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 third time. The Commission of Inquiry into Police Conduct is vital to maintaining public confidence in the New Zealand Police Force. This legislation has been designed to enable as much information as possible to be disclosed to the inquiry, without fundamentally undermining the ongoing interests of the individuals concerned and the Police Complaints Authority. The unique circumstances surrounding the commission have highlighted the competing, but equally important, interests of the Police Complaints Authority, the complainants to the authority, the commission of inquiry, and the New Zealand Police in relation to information provided to the authority in confidence. In summary, four competing interests can be identified. Firstly, the ability of the authority to continue to fulfil its statutory functions of investigating police conduct must be maintained, secondly, the privacy of complainants who have provided sensitive and intensely personal information must be respected, thirdly, natural justice should allow the police a fair opportunity to defend investigations they carry out on behalf of the authority, and, fourthly, the commission should be able to effectively fulfil its terms of reference to inquire into the adequacy of any investigations carried out by the police on behalf of the authority. All those interests are important; some are also in conflict.

It would be impossible to find a solution that everybody is entirely satisfied with. A legislative amendment to completely override the secrecy provisions that protect information provided to the Police Complaints Authority would not meet the privacy needs of the individuals who provided that information, and it could compromise the ongoing ability of the authority to gather the sort of information in the future that it needs to do its job effectively. But without this legislation, the commission of inquiry could not get any of the information provided to the Police Complaints Authority, nor would the police be in a position to adequately defend their actions before the commission. That would undermine the ability of the commission to reach a fair and thorough conclusion, and would also undermine the confidence of the public in the eventual outcome of the inquiry. This bill, therefore, is necessarily a balancing act between equally compelling, but competing, interests.

Since this bill was read a second time Parliament has reached the consensus that some further direction in the legislation was desirable, to reassure people that the confidentiality of information given to the authority would be taken into account. Supplementary Order Paper 209 in the name of Stephen Franks was therefore adopted in the Committee of the whole House, to give people that added reassurance. Under the provisions of that Supplementary Order Paper the authority must obtain an acknowledgement from the commission that the commission is aware of the confidentiality attached to information, before that information is disclosed to the commission. The authority must also obtain an undertaking that the commission will take all steps necessary or desirable to protect that confidentiality, such as restricting or prohibiting publication, or excluding persons from hearings. Those steps can be waived with the informed consent of any person who had the benefit of confidentiality when initially providing the information. The commission already has the necessary powers to restrict or prohibit publication of information or attendance at hearings. No legislative authority is required to enable the commission to treat the information received from the authority in a sensitive manner. However, the amendments explicitly require the commission to turn its mind to the confidentiality of the information it receives, and to take the steps deemed necessary or desirable to protect that confidentiality.

The Government and the Law and Order Committee would have expected the commission to give those important issues due consideration irrespective of the amendment, and to use its powers to protect such information appropriately. However, the amendments offer an added assurance, and do not presume to direct the commission on when or how it must exercise its discretions. Whether those steps are necessary or desirable is still a subjective assessment for the commission to make on a case-by-case basis. I believe this bill represents the best possible balance, and its unanimous support by this Parliament is testament to the fact that the information required by the commission in order to do its job should be disclosed to it. Information produced by the authority in response to information received from police investigating on its behalf continues to be withheld, in order to protect the integrity of the authority. Complainants must give their consent before their correspondence to the authority is disclosed to the commission, and the police will be able to access information to defend their investigations.

In conclusion, this bill will assist the commission of inquiry to restore the public’s confidence in one of the world’s best police forces. I commend this bill to the House.

The Minister is, indeed, right that we are fortunate to have one of the best police forces that any country in the world could enjoy. Fundamental to that confidence is the belief that not only do the police act apolitically and independently, but also that the police honour their constabulary oath, and have standards the public can be comfortable with and proud of. For that reason, the Government has launched its commission of inquiry. Fundamental to that inquiry is the ability of the commission to look at the police’s handling of complaints against police officers over the last 15 to 20 years. Under the Police Complaints Authority Act, the police who provide evidence or testimony to the Police Complaints Authority have been assured of anonymity and of confidence in the giving of that evidence, so that it could never be used against them and could never be published, save in the case of perjury. In order to facilitate the work of the commission, it is necessary to pass legislation so that the commission can have access to the files of the Police Complaints Authority.

