At the end of November 2020,  the Law Commission released a report on DNA samples in Criminal Investigations that made sweeping recommendations that included protecting Māori cultural rights and recognising Te Tiriti obligations. It recommended that the law governing the taking of DNA samples the Criminal Investigations (Bodily Samples) Act (CIBS Act) be updated to reflect the latest scientific, cultural and technological advancements in biotechnology since the Act was written in 1995.

I also note that the Law Commission used its Māori name first in the media releases and the report Te Aka Matua o te Ture | The Law Commission as a sign of what I believe is a genuine attempt to be more inclusive of Māori and combating the bias Māori face in the whole justice system.

To understand the significance of Māori DNA here is a short indigenised narrative. Māori DNA is no different than a whānau archive of all of your whānau memories, knowledge, genealogy, photos and everything else that a whānau collects over generations and usually protect and nurture. Or your marae with the images, carvings, history and people in it. Yet, society do not comprehend the significant risks of sharing or having DNA taken. There appears to be very little Maori media coverage of this social disease that is and will continue to impact Māori the most.

DNA contains identifiable information and data about a person’s entire genealogy dating back to the first human beings and atua, all of the individual’s intimate health, phycological, physical make up and much more information which is for ever increasing as technology evolves and finds more ways to analyze and store genetic data. Traditional Māori knowledge also states that a person’s body fluids could be used to put a curse on a person and their family. Likewise, DNA could be used to scientifically prove and possibly reverse makutu creating a new cultural issue.

Some of the key recommendations in the report for Māori include the recognition that DNA contains whakapapa which is considered a taonga, therefore the collection and use of DNA in criminal investigations also engages rights and obligations under the Treaty, including the right to exercise tino rangatiratanga.

The term “Informed Consent” plays a crucial role in the process of obtaining samples. Unfortunately the Law Commission recommendations do not go far enough in this instance. Ideally Free, Prior and Informed Consent (FPIC) should have been used.  Free, Prior and Informed Consent (FPIC) is a specific right that pertains to indigenous peoples and is recognised in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which the New Zealand government is a signatory and aspires to be the first country in the world to develop and implement a declaration plan to measure our progress in addressing indigenous rights and interests.

Free, Prior and Informed Consent allows a person or collective to give or withhold consent to a project that may affect them or their territories. Once they have given their consent, they can withdraw it at any stage. Furthermore, FPIC enables them to negotiate the conditions under which the project will be designed, implemented, monitored and evaluated.  This is also embedded within the universal right to self-determination.

Law Commission Recommendations that recognise Māori Cultural Rights and Te Tiriti with expert commentary

The report contains 193 recommendations that include 53 recommendations that are of direct impact to Māori. These 53 recommendations provide cultural and Te Tiriti recognition and recognises the  current biases and the lack of protection to Māori. These recommendations are analysed using Sir Mason Durie’s  Ngā Tapa Whā Framework and Sir Hirini Mead’s Tikanga Test as a basis.

Recommendation 1

The CIBS Act should 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 (new DNA legislation).

The legislation is 25 year old and has only been amended twice, in 2003 and 2009. This, despite the rapid growth of technology the legislation was not updated to reflect those changes. It was recognised that there are no statutory recognition in the CIBS Act of tikanga Māori or the Treaty, no provision for tikanga in the collection and use of DNA and no provision for the exercise of Treaty rights and obligations. This provides a new opportunity to include Te Tiriti obligations and recognition in addition to Māori cultural and tikanga and an appropriate recommendation to combat the current biases against Māori with being required to provide a DNA sample at significantly higher rates than non Māori. The 193 recommendations are an indication of this need.

Recommendation 2

New DNA legislation should include a provision that identifies the specific measures that give practical effect to the Crown’s responsibility to consider and provide for Māori rights and interests under the Treaty. Specific measures identified should include:
a. providing that the purpose of the new DNA legislation includes facilitating the collection and use of DNA in a manner that recognises and provides for tikanga Māori (see R3);
b. establishing a multi-disciplinary DNA Oversight Committee, which must include Māori members (see R8–R11);
c. requiring the development of practice, policy and procedure in consultation with the DNA Oversight Committee to ensure the collection and use of DNA is consistent with the purpose of the new DNA legislation (see R38, R44, R59, R73, R80, R96, R104, R134, R150, and R187);
d. requiring Police to report on how the collection and use of DNA under the Act affects Māori (see R23); and
e. empowering the DNA Oversight Committee to monitor the operation of the DNA regime on Māori (see R14.c).

