Independent Police Complaints Authority Amendment Bill

I take this opportunity to stand and speak in support of the Independent Police Complaints Authority Amendment Bill and indicate to the Committee that the National Party is supporting this bill. I have also seen the Supplementary Order Paper that was tabled yesterday; I have had a chance to look at it today. I can indicate that the National Party will support the Supplementary Order Paper as written, as well.

The fact is that the confidence of the public has been swayed in the ability of the Police Complaints Authority, as it is now, to be able to deal effectively with the complaints that come before it and the investigations that it carries out from time to time. This is largely not due to the actions of the Police Complaints Authority but unfortunately is in respect of some isolated incidents that have been brought upon the police by its own members. Over the last few years, for instance, we have seen a number of investigations and complaints made by complainants such as Louise Nicholas around officers, and we can reel off the names—Rickards, Schollum, Shipton, and Dewar. Of course in recent times we have been successful in prosecuting Detective Inspector John Dewar, as he was at the time.

The fact is that the public have always been wary of a police complaints system that has the police investigating their own. The fact that that is replicated across society in many other avenues and in many other departments does not detract, I suppose, from that lack of confidence, because of course there is a huge inequity of power when an organisation such as the police has an ultimate power in respect of its citizens.

I note that the Supplementary Order Paper as it has been tabled seeks to rename the bill the Independent Police Conduct Authority Amendment Bill. That seems to take account of the fact that subsequent to the Bazley report, police conduct in various forms—not necessarily coming out of complaints, but the way that the police conduct themselves on a day-to-day basis—should come under scrutiny at more regular intervals. As the Bazley report has suggested, there should be annual audits and then a 10-year audit of the way that the police force conducts itself. The report also, of course, recommends that there be a code of conduct for the police.

It is only right and fitting, then, that the new authority be called the Independent Police Conduct Authority. The word “independent” denotes that it will stand apart from the police. Although to a certain level there will be minor or less serious incidents and complaints investigated by serving police—in other words, as I said before, the police investigating their own—the new authority as it will be, with five authorities being five warrant-holding individuals, will have the ability to spread its net wider and investigate more fully those more serious complaints, allegations, or merely situations, as they arise.

The sorts of things that the Police Complaints Authority at the moment investigates are deaths in police cells, incidents of police car chases—and we see that the authority is investigating those at the moment—as well as incidents that involve police shootings or police actions that are so serious there should be some sort of independent scrutiny made of police conduct or the way in which the police carry out their investigations without a complaint having been made. I believe that that is a good thing; so does the National Party.

New parts of the bill before the Committee look to the Police Complaints Authority being able to release information into the public arena and also release information back to complainants or defendants on an interest of justice imperative. I think that is a good thing, too. In the past, the information held by the Police Complaints Authority has been confidential, and at times that has acted against the interests of justice. It has not allowed the Police Complaints Authority to release information that may well have acted in the best interests of justice to show that a person being treated as a defendant or under investigation by the police is innocent of the charges made or has defences open to him or her. I believe that releasing information in the public interest can add significantly to the way that the public view the Police Complaints Authority and the way in which the police have handled themselves during the course of investigations. The public expect to have a greater scrutiny of the police, especially over such incidents as I related earlier.

The fact is that the New Zealand Police is an organisation that the public of New Zealand must have a high level of confidence in at all times. Although public confidence gets attacked from time to time because of incidents that occur, we must remember that those incidents occur on an individual and non-systemic basis most of the time. As detailed in the Bazley report, there are a number of ways in which the police dealt with matters over time that detracted from public confidence, but the fact is that the police are the first and last call in many situations. It is not that long ago when, for instance, if we rang Child, Youth and Family Services or the Department of Social Welfare, we heard a message on the answerphone: “If you can’t get hold of us, then ring the police.”, and the police stepped in and did those things. The police force was the organisation that we called for. The police were the ones, too, who most came under scrutiny, because they were present most often and they were always dealing with difficult situations.

The way that the Steven Wallace matter was handled and the publicity that was gained around that—particularly comments made by the Prime Minister in respect of the possibility of prejudice operating within the police against Māori—detracted from the public level of confidence in the Police Complaints Authority.

I am pleased to see that there will be a significant level of independence within the new Independent Police Conduct Authority. I believe that the structure is one that will add to public confidence in the authority’s ability to make this information available, to bear more public scrutiny, and to get into the media the real facts of a case rather than allowing people to speculate as to what those facts may be. In this news-hungry world, where we always want to deal to those who are in authority, that will be a good thing. Thank you.

