Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill

I move, That the Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill be now read a second time. I thank the Law and Order Committee for its report and its recommendations, which are unanimous.

This bill amends the Police Complaints Authority Act of 1988 to allow the Commission of Inquiry into Police Conduct to fulfil its terms of reference to inquire into the adequacy of any investigation carried out by the police on behalf of the Police Complaints Authority. To do that, it is necessary to override the secrecy provisions of the Police Complaints Authority Act, so that relevant information can be disclosed to the commission. The secrecy provisions require the authority and its staff members to maintain secrecy in respect of all matters that come to their knowledge in the exercise of their functions. The secrecy provisions are needed to create a climate in which witnesses can give evidence without fear of self-incrimination or retribution. The secrecy provisions in the Act are retained, but are lifted for the purpose of this inquiry only. The bill has a sunset clause and the legislation will expire 1 year after the commission has finally reported.

Concerns were expressed to the committee that the existing protections for witnesses to the authority’s investigations have been removed, along with the secrecy provisions. That is quite wrong. Aside from the secrecy provisions, the bill does not in any way interfere with the other existing protections and privileges available for witnesses to authority investigations. Under the Police Complaints Authority Act, no statement or answer given by any person in the course of proceedings before the authority shall be admissible against that or any other person in any court. The exceptions to this relate only to proceedings for perjury, or for an offence against the Police Complaints Authority Act itself. This bill does not change this fundamental protection in any way. The same type of protection exists in the Commissions of Inquiry Act. In addition, the terms of reference for the commission exclude the determination of guilt or innocence of any particular individual. These existing provisions should ensure that witnesses cannot be prosecuted using information they provided to the authority under the expectation of secrecy.

The committee agreed that existing protections continue to exist, but to allay concerns expressed by submitters and those who have given information to the authority it recommended that a specific clause be inserted for the avoidance of doubt. This clarifies that no proceedings can be taken against witnesses before the authority on the basis of what they told the authority.

Certain matters, in addition, are defined as restricted matters. These include, firstly, any information produced by the authority, deputy authority, or staff member of the authority; and, secondly, any communication by a person to the authority in which that person made a complaint about police conduct, and in respect of which that person has not given consent to the authority for it to be disclosed to the commission.

The authority, or any person holding any office or appointment under it, or members of the police, cannot disclose to the commission any restricted matter. The effect of this definition is that the commission can direct that the authority disclose any matter produced by members of the police who investigated on behalf of the authority, but not information produced by the authority in response to that information from the police. An exception to this is instructions and directions from the authority to members of the police investigating on its behalf.

Concern was expressed by the Police Association that complainants to the authority are the only group that will have any protections. Again, that is wrong. I have outlined the protections that are available for all witnesses to the authority. The ability of complainants, however, to refuse to allow the authority to disclose their complaints to the commission is a necessary protection available for those who may have provided extremely personal and private information. The exclusion of correspondence made directly to the authority respects the expectation of confidentiality of that information.

In response to a submission made by the Police Managers Guild, the committee considered that instructions issued by the authority to police investigating on its behalf may provide useful context for the commission. The committee recommended an amendment to the bill to allow the authority to disclose to the commission directions and instructions given to the police investigating on the authority’s behalf. This information cannot contain matters relating to the complainants or their complaints. The authority must continue to maintain secrecy in respect of all other information it produced.

There have been some reports in the media that this bill would throw open thousands of files containing the evidence of witnesses previously assured that their evidence would be kept secret. However, the police have indicated that the number of files held on behalf of the authority relating to sexual assault complaints against the police is expected to be fewer than 200. This bill covers only files within the ambit of the Police Complaints Authority Act, but does not address access to files existing before 1988, when that Act was passed. The commission’s terms of reference cover matters back to 1979. Files that pre-date 1988 are not subject to the same restrictions as files that were created after 1988. Access to these files will be via other legislative and procedural mechanisms.