This clause directly impacts Māori and is a significant advancement to recognising Māori rights and the obligations of the Crown. The formation of a DNA committee with Māori members will ensure that tikanga and other cultural obligations are considered and incorporated into procedures and policies. Recommendation 9 details the committee further. The common risk among government advisory boards is that the Māori appointments are not tikanga and mātauranga Māori experts/practitioners who have community recognition in these areas. The Tūhoe Act address this issue well.

Recommendation 3

New DNA legislation should include a purpose statement that confirms that the purpose of the Act is to facilitate the collection and use of DNA in the investigation and prosecution of offences and the investigation of missing and unidentified people in a manner that:
a. minimises interference with a person’s privacy and bodily integrity;
b. recognises and provides for tikanga Māori; and
c. is otherwise consistent with human rights values.

From a Māori perspective the tūpāpaku or dead body is highly tapu and should be returned to the whānau as quickly as possible. The tūpāpaku should also not be left alone and as little intrusion as possible is desired. By having DNA and other body fluids removed can be seen as interfering with the tūpāpaku and its journey back to their ancestors. If there is a requirement to extract fluids, then it is best that it is done in a tikanga appropriate manner that respects the tūpāpaku and the living whānau. Then as soon as possible, the sample should be offered back to the whānau or destroyed in a culturally appropriate manner.

Is samples need to be taken from the living to identify a dead person, again, this would require a number of cultural appropriate practices and observances to protect the living and the dead.

Recommendation 4

The existing DNA Profile Databank, Temporary Databank and Crime Sample Databank should be replaced with a single DNA databank with an index system (the proposed DNA databank).

This will provide a number of cultural protections to Māori DNA including the fact that one organisation and one set of protocols will likely be in place to access and manage the stored Māori DNA.

Recommendation 9

New DNA legislation should require the Minister of Justice to appoint members of the DNA Oversight Committee comprising:
a. between five and seven members who, between them, have expertise in the areas of:
i. forensic science;
ii. ethics;
iii. criminal law and procedure;
iv. te ao Māori and tikanga Māori;
v. privacy;
vi. human rights; and
vii. any other area the Minister considers relevant having regard to the Committee’s functions; and
b. one member who is a member of the Independent Police Conduct Authority (IPCA).

I would expect that the Minister in charge will use the same or similar wording in the Tūhoe Settlement Act. The wording should prevent a common issue we see with many government appointments where Māori advisors are appointed without any knowledge of Te Ao Māori and Tikanga Māori. Often researchers or academics are appointed  despite the fact that within academia mātauranga Māori and tikanga Māori are neither defined nor taught as a discipline in tertiary institutions leaving a want for such skills, thus being at a direct dichotomy of Te Ao Māori values and tikanga which is obvious in their actions and publications.

Recommendation 10

No less than three members of the DNA Oversight Committee must be Māori members.

This removes the too often seen and experienced risk of one Māori member being burnt out due to the extra work load of being a member and an expert on Māori cultural issues. The other benefit of this clause is that it should provide protection for Māori if a Māori member appointment does not in fact have appropriate Tikanga and Te Ao Māori experience.

Recommendation 11

The Minister should consult with Māori before appointing any Māori members.

As in recommendations 9 and 10, this should act as a natural filter to remove the current prospective members who are Māori and experts in various areas but not in Te Ao Māori and Tikanga. The issue would be if the government only consult with their recognised Treaty Partners as opposed to Māori communities.

Recommendation  14

In order to carry out its primary function, the DNA Oversight Committee should have the following statutory functions:
a. Evaluating proposals to make or amend regulations under new DNA legislation, including proposals to approve new DNA analysis techniques, and advising the Minister of Justice about whether regulations should or should not be made.
b. Advising (with or without a request) Police and the forensic services provider on practice, policy and procedure relating to the operation of the DNA regime to support and promote the purpose of the new DNA legislation.
c. Monitoring the operation of the DNA regime, which should include monitoring the impact of the DNA regime on Māori.
d. Approving applications for the use of the proposed DNA databank for research purposes.
e. Promoting awareness and understanding of the DNA regime.
f. Advising (with or without a request) the Minister of Justice on any aspect of the operation of new DNA legislation and the desirability of any amendments to the legislation or regulations.

