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

I am in a little bit of a quandary, because I understood that there were to be two amendments moved on this part, but now I understand that there is only one.

💬 Hon Rick Barker: Yes, there are two amendments on Part 2.

The CHAIRPERSON (Hon Clem Simich): Yes, just to clarify it, that is correct. There are two.

But I have just heard that the amendment in the name of the United Future member is to be withdrawn. So I am asking at this stage whether United Future will take a call on that amendment and explain it to us, because if it is withdrawn, my speech will change. I will sit down at this stage and await a call from United Future and see what it has to say, so that I know what I am talking about in support of either amendment.

I congratulate the member. I think it is the first time I have ever heard anyone suggest that we should do that.

💬 Dail Jones: I think it’s called common sense.

Yes. Part 2 deals with the disclosure to the Commission of Inquiry into Police Conduct of certain levels of information. There are two important amendments currently on the Table. Mr Jones has indicated that one may in fact be removed. The concern those amendments reflect is that when an allegation is made against somebody and is investigated, and that investigation is revealed along with the person’s name, in the current environment there are some people who will assume that there is guilt associated with the release of that name.

In the Whakatane District Court earlier this year and late last year, five police officers were subject to private prosecution by an individual. The judge suppressed the names of the five people who were accused by that individual. The reason for doing that was clear. The simple fact that those five officers’ names could have been published in connection with a court case would have encouraged some members of the public to draw conclusions as to their guilt or involvement in wrongdoing, and such conclusions would be quite wrong. I now understand that that case has been thrown out by the judge.

The two amendments before the House—particularly the amendment in the name of Stephen Franks—seek to address the concern that was raised in the Law and Order Committee about the nature of the information that was given to the Police Complaints Authority. That information was given by police officers under a set of confidentiality and privacy conditions and assurances in legislation that that information would be kept suppressed or secret, and could not be used against those persons in any court of law unless in a matter of perjury. So the issue is how we convey Parliament’s concern to the commission. Mr Franks’ amendment—and, no doubt, that of Mr Alexander—is designed to do that.

It was clear in the advice to the select committee that the evidence and material that is tabled in the commission of inquiry has the same privilege attached to it that any statements or documents have in a court of law—that is, it prevents people being prosecuted and incriminating themselves in that environment, and it gives the presiding officers the opportunity to suppress that information as they see appropriate. That is a very important tool for the commission to have. We do not want a situation whereby the mere fact that someone’s name is mentioned in the commission of inquiry means that people assume there is a level of guilt, culpability, or association that there is not.

I would like the Minister in the chair, Rick Barker, to take a call and explain to the Committee how members of the Opposition can have confidence and an assurance, at some level, that those people who gave information on a confidential basis to the Police Complaints Authority can be assured that their names will not come into any public arena of the commission of inquiry, and attract any undue public odium or scepticism.

I want to add to the good quality contribution made by Mr Ryall. I have not been directly involved with this legislation, but I have read the select committee’s commentary very carefully. I find it to be a very good commentary.

Before going on to that, I will start with a couple of comments from the terms of reference to the commission of inquiry, which are very pertinent to the issue. The commission of inquiry’s terms of reference state, in the words of the Governor-General: “And you are strictly charged and directed that you may not at any time publish or otherwise disclose, except to me in pursuance of this order or by my direction, the contents or purport of any report so made or to be made by you, or any evidence or information obtained by you in exercise of the powers conferred upon you, except such evidence or information as is received in the course of a sitting open to the public:”. So the Governor-General’s requirement of the commission is to maintain its confidentiality.

There are several other things that need to be clear about this. The commission of inquiry has the same authority to hear in private as a High Court. As the commission of inquiry is led by a High Court judge, it has the powers of a High Court and the authority of the Judicature Act. It has widespread powers, and there is an overwhelming concern, within the terms of reference for the commission of inquiry, that the confidentiality of people is to be protected. We have faith in the people on that commission.

The second point I wish to make is in the report of the select committee, which I thought was very good. It states quite clearly: “The Commission is still bound by the principles of natural justice in considering evidence placed before it. Any person who provides information to the Authority will have protections, and that information cannot subsequently be used against them in any proceedings,”. So there are natural justice provisions in the bill.

The second issue raised in the select committee report approaches the issue raised in the United Future amendment about the suppression of information. The amendment tabled by the United Future MP seeks to have all the information concealed from the start and to be revealed only when the commission says so. Now, the commission has the presumption of openness unless it states that it should not. The select committee considered the matter very carefully, and in its report it states: “We consider that legislated automatic suppression of information obtained may open up the Commission and Parliament to criticism, as it could be seen as compelling the Commission to operate in secrecy. We also consider that the Commission itself is best placed to make the decisions on whether or not to suppress information.”

So there is an issue here of public confidence in the commission of inquiry. Mr Ryall noted that very clearly in his presentation, saying that the public has to have confidence in the commission of inquiry, which has to be seen to be open in its dealings. If the presumption is towards secrecy, in our view and in the committee’s view that seems to be the wrong message to be giving the public. But the terms of reference are to treat that information very, very carefully.