In order to facilitate that, and to respect as much as is possible the confidence of the officers who have given evidence to the Police Complaints Authority, Parliament last night unanimously agreed to an amendment to the Government’s legislation. The amendment requires the commission to give undertakings to the authority that it recognises the nature in which the evidence was given by police officers to the authority, and that the commission will undertake to use whatever discretion it has in order to have the minimum undue publicity associated with that material. The concern expressed by the Parliament is that in a case started in the Whakatane District Court last year, five police officers were subject to a private prosecution. That prosecution has since been dismissed. The five police officers received name suppression. If they had not received name suppression, the mere fact that their names were mentioned in the District Court with regard to allegations of a quite serious nature would have led some members of the public to believe the officers were guilty. It is the old argument that where there is smoke, there is fire. That was of great concern to members of all the parties on the Law and Order Committee, and obviously to all parties in the Parliament, so last night the amendment set out on Supplementary Order Paper 209 in the name of Stephen Franks was unanimously agreed to.

The National Party Opposition is pleased to support the passage of this legislation. We think it is fundamental that public confidence be maintained and restored in the New Zealand Police. I would observe, as someone who has been in public life for 14 years, that I have never known a time when public confidence in the New Zealand Police has been as low as it is at present. I have never known a time when people who have normally been steadfast and loyal supporters of the New Zealand Police were questioning some of the activities that were going on. As a legislator I do not like to see that situation in this country, and I am absolutely determined that this House must act to restore public confidence and faith in the New Zealand Police. It is, indeed, a police force that New Zealanders should be proud of.

I rise to take a short call on the Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill, and I am pleased to open my speech by concurring with the member who has just resumed his seat that this is a time when, unusually for New Zealand, the conduct of our police force has been in the public eye. It is important for us to recognise that many of the allegations that lie behind that public interest are historical, but they are none the less real interests, and the public has expressed real concerns about them.

I think all members of this House would agree that it is in the interests of every New Zealand citizen that the cloud that hovers above the police force be cleared up as soon as possible, and as fully as possible. To that extent the Government is pleased to bring forward to the House this bill, which will enable the public’s confidence to be properly restored. It does so by allowing the commission of inquiry to access, under conditions of strict confidentiality, the appropriate records of the Police Complaints Authority, and thereby to ascertain for the public record the veracity of the processes. It is important that justice is done, and that it is seen to be done.

New Zealand First is supporting the Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill as amended by the Law and Order Committee. The bill may be barely 4 pages long, but it is very important. The select committee should be complimented on returning the bill back to the House in such a short time. This bill was introduced into Parliament on 13 March 2004. The closing date for submissions was 14 April 2004, and here we are on 13 May considering the third reading.

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. I and New Zealand First have the highest regard for our police force, but we consider the force lacks resources—for example, staffing. We have just heard a speech from Mr Ryall, a National Party member. All I can say to him is that his Government had 9 years to do something about the police force, and it is still in a mess.

The select committee heard nine submissions in respect of this matter. They were heard extremely promptly, and then it reported back the bill with amendments. The amendments make it a much better bill, and that is why New Zealand First is supporting it. We do not want to see another inquiry into an inquiry; we want to see this matter brought to an end in the best possible way for the future of this bill. In the interests of the public, we will support the passing of this legislation.

I rise for the ACT party to agree with the comments made by the Hon Tony Ryall, and the member for New Zealand First who has just commended this bill. We will vote for it, and we will vote for it with a good deal more contentment than we had when we feared that it would go through in a simple form that was essentially reneging on an assurance given to people who provided information to the Police Complaints Authority.

In the form the bill was reported back to the House, the Law and Order Committee had expressed its concerns and hope that the inquiry would respect the confidences entrusted to the Police Complaints Authority, but there was nothing in the law to show that it really was determined that that should happen. There was nothing there to stiffen the spine of the inquiry, should it need it, against calls that are perhaps inevitable to “spill it all”.