Considering the DNA oversight committee is required to have 1-3 Māori members this is a significant recommendation as the committee would have statutory authority to make key decisions and to seek information to ensure tikanga Māori and other Māori rights are being observed.

Recommendation 39

New DNA legislation should require the proposed DNA databank to be maintained in a way that:
a. complies with all relevant requirements in new DNA legislation;
b. ensures the security of the databank, including the maintenance of appropriate back-up and disaster recovery procedures; and
c. keeps information held on the proposed DNA databank secure from inappropriate access or misuse.

Currently there is no independent oversight of DNA samples being stored. If you consider the bias of Māori with DNA samples and the out of date legislation, this recommendation to regulate will only benefit Māori and make their samples equal to non Māori. There is no statistics that I am aware of of any inappropriate access to DNA samples and if there are, if Māori are more likely to be discriminated against.

Recommendation 42

A police officer should only be able to request a suspect sample from an adult suspect if satisfied that:
a. there are reasonable grounds to suspect that the suspect has committed an imprisonable offence;
b. there are reasonable grounds to believe that analysis of the suspect sample would tend to confirm or disprove the suspect’s involvement in the commission of the offence; and
c. the request is reasonable in all the circumstances.

This recommendation and the DNA oversight committee will limit the current Police bias against Māori and reduce the overwhelming proportionate use of Māori have DNA samples taken. Currently there are over130 imprisonable offences including minor offences such as include robbery, intentional damage, willful ill-treatment of animals, threatening acts, and peeping or peering into a house, many of which will not likely meet all of the above criteria,

Recommendation 43

Subject to R46, an adult suspect should only be deemed to have provided their informed consent to the obtaining of a suspect sample if:
a. they have agreed to the obtaining of a suspect sample after a police officer has:
i. given them a notice containing specified information;
ii. explained the information in the notice in a manner and language that is appropriate to their level of understanding;
iii. given them a reasonable opportunity to consult privately with a lawyer;
and
iv. given them a reasonable opportunity to nominate an adult to act as a support person during the consent process and the obtaining of the suspect sample; and
b. the request for the suspect sample, giving of information at R43.a.i and R43.a.ii and giving of consent is, where reasonably practicable, recorded on a video record or otherwise recorded in writing.

The primary benefit in this recommendation is point ii. This will allow for native speakers of Māori to have the intimate details explained to then in their first language or in English using Māori personifications, theology and tikanga. It also takes into consideration that Māori are under represented in the Science and Technology fields and may need some terms and circumstances explained in a different more detailed manner.

Point iv allows for a cultural competent person to be present to ensure tikanga is observed and to provide support to the donor. The recording on video of the consent process is also important and will ensure that the donor is fully informed and it will likely be a barrier for any bias and coercion to obtain the sample.

Recommendation 44

Procedures and practices for explaining the specified information should be developed in consultation with the DNA Oversight Committee and should include visual aids and materials produced in English, te reo Māori and other languages commonly spoken in Aotearoa New Zealand.

Most initiatives forget that we have generations of children from Kōhanga Reo and Kura Kaupapa Māori of whom te reo Māori is their first language. Having such vital information in a persons native tongue is vital to ensure that the information and details are properly understood.

Recommendation 48

A suspect should be able to withdraw their consent, orally or in writing, before, during or immediately after the sample is obtained and while the suspect is still in the presence of the police officer supervising the sampling procedure. If consent is withdrawn, the suspect should be deemed to have refused to give consent, and any sample obtained should be destroyed immediately.

A cultural trait that was once common and many Māori still have but often refer to as ‘instinct’ is the feeling. In this instance, this feeling or instinct is the relationship between the physical, spiritual and emotional sides of the individual. By having something so sacred removed from your body can be overwhelming experience that an individual may never have experienced or be able to explain. This recommendation will provide culturally appropriate protection.