Sitting suspended from 6 p.m. to 7.30 p.m.

Thank you, Mr Chairman, for the opportunity to speak about this important legislation—

💬 Russell Fairbrother: Now do something with it.

It is important, and—in response to a comment the member has made—in the course of multiple calls on this legislation, I hope to make a number of substantive points. It is quite interesting from my perspective, because I see I spoke on this legislation in 2003 and 2005. Now, in 2007, I am speaking briefly on it again. It must surely be the case that the legislative history of this bill is utterly unsatisfactory. We are currently confined to a consideration of Part 1, “Preliminary provisions”, of the Independent Police Complaints Authority Amendment Bill, or, as the Government would now wish to call it, the “Independent Police Conduct Authority Amendment Bill”. Well, what is in a name? Probably there is not much, really. “Conduct” is possibly a softer and more appropriate word.

It is interesting to look at the history around the world of these Police Complaints Authority tribunals and systems. Mr Finlayson reminded me tonight of the seminal work done in this area by Professor Carl Klockars, who will be well known, I am quite sure, to the Minister, because he drew attention to the fact that what distinguishes the police from every other domestic institution is that they exercise a general right to use coercive force. The professor noted that it was that right that made the police so valuable to society. The reality of all this, however, is that it is inevitable that the use of coercive force will give rise to situations of some stress and, not infrequently, to resentment. No doubt it was such reasons that gave rise to concern expressed at the time that police services were first introduced in the 19th century.

Just looking back at the history of this matter, I note that the first chairman of the authority, Sir Peter Quilliam, referred to reported complaints of excessive police force in 1841, and a public meeting was called to express concern. So there is nothing new in this issue. The whole concept of coercion involves compelling people to do what they do not want to do, or preventing them from doing what they actually want to do. In such situations, of course, the police act as agents for the majority of the community, whose wishes are expressed through constituted authority. There will be, in many cases, a very fine line between what conduct is acceptable and what is not, and where there are divisions in the community itself, this can pose difficulties for the police. So where people have been frustrated by the use of police compulsion, there is bound to be a reaction. Where it is considered that the police were not justified in the action they took, then there is likely to be a complaint from those affected. The types of complaints that have come before the existing authority are not only in respect of the use of compulsive force, as we have seen. The use of inappropriate language, or sometimes an unfortunate attitude, is often the basis for complaints against the police.

The traditional response to complaints about the police has, of course, been an internal investigation conducted by—members have guessed it—police officers. In countries with a similar background to ours, members of the police have always been required to comply with a strict disciplinary code. That is certainly the case today. Where a complaint was received an inquiry was carried out by police officers and what was considered to be appropriate action was taken by the superiors of the officer or officers concerned. I think it is right to say that there is evidence to support the view that, in some cases at least, such investigations resulted in outcomes of some severity as far as individual police officers were concerned. Nevertheless, it was obviously inevitable that such procedures would give rise to dissatisfaction where complainants took the view that police officers had not acted with independence in cases where members of the police service concerned were the subject of complaint. I think it is also right to say that there was also a concern on the part of more marginalised members of society that the making of a complaint might result in retaliatory action from members of the police.

We saw in New Zealand a whole lot of events touching the police that I think, looking back, can be very much seen as the genesis of the principal Act. One of those events, I would say, would have been the Viet Nam War, because the advent of that war, and similar issues, changed attitudes in respect of protest movements completely. For the first time, so-called respectable members of society found themselves in direct opposition to the police, and the police were placed in an extremely invidious situation. On the one hand they had the obligation to uphold the law as it stood. On the other hand they were confronted by members of society who considered, on moral grounds, that certain governmental activities were unacceptable. So in such a situation it was inevitable that major conflicts would occur and erosion of that confidence so essential to stability in a community occurred and accelerated.

I think at that time—and I was a part of that time—that all of this was accompanied by a much greater readiness on the part of members of society to query previously accepted attitudes and standards. The demonstrations against the Springbok Tour in 1981 brought the changes in society and societal attitudes into sharp focus. At the same time, similar conflicts were going on in the UK, where there had been big changes in the make-up of society. The society of the United Kingdom had changed markedly as a result of the immigration that occurred after the Second World War and during the conversion of the old British Empire to the British Commonwealth. An example of that would have been the Brixton riots of 1981.

💬 Dianne Yates: I was there.