We can all understand that; this is an inquiry to try to reassure the public. The commission of inquiry will need a high degree of transparency to ensure that it is not simply seen as another cover-up. On the other hand, that is always a concern when one is dealing with information supplied by people who might, or might not, have been involved in the incidents being investigated.

The law has very long experience of dealing with co-offenders’ evidence, giving immunities, and then the awful dilemma—the unpleasantness—of knowing that possibly someone who is at least partially guilty is getting away with something as a result of that immunity. But the immunities are provided because otherwise we do not get the evidence, and it is better that we incur some cost than see wrongdoers get away completely. In this case, there was a statutory immunity. Effectively, the statute says to people who give information to the Police Complaints Authority that they can be confident that their particulars will not be disclosed.

There was an amusing incident last night when the amendment went through. I am not sure, but I think Mr Barker was actually in mid-speech when a note was put under his nose to the effect that the Labour Party had shifted its position. Keith Locke tells me that it looked as if a note might have shifted a speech in full flight, but the result was pleasing. It is an instance of how the process of the Committee stage is intended to work, where collectively the Committee came to the view that the legislation could be improved. I do appreciate it, and I welcome the Labour Party’s shift on that position in the end.

I want to make a few comments, though, on why this bill is necessary at all, and the responsibility I think the Government holds for the predicament that means it has to do something as public, as embarrassing, as expensive, and as potentially damaging to people as a full-blown commission of inquiry into a matter that is squarely covered by the Police Complaints Authority process. This is sending an ad hoc watchdog to look at a permanent watchdog. It is an overt acceptance of the state to which we have fallen when there is so little public confidence in the institution.

At bottom, I believe that this is absolutely inevitable. We cannot maintain an incorruptible police force in a society that condones corruption. This week we passed in this House a bill that tells offenders not to worry about lying. How can we then tell the Police Complaints Authority, and every policeman, that we seriously detest false testimony? That bill actually tells people to lie in court. There is no exemption from the Criminal Records (Clean Slate) Bill even for people responding to questions in court. They are instructed to lie, and they get immunity for lying. What kind of Government can expect any kind of integrity in any of its institutions when it passes a law through this Parliament telling people to lie?

That is not all. It is no wonder that the police are mistrusted. If the police are committed to their job, they want justice to be done, but they see a revolving-door justice system. That means that they watch criminals go through very expensive processes, at cost and personal risk to the police, who then get sent out by a system that lies in every sentence. When judges give a 24-month sentence, they know it is a lie, because every 24-month sentence is automatically cut in half. It does not matter how offensive the offenders are. It does not matter that they are thumbing their noses at the court. It does not matter that they show no remorse. If the sentence is less than 24 months, it is automatically cut in half. The system is designed only to lie to the community and to victims. The whole system is set up on untruths.

The police are working in this environment. They are working in a system that is full of institutionalised lying, so the need for this inquiry will be repeated. We will find more and more occasions where police take justice, or what they think is justice, into their own hands, because if they are working in a system that does not do it, they get that reaction. Decent people think they will do what is necessary. I do not condone it, I do not wish it, but the climate for it is there. It is not an excuse, but it is a reason. It is no surprise if we have a police force that appears to be out of control.

During question time in this House this week, I believe it appeared that the police were being told to get loyally behind a situation in which they were made to prosecute Shane Ardern. Meanwhile an art forger did not even get charged. That art forger happens to be the Prime Minister—

💬 Jill Pettis: Talk about the bill!

I am being told to make this speech relevant, and I believe it is relevant. We were forced to rush legislation in to deal with corruption or allegations of perjury and malpractice in the police, because it was believed that the Police Complaints Authority could not adequately deal with them, and because we could not trust the police to investigate for the Police Complaints Authority on their own. It is the climate that has created the mistrust. If this had been an isolated incident, New Zealanders would not have been demanding an independent inquiry. The climate means that people think we need an independent inquiry, and the climate means that the inquiry will be facing suspicion, even as it goes about its business.

