Police Complaints Authority (Conditional Name Protection) Amendment Bill

I move, That the Police Complaints Authority (Conditional Name Protection) Amendment Bill be now read a first time. I am very pleased to speak to the first reading of this bill, and at the appropriate time I will move that it be referred to the Law and Order Committee for further deliberation.

The genesis of this bill partly stems from the tragic events that occurred when a police officer shot and killed Steven Wallace on the main street of Waitara in April 2000. What followed was extended purgatory not only for Steven Wallace’s family but also for the police officer involved.

I have lived in the United States, and have witnessed the social impacts of an armed police force there. I was close to two shootings. One incident involved an unarmed 18-year-old who was shot in the back while trying to evade his police escort in the crowded X-ray room of the hospital where I worked. The incident was avoidable and unnecessary. My experiences left me with huge respect for the conservative approach and extra risks taken by New Zealand’s generally unarmed police force.

This bill gives individual police officers who are involved in firearm incidents while carrying out their duty conditional name protection until the Police Complaints Authority investigation is completed. I believe that the legislation is now necessary after the High Court’s landmark decision on A Plaintiff v Wilson and Horton. Over the last 60 years, there has been a convention in New Zealand not to name police officers involved in shootings while on duty. The court ruled that publication was allowed, and the National Business Review, among others, published the officer’s name. In this bill, provided that the police officer meets certain conditions, name protection will last until either the Police Complaints Authority investigation is completed, or the officer is charged with a crime related to the investigation, or the authority permits publication, or a High Court judge rules that the public interest is best served by the name of the officer being allowed to be published.

This bill covers only Police Complaints Authority investigations involving police use of firearms. Because of New Zealand’s conservative tradition of police not normally carrying or using firearms, their lives are often put in added danger. Although the High Court ruled that “… there can be no right of privacy in respect of an action by a public officer in the course of his public duties in a public street …”, and that therefore the officer should not receive special protection, this bill purports that New Zealand police take on extraordinary risk in the course of duty, and it is only natural justice that they and their families are not further penalised or endangered by having their names published, at least until the Police Complaints Authority has released its findings, or they are charged with an offence. In a small country like New Zealand, where police take a conservative approach to firearms, there is, consequently, far more media attention when police shootings occur than happens in many overseas jurisdictions. This makes the police and their families particularly vulnerable.

On 5 March 2003 the Ministry of Justice and the Attorney-General issued an opinion regarding the bill and its consistency with the New Zealand Bill of Rights Act, and I quote: “The bill raises a prima facie issue with section 14 of the Bill of Rights. The proposed new section 19A provides for a bar on the publication in any report or account relating to the investigation of the name of any member of the police involved in a firearms incident, or any information likely to lead to the identification of the police officer or his or her family. We consider this clause serves the purpose of enabling the Police Complaints Authority to carry out a thorough and unhindered investigation into the incident. As this is an important and significant objective, and a number of protections are built into the bill to protect the right to freedom of expression, this prima facie inconsistency appears justifiable. Although we consider the issues in this bill to be finely balanced, we have concluded that the bill does not appear to be inconsistent with the Bill of Rights Act.”

My proposed amendment to the Police Complaints Authority Act does not represent a blanket escape clause for the police. If a High Court judge determines that the public interest is best served by the identity of the member of the police being published, name suppression would not apply. It is important that the facts surrounding an incident are accurately reported after rigorous investigation. That way, it is far less likely that a police officer or his or her family will be unfairly prejudiced in the heat and initial emotions that are generated at the time of a firearms incident.

Any judgment that a police officer makes is subject to review by his or her superiors, external legal experts, and, ultimately, by the courts, if necessary. Police are armed with batons, pepper spray, and, in some cases, firearms. All use of force must be reported and accounted for. Use of deadly force, whether or not resulting in a fatality, is always investigated and is always subject to close scrutiny by more than one agency.

Extensive psychological research has concluded that being involved in the use of deadly force is one of the most psychologically traumatic events any police officer can experience. Officers involved will often suffer prolonged post-traumatic stress disorder, require long-term counselling, and continue to experience after-effects for their whole lives.

There is almost always a public backlash when police use deadly force. Threats against police who have caused someone’s death or injury are an inevitable occurrence. If the officer’s identity were published, there would be a real chance of retaliation against either the officer or his or her family, or both, by criminals with a grudge against police, or by disgruntled members of the public, or by family or friends of the dead person. If an officer’s identify is publicly released in advance of a final decision on any criminal liability, it is probable that the officer will be forever associated with the event, however rightly and honourably the officer might have acted.