Lastly, there was some support from submitters for provisions to be inserted into the bill to determine how the Commission of Inquiry into Police Conduct deals with the information it receives from the authority. The Police Association suggested the bill be amended to require the use of anonymity, aggregation, and review of individual cases, as a way of enabling the commission to fulfil its terms of reference without exposing those who have relied on the secrecy that the Act provides. The select committee did not agree, and noted the practical difficulties associated with this proposal. A commission of inquiry is established under the Commission of Inquiries Act. It is outside the scope of this bill, and inappropriate for Parliament, to determine the processes of a commission. How the commission deals with information will need to be considered on a case by case basis, and general legislative provisions would therefore be unsuitable. In addition, the commission is likely to be mindful of the circumstances in which the information was received by the authority and of the need to maintain the integrity of the authority’s procedures. The commission has already indicated that it will ensure the interests of persons before it will not be unfairly jeopardised. The commission is bound by principles of natural justice. It also has the ability to make decisions to treat information confidentially where it believes that that is necessary in all the circumstances.

In conclusion, the objective of this bill is to amend certain provisions of the Police Complaints Authority Act to ensure that they do not prevent the current commission of inquiry from gaining access to information needed by the commission to carry out its functions. That is vital, and it is equally vital that there is public confidence in the commission, the authority, and the police. This legislation is designed to assist in achieving that end. I commend it to the House.

The National Party in Opposition will support the progress of the Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill.

It is useful to remind the House about the rather despicable way in which this bill made its way into this Chamber. Most members of the Opposition did not have an opportunity to read the bill until the Acting Minister herself, the Hon Margaret Wilson, had started speaking in the debate, and that in itself was an outrage. However, through the processes of the Law and Order Committee, the Opposition parties have been able constructively to address the issues raised in this bill, and we have prevailed in the sense that a number of very sensible amendments have been made to it.

The bill should be read in conjunction with the terms of reference for the Commission of Inquiry into Police Conduct. The key point that members on the select committee belaboured for some time was the lifting of the veil of secrecy across the evidence or statements given to the Police Complaints Authority by police officers during the conduct of an investigation by the authority. The concern raised by a number of submitters was that police officers gave their evidence and comments to the authority on the understanding that that information would not be made public, or ever used against them in a court of law other than for a matter of perjury. But these are extraordinary circumstances, and the National Party will support the lifting of that veil in these limited cases.

It was put to the select committee that we should provide amendments for the automatic suppression of that information given to the commission. We reject those submissions because we think it is fundamental to the restoration of public confidence in not only the authority but—more important—the New Zealand Police that the commission and Parliament should be beyond any accusation that we sought to limit the availability of information for the consideration of complaints before the commission.

For those who are concerned about the evidence that was given to the Police Complaints Authority during an investigation, we received numerous assurances from counsel and from advisers to the committee that the privileges and protections that attach to that evidence being used against anyone in court other than for a matter of perjury do continue to flow through to the commission of inquiry. There is no likelihood that that evidence can be used against any officer other than in a case of perjury. We think that is an important protection.

We have also noted in the report back to the House that we believe it is the responsibility of the commission to determine what information is suppressed publicly. There are good reasons why the commission may decide to suppress some information, or the names attached to some information. Recently, in the District Court at Whakatāne, five police officers were subject to a private prosecution on what I think were quite spurious and vexatious grounds. During the hearing, the judge suppressed the names of all officers involved. The reason for that was clear: in this country now, police officers suffer guilt by association, and the mere mention of their names in a prosecution, or in association with this commission, will lead some New Zealanders to believe that guilt has been established, when nothing could be further from the truth. So it is important that the commission has the ability, as provided for under legislation, to suppress information, names, and details, if it is appropriate. I am certain that the commission will adopt a responsible attitude, because I do not want a situation where the mere mention of a police officer’s name in passing during the commission of inquiry’s term leads to the media or New Zealanders drawing some conclusion that the officer has undertaken something that was illegal or wrong.

So the National Party Opposition will be working to facilitate the passing of this bill during the Committee stage. We know that it is a very serious thing that Parliament is doing, but we believe that the circumstances warrant this action. We note that the commission of inquiry, headed by a High Court judge and a former senior public servant, will have the power to suppress information as it sees fit. We are certain that it will take a responsible attitude in that respect in order to achieve what Parliament wants to achieve, which is the restoration and improvement of public confidence in the New Zealand Police.

I rise to take quite a brief call in this debate. As chair of the Law and Order Committee, I want to compliment its members for the work they did on this bill. I think it is appropriate, and appropriately gracious, to also express my appreciation, along with the Government members of the committee, for the work that was done by the Hon Tony Ryall and Ron Mark from the opposite benches, as well as by my deputy chair, Marc Alexander, in helping us facilitate this bill in a relatively short period of time.

