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

In respect of Part 1, “Preliminary provisions”, the purpose of the Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill is to facilitate the flow of information from the Police Complaints Authority to the Commission of Inquiry into Police Conduct in order to assist the commission to undertake its inquiries. Evidence given to the Police Complaints Authority is subject to a general privilege in that no prosecution may be taken as a result of that information, confidentiality is assured, and the only exception is in the case of perjury.

In order for the commission to fulfil the requirements of its terms of reference, the Government has brought forward this legislation to lift the veil surrounding the authority and provide for that information to be made available to the commission. A number of changes were made to the bill by the Law and Order Committee, and in particular to the definition of a “restricted matter” in clause 4, “Interpretation”. The change of most note, which comes as a result of a point made by the Police Managers Guild, is that if the commission of inquiry is to look at how the police undertook investigations in respect of certain incidents, those investigations should be seen within the context of the instructions the investigating police received from the Police Complaints Authority. Without information as to the context in which investigations were conducted, it is possible that conclusions could be drawn by the commission that could be perceived differently in light of the instructions.

The bill as introduced proposed that there would be a blanket suppression, with no transference of any document generated by the authority or any of its staff. That would have limited the ability of the commission to receive the information that would enable it to use that information. So that change has been made in the bill. The definition of a “restricted matter” was also changed, to clarify that term to readers, because there was some confusion that restricted matters may be limited to complaints made to the authority, rather than any correspondence generated by the authority. So those changes have been made. The inclusion of an instruction communication will be vital, so that the commission can consider those matters. This question is being taken as one subject, and during the debate, members of the National Opposition will want to cover a number of issues, and we look forward to taking a number of calls.

The Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill may be only barely four pages, but it is a very important bill. To give some indication of that, I point out that the various notes and suchlike of an explanatory nature go to 12 pages. A considerable degree of interest in this legislation is evidenced.

The purpose of the bill is to amend the Police Complaints Authority Act of 1988 to allow the Commission of Inquiry into Police Conduct established by the Governor-General on 16 February 2004 to fulfil its terms of reference—to inquire into the adequacy of any investigations carried out by the police on behalf of the Police Complaints Authority. So members and anyone else who is interested now know just what it is members are talking about.

Normally, one would not support legislation that breaches the privacy of people who engaged in police investigations—investigations not only last year but also many, many years ago. Those people may have made statements and suchlike in circumstances where they felt their views would be privileged and protected. But this issue has caused a great deal of public interest, and raises some questions about the credibility of our police force. New Zealand First has the highest regard for the police force. We want to make sure that as much information as is reasonably possible is made available to the inquiry.

I am pleased that the Law and Order Committee, which heard submissions on this matter, and heard them extremely promptly and quickly, returned the bill to this House with amendments that make the bill much better. New Zealand First does not want to see a situation develop where people start complaining about the inquiry that is taking place, because not enough evidence was made available to it—that people complain that such evidence was available but was not provided. We do not want to see yet another inquiry into an inquiry. We want to try to bring this matter to an end in the best possible way and in the total public interest. So we have decided to support this legislation, somewhat reluctantly. Hopefully, it will only ever be a one-off.

It is also important to note that, in Part 1, clause 5 is a sunset clause. This unusual Act of Parliament, unusually, will expire “at the close of the day that is 1 year after the date on which the Commission finally reports to the Governor-General.” That is also a very important provision. So we will support the Committee consideration, and will make various comments from time to time about it.

I hope the Minister in the chair, the Hon Rick Barker, will take a call in respect of Part 1, “Preliminary provisions”, of the Police Complaints Authority (Commission of Inquiry into Police Conduct Amendment Bill, because there are issues that might be helpfully explained by him.

I think a good starting point for consideration of Part 1 is the comments the Attorney-General made when she indicated that the bill would be introduced. She said—and I summarise what she said—that investigation files held by the Police Complaints Authority are currently subject to blanket secrecy provisions, and those files are likely to include information gathered by police conducting investigations on behalf of the Police Complaints Authority. She went on to say that the provisions are designed to help the authority obtain frank information from police and members of the public during its investigations—information that may be self-incriminating, personally embarrassing, or feared to invite retribution, and may therefore be withheld if confidentiality were not assured.

It is obviously important that the commission be able to operate without its activities being hampered in any undue way. But there are significant policy and jurisprudence perspectives that need at least to be considered, as members of the Committee look at the provisions of Part 1. That critical element of confidentiality was very much part of this Police Complaints Authority legislation when it was set up, to enable the fair, free, and frank disclosure and exchange of information.