Recent events have shown that even if colleagues keep the officer’s identity closed, the media can become aware of it through other means, and will base the decision to publish on their own organisations’ priority, not on the well-being of the officer. In this bill, there is no question whatsoever of providing any police officer with an ability to hide from the consequences of his or her action. It is simply a question of society affording a degree of peace of mind to police officers that they will not be subjected to personal trial by media and public stigma, especially in advance of any conclusions as to liability.

I have had very strong support from my National Party colleagues on progressing this bill. The Police Association has been deeply concerned over the fact that not only its members are subjected to added ordeal by not having name protection, but also their families. In the Waitara situation the constable and his family literally had to move out of town and hide for a long period. While I acknowledge there is an important civil right for the media at issue, substantial harm can occur to police and their families when they themselves are not able to defend their position. I commend this bill to the House.

The Police Complaints Authority (Conditional Name Protection) Amendment Bill involves the serious issue of if, when, and in what circumstances the right of free expression and the principle of open justice should be abridged. Under section 14 of the New Zealand Bill of Rights Act, everyone “has the right of freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” Equally, the principle of open justice requires the conducting of criminal proceedings in public, with the news media having the constitutional right to investigate and scrutinise the circumstances of cases, and report what happens in court proceedings. Both rights are crucial in a democratic society, but neither is an absolute right. Although the principles set out should certainly be the norm, there are circumstances in which exceptions can, and should, be made. Section 5 of the New Zealand Bill of Rights Act explicitly states that freedoms can be subject to reasonable limits prescribed by law that can be justified in a free and democratic society.

The issues that this bill responds to arose from the shooting in Waitara by a constable, whom the courts have subsequently found to have acted reasonably and in self-defence in the course of carrying out his public duties. Earlier, that same constable’s application for interim identity suppression had been declined in the case of A Plaintiff v Wilson and Horton. In that case, the High Court ruled that there was no legitimate privacy interest for a police officer carrying out a public duty, and in a public place. That seems to me a harsh judgment. An officer who, acting reasonably and in accordance with his public duties, takes the life of an offender, not only suffers the trauma of knowing that he has taken a human life but also has his name publicised throughout the media. Not only does that deny the officer and his family any right of privacy, but also it may subject the officer and his family to threats and harassment, and that, indeed, was the case in relation to that officer.

The media themselves have traditionally recognised the unfairness of this sort of situation. As a result, there is a longstanding convention amongst the major news media organisations that police officers involved in fatalities should have their names released only in exceptional circumstances. Generally, an officer’s name would be published only at the point at which disciplinary action was taken against him or her, or criminal charges were laid. I support that convention, and I believe that a police officer acting reasonably and in the line of duty is entitled to that protection unless and until there is sufficient evidence that the officer acted wrongly, and disciplinary action is taken or charges laid.

I had real concerns in the Waitara case when some media outlets chose to publish the name of the constable concerned without any evidence of wrongdoing on his part. The constable had already been forced to leave his home and the town that his family had lived in, because of threats to him arising out of the shooting. In 2001, in response to that situation, I asked the Ministry of Justice to prepare a proposal to provide name suppression in such circumstances, through legislation. I also made a point of meeting with a cross-section of media representatives in order to express my concerns and to indicate the policy response that I was considering by way of legislation. At that meeting, a clear undertaking was given by the media that the convention of not publishing an officer’s name unless the officer was charged or disciplined would continue to be upheld. The media now have the opportunity to demonstrate their commitment to do that on a voluntary basis. I believe that that would be a better outcome than the Government imposing constraints on the media by way of statute. However, if that outcome does not eventuate, and the convention is again broken, the option remains for me to seek executive and parliamentary approval for a change to the law.

I support this bill going to a select committee, because I believe that it is valuable for the issues surrounding the suppression of a police officer’s name to be debated, and for submissions to be invited and considered before a select committee. However, I do not support this bill going beyond that point, not simply because at this stage it is premature to advance such legislation but also because, as a vehicle for law change, this bill has some fundamental flaws.

