In Committee
Part 1 Preliminary provisions
CHESTER BORROWS (National—Whanganui)
: 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.
Dr RICHARD WORTH (National)
: Thank you, Mr Chairman, for the opportunity to speak about this important legislation—
Russell Fairbrother: Now do something with it.
Dr RICHARD WORTH: 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.
Dr RICHARD WORTH: 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.
Hon MARK BURTON (Minister of Justice)
: 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.
NATHAN GUY (National)
: 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.
RUSSELL FAIRBROTHER (Labour)
: 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.
RON MARK (NZ First)
: 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.
RON MARK: 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?
RON MARK: 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.
- Part 1 as amended agreed to.
Part 2 Amendments to principal Act
The CHAIRPERSON (H V Ross Robertson): The debate on this part includes schedule 1.
CHESTER BORROWS (National—Whanganui)
: I want to take a call in respect of Part 2 of the Independent Police Complaints Authority Amendment Bill, and I notice two or three things have cropped up in the interim that I will comment on. The first thing to note is that this legislation will speed up the process of investigating complaints as they come through from the public, and conduct as it is scoped by the Police Complaints Authority, on a day-to-day basis—those matters that are investigated as they come to pass. I articulated earlier things such as deaths in police cells, speeding policemen, boy-racer chases that go wrong, and those sorts of situations.
The fact is that some of the cases that are presently before the Police Complaints Authority go back 5 or 6 years, awaiting the outcome of other tribunals such as the Coroner’s Court, waiting for investigations to finish, or for civil actions against the police, which are currently moving through the process, to finish. But others are caught up within the system. As part of the select committee, members such as my colleague Ron Mark will know that the only explanation given for some of the reasons why these matters have been held over for several years is that they are “still with the police” or “awaiting a response from the police.” So giving the Police Complaints Authority independence will allow it to kick on a little bit quicker, and maybe shake the tree a little bit as far as getting the police to cooperate in getting matters moving faster than they presently are, which is a good thing. I note that the Supplementary Order Paper allows for an extra two authorities, moving from one authority and a deputy as we have at the moment to five authorities, and that will increase the speed as well.
I also note that within the last hour or so, two Supplementary Order Papers have been tabled by the Māori Party, which in effect create a separate leg for a complaints process for Māori. I can understand where this comes from, because we know, for instance, that a disproportionately large number of people who are dealt with by the police as offenders are Māori, so there is a proportionate figure of complaints coming before the authority from Māori, and because quite a deal of offence comes out of an ignorance or a lack of understanding around things Māori. I do not mean that in any sort of patronising way, but I do believe that we should be living in a country where there is one law for all.
I understand there are arguments about how that plays out from time to time—accusations of institutional racism, etc, and I believe that some of those are valid—but at the same time I believe that we are not in a situation in this country where we need to have a separate leg, an investigative branch, within the Police Complaints Authority that deals particularly with Māori. One of the typewritten Supplementary Order Papers refers to new section 4AA, “Autonomous Maori Investigative Branch established”. My view is that that is not something that is required. What should happen is the police should be forced into situations where they need to take account, or at least show an understanding, of things Māori and how that will impact on investigations as the police carry them out. I know that over recent times there has been far more significant training given to police in an attempt to change culture and to gain an understanding of special considerations that might need to be made as far as various cultural groups—Pacific Island, Asian, Middle Eastern, African, as well as Māori—are concerned. National does not see a need to create a separate autonomous Māori investigative
branch within the Police Complaints Authority. It does see a need for the ability to show more understanding.
The second typewritten Supplementary Order Paper asks for an appellate body that would sit above the Police Complaints Authority, as a review body. So a person who feels that his or her complaint has not been listened to or has not achieved the result expected could make an appeal to the appellate body, which would review the inquiry into the complaint made and then be able to make recommendations back to the Police Complaints Authority, but would not have the ability to make any instruction or give any direction. That seems to me to not have the grunt that one would expect such a body to have. I guess to a degree, as well, it has come along fairly late in the day and it is difficult to have had any discussions with the proponents of the Supplementary Order Paper, given the late stage at which it has come.
I would say, in trying to give some comfort to the Māori Party—and as I said earlier, I have some sympathy with the drivers of this—that as there will be five police complaints authorities now, in other words five individuals warranted as a Police Complaints Authority, there is the ability obviously to make some submissions as to who those various authorities could be. It could well be that the Māori Party has the ability to raise its concerns with the Parliament, so an appointment could well cover the anxiety that it has in a perceived lack of understanding of things Māori within the new Independent Police Conduct Authority that is to be created.
Dr PITA SHARPLES (Co-Leader—Māori Party)
: Tēnā koe, Mr Chairman. I rise to take a call on the Māori Party amendments to clause 6 and clause 12 of Part 2, which urge the Committee to consider the opportunity for an autonomous Māori investigative branch. The amendments introduce the requirement for an autonomous Māori investigative branch of the Independent Police Complaints Authority to be established in order to review complaints raised by Māori against the police and Māori relationships with the police.