As members will be aware, there was a fairly tight time limit. The reason for that was very understandable in that the bill amended the Police Complaints Authority Act, in order to allow the Commission of Inquiry into Police Conduct, which has been recently established, to fulfil its terms of reference to inquire into the adequacy of any investigation carried out by the police on behalf of the Police Complaints Authority.

As I think has been previously stated, in order to do this it was necessary to override the secrecy provisions of the Police Complaints Authority Act, so that relevant information can be disclosed to the commission. The secrecy provisions require the authority and its staff members to maintain secrecy in respect of all matters that come to their knowledge in the exercise of their functions. The secrecy provisions are needed to create a climate in which witnesses can give evidence without fear of self-incrimination or retribution. The secrecy provisions in the Act are retained, but have been suspended for the purpose of this inquiry only—I want to stress that. The other very critical point is that the bill has a sunset clause, and the legislation will expire 1 year after the commission has finally reported.

I certainly acknowledge the concerns of the New Zealand Police Association, and I note that it continues to have concerns in this particular area. I also want to note that this decision to totally empower the commission in its work was supported unanimously by the committee. I also note that the New Zealand Police Officers Guild appears, by media reports, to be reasonably happy with the work the committee did. I want to assure members of the New Zealand Police Association that it was a decision the members of the committee did not take lightly. We certainly listened very closely to the advice provided by officials, weighed up the issues, and basically came down to the basis that we must not unduly fetter or hamstring the commission itself.

I think it is very important—and I think we in this House would all agree—to ensure that the New Zealand Police is perceived by all of the population to be amongst the best police forces in the world. This is all about ensuring that that confidence in our police is maintained throughout our community, and I think that is obviously where the Commission of Inquiry into Police Conduct will fulfil a very important function.

I want to take the opportunity to assure members of the New Zealand Police Association, and members of the police force, that our intent as a select committee was clearly to assist that commission of inquiry to do its very important job—the outcome of which, in my view, is to ensure that we as a society maintain confidence in what I still believe is one of the best police forces in the world.

Without further ado, I thank the officials, the submitters who came before us, and the members of the Law and Order Committee in, understandably, working under very tight pressure. We look forward now to the very constructive and positive work that we believe will be undertaken by the commission of inquiry itself.

New Zealand First supports this legislation. I appreciate the comments by the chairman of the Law and Order Committee about the excellent work my colleague Ron Mark did on the select committee. Really, the select committee as a whole should be complimented for returning a bill back to the House so quickly. I see that this bill was introduced to Parliament on 30 March 2004. The closing date for submissions was 14 April 2004, and here we are again on 6 May considering the second reading. Parliament can really get a move on when it wants to. It shows that we are very concerned about this issue.

I suppose an important reason for this legislation is that we do not want any of the people involved with this inquiry to put up excuses at a later stage that the inquiry did not have adequate resources and information, and that, somehow, they were barred from getting things that might have helped them reach a conclusion. From experience, one knows there is only one thing worse than an inquiry, and that is an inquiry into the inquiry. We have any number of situations—one possibly before the Justice and Electoral Committee at the moment—whereby inquiries seem to have a life of their own, because people come up with all sorts of reasons why the previous inquiry was not conducted properly and fairly.

New Zealand First somewhat reluctantly supports this legislation to make sure that there can be no excuses about the information available to the inquiry. Protections have been put in place, which is excellent. Perhaps at some stage a Labour member could tell us whether there is meant to be another Supplementary Order Paper during the Committee stage, as has been mentioned to New Zealand First. Obviously, we will have the opportunity to look at that later on.

This was just a brief speech to support the bill, and we look forward to it proceeding as promptly as possible.

I rise for the ACT party to speak on this Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill, which allows the lifting of secrecy provisions in the Police Complaints Authority Act for the benefit of a commission of inquiry—that commission having been appointed to look into claims of sexual offences by police.

To a member of a party not represented on the Law and Order Committee, the committee’s report shows signs of it having been done under time pressure. Although the committee members may be so close to the matters at issue that they are confident they have a clear understanding of them, I find it a little difficult to work out from the report, in some cases, exactly what it was that they decided. I hope that during the Committee stage there will be some elucidation on some issues.