The New Zealand police force stacks up as one of the least corrupt in the world. In the latest survey that I am aware of, which looked at 195 countries, New Zealand was rated amongst the three least corrupt. Now we find that the police investigation system is very much in the news as a result of allegations of a 1986 pack rape by police of a Rotorua teenager and a subsequent cover-up of her complaints. I guess it is fair to say that some aspects that touch on the integrity of the police are very much under the closest scrutiny. I understand that in respect of complaints made about the police, about 40 percent are made to the police, and 60 percent go directly to the authority. Last financial year the authority received about 2,800 complaints, and accepted about 2,300 for investigation. That is about 50 cases a week for the authority head to sift through. Apparently, about 15 percent of the allegations are upheld.

I am concerned by a number of aspects of this bill. Although National will support the bill, it will look critically at the proposed amendments that have been advanced by Mr Franks and by the representative from United Future. We need to consider very carefully what the implications of those amendments may be. But I would like to deal now—in this and in subsequent calls—with the definition of “restricted matter”, which has undergone some change as a result of the deliberations of the Law and Order Committee. Those changes were highlighted—and very accurately so, I thought—by the comments made by the Hon Tony Ryall, who preceded me in this debate, and whose commitment to law and order is certainly well known and very much appreciated by members on both sides. The issue is what is a restricted matter. The bill provides that restricted matters are still subject to the secrecy obligation. The term is defined in the bill as meaning: “… any document, information, or communication produced by or, as the case requires, made by a person holding office as …” the Police Complaints Authority or, in effect, a staff member. Also included in the definition are communications by any person to the authority.

I rise to speak in support of this bill. It is always such a nice change when we can rise in support of a Government bill. I will deal with Part 1, in relation to the commission of inquiry.

To follow on from Mr Worth, who has just spoken, corruption in the New Zealand police force is, fortunately, not a common occurrence. However, in the last few years the police have come under increasing scrutiny—certainly, as I recall, from the time when the shooting in Waitara caused the Prime Minister to make all sorts of allegations about the police. From that day forth we have had a lowering of public confidence in the police. That is a dreadful shame.

One of the problems is that the Police Complaints Authority has not been seen as having all the powers it needs. We in the National Party are very keen to see the process of looking at police complaints and at the actions of the police become far more robust, and be seen as such.

One comment I have had from police officers is that over the last few years there has been a drop in some standards in the police. It is certainly something they have noticed. That is so important to this bill, because it affects police morale. A lowering in police morale can, unfortunately, sometimes lead to a lowering in standards generally, and a lowering in the ability of the police to always deal with issues in a sensitive and careful way. Certainly, having spoken to many police about this, I have learnt that they find that whereas some years ago a reprimand to a young person would be treated with respect and taken very seriously, in today’s world that sort of reprimand and initial action is often ignored. They find themselves hidebound by all sorts of politically correct regulations and rules that really do not stop one piece of crime.

The police in my electorate, Clevedon—which includes Papakura at one end, and goes up to the Howick police station at the top end—seem to me to be doing as great a job as they possibly can. They have many, many challenges, and for them to know that the Police Complaints Authority can be trusted as an independent and robust body is extremely important. Being a police officer in today’s world is not an easy job. Fortunately, in New Zealand it is a lot easier than in certain other countries. One reason is that the police become members of the police force for, I find, the very right reasons—that is, to uphold the law of New Zealand, to show respect for the people of New Zealand, and to be good citizens of New Zealand themselves.

National is very pleased to support this change, so that a more robust process can be in place should there be complaints against the police—as, no doubt, from time to time there will be. We accept, however, that there is the odd rogue element in the police force, as in any organisation. I am pleased to say that, over the years, I have noticed the police are often the first to deal with any such rogue elements and to bring them into the open. The police care about their reputation, and so should we in Parliament. One of our jobs is to uphold the authority and morale of the police, and, certainly, to make sure they are, as much as possible, free from corruption. We should do whatever we can to make sure their work is valued in the community.

Part 1 is primarily made up of definitions, and when the Minister referred the bill to this Committee, he sought to debate it as if it were all one part. I am not trying to go behind that, but the definitions do set the scene for the principal issue that I think has troubled the select committee and Parliament. We have here what is potentially a very bad precedent. The bill recognises that people provide information on the assurance that it will be received and held in confidence.