Two weeks ago the United Nations Committee on the Elimination of Discrimination released its concluding observations on New Zealand’s performance under the Convention on the Elimination of All Forms of Racial Discrimination. Amongst 26 areas of specific concern, the committee reiterated its concern regarding the overrepresentation of Māori and Pacific people in the prison population, and more generally at every stage of the criminal justice system.
This is not breaking news by any means to anybody. I remember back to a report by former Commissioner of Police Doone, which showed that Māori are significantly overrepresented in apprehension, prosecution, and conviction statistics. That report concluded: “… criminal justice agencies, including the Police, must work to improve their responsiveness to Māori and to overcome any negative perceptions that may inhibit that responsiveness.” The negative perception that Commissioner Doone was referring to is the fact that many police and Māori hold negative perceptions of each other. The problem becomes self-perpetuating and so we end up with a situation in which—and here are the facts—about five times as many Māori as Pākehā Europeans are apprehended, prosecuted, and convicted; nine times as many Māori are remanded in prison awaiting trial; and nearly seven times as many Māori are given a custodial sentence or are serving prison sentences.
The Māori Party will not just stand by and say that because the situation has continued for many decades it must continue for many more to come. A fundamentally different approach is required to break this cycle. Perhaps it is time for a Ngāti Kahungunu solution to be found. I say this, of course, in respect of our wonderful Ngāti Kahungunu Justice Lowell Goddard, who heads the Police Complaints Authority. We
need a culture change—a giant step to really make a difference in the ongoing sad story that is the relationship between police and Māori.
This is something I have had involvement in since the 1970s—Gideon Tait was then the commissioner—and then followed on to the time of Bastion Point, right through the ages, as a member of the Auckland District Police Maori District Advisory Board and the Tutahitanga Maori/Police Joint Planning Committee for Waitakere City, North Shore City, and Rodney County, and for the last 10 years as a member of the national committee, here at national headquarters, of the Commissioner of Police’s Māori Focus Forum.
I remember that in the year 2000, Sir Rodney Gallen’s inquiry recommended that there should be a separate, autonomous unit to address complaints pertaining to Māori, or, at the very minimum, specialist Māori staff. Sir Rodney Gallen recommended that the authority should consist of three persons, of whom the chairperson should be someone who holds or has held judicial office. The second member of the authority could represent a Māori section of the New Zealand population as recognition of the Treaty partnership. The third member should represent the lay population of New Zealand as a whole. As I am advised, Cabinet did not agree to this recommendation, so my Supplementary Order Paper brings us back to the original intentions of Sir Rodney Gallen.
What Mr Chester Borrows has just said—one law for all—is just a joke. What about the foreshore and seabed? One law for all, due process—bang, get a new law to stop that. We can go on mouthing these platitudes time after time, and nothing changes. I have been working with the police for so long to try to get them to deal with their attitude towards Māori, and nothing changes. The same things go on and on. I hear it said that police have to be forced into a situation to take cognisance of cultural factors. The reality is that their day-to-day beat does not allow them to do that, if they do not have it in their minds or in their thoughts to recognise that Māori have different ways of looking at things. Thank you.
Dr RICHARD WORTH (National)
: National supports the Independent Police Complaints Authority Amendment Bill. At this stage of the Committee process we are looking at Part 2 of this important and significant legislation. The Minister Mark Burton sought to explain a very substantial period of delay in the progress of this bill. One would have thought that if this bill had merit—which National accepts—it would have prompted a more speedy passage.
The bill amends the principal Act, which is the Police Complaints Authority Act. That Act “prescribes the principal role of the Police Complaints Authority as being to consider whether there has been misconduct or neglect of duty on the part of any member of the police, and to consider whether relevant practices, policies, and procedures of the police have been complied with.” There are a number of significant changes that the bill makes to the Act.
I would like to start by just responding to some comments from Dr Pita Sharples—for whom I have enormous respect—that he has made on behalf of the Māori Party in connection with his two proposed amendments. These amendments come very late in the piece. They come probably too late in the piece to have the consideration that they might deserve. The first amendment introduces a requirement for an independent Police Complaints Authority review agency to be established so that decisions from the authority can be appealed. The second amendment sets up an autonomous Māori investigative branch of the authority to review complaints raised by Māori against the police.
Part 2 of the bill, which is the subject of debate at the moment, contains a raft of provisions that are essentially procedural in nature relating to the constitution and
operations of the authority. I just note, with reference to what Dr Sharples has said, clause 10A, which is headed “Personnel policy”. I think it is quite unusual to see this sort of provision written into statute regarding the operations of a tribunal. The personnel policy is to comply with the principle of being a good employer and the clause sets out what constitutes a good employer for the purposes of this legislation. I note that 10A(2) states: “a good employer is an employer who operates a personnel policy containing provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment, including provisions requiring … (d) recognition of (i) the aims and aspirations of Māori; and (ii) the employment requirements of Māori; and (iii) the need for involvement of Māori as employees of the Authority;”. That is a most unusual provision. It does tend, to some extent I would say, to run with what Dr Sharples has said, that there should be within this entity some recognition of the issue—which I am sure saddens him as much as it saddens me—of high rates of offending by Māori members of our society.
