to charge with an offence without the formerly required judicial approval. This report investigates the high occurrence of Maori convicted of criminal activity per head of population with a key explanatory approach which examines

‘That bias operates within the criminal justice system, such that any suspected or actual offending by Maori has harsher consequences for those Maori, resulting in an accumulation of individuals within the system’.


The proposed amendments to broaden collection to any imprisonable offence upon suspicion, combined with potential pre existent biases, create a situation in which Maori can potentially be constant targets of police requests for bodily samples whilst not having any legislative protection against this. The Correction department report outlines what it describes as a ‘significant degree of built in discretion with respect to decision-making’. Where data on apprehensions is recorded Maori account for approximately 40% of the total number, against 45-50% for European. Maori account for roughly 14% of the total population against 70% for European. Police contact with Maori was nearly 3 times higher than for European. It notes that ‘police engage in offender profiling, both explicitly and consciously as an aid to crime resolution and implicitly as they go about their work’.

Bearing this in mind to Police being able to take bodily samples without judicial approval, their discretion at the time of apprehension and any conscious or unconscious bias at work, may see a substantial proportion of young Maori and Maori offenders being duly required to submit to a DNA test on the grounds of police discretion and the broad terms of suspicion of committing an imprisonable offence. It is felt that on the grounds of the Department of corrections findings, evidence supporting interactions between police and Maori could potentially account for increased probability of Maori offenders being subjected to criminal apprehension.


5. Misuse


There is the risk of other discrimination where DNA is misappropriated and further used through legislative process to provide a reductionist notion of genetic links to crime and Maori. Reynolds highlights this as ‘Focusing on the individual is problematic, as it:

“diverts attention from the real causes, but also stigmatises individuals, through placing the blame for society's ills on people's genes, and through the arbitrary categorisation of the 'normal' versus the 'abnormal’’.

Whilst the present bill does not allow DNA to be used for any other purpose than criminal convictions, there is nothing to say that future amendments will not attempt to subvert this in favour of legislation attempting to DNA profile on ethnic grounds. This is potentially backed also by the Bill calling for a DNA database which stores bodily samples material. Potential DNA profiling by ethnicity, sanctioned by legislation, plays a role in the subjugation of Maori to unfair popular myths of dominant groups about the inherited criminality of some ethnicities, whilst ignoring all other economic factors.

6. The Maori Paradigm

It has been shown that the Criminal Investigations (bodily samples) Amendment Bill is seriously lacking in any substantial Maori viewpoint, considering its importance to the Maori world. Along with grave concerns about the broadening of definition of imprisonable offences, and the removal of judicial approval to allow Police at their discretion to take bodily samples, this submission moves to have this bill voted against.

However it is also strongly suggested that a future amendment bill be tabled before the house reflecting changes which accommodate and validate Maori perspectives of Tikanga, and honour treaty of Waitangi obligations of partnership and inclusion of Maori perspectives and Maori culture.

Bibliography:

Criminal Investigations (Bodily Samples) Amendment Bill 2009

Flavell, Te Ururoa – speech accessed at: http://theyworkforyou.co.nz/bills/criminal_investigations_bodily_samples_2009/2009/feb/10/first_reading_2

Hutchings, J, Te Mata o Te Tau, Massey University and Reynolds,P, Nga Pae o Te Maramatanga, Auckland University, The Obfuscation of Tikanga Maori in the GM Debate :
http://www.kaupapamaori.com/assets//hutching_renolds/GE_hutchings_reynolds.pdf

Mead, H. (2004). Whakapapa and biotechnology. Te Ira Tangata. Wellington,
NZ: Toi te Taiao, Bioethics Council Website.

Policy, Strategy and Research group, Department of Corrections, 2007 report
http://www.corrections.govt.nz/new-and-publications/over-representation-of-maori-in-the-criminal-justice-system/executive-summary.html


Reynolds, Paul. Nga Puni Whakapiri: Indigenous Struggle and Genetic Engineering, Simon Fraser University, 2004 http://www.kaupapamaori.com/assets//paul_renolds.pdf


TeMomo, Fiona. Socially and culturally sustainable biotechnology in Aotearoa/New Zealand. A report on the social, cultural, religious and spiritual dimensions of biotechnology for Maori. University of Waikato.
http://wms- soros.mngt.waikato.ac.nz/NR/rdonlyres/e3fmiwjt6523pe36dqmrr7yix4z3cotrwfu3cpcwt5nqpbwvxylrupwmrabpciser4at6xhgojoqn7uwcpkkjnkr66h/Fiona+Final+Report.pdf

Thomas, Cordelia M, (2006), A framework for the collection, retention and use of human body parts, thesis University of Victoria.