Right. The member will know, if she was there, that following those events Lord Scarman carried out an inquiry that was entrusted to him in two phases. The first thing he looked at was to see what the course of events was. He then looked to see what the underlying causes of that disorder were. He referred to a proposal in Canada where a bill had been introduced that would establish an independent system for dealing with complaints against the police. He was also aware that, at the same time, a bill had been introduced in Australia that made provision for investigation and establishment of a disciplinary tribunal by the Commonwealth Ombudsmen.

Eventually a system was set up in England that involved the creation of an independent authority. So we had these models that led in due time to the setting up of the Police Complaints Authority, which is the subject of this legislation. Tonight we are looking at an enhancement of the ability of that particular authority to carry out a raft of tasks in a setting that is incredibly important and pivotal in the maintenance of the institution of police and the stability of our society.

That is all I wish to say in connection with Part 1. In Part 2, I would like to deal with the challenge that Mr Fairbrother has thrown down, and suggest a number of issues that, I think, would improve this legislation, were the Government minded to do that. Now, it may not be prepared to do so. These issues may have to await the next Government in September 2008; a Government of a quite different hue, of a quite different philosophy, and a Government much more committed to the welfare of New Zealand.

Dr Worth raised a couple of points that are perhaps timely, at this early stage of the consideration of the bill, to get on the record in order to clarify for members who may not be aware, and also for other interested members of the public, that the Independent Police Complaints Authority Amendment Bill was introduced, as Dr Worth quite correctly indicated, back in December 2002. It sought to implement the recommendations that Sir Rodney Gallen made in the review that he had undertaken in 2000, and, of course, parallel to the bill we are considering a Supplementary Order Paper that has been drafted, among other things, to give effect to some of the core recommendations of the Commission of Inquiry into Police Conduct, which reported relatively recently.

That, in part, explains the circuitous journey of this bill through the Parliament, because although the bill was reported back from the Law and Order Committee, it was reported back at about the same time that allegations of historical serious misconduct were made against members of the New Zealand Police. In February 2004 the Commission of Inquiry into Police Conduct that I referred to was established to inquire into those allegations about the conduct of police. One of the decisions that was taken by the Minister at the time was to put this bill on hold, because it was deemed likely that such an inquiry might well bring down some recommendations that would be relevant and relate directly to the measures in this bill. So the bill was effectively put on hold.

A decision was taken, as that commission of inquiry progressed—but took longer than had been anticipated—to move ahead with the bill again. But when the commission’s terms of reference were amended in May 2005, so that it was able to continue its inquiries but not impinge on the criminal investigations and proceedings relating to any of the original allegations, again it was determined that it was prudent to hold this bill in abeyance until such time as Dame Margaret Bazley’s commission reported its findings.

That, I think members generally would agree, has proven to be an appropriate decision, because, indeed, of the recommendations that came from the commission of inquiry investigation, some 12 recommendations directly related to the Police Complaints Authority. So with the benefit of those recommendations, it was possible for the Government to move quickly with a Supplementary Order Paper that ensures that the bill we are now considering, alongside the Supplementary Order Paper, deals with those matters that need to be dealt with as quickly as possible.

The other matter that I will comment briefly on is that Dr Worth noted the name change advanced by the Supplementary Order Paper, which changes the Police Complaints Authority to the Independent Police Conduct Authority. He raises the question of whether there is anything much in a name, or whether there is any great point to be taken from this change. I suggest to members that there is indeed. The emphasis is on the status of this authority as an independent entity. It also clarifies its role, which is not just confined to investigation of complaints but does include investigating incidents involving death or serious harm, and serious misconduct or neglect of duty. In the name Independent Police Conduct Authority we see a more accurate reflection of the range—the extended range—of responsibilities, which Dr Worth referred to in his closing comment. The authority will indeed have an expansion of function, and it is appropriate that that is reflected in the name of the authority.

Finally, I note that, whereas the principal Act currently provides for a sole authority with an option of appointing a deputy, expanding the authority’s membership to up to five members, including a chairperson who must be a judge or a retired judge, which the bill now does, will, I suggest to members, increase the authority’s capacity to deal with complaints, allow for wider representation, and in the end give greater confidence in the authority’s competence and independence. These changes reflect the nature of the expansion of the authority’s function and a desire to ensure the appropriate connection of the authority to the different strands of experience and expertise in the community.