Recommendation 59

Procedures and practices for explaining the specified information should be developed in consultation with the DNA Oversight Committee and should include visual aids and materials produced in English, te reo Māori and other languages commonly spoken in Aotearoa New Zealand.

As stated in recommendation 44 commentary; Most initiatives forget that we have generations of children from Kōhanga Reo and Kura Kaupapa Māori of whom te reo Māori is their first language. Having such vital information in a persons native toungue is vital to ensure that the information and details are properly understood.Furthermore, visual aids and other materials will cater to the lack of Māori in the Science and Technology fields.

Recommendation  63

A person who gives consent to the obtaining of an elimination sample should be able to withdraw their consent at any time, orally or in writing, and in these circumstances, consent shall be deemed to have been refused.

Rec 48. A cultural trait that was once common and many Māori still have but often refer to as ‘instinct’ is the feeling. In this instance, this feeling or instinct is the relationship between the physical, spiritual and emotional sides of the individual. By having something so sacred removed from your body can be overwhelming and an experience that an individual may never have experienced or be able to explain. This recommendation will provide protective measured in a culturally appropriate manner.

In addition, it is possible that consultation and further contemplation by the whānau, that it is concluded that the sample is of spiritual and cultural detriment to the whānau, hapū or maybe Iwi.

Recommendation 67

A donor’s refusal to consent or withdrawal of consent should not be used as evidence against them in any proceedings.

This would provide cultural safety for the circumstances commented about in Rec 48 and 63

Recommendation 81

New DNA legislation should continue to provide for DNA samples to be obtained by buccal sample, fingerprick sample or venous sample. New sampling methods should be authorised by regulations made under new DNA legislation.

This is discussed in detail in the commentary of recommendation 82.

Recommendation 82

Any person who provides a DNA sample should be given the opportunity to elect one of the sampling methods referred to in R81. If no election is made, the least intrusive method should be used.

While still breaching tapu, the least intrusive method available is ideal. Though I would expect that the donor is given the opportunity as to which method is used. For many Māori the right hand side of the body and the left hand side are protected by different atua and have different sources of vitality. Days and nights of the traditional maramatanga (lunar calendar) should also be considered. For some Māori the saliva is the most tapu as it is the most direct link to Tane Māhuta.

Recommendation 83

Any person who provides a DNA sample should be entitled to have the following people present during the sampling procedure:
a. a lawyer or another adult of the donor’s choice;
b. if the donor is under the age of 18, a parent or guardian; and
c. if the donor is over the age of 18 and lacks the ability to understand the general nature and effect of the sampling procedure, a welfare guardian or principal caregiver.

By specifying another adult of the donor’s choice is significant as this will allow kaumātua, tohunga and or other appropriate person(s) to be in attendance to provide spiritual and cultural support and assist with any cultural practices such as a poroporoaki from the donors body and a pōwhiri into the physical world for the DNA sample.

Recommendation 86

No inference should be able to be drawn from a person’s refusal to comply with a compulsion order in any criminal proceedings against that person for the offence for which the suspect sample was ordered or a related offence.

This allows for cultural considerations to Māori as the taking of a DNA sample is a significant undertaking that has multiple cultural, tikanga, theological, spiritual and mental considerations.

Recommendation 92

The Memorandum of Understanding: The Disclosure of Newborn Blood Spot Samples and Related Information between Ministry of Health and Police should be amended to remove the provision for Police to obtain samples relating to a suspect in a criminal investigation under search warrant.

This is the biggest protection of Māori rights of all of the 193 recommendations. The implications are so large and varied it would require a thesis. In summary, all babies born in New Zealand have a heal prick to extract blood that is tested for various diseases. The blood is then stored indefinitely on cards called Guthrie Cards. The Police have accessed these cards a number of times with court orders. It is a large breach of trust and privacy. Parents are not informed that they can and how to retrieve their childs blood sample. This is still an area outside of this scope for Māori to en mass retrieve their blood sample cards.

Recommendation 93

New DNA legislation should prohibit the collection of a DNA sample from a close genetic relative of a suspect for the purpose of obtaining a suspect sample indirectly.