If legislation were to be required, it would take a different form, and the proposal that I have advanced to the Ministry of Justice would involve, in the first instance, automatic suppression of the name of a police officer involved in a fatal accident for up to 20 working-days. For suppression to continue after that point, the officer would have to apply for a court order. The victim’s family would have the right to be heard on the application, as would the police and anyone else, including the media, with a public interest. Under legislation, the court would be instructed to consider and give due weight to, firstly, the risk to the physical safety and security of the officer and his or her family; secondly, whether, without suppression, the officer and family were likely to suffer an unwarranted invasion of privacy; and, thirdly, the public interest in our upholding law and order by protecting the police in the lawful discharge of their duties. In the event that the application for suppression was granted, it would, and should, be subject to an ongoing right by interested parties to apply for review on the ground of changed circumstances, and would be compulsorily reviewed if the officer faced criminal or private prosecution or disciplinary proceedings.

That would be a preferable approach to the approach proposed by Dr Hutchison in this bill. The policy and drafting flaws of this bill mean that it would not achieve its stated purpose. Firstly, the bill does not make it clear at what point name suppression would come into effect. It leaves a gap in time, between the incident and when it was notified to the Police Complaints Authority by the Commissioner of Police, when the name could be published. That is an oversight. Secondly, the bill does not cover all cases of death or serious injury as a result of police involvement. It is not clear why shootings, for example, should be distinguished from cases where death is caused by the use of a carotid hold or pepper spray. Why should that be treated differently? It is also unclear that the Police Complaints Authority is the appropriate body to determine name suppression. The primary role of the authority is to receive and investigate complaints relating to police misconduct or neglect of duty. Weighing up factors relevant to the prohibition of a police officer’s identity being published is more appropriately, in my view, a function of the court. No good reason is given in the bill as to why that function should be carried out by the Police Complaints Authority instead.

Notwithstanding those flaws, this bill is a useful vehicle for allowing debate over the issues involved. I believe that those issues are serious and should be debated. For that reason, I support its referral to a select committee.

That speech sounded like one of those “dollar each way” speeches that one often hears from Government members. The last time I heard a speech like that on a member’s bill, we later found that the real reason the Government was not supporting that bill was that it wanted to kick the bill into touch so it could bring in a bill very similar, and accrue for itself all the public kudos for having made a sensible law change. I say to the Minister that if those concerns are legitimate, and if they are true concerns held by him and his Government, what is wrong with those issues being covered during the select committee phase and incorporated into Dr Paul Hutchison’s bill? Why do we have do go through this—

💬 Hon Phil Goff: Because at the moment we have an agreement by the media not to publish. That is the agreement.

So now the media runs Parliament. We have an admission from the Minister that the media have decided, behind closed doors—all the people in the press gallery are nodding their heads—to do a deal with the Minister. Excuse me for suggesting it, but I thought the rules of this land were written here, not in private little chat and focus groups, orientation sessions, or backroom dealings. But then, I guess we should not be surprised because from 1984 to 1989 backroom dealings with certain sectors of people who funded the Labour Party, were the norm.

As a result, we saw the sell-off of State assets and the rest of that. It is funny, but here we are buying them back again. What does that tell us? We know that people who fail to learn from history are doomed to repeat it. I would simply say—

💬 Clayton Cosgrove: Tell that to Winston.

Tell that to Mike Moore, Phil Goff, Helen Clark, Michael Cullen, and a whole group of people who have been down this path before.

I would have thought that the bill would have a huge amount of sympathy from Parliament, because of the feelings that developed nationwide for the way in which Constable Abbott and his family were treated. It is all so ironic, is it not? Is it not funny that in a short space of time we can forget how we got to this situation? Let us not forget that the reason Constable Abbott came under such huge media pressure, the reason his family members were so affected that they were required to be moved to a secret location, the reason we ended up with a huge amount of debate in the streets, and the reason we are debating this issue in a member’s bill aimed at protecting law enforcement officers who find themselves in a similar position in future, is the very first reaction that came out of this Government’s mouth. Here is the irony: the people who supported Constable Abbott as a policeman going about his duty, were the members on the Opposition benches—

💬 Hon Phil Goff: First of all you don’t want his name published, then you are the first member in the House to mention it.

Phil Goff feels it coming so he is chipping in already. He is trying to cut me off because he knows what I am about to say. [Interruption] He wants to pump it up, because everyone is listening. The reason he is chipping is that the people who leapt to the defence of Constable Abbott were the Opposition members in National, New Zealand First, and ACT. The very people who came in and assumed this policeman was a white guy and had committed a racist killing were the Government members themselves, and Helen Clark contributed to that media frenzy. I remind the Minister that the videotapes are in the archives of Television One. He should pull them out and watch them again.