There are a couple of issues in the point made by Mr Franks. There are two statutory authorities--the Police Complaints Authority and the commission of inquiry. The first reason for some disquiet about Mr Franks’ amendment is that Parliament itself should not be indicating to one statutory authority how to deal with the other. We believe that the commission of inquiry has a very clear mandate from the Governor-General about how it is to treat the information, who it is to report to, and the way the information is to be reported. That should not be subject to any other advice by the Police Complaints Authority.

The purpose of the bill is quite simple. It is to give the commission of inquiry access to information held by the Police Complaints Authority. Without access to that information, the commission of inquiry cannot function properly, and the public would have no confidence in it. Having got the information, there is adequate guidance to the commission of inquiry in the terms of reference, given by the Governor-General, as to how it is to handle that information.

I appreciated the Minister taking a call to explain the issues as he sees them. Notwithstanding his explanation, I am concerned. His speech really summarised the reasons why there is concern. Referring to the broad powers of the commission and its discretions, and the desire not to fetter those discretions in using the information, emphasises the very broad breach that has been made in what was a statutory assurance of confidentiality.

The Minister properly referred to the terms of reference. He said they required the commission to report to the Government and to otherwise keep information confidential, except for matters that come up in public hearing. But without something like this, the Police Complaints Authority cannot look future informants in the eye and say: “Just look at the statute. There is a risk to you if you provide this information. You may be shunned, you may lose your career, and you may find that even worse happens to you. It could be physical violence in some environments by narking, but don’t worry about it, Parliament has said the information will be kept secret.”

That is a very powerful assurance, but this bill is a hole in it. That hole goes straight to a commission that has already announced that it will hold as much of its procedures as it can in public. This is a commission that knows that it has to restore faith in transparency to the public. It has to tell the public that there is no cover-up, so the pressures for revealing some of the most sensitive information are here. The most sensitive data might, indeed, be who said what—not what was said, but who said it. We do not want, and cannot have, the commission fettered in its ability to find the truth and report it. The amendment I have proposed expressly preserves that—that is the overriding requirement—but we can set up a requirement that also recognises that an assurance has been given here, and that the very least intrusion on that assurance is all that can be justified.

The bill states that this whole Act expires after 1 year, so we could not draft into it something that said that a protection exists while these provisions are in force. We might have been able to say that the provisions would expire except for the provision that protects the data, but what I have proposed is getting an undertaking from the commission. The terms of it are set out. The commission can provide it as a matter of routine to the authority. The commission itself is protected from the unfair pressure that might otherwise come on it to release information purely because that will look more transparent. It is the truth that must be released, not necessarily the steps that are involved in getting there.

This is an unusual situation where in a sense people have been given immunity in advance. The law has always found immunities difficult. When one co-offender has been given immunity, there is always an outcry over the unfairness of it, but that is often the only way we can get future co-offenders to give evidence. There is always a price. If an assurance is given to induce people to do something and the Government reneges on that assurance, then the price we will pay is that in future they will not trust the Government. The amendment is saying we should make sure the commission has a priority that is equal to the priority the authority would put on protecting the people who have given it information.

I appreciated being able to explore with the Minister’s officials their reasons for being concerned about this amendment. As a lawyer with some experience in law drafting, I have to say that they sounded like “Sir Humphrey” explanations to me. They sounded as though they were dredging or scratching to find a reason to oppose this proposal, because, if I correctly recall, they said, firstly, that it would involve one Government agency or statutorily appointed body telling another what to do.

Part 2 is quite a complicated part of this bill, and it is not made any easier by the two amendments that members have been asked to consider at this Committee stage. I am not sure whether it will be suggested that both amendments can stand together, but it seems to me that the complexity of the issue is such that they probably cannot, and whether one of them is in order will, no doubt, be a matter that will be the subject of a ruling by, you, Mr Chairman.

I am glad that the Minister in charge of the bill made the comments he did. They are fair as far as they go, but I would make two observations. Firstly, the first terms of reference he read out to us were those that are always contained in the charging of a commission to report on an issue and then, really, take it no further than that. The role of the commission is to report to the Governor-General, the person who issued the warrant for the work to be done. The second point the Minister made is correct, but it may not take the issue any further, that the principles of natural justice would apply to the deliberations of the commission. It is well and good to say that, but, of course, every commission tasked under New Zealand law to carry out an inquiry of this type is bound by those rules of natural justice. They are elements of public law that embrace the idea of a fair hearing and of decisions being given with reasons, and, of course, the proposition that those who exercise the quasi-judicial function do so without fear or favour.

There is a linkage between Part 1 and Part 2. It primarily arises from the definition in Part 1, “restricted matter”. I am sure it would be helpful to the deliberations of the Committee if the Minister would confirm National members’ understanding of what the implications of the definition of restricted matter in Part 1 are in relation to Part 2. As I understand that connection, it is really no more complicated than this: a person who has been a complainant to the Police Complaints Authority and has provided sensitive information to the authority, and does not consent to that material being used by the commission, will have protection given to that information by dint of clause 6.