As in recommendation 86; This allows for cultural considerations to Māori as the taking of a DNA sample is a significant undertaking that has multiple cultural, tikanga, theological, spiritual and mental considerations. If the Police had the legal power to do take a DNA sample from a close relative it could cause a number of other issues including of traditional whanagi being exposed and in this modern world of post treaty settlements, the possible exclusion from their Iwi and marae if the test showed either donor was not in fact a close genetic relative.

Recommendation 96

Police should develop, in consultation with the DNA Oversight Committee, practice guidelines on the exercise of powers under the Search and Surveillance Act 2012 to collect biological material for DNA analysis from the body of a person. These guidelines should be published (including online).

This will protect the wairua, mauri etc., of a Māori donor and will allow sufficient cultural consultation and consideration to occur. One example is if a hair brush was to be used for a sample, then I would expect that it would be a last resort and appropriate cultural considerations would occur.  I would also expect that the instruments used to gain the sample will also be offered back to the donor.

Recommendation 98

DNA analysis techniques to infer evidentially visible characteristics should only be used if approved in regulations made under new DNA legislation under R26, and only after following the process recommended in R28–R30.

This impacts on every persons privacy. For Māori, we could see this being used to decide if a Māori/Polynesian is a suspect which would create a number of issues especially in small predominately Māori/Pacific Island communities. Otherwise, it is widespread practice that Māori have been culturally interbreeding with non Māori  for generations and there is no longer a one physical description of a Māori person.

Recommendation 99

New DNA legislation should prohibit the use of DNA analysis techniques to conduct ancestry inferencing.

This is positive and will remove whānau, hapū and Iwi being targeted with mass DNA testing to find a suspect. I suspect that if there was not a recommendation to prohibit the use, then we could well see mass screening of Māori DNA to identify a Māori and then a whānau, hapū and Iwi gene. The risks without prohibiting this practice now, are likely to be with future technologies.

Recommendation 100

New DNA legislation should regulate the use of genetic genealogy searching in criminal investigations.

If it is regulated to allow the use of genetic genealogy searching, then this would create a concern for whānau, hapū and Iwi who could well be put in a position to share their DNA when a criminal suspect is being sought. A Māori individual is likely to have multiple iwi affiliations and numerous first cousins and siblings. Considering the DNA oversight committee and the multiple Te Tiriti and tikanga protections, at least the impacts can be managed and lessoned to a certain degree and issues of whāngai and other arranged birth practices will need to be managed with care.

Recommendation 101

New DNA legislation should not permit the disclosure of any biological material obtained in the course of a criminal investigation, or any information derived from the analysis of that material (including a DNA profile), to a genetic ancestry database for genetic genealogy searching except by order of a High Court or District Court Judge (genetic genealogy search order).

This will directly impact Māori who have taken a DNA test with any of the consumer to web DNA websites. Arguably the tapu nature would have already been damaged and the whānau, hapū and Iwi would have been exposed already to multiple cultural breaches. The DNA oversight committee would need to think very carefully about how to regulate this area in a manner that has the least implications to Māori communities.

Recommendation 102

A Judge may issue a genetic genealogy search order if satisfied that:
a. a databank search of the proposed DNA databank has failed to identify a suspect; and
b. conducting a genetic genealogy search is reasonable in all the circumstances, having regard to:
i. the purpose of the new DNA legislation;
ii. the nature and seriousness of the suspected offending;
iii. the stage of the investigation and the availability of alternative investigative methods (including a familial search of the proposed DNA databank); and
iv. any other matter the Judge considers relevant.

While not ideal for someone who has given their DNA sample, but in terms of the multiple other privacy and tikanga breaches and individual has engaged in when using a third party genealogy corporate service, this is reasonable and ensures that there is a significant amount of caution and reason to engage this step. It may well be that this could make individuals consider even more carefully the use of such DNA services.

Recommendation 104

Police and the forensic services provider, in consultation with the DNA Oversight Committee, should establish procedures to govern the storage and destruction of all DNA samples and related information to ensure that DNA samples and related information are managed in a manner that:
a. is consistent with the purpose of the new DNA legislation (see R3); and
b. ensures proper recognition of and respect for cultural and spiritual values;
and
c. does not endanger the health and safety of any person.