Venom oozed out of this Government towards the police. The Government immediately assumed that the constable who shot Steven Wallace—and legitimately so—and killed him was a white policeman. On that basis we had all this rhetoric from the Government: “Oh, we’re going to have to look into this. It smacks of a race-based killing.” The Government was gobsmacked when it turned out he was a Māori, but it was too late. It had inflamed the anti-police feeling by not coming out firmly, categorically, definitively, definitely, and positively in support of the officer. It came out with that media frenzy and left a big, grey cloud out there.

I think this bill should go to the select committee, and there will be plenty to talk about at that committee, rather than what we have just heard when someone tried—

💬 Ron Mark: I raise a point of order, Mr Speaker. Did the bell indicate the end of my speaking time or was it the 2-minute warning?

The ASSISTANT SPEAKER (H V Ross Robertson): Members’ bills have 5-minute speeches. It is the norm that the bell goes at 5 minutes. The member has had his time.

It would be good if Ron Mark took some notice beforehand, rather than interrupt a speech, but he does not always do his homework, as has become very obvious in this House, so many times, with some of his misguided questions.

The issues in this bill are a response to what happened in Waitara when a constable—in self-defence, as it is now very clear—shot and killed a young person. Of course members of the media are always interested in these sorts of happenings. They are always very keen, but, until this case, have always acted very responsibly. One media outlet was not so responsible, and I think that that was all about trying to sell papers. It was a case of a struggling weekly trying to sell papers. That then made it so difficult for the constable and his family. We have to remember that when people go out tonight to protect the citizens of a town, they have to have some level of comfort. It is all about people taking a responsible view.

One trouble about this bill—and I daresay it will be looked at by the select committee—is that it refers only to shooting. But there are many, many possibilities of how death can be caused by a police officer, in the execution of his or her duty. We are lucky in this country—very, very lucky—that we have a police force that is largely unarmed, and we do not have what we see on many television shows of shoot-outs between the baddies and the police. They just do not happen here. I think that the media deserve a second chance. They need to be able to prove that they will act responsibly. In the case of “Constable A” his family became victims, and when one’s family become victims, one has to ask whether that is a fair go on the people out there defending the rights of other New Zealanders.

This bill addresses that serious issue, although we must also be conscious of the right to freedom of expression. Having worked for a newspaper many, many years ago, I know just how carefully and how jealously newspapers want that right protected. I think that that is really important. The whole case of Steven Wallace and the shooting was a tragedy. It was a complete tragedy, and there are no winners in these sorts of things—no winners at all. The Wallace family is a family that is grieving, as is Constable A’s family, and, even more important, the big police family, because about 7,000 police feel for Constable A. They do not want to see themselves in the same position. They do not want to see their names blazoned across the papers because they were out there protecting us. That is something, really, that we as a Parliament must look at carefully. So this bill will, I daresay, go off to a select committee. People will discuss it and I hope that it is not used as a point-scoring debate.

I rise for the ACT party to say, sorrowfully, that we cannot support this bill. It reflects the kind of opportunism and pitiful analysis that has scarred so much of our law, and this kind of response, although it is well meant, in effect has delivered over policemen—like the policeman we are so concerned about—to the threats of villains. The reason we are considering this bill is that villains no longer fear the law. Even policemen doing their duty can be harassed out of a town by a mob encouraged by the Prime Minister. In this country—

💬 Hon Phil Goff: Oh, rubbish! Grow up.

Mr Goff says: “Grow up.” Mr Goff made a speech in which we did not know till the very end whether he was for or against this bill. Mr Goff tried to curry favour by saying how sympathetic he was, and then by saying he would not support it. Mr Goff, of course, has to try to curry favour, because this bill arises purely because the Prime Minister stirred up the hatred of the community in Waitara against the police. The Prime Minister encouraged the people of this country to think there was some sort of racist cover-up, and the best reason for publishing the name of that policeman, and for getting rid of the miasma, the smog, of suspicion was the fact that the Government and the establishment looked as if they were trying to cover something up.

That is the reason ACT is tougher on crime than any of the other parties in this House, and it is the reason that ACT cannot support this bill. We believe that the law must prevail, not expediency, not threats, the fear of insult, or the fear of a family who thinks that if it foams at the mouth and runs wild it can encourage everyone else to terrorise anyone at all.

This bill would be utterly unnecessary if the Government were able to establish the kind of respect for the law, for justice, and for the police that any healthy society would expect. It is a problem only because of the loss of control. Criminals and their families should be in fear of the consequences that this policeman has had to suffer. This bill cements in a situation where society is on the run instead of the criminals. It cements that in by saying that even the police have to hide from the community. A policeman who is doing his duty—and who is wearing his number on his uniform, because Sir Robert Peel established so many years ago that the police ought to be identified, that we ought to know who they are, and that they should be citizens, doing what any other citizen could do on behalf of us all—should not be afraid when he or she exercises the right of self-defence. That, indeed, was the court’s outcome.