I guess it would be possible for the legislation to stand as it does without having to pick up the amendments proposed by either ACT or United Future and that the issue might simply be left as a matter to be within the judgment of the commission. However, I say with some reservations that Stephen Franks’ amendment has some merit, because it does not leave it to the commission to exercise discretion about whether the interests of the police officers and others will be protected. It makes it clear on the face of the statute that that will be the consequence. I would say there is a case for making it clear in this instance, because this is a most unusual set of circumstances. Police officers have taken a risk to provide information in times past to the authority. They have done that on the understanding and with the assurance against the background of a statutory undertaking that that information will not be disclosed to their prejudice. As this legislation is drafted at the moment, it contains the possibility—I do not put it higher than that—that that trust may be broken.

Mr Franks is right in identifying the considerable legal significance of what we are about with these amendments. If I were to be critical of his amendment—and it is not a quixotic criticism—it is just that I wonder whether the commission will have to reflect on whether, in practice, it would be workable. His amendment has two elements to it—that is, it is in two parts. First of all, there is an aspect of acknowledgment and an aspect of undertaking. Will there need to be separate acknowledgments and separate undertakings in respect of any issue of confidential information? There will have to be some consideration given to that issue.

I have just a very brief comment about the two amendments. When I first saw the United Future amendment I thought it would be sufficient. I believe that it was probably done even more quickly than mine was—and indeed mine was done quickly—to address the same sorts of concerns that I had by restricting or prohibiting publication without express consent. I think the difficulties are essentially practical. The United Future amendment states “express consent”, which would require anyone who is publishing at any time to go back and get that consent. However, the commission will not be sitting shortly after it reports, so there will not be someone to get the express consent from. I do not think United Future intended that there be a prohibition on publication forever afterwards. So although I support the sentiment in the amendment and I think it nearly got there, I cannot vote for it. Like my amendment, United Future’s amendment may not have the most felicitous drafting. In that case I think there would be an unintended gag, which we should not legislate for.

Also, there is a gap in the second limb of the United Future amendment in relation to books, pamphlets, and oral statements. That might flow from having picked up a precedent. It would leave us open to the accusation that Parliament had allowed loopholes that perhaps we should have foreseen. So for that reason, while I support the United Future amendment in sentiment, I urge the alternative approach be adopted of leaving it to the commission, but obliging the commission to assure the authority it will give the highest priority to confidentiality. That is a better way of achieving in practice the objective that I hope this Committee will adopt.

I rise on behalf of the Green Party to support Stephen Franks’ amendment set out on Supplementary Order Paper 209, because I think it does take us further down the track of what other speakers have talked about, in terms of keeping confidential the identify of those who have provided information to the Police Complaints Authority. It does not mean that the Police Complaints Authority would bind the commission in any way. The commission would still be in charge of its destiny under new subsection (2B) to be inserted in section 32 of the principal Act by that Supplementary Order Paper. But the amendment does put a lot of pressure on the commission, in terms of the acknowledgment of the undertaking to keep information confidential, and it does allow confidentiality to be waived if there is informed consent by any person. But we do want to have a proper Police Complaints Authority. We want police officers or citizens to give the appropriate information and complaints to the authority, and not be restrained by their names being given out and the consequences ensuing from making such complaints being bad for them. The Green Party supports this amendment. It has the best of both worlds: ensuring confidentiality, and not restraining the commission in any formal sense.

We have had a very good discussion so far, and it is very interesting to see that there is no disagreement on the purpose of the bill. There is no disagreement on the need to maintain the confidentiality of the information, and to maintain the integrity of the Police Complaints Authority. Similarly, there is no disagreement that there needs to be public confidence in the commission of inquiry. We agree on all those things, and that is quite remarkable in Parliament. What we have a slight disagreement about is simply the issue of style. Members want to be assured that when the commission of inquiry gets the information from the Police Complaints Authority, the public can be assured today, and in the future, that the information they give to the Police Complaints Authority in confidence will remain in confidence. The Law and Order Committee has been very helpful in that respect. It has made changes to the definition, to ensure that when the bill refers to police officers it refers to police officers who help the commission, rather than to police officers in general. I think the select committee has done a very good job.

The issue, then, is where we move to from here. We have two amendments on the floor. It seems to me that Parliament is reaching a consensus around the amendment set out on Supplementary Order Paper 209 in the name of Mr Stephen Franks. It enables the commission of inquiry to go about its business, but provides that when the commission of inquiry gets information from the Police Complaints Authority, it does so understanding the nature of that information. It seems the Committee is generally agreed that that amendment will offer confidence to the public—to those who make submissions to the Police Complaints Authority in the future—that their advice will be treated confidentially. I think there has been very good work by the Committee of the whole House. The matter will be dealt with very speedily, and I am sure the public will be very reassured.

The question was put that the amendment set out on Supplementary Order Paper 207 in the name of Marc Alexander to clause 6 be agreed to.