This is significant to Māori well being and cultural beliefs pre colonisation that there is a spiritual connection as well as the whakapapa connection to a sample. Sir Mason Durie Tapa Whā model and Sir Hirini Mead Tikanga publication among others would likely be considered when formulating the correct protocols. It would also seem to align with the District Health Board procedures when disposing of body parts. The donor or the whānau of the donor should be offered the sample and related information before any destruction processes are carried out.

Recommendation 105

Storage and destruction procedures should be published (including online) and the notice requirements for people providing a DNA sample should include information on these procedures.

In addition to the discussion in Recommendation 104, this will assist whānau to understand and engage early with the process of destroying samples.

Recommendation 108

Subject to R110, suspect samples and indirect samples should be destroyed no later than three months after:
a. the expiry of 12 months from the date the sample was obtained if that person is not charged with the offence in relation to which the sample was obtained or a related offence in that time; or
b. the person is charged and the charge is withdrawn; or
c. the person is charged and the person is acquitted of the offence; or
d. the expiry of any appeal period if the person is convicted of an offence that does not meet the threshold for retention of that person’s DNA profile on the offenders index of the proposed DNA databank.

As discussed in Rec 104, 105 and 108; This is significant to Māori well being and cultural beliefs pre colonisation that there is a spiritual connection as well as the whakapapa connection to a sample. Sir Mason Durie Tapa Whā model and Sir Hirini Mead Tikanga publication among others would likely be considered when formulating the correct protocols. It would also seem to align with the District Health Board procedures when disposing of body parts. The donor or the whānau of the donor should be offered the sample and related information before any destruction processes are carried out. It also protects the living from having their DNA stored with dead donors for indefinite periods.

Recommendation 109

If a person is convicted of the offence in relation to which a suspect sample was obtained or a related offence and that offence is punishable by two or more years’ imprisonment, the suspect sample should be destroyed no later than three months after a DNA profile has been created for retention on the proposed DNA databank.

As discussed in Rec 104,  105 and  108 it is essential from a cultural perspective that the physical sample is either given back to the donor or their whānau or destroyed in a culturally appropriate manner to avoid cultural issues and well being issues from impacting the donor and their whānau.

Recommendation 111

Elimination samples and mass screen samples should be destroyed no later than three months after the investigation is concluded or proceedings relating to that investigation are determined if consent has not already been validly withdrawn.

As discussed in Rec 104,  105, 108 and 110.

Recommendation 112

Any material extracted from a suspect sample (subject to R163), elimination sample or mass screen sample and any information derived from the analysis of that sample (including a DNA profile stored on the proposed DNA databank) should be subject to the same retention and destruction rules that  apply to that sample.

As discussed in Rec 104,  105, 108, 110 and 111.

Recommendation 113

Any person who provides a DNA sample by buccal (mouth) swab should be able to elect to retain the swab.

The same reasons apply here as with Rec 104,  105, 108, 110 and 111. This will allow for the culturally safe disposal of the swab. Ideally, any other instrument that is used to take a sample should also be offered back to the donor.

Recommendation 114

Any person who provides a DNA sample should be able to elect to be notified of the destruction of that that sample and any material derived from that sample.

As discussed in Rec 104,  105, 108, 110 and 111 this is essential for Māori. If the donor is no longer alive or incapable of seeking the sample, the whānau should be provided the notice of destruction and the method of destruction.

Recommendation 141

A qualifying offence for databank purposes should be defined as any offence punishable by two or more years’ imprisonment.

This will allow a significant reduction in bias against Māori who according to the consultation documents were required by Police to provide DNA samples at a much higher rate than non Māori for minor offences that could have maximum imprisonment rates as opposed to benchmark minimum which made the range of possible offences much more and more reliant on Police discretion.

Recommendation 142

A DNA sample should only be required from an adult arrested or intended to be charged with a qualifying offence if a police officer of or above the position of inspector is satisfied that requiring a sample is reasonable, having regard to:
a. the nature and seriousness of the suspected offending;
b. any history of prior offending; and
c. all other relevant circumstances.

This significantly reduces the risk of Police discretion thus reducing the likelihood of unconscious or conscious bias with DNA samples being taken.

Recommendation 143

No sample should be required under R142 from any adult who lacks the ability to understand the general nature and effect of providing a DNA sample.