I am concerned, for example, that the committee rejected the request that material that had been provided in confidence, or with a promise of secrecy, would benefit from automatic suppression when it went to the commission. I can see that automatic suppression would be too much of a problem, but I wonder why such material would not benefit from a presumption that it would be suppressed—a presumption that could be lifted by the commission if it decided that its requirements overrode the interests of privacy or confidentiality. It seems that the committee found areas where it could not get a perfect solution, so it decided that it would not have any solution at all. It seems to me that there could well have been middle courses that would have served the purpose we want, which is essentially to reassure New Zealanders that the Government does not renege on promises lightly, or, if it is forced to do so by compelling reasons, reneges to the least extent possible. I do not find the committee’s report very reassuring there at all.

There is a strong principle here. We have to remember that when people learn about the law, they learn about it in terms of folklore—they do not know the words. If they do get to know about this bill, what they will learn is that Government promises cannot be trusted; that people might be assured that information they give to the Police Complaints Authority will be kept secret, but they cannot trust that assurance, as the Government can always go back and bring in another bill. That is the message of this bill. In my opinion, it is not obvious on the face of it that the select committee and the Government have taken all the steps they could have to show that when Governments do renege on a promise they do so as carefully and with as many limitations as are feasible given their purpose. ACT certainly supports the purpose of this bill, which is to make sure that this commission of inquiry is not frustrated. We would like to be able to support this bill unequivocally, but I have to say that, on the face of this report, it is not possible to do that.

I am concerned that the kinds of people who might be affected include not just police who have given evidence or whose material is there; it might be that there are others who are scared that suddenly there will be disclosure of who narked. That could be a very significant fear. Particular cases always tug at the emotions, and the cases raised in Rotorua cause us to say that this commission of inquiry should be able to get at this information, but our job really is to decide what this bill will mean when translated in the street. Will it mean that people should not help the Police Complaints Authority because it will come back on them? Will it mean that when the Government tells people to trust it, people should decide not to take the risk?

Why did the committee suggest that the commission of inquiry have so many powers to protect, but not give an indication to the commission, through this law, that when it does have those powers, it ought to really exercise them? There is nothing in this bill to reflect the committee’s own concerns. The committee is saying it is concerned but believes that the commission will act wisely. It is really saying “Trust us.”, or “Trust the commission.” Why did the committee not put into this law something that tells the commission to remember that information provided in confidence should be treated in confidence as far as is feasible? That would be a very simple drafting matter. I see no reason why the committee could not have put it in.

💬 Hon Rick Barker: This speech is just a stream of consciousness.

Of course, I doubt whether Mr Rick Barker, who is tossing silly comments across the House and saying this speech is a stream of consciousness, would understand this. I do not think any Government members have read this report. They would not bother. They threw this bill into the House at the last minute. They did not bother to discuss it with anyone on the other side of the House. They started the debate on this bill without having even warned the House that it was coming, because they were ashamed that they had set up the commission of inquiry without any preparation, and without realising that it would run parallel to the police prosecution. The commission already looked like monkey business because the police officers who are the subject of the inquiry will be able to claim prejudice and, perhaps, even double jeopardy. The commission of inquiry was already compromised. This bill was a knee-jerk, hasty reaction, and a reaction that could rebound because there is no provision instructing the commission to protect people as far as possible.

There is some argument that the Government did not want to do that, because it would have meant that the commission had to consult with thousands of people who had provided evidence. Well, why did the bill not just say there would be consultation with those who reasonably appeared to the commission to be in a position where they might be concerned about the privacy of their information? That could easily have been done, but it has not been. It is another piece of sloppy work from the justice portfolio—

💬 Hon Rick Barker: You can’t be taken seriously when you are making a speech with your hands in your pockets.

No wonder Mr Barker is braying; he is braying because he is embarrassed and trying to cover it up. We will support this bill going through to the Committee of the whole House stage, but we will be looking for answers as to why it does not better protect privacy, because it is such a gross invasion.