💬 Dr Paul Hutchison: What about the family?

The family is in the same position. If the family of a policeman is scared when a policeman does what any citizen should be able to do, then we have lost the game. There is no point in putting a band-aid over it by telling the media that they cannot report it; if the families are scared in Waitara today, they will be scared tomorrow when the New Zealand Herald cannot publish, because everyone in Waitara will know who the policeman is. This will not protect a single policeman’s family. The villains will know who it was. What we should be doing is spending the time of this House debating proper remedies for those who threaten justice, and for those who threaten the agents of justice who are acting on behalf of us all in the street every day, as we have said.

We do not sacrifice one vital freedom because we are not prepared to protect an even more vital freedom, which is the freedom of every one of us from being afraid of threats from villains. We should not leave it to the experts. Police should have freedom from the insult of swaggering criminals, but the police are afraid to exercise powers because they believe the Government will not back them up. They had to face the Prime Minister bringing down condemnation on them, and they had to then get the Race Relations Conciliator down from Auckland to try to calm the situation down, because the Prime Minister had stirred up racial hatred.

💬 Ron Mark: That’s exactly right.

That is exactly what happened. ACT cannot vote for secret justice. We do not believe in name suppression now, which we believe is used mainly to protect the powerful. We cannot vote for this bill.

The Greens will oppose this bill because we cannot have two laws—one for the Police, and one for others. If there is special treatment for public officials, we will go down the path of two standards of justice, and the police are a category of public officials who have to have proper public accountability. I think it is particularly important in a democratic system for police to be fully accountable, and equal to every other member of the public, because of the powers that they have in our society. If we limit the justice applied to them, then, as we have seen overseas, we will be going down the track of more arbitrary application of those powers, possibly involving corruption.

We have an advantage in New Zealand at the present time in that our police force is one of the least corrupt in the world. I think it is wrong for Paul Hutchison to say that New Zealand is a special case, and that police lives are somehow in added danger because we have an unarmed police force. I think it is the opposite. Paul Hutchison went on to talk about the violence he had seen in America, and because the police are armed over there there is much more conflict, both in terms of criminals shooting police, and more violent actions taken by police against criminals—and often justly so. It is because we have a less violent scene here, and a better police force, without the same history of conscious murders by police of innocent citizens, that this proposed law change has gained some traction, contrary to the United States, where there was the Rodney King incident a few years ago. That involved the vicious beating of an innocent black person in Los Angeles by the police. It is quite clear that, in that situation, one needs to have all information available, and the names of the police officers involved in an extreme case like that should be out in the public space so that people can come forward with more information on those people who were later accused of the crime, and to overcome any corruption that does exist in police forces like that.

As I said, I cannot think of a Rodney King - type case here. The killings that have taken place here have not been of that conscious nature; they have been more accidental in their character. That is why we have a media convention in New Zealand not to publish the name of the police officer in such situations, because we do have respect for police officers when they accidentally commit such killings. However, there does need to be the potential for that openness to take place. In certain situations it can be useful for the name of a person who does the killing to be known, so that, just as with justice as a whole, witnesses can perhaps come forward with more information about the person or persons who did the killing, and I am referring there more to the Rodney King - type case than to any cases we have seen in New Zealand.

I think Phil Goff has referred to the particular provisions relating to the use of the Police Complaints Authority as the channel for restrictions on the publication of names, which is not appropriate in terms of the more neutral functions of the Police Complaints Authority. Moreover, the authority often has a very delayed reporting system. In my own case, I have been waiting for nearly 4 years for a result from the Police Complaints Authority. Should a name be protected for that length of time before there is any ruling under this bill by the Police Complaints Authority personnel? In other cases the Police Complaints Authority often waits for a coroner’s decision—as was the case in the Wallace case—and for other court cases to take place before it comes down with its own decision.

Other people have criticised the Wallace case, but I believe the way it evolved was a good example of our justice system. Private citizens did have the right to go through a court process, which I think was for the benefit of the whole community. As Stephen Franks said, the community knew who the police officer was—which was inevitable—and that may have assisted in taking that case to trial, in that the community would have known some of the background of that particular case.

I do think the police officer had some confusion as to the identity of the person who got shot, and the community helped to bring that to light.

Debate interrupted.