In the circumstances, it could be people who have very nervously approached the Police Complaints Authority. They may have thought very long and hard before they did it. They may have been in a situation of great exposure and might suffer greatly if it were found that they had—to use the jargon term—narked. But the definition of “restricted matter” in clause 4 is very broad and it sets the scene for what is essentially a complete legislative hole in the statutory assurance that has been given.

I emphasise the breadth of the definitions because the bill simply states that the only protection those people who have provided the information that is contained in the restricted matter have against being exposed is to rely on the best judgment of the commission. Of course, the commission will be subject to very intense media scrutiny and there is the potential for some quite unreasonable rhetoric. The commission will be struggling to achieve its objective of reassuring the New Zealand public that there is no cover-up, and in doing that it will be faced with calls for the disclosure of material that may prejudice the people who relied on the assurance of confidentiality in the Police Complaints Authority Act.

It is interesting when looking at the definition for drafting purposes that “restricted matter” is actually defined to mean “any document, information, or communication”. But where it is used in clause 6, the word “matter” is awkward. To be read properly, it almost needs to have been put out in extenso. I am not concerned about the part that we are debating, but I urge members to consider it carefully at this stage because when it is made operative in Part 2 that part has the potential to seriously damage the reputation of the New Zealand Government.

This is not a political matter. It is simply an issue because we all, of whatever party, have a stake in the integrity of Government assurances. They must be seen as reliable in this country. When people have been assured, by statute, of confidentiality, we should lean over backwards to make sure we show that it is not done lightly when that confidentiality is unilaterally and retrospectively stripped. We need to show that all reasonable steps have been taken to minimise any damage, and that we are not simply saying “trust us”, because the people who have provided this information have already trusted us. They have already taken a Government assurance when they provided the information. It is unreasonable to then breach it and tell them not to worry because the next person who receives the information will take care that it is not released, or the confidence breached.

Accordingly, I take the opportunity in Part 1 to draw attention to the framework of this, because the definition there is so broad, and the import of it when it is used in Part 2 is so serious in principle, that the bill needs an amendment to make sure that the combined effect of Part 1 and Part 2 does not mean the Government is seen as renegeing lightly and not even bothering to take simple steps it could take to minimise the downside, or even the life-threatening damage, that might follow.

I rise to speak on the Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill. I have been in my office listening to this debate with some interest, in particular on Part 1. It appears to me that this is a complex and difficult issue. As a member of the Law and Order Committee who has tried to formulate sensible legislation, I found this issue had a degree of complexity that was difficult to draw a clear conclusion on. On the one hand I was concerned about the issue of public confidence in the police, and on the other hand I was concerned about a cast-iron guarantee of secrecy for those who provide information to the authority. This is an issue that I think is extremely vexed.

A precedent is being established here, and it is one that I do not feel particularly comfortable with, but I also find it difficult to deal with this issue without thinking about the broader issue. That is, of course, about restoring public confidence in our police force. I am somewhat mollified by the sunset clause—which we will come to in Part 2—which essentially allows the bill to have a duration of only 1 year. That is something I am a little bit more relaxed about. As this debate progresses I would like to take a call on that to discuss it in more detail. But my major concern is that the secrecy provisions were invoked to encourage people to come forward to provide information to the authorities, and in this particular instance so that people could come forward to the commission so the commission would get a very clear view of what the true issues are. The threat now exists that those who were prepared to come forward might not because they no longer have secrecy guaranteed, and those information channels might dry up. As I have said, that is why this is a complex issue.

On balance, the serious allegations that have been brought against senior members of our police force are something that I feel we have to get to the bottom of if we are going to restore confidence in our police force. That, I believe, has left members of the select committee with very little choice as to how they will proceed with this legislation. That conclusion means that the National Party is left with very little choice but to support this legislation, but with some reservation. I want to make it clear that there is a distinction between secrecy and privileged information, or incriminating oneself. When the Police Managers Guild came to the select committee it made this issue clear. It suggested an “avoidance of doubt” clause, which I also want to speak about later in this debate.

All submitters supported the bill although, like many people on the select committee, they had some reservations regarding the way it should be constructed. The Police Association raised concerns with regard to secrecy, as well, and suggested desensitising some of the information so that the secrecy of individuals could be maintained. The select committee wrestled with this for some time and, on balance, felt it could not support this. The aggregation of this material meant it would make it harder for the commission to do its job. Time was an issue, as well.

Part 1 agreed to.

Part 2 Disclosure to Commission of Inquiry into Police Conduct