The inquiry, of course, needs to get the information from the Police Complaints Authority. The inquiry will get it. ACT supports the inquiry having all the information it needs, but what we do not like is being faced with a bill that is being brought in, without any notice to anyone, when the Government suddenly realised that it was getting itself into a political hole by appointing an inquiry that would not even be able to inquire. It would not be able to get the information it was supposed to inquire into. So the Government rushed a bill into the House to fix it without notice to anyone—basically a bill that acted in bad faith, and that told, unilaterally and retrospectively, all the people who had given evidence to the Police Complaints Authority on the basis of confidentiality that they could no longer trust the State, that the State would change the rules when it needed to get itself out of a pickle, and that that material would no longer be confidential.

Well, we have gone along with it as the least of the evils. We have minimised the harm that that was going to do to the reputation of the Government. We did that by at least making it plain that the commission of inquiry must do all it can to protect confidentiality. It is a sorry second best.

The whole need for this bill is because we have a Government that simply cannot be trusted, that has frustrated the police by being soft on crime, and that believes that lying is something one puts the weight of the law behind. The irony that we should have to be dealing with this bill in the week that the Government forced through the Criminal Records (Clean Slate) Bill would be delicious if it were not so sickening.

The Greens will be supporting this bill, as we did through its previous stages. It has been an interesting bill. In one sense, in the way it has proceeded we have seen MMP in action, particularly with Stephen Franks’ amendment last night to clause 6. I think we want to learn something from that. Even though we come from quite different philosophical bases—certainly, the Green Party and the ACT party are philosophically very far apart—we should always look closely at each other’s amendments, because sometimes we may actually agree with them. That was the case with various parties in this House when they looked at Mr Franks’ amendment to see whether it had any particular problems.

We looked at whether it would restrain the commission, and in reading it closely we found that it would not. The amendment clearly stated: “may be achieved without materially prejudicing the Commission’s ability to ascertain and report the truth,”. So the commission still has control of its own destiny, still can expose what it wants, but it is advised by the rest of the amendment to keep the Police Complaints Authority material confidential, particularly information that might identify individuals. So the amendment was a good example of the MMP process.

At the start, the Government was a little reluctant to go along with the amendment, thinking it would constrain the commission, and that was the argument it outlined. But it was good to see that at the end of the Committee stage the Government came to the party. Whether that was because it genuinely was convinced by Mr Franks’ amendment, or just does not like losing a vote in the House, I have yet to determine. But I will give it the benefit of the doubt that it agreed with the amendment, finally.

Mr Franks said there was a problem of the new watchdog, this commission of inquiry, looking at another watchdog, the Police Complaints Authority. That is the situation. It is problematic that people have such little confidence in the Police Complaints Authority, particularly in what it was doing back in the period 1986 and beyond. The heart of the problem is that the Police Complaints Authority relies a bit too much on police officers for its investigatory capacity, and, in a small town like Rotorua, it may be that—and the commission has yet to determine what the real situation was—the police officer doing the investigations and forwarding the analysis to the authority had too close a relationship with the people he was investigating, and was not necessarily coming to independent conclusions. Whether or not that is true, that is the import of some of the newspaper coverage. I will leave it to the commission to work out what the real truth of the situation is.

I agree with Mr Franks, too, that the more transparent the commission of inquiry can be, the better. That way, people will have faith in the outcome of the inquiry. We do not want everything to be heard in secret sessions, and people to end up thinking that justice was not done, particularly in respect of those people who are alleged to have suffered sexual abuse—if it did in fact take place.

I think there is a need for the Police Complaints Authority to keep some of its information secret. One reason, which I have talked about previously, is that we want to encourage people to come forward to the authority, including whistle-blowers in the police force itself. Other officers who do not like what is going on might be a bit scared to have that known amongst their fellow officers, because of the consequences that may ensue from their, in a sense, narking on their fellow officers. A bit of protection is needed to encourage fellow police officers to inform on bad apples in the police force, so that we can have a truly non-corrupt and non-biased force.

The other category of people we want to protect is the complainants. Again, sometimes in small towns or in difficult situations—as is the case with some of the people the commission will be investigating—young people, people who are feeling under a bit of pressure from those who are more senior to them, or the police in the district, or whatever, need to be protected to enable them to come forward to the Police Complaints Authority in the future. I think a certain degree of secrecy is required for that. We will deal further with those sorts of things in the new version of the Police Complaints Authority proposed in the Independent Police Complaints Authority Amendment Bill, which will be coming before us in more detail after the commission of inquiry report. It is currently in the House, but has been moved down the Order Paper because of this commission of inquiry.