This is where it is important to have a full and informed disclosure of the privacy, whakapapa and other cultural risks of a DNA sample being taken and the appropriate cultural rites that should be acknowledged and performed.

Recommendation 144

Any DNA sample required under R142 must only be used to generate a DNA profile to be stored on the pre-conviction index of the proposed DNA databank (see R106).

This offers protection to the donor that their sacred DNA will only be stored and used within a regulated manner.

Recommendation 150

This will provide for greater trust and transparency for Māori, whānau, hapū and Iwi.

Recommendation 157

Any exercise of reasonable force to assist a suitably qualified person to take a sample under new DNA legislation must only occur if:
a. the sample is taken in the presence of a lawyer or another person of the donor’s choice or, if the donor does not choose a person to be present, a person who is not a Police employee; and
b. the sampling procedure is recorded on a video record.

This is an opportunity for a whānau member, kaumātua or other cultural knowledgeable person to be present and protects all the people involved as it is being recorded. I do have concerns about the storage of the recording and the duration. This has similar cultural considerations to recording a tangi.

Recommendation 158

Any exercise of reasonable force under R155 or R156 must be reported to the Commissioner of Police no later than three days after the sample is taken, and Police should report annually on the use of reasonable force to obtain a databank sample, including:
a. whether the person is a child, young person or adult; and
b. the ethnicity of the person against whom reasonable force is used.

This provides another level of comfort for Māori and another avenue for the public and Police to see statistics and maybe for the Police to self improve or review procedures if required. The DNA committee could then intervene if there appear to be an over representation of Māori being forcibly made to provide a DNA sample.

Recommendation 159

Databank samples should be destroyed as soon as practicable after a DNA profile has been obtained from the sample but no later than three months after the date the sample was obtained.

In a tikanga sense, this will ensure the holistic well being of the donor is improved in the situation and lessons the potential risks to the donor and their whānau, hapū and Iwi as discussed in Rec 104, 105, 108, 110 and 111.

Recommendation 160

The same cultural considerations as discussed in Rec 104, 105, 108, 110, 111 and 159. It will also prevent further bias against tamariki Māori who provide DNA samples as children giving them a new opportunity as adults.

Recommendation 161

A DNA sample required from an adult arrested or intended to be charged under R142 must only be sent to the forensic services provider for analysis once the person is charged with the offence in relation to which the sample was obtained. If that person is not charged within two months of the sample being obtained, the sample should be destroyed.

As discussed in Rec 104, 105, 108, 110, 111 and 160.

Recommendation 162

DNA profiles generated from samples required under R142 must only be stored on the pre-conviction index of the proposed DNA databank and should be removed from that index and destroyed no later than three months after:
a. the charge is withdrawn; or
b. the person is acquitted of the offence; or
c. the person is convicted of an offence that does not meet the threshold for retention of that person’s DNA profile on the offenders index of the proposed DNA databank

As discussed in Rec 104, 105, 108, 110, 111, 159, 160 and 161.

Recommendation 164

The collection of a DNA sample from a child or young person (other than a suspect sample) and the loading of a child’s or young person’s DNA profile to the offenders index of the proposed DNA databank must only occur if a Judge makes an order under R165.

Considering Māori children are over represented in Youth Court, this will be more positive for Māori children than non Māori, further recognising the holistic well being of the young person.

Recommendation 167

No child’s or young person’s DNA profile should be loaded to the offenders index of the proposed DNA databank in respect of a charge that is discharged under section 282 of the Oranga Tamariki Act, whether or not that charge was proved.

As discussed in Rec 165.

Recommendation 193

The DNA Oversight Committee will determine the process by which it will consider research requests, and a description of that process, a summary of any research proposals considered by the DNA Oversight Committee and the outcome of its considerations should be published (including online).

Māori and other Indigenous Peoples are over researched and historically receive the least benefits and acknowledgements for their contributions. Māori and other Indigenous Peoples suffer the most form loss of Intellectual Property Rights, bio piracy and a myriad of other negative impacts when academia research them. With 1-3 Māori members on the DNA oversight committee, the detrimental impacts of research should be prevented and  kaupapa Māori research driven practices employed for and research that is about or with Māori DNA. This section would also suggest that one of the Māori positions requires a Kaupapa Māori academic practitioner.