The Independent Police Complaints Authority Amendment Bill is very, very important. Just last weekend I was out with the Levin police until the wee hours, up in Horowhenua, and that gave me a great insight into what actually goes on in the small hours in my community. In particular, I was intrigued by a couple of people in the cells. One had breached bail conditions and the other had had an altercation with his partner. It was interesting to see that a staff member had to go back and forth, checking on these two people in the cells on a very regular basis and recording whether there were any incidents.

With this legislation, incidents such as deaths in police cells or police shootings would be covered by the Independent Police Conduct Authority. The authority will cover things like “misconduct or neglect of duty on the part of any member of the police”, and will “consider whether the relevant practices, policies, and procedures have been complied with.” National fully supports the Committee stage of the bill.

The membership of the police authority will likely be increased to five members but—I think I read somewhere—the quorum might be down to two. National might have a concern about that, and I would be interested in the Minister taking a call to clarify that matter.

It is important that there will still be secrecy around the authority, as that will enable a witness to come along and be frank with the evidence he or she can give. This is covered in Part 1 of the bill.

The other important part of this bill is that it makes sure there is an acceptable code of conduct for the police. The police do a fantastic job in our community in keeping people safe, but at certain times they are under a huge amount of pressure. Ultimate power is left with the police. It is very important that the authority is independent and it is important that we have this amendment going through the Committee stage this evening. National supports the legislation.

I guess that for people in the community, going to the police is the first and often the last call for them when in awkward situations. I think that those people in our community need to be particularly aware that an independent body is looking over them. It is great that we are going to have a current or former judge appointed by the Governor-General to sit over this very important—as the Minister called it—committee.

I would like, if I could, to allow the Minister to take a call at some stage in order to explain the quorum of two, and I look forward to other contributions from people around the Chamber on the very important amendment bill in front of us this evening.

I want to speak to Part 1, and particularly to the commencement part. I would comment that what we are seeing is the evolution of an independent authority. As Dr Worth indicated previously, the original Police Complaints Authority was Sir Peter Quilliam, followed by Sir John Jeffries, who were both High Court judges and well regarded by both sides in any dispute in their courtrooms. But initially, of course, when they were appointed to the Police Complaints Authority the concept of human rights was still an evolving pattern. The caution with which both fearless judges approached their task reflected not a lack of bravery on their part but an expectation by the public that the police would do no wrong. Of course, later on we have found that that is an expectation that when viewed from a distance is easily believed, but close up is often very challenged.

So the Police Complaints Authority, when originally appointed, had to walk this very difficult line between trying to balance what might be appropriate police behaviour, with the public expectation that the police would go about what essentially is a very unpleasant task of apprehending people who are out cheating and deceiving the system, and wreaking havoc upon their fellow human beings, while all the time passing themselves off as reasonable and sensible citizens of this country. So the Police Complaints Authority was naturally tentative in the work, and generally supportive of the police position. But as the authority has evolved, and as our understanding of human rights has evolved, the Police Complaints Authority has become a little more loud and a little more independent, and the current appointments of Justice Lowell Goddard and Judge Michael Lance will lead the new Police Complaints Authority into an era where we can see a nice balance between the rights of the citizens and the obligations of the police to investigate crimes often covered up by deviousness and violence.

What is significant about the Police Complaints Authority, I think, is demonstrated by an experience I want to touch on. There is a chap in prison right now called Jules Mikus, who is in there for the murder and rape of a 6-year-old girl in Napier. Within a week of that killing, one of Napier’s less popular young men—a larrikin who was somewhat unpopular—was identified by the police as being a likely suspect. He was hounded by the police, right up to the day of Mikus’ arrest. It drove him around the bend; it ruined his family; his father went to the grave a very broken man. I took the matter to the Police Complaints Authority, who in fact reviewed the file and came forward with the opinion that they considered there was enough evidence to charge this man with the murder and rape of that poor girl. It was only the brink of the investigation finally tipping towards Mikus that saved this man from a trial, which would have been a very unpleasant trial and a tough one to defend. To this day, he may well have been serving a prison sentence for a crime he did not commit.

The story I am trying to take from that is that the Police Complaints Authority at that time was conducted under the aegis of the police. Of course, the senior police officer who investigated it was a very fair man but his bias always was that there were goodies and baddies; the police were inherently good, and the people they investigate were inherently bad. If an investigation is started with two sides of the coin such as that—with the right side and the bad side—then any piece of evidence that contains the possibility of several inferences does not need much further detection before an inference is jumped to without anyone having made sure it is logically correct and true. So I welcome an authority that has strong, independent people of the nature of Justice Lowell Goddard and Judge Michael Lance, because they will bring to this task a finesse and a deft touch that will establish the authority as a powerful force.

I do not think that this Committee should get too concerned about quorum—about the numbers who sit on the authority. This authority is not a regulatory authority; it is an authority of professional application to very difficult human situations. It requires finely honed judgment and a very, very shrewd assessment of human nature. I think we should be more concerned with the quality of the appointments, and about ensuring that future appointments reflect the current quality of the judges I have just mentioned. If we get the right people doing this work, then this future authority will be a staunch advocate of human rights in this community.

I rise to speak to this Committee stage of the Independent Police Complaints Authority Amendment Bill on behalf of New Zealand First, and to put on record that New Zealand First has always supported, and will continue to support, any legislation that gives increased independence to this body. We believe fully and wholly that the integrity of the police force is very much determined by the public’s perceptions as to how their complaints or concerns raised regarding policing practice, or specific instances, are dealt with. Of course, I guess it is fair to say that this bill is before the Committee because of the concerns raised by the public over what was perceived to be a situation of partiality or bias by the Police Complaints Authority. Very often, criticism was levelled at the organisation by people who simply asked how the police could, in any way, investigate themselves impartially.

New Zealand First notes a couple of things. Firstly, this bill came to the House in December 2002. The New Zealand First member of Parliament who sat on the Law and Order Committee at that time was Edwin Perry, who is not with us—

💬 Dr Richard Worth: A very good member.

He was a very good member. I also note that another good member who sat on the committee was one Brian Connell. I was hoping to hear a contribution from Brian Connell today, or at least at some later stage in this bill.

💬 Hon Ruth Dyson: What happened to him?

I am not sure what happened to Brian Connell, but I think that the rest of the nation is very clear as to what happened.

The core of the issue—and as we get into Part 2, we will see how these concerns have been dealt with—is the independence, integrity, and authority that is bestowed upon this organisation. I have to say right from the outset that the appointment of Justice Goddard is, in New Zealand First’s view, a very insightful appointment. We are looking forward to good things under the leadership of Justice Goddard.

We do, however, wonder at the purpose of simply amending the title of the bill by inserting the word “Independent”. There are those people who have—rightly or wrongly, in our view—said that this is just window-dressing, and that inserting the word “Independent” does not create independence. From New Zealand First’s perspective, we see the appointment of a highly valued and very competent senior judge to head the authority as being the principal manner in which true independence is gained.

The first of the number of things that have vexed New Zealand First members’ minds and hearts as we have gone through this bill is the issue of how the police deal with their own. We know that the Police Complaints Authority is the last centre of refuge for police officers who feel they have been wrongly served or wrongly done by. I will put on the record of the Committee right now the name of Constable Kerry Joyce down in Christchurch. Kerry Joyce stands out as one of those examples of how the police can get things so badly, badly wrong when they accuse one of their own, for whatever reason, of doing something or of impropriety that is subsequently proved to be totally false. I would say—even being kind to the police—that some of the accusations levelled at that officer were malicious.

In New Zealand First we do not lose sight of the effect on the family of that police officer. We do not lose sight of the effect on his wife, or the effect on his children as their dad’s name and photograph is published in the media and all sorts of allegations are made about him by the police. It concerns us that a man—or a woman—in the service of the New Zealand Police can be subjected to such allegations when subsequently those allegations can be proven to be false, wrong, incorrect, and even malicious.

This man has not received any form of compensation from the police. I guess that that particular case will play its way through the Employment Courts, cost the taxpayer an absolute fortune, and cost hundreds of hours of police time. Might I suggest that this is all because of the lack of a vigorous and thorough investigation under the previous Police Complaints Authority, which should have gotten to the core of the matter a helluva lot earlier than was the case as the matter eventually unrolled through the court.

The Police Complaints Authority is often looked upon by people—citizens of New Zealand—as being a place where citizens can go to issue and argue their concerns with the police. We forget sometimes that the Police Complaints Authority is also the body to which police officers themselves have a recourse of action for wrongs done to them. Might I suggest from New Zealand First’s perspective that we think that the loops and the hoops that police officers are often required to go through to prove their innocence are far too long, far too convoluted, and do not in any way compensate those officers for the losses they incur when they are found to be innocent.

The question was put that the amendments set out on Supplementary Order Paper 116 in the name of the Hon Mark Burton to Part 1 be agreed to.

Amendments agreed to.

Part 1 as amended agreed to.

Part 2 Amendments to principal Act