The next point I make in the context of Part 2 is that one of the very crunch issues in this bill is seen here in the implementation of a major decision arising out of the review, which is that the Police Complaints Authority should have an enhanced investigative capacity of its own, independent of the police. As I said earlier, in a fleeting way, similar conclusions have been arrived at in a number of jurisdictions such as England, Australia, and Canada. I think that is a very important fact, which provides a high level of protection to the police.
There is a significant aspect in all this that we should all be aware of. In the context of legislators who seek to strike balances, I believe that we need to look at the aspect of police morale. It is obvious that if the authority is seen as being an unsympathetic and constant critic of the police, that will have an effect on morale. But if, on the other hand, the authority is able to build up the confidence of the police, there should be no effect on morale.
I hope Mr Fairbrother, who is still in the Chamber, might respond to an issue that I think he could make a useful contribution to. I have suggested in past comment on this legislation that there is a case to extend the scope of this bill. I believe that is an opportunity that certainly sits with us in this particular part of the process of this legislation. This legislation could be extended to deal with prison inmates’ complaints. The same arguments about the police investigating themselves apply equally to Department of Corrections staff investigating complaints against prison officers. This is something I would welcome comment on from Labour members. The situation with the Department of Corrections, as I understand it, is broadly that, currently, inmates’ complaints of mistreatment, breaches of rights, and illegality are dealt with by an in-house inspectorate of the department. There are significant numbers of complaints, many of which are dismissed. I express the hope that in the context of this legislation an opportunity may be taken to deal with that issue. I have said on earlier occasions how important that might well be as an issue to resolve.
RUSSELL FAIRBROTHER (Labour)
: I take up the point made by Dr Richard Worth, who has argued—as others have—that the amended Police Complaints Authority, which will now be known as the Independent Police Conduct Authority, should include a prison complaints system. It is clearly not a serious suggestion. If it is a serious suggestion, then it is one that should be considered further by Dr Worth before he advances it any further.
There is a fundamental difference between the role of the police and the role of the prison service. The police are an investigative authority—that is, they are the hard edge of relationships between the citizen and the State. The police have an obligation to investigate complaints in a fearless way. The cutting edge of the Police Complaints
Authority—as it is presently called—and the new authority after it is renamed, is to reconcile the conflicts that occur during a rigorous investigation process, bearing in mind at all times the fundamental rights of any citizen of a democracy to be protected from the overbearing conduct of a Government or State agency.
An authority that relates to an investigative process is a completely different animal from an authority that relates to a custodial process, because a prison authority’s major function is that of custody. Its job is not to investigate but to hold in safe custody those persons sent to it by our judicial process. The relationship between a prison inmate and the prison officers is entirely and fundamentally different from the relationship between a suspect, a person being investigated, or a person being arrested and police officers. It would be a recipe for disaster as we try to refine and strengthen the Police Complaints Authority to confuse the picture by marrying together two disparate conceptual functions. Although there may be merit in many years’ time for a large authority that deals quite separately with these two different functions, as the role of the Police Complaints Authority evolves into the standard that is now being set by the Independent Complaints Authority Amendment Bill, we must move carefully to make sure that the good work that has occurred slowly since the first Police Complaints Authority was set up in 1988 evolves into a very effective watchdog over the police but is not a hindrance to their operation.
Moving to the thoughtful comments made behind the proposed amendment by the Māori Party, suggesting that there be a separate branch of the Police Complaints Authority for complaints from Māori, I can say that on first reading that suggestion finds considerable sympathy. In my experience of 25 or 30 years of dealing with the police, most of the people who the police dealt with were Māori. There was an attitude—certainly 10 or 15 years ago—that was quite racist. It was perhaps not deliberately so, but it was institutionalised racism. The position of Māori suspects was often hugely inferior to the position of Pākehā suspects.
I have detected a change in that attitude in recent times. I think in a large part that is because there are a number of very, very good Māori officers—both frontline and behind the scenes—who act as iwi liaison officers. That is having an effect among the community of changing the profile of the police. It also has a symbiotic effect on the police force themselves so that they are aware of the different cultural norms that exist in our two major cultures in this country, Māori and Pākehā. The Police Complaints Authority must reconcile those changing norms and be able to breed a culture that instinctively understands the different values and norms that go with two separate parts of one country and one society.
I think that the effect of the amendment proposed by the Māori Party would be to create differences where there should not be differences and to weaken the cogency of the Police Complaints Authority. The authority would become sensitive in areas where it needs expertise and professionalism rather than a fear to tread because it might be overlapping in a different area of responsibility. I agree that there is a need that should be addressed by the Police Complaints Authority. I agree that for a long time the way the police have handled Māori has led to justifiable criticism. But I do not believe that the answer is to have a separate authority, because it would seem to lead to divisive conduct when we have police officers who are becoming more rounded and more sympathetic to both the major cultures.
Hon MARK BURTON (Minister of Justice)
: I want to pick up on the point my colleague Russell Fairbrother just made, because I think he provides a good response to Dr Worth. The issue that Dr Worth raised is a matter that has been dealt with elsewhere. This is not the time to try to bring together the police complaints and the prison complaints processes, for