The Green Party will support this bill, but like previous speakers—including Stephen Franks, who has just spoken—we are concerned that the principle of privacy in the deliberations of the Police Complaints Authority should be upheld where at all possible. This is a very exceptional circumstance. We have a commission of inquiry into police misconduct where some of the information disclosed to the Police Complaints Authority is very relevant to the deliberations of that commission of inquiry. The initial complaint in Rotorua that led to other evidence coming out, and to the setting up of the commission of inquiry, related very much to what appeared in the media reports to be the mishandling of the case by Mr Dewar, the officer who provided information in the report to the Police Complaints Authority. I think, in that regard, we definitely do have to allow the commission to look at material from the Police Complaints Authority.

That being said, I think that Stephen Franks raised some important points, and his suggestions for amendments deserve some consideration. However, I think we can trust the commission in this case to consider very seriously the questions of privacy. When the commission holds its deliberations and makes its final reports, it should be very careful not to disclose the individual circumstances of people or information that could lead to their identification. I think the commission will be very aware of what Mr Franks talked about: that we do not want people to be identified who confidentially provided information. Stephen Franks used the term “nark”. Those people could be seen as narks if they are members of the police who say something about the wrongdoing of other police officers.

We do not want that information to get out because, as a general principle, we do not want to stop people from rightly whistle-blowing to the Police Complaints Authority, just as we encourage whistle-blowing in other areas of the public service. We actually passed a law recently. It was not a fully adequate law, but it did provide some protection for whistle-blowers. That is one of the principles that lies behind the secrecy provisions of the Police Complaints Authority: that we will not get a proper understanding of wrongdoing unless we have provision for police officers and other people to come forward in confidence and say something is wrong. That is particularly important in the police, because sometimes there is a sense of camaraderie that means one officer does not want to upset another officer. It is a particular problem with any police force that when officers are out in very difficult situations they rely on each other, so there is an automatic tendency to cover up, to an extent, the activities of other officers. Unless we provide that secure option for whistle-blowing, then we are in trouble.

It may be that Stephen Franks will propose useful amendments in the Committee stage. However, I tend to trust the commission to understand the tenor of the legislation and to keep to privacy at all times. With that, I just repeat the Green Party’s support for this legislation.

In the very short time that I have I would like to say that United Future will support this legislation, although with some questions about the legitimate concerns that the police have about it. Stephen Franks has pointed out some of those concerns. The lack of anonymity for those who relied on the secrecy guaranteed under the principal Act could compromise future information-gathering exercises. Lifting secrecy provisions could compromise the workings of the Police Complaints Authority.

We were told in no uncertain terms that this bill is a one-off, it will not happen again, it is a unique set of circumstances, and so on. The problem is that with this bill we have opened the door, and the next time something like this happens another bill will be before Parliament to open the door all over again. This bill may just compromise future scrutiny of the police, and we do have some problems with that. It is a matter of a balance between public confidence in the police and police procedures, and public confidence in the Police Complaints Authority with its ability to receive information in secret.

On this one, to be honest, one is damned if one does and damned if one does not. Although we will support the second reading of the bill, we will consider introducing, a Supplementary Order Paper of our own to try to strengthen some of the secrecy provisions, if that is possible. United Future does not regard that it is necessarily the case that the removal of identifying information, for example, would make it difficult for the commission to fulfil its obligations. There are some circumstances where that might not be the case. But I do not see that we have been given sufficient reasons to put that aside altogether.

There is no denying that the bill was rushed through the Law and Order Committee. There was a time frame within which we had to hear the submissions, listen to the advisers, deliberate, and give consideration. Regrettably, it was much too short for us to assess everything as thoroughly as we would have liked. If members read the commentary, they will see that there really is very little in it that reflects a lot of the concerns we raised, but we simply ran out of time. I do not think this is a very good way to conduct legislation, at all. It is something the Minister needs to look at in the future—that we do not simply try to get legislation through promptly, without going through it as thoroughly as we should. However, the issue of public confidence in the ability of the police to be scrutinised outweighs some of my concerns, so at least United Future will support the bill’s second reading—but that support is provisional at this stage.

The National Party will support this legislation. We note the concerns of United Future. Mr Alexander of United Future is the deputy chair of the Law and Order Committee. National notes those concerns. Firstly, yes, there was a rush. This legislation was introduced on 30 March, and the select committee had only 2 weeks in which to hear submissions.

Debate interrupted.

The House adjourned at 6 p.m.