Some complainants point to a problem in terms of a lack of information available about the proceedings of the Police Complaints Authority. Although it is right to keep the identity of certain complainants secret, the proceedings of the authority itself are sometimes a bit too secretive or a bit too non-transparent—much more so than the proceedings of other complaint systems in other professions, such as the medical profession. In those professions, there is an ability to bring in name suppression, particularly if the complaints are frivolous, and there is a presumption of openness in a lot of the proceedings. With the Police Complaints Authority the presumption tends to be the opposite—that of secrecy. We have had examples of that. I have heard of examples of complainants being a bit dissatisfied with the results of a Police Complaints Authority inquiry, in that all they have are a few lines to read giving the result, and all the rest is done in secret. They do not believe that justice has been done for them, and they cannot see evidence that justice has been done, because everything has been done in too much secrecy. Somebody might complain of having been beaten up, and claim to have a couple of witnesses, but in the end the police officer’s word is taken, and the complainant feels that it is all wrong. If the proceedings had been a little more open, he or she would have got the whole picture and perhaps be more satisfied with the decision.

One of the sections in Mr Franks’ amendment in relation to the commission is relevant to the Police Complaints Authority, too, I think. His amendment to clause 6 that adds new subsection 32(2C)—and which is now in the bill because it has been accepted—states: “(2C) Steps or restrictions referred to ... may be waived with the informed consent of any person to whom this Act extends the benefit of confidentiality in respect of any matter ...”. I think that could perhaps be applied more in relation to Police Complaints Authority proceedings. If the complainant in a case says: “I want it all to be open. I am quite happy for my information and identity to be known. I just want justice.”, then perhaps the proceedings of the Police Complaints Authority could be more open than they are at the present time. Sure, some of the police officers might be a bit upset that their names become known, but in order to have a non-corrupt and non-biased police force I think we have to move more in the direction of openness in that respect, and the Greens will go in that direction.

I conclude by saying we do support this bill. It will help make us more confident in the operations of the police force and, hopefully, the Police Complaints Authority.

I have always been a great believer in coming to the point, and I just want to make one observation about the speech made by the member who has just resumed his seat. It was the verbal equivalent of a tap dripping.

I want to make three particular points about this bill. This amendment bill was always about the balance between confidence in the Police Complaints Authority process, and the integrity of the police. It is the integrity of the police that has been called into question of late. I think one of things we can say about that is that the police always take their cues from the top.

The bill cannot be allowed to set a precedent whereby information and the identities of those supplying information under the provision of secrecy occurs again and again. I think that is something that troubled most people on the committee—the fact that the bill does actually set a precedent. Like one of the previous speakers, Stephen Franks, I am not convinced that it will not happen again and again, particularly as—as he rightly pointed out—we have just passed a bill that gives immunity for lying, and because this bill breaks the code of secrecy for telling the truth. There is some irony in that, which I think will cause us some problems down the track when we are thinking about ethics with regard to police accountability.

The bill should not be allowed to compromise future investigations. I believe that it will ultimately inhibit future disclosures, and that is part of the problem—the police reneging on the promise of secrecy. It is something that should not be done lightly, and I do not believe that this first occasion will be the last. Ultimately, it is also about restoring public confidence in the police by showing that the police are not beyond the law but are subject to it, as everyone else is. The trouble is that we have here, in some ways, competing concerns and competing interests that sat uncomfortably with most of the committee. In his Supplementary Order Paper, Stephen Franks has placated some of the disquiet, but not completely. I think everybody in this House can see the need for this bill and for the Supplementary Order Paper, which allowed it to have a somewhat better degree of secrecy and so maintain a better degree of integrity.

But at the same time I would say that this bill has been rushed far too quickly through the process. Why on earth was that issue not thought about right at the beginning? It seems to me that to rush a bill of this nature through, the effects of which will have ramifications down the track, does this Parliament a huge disservice because it does not allow for the full scrutiny that this bill should entail. Nevertheless, United Future will be supporting this bill, and we look forward to the potential of this Government not to shove bills through in quite the same manner again.

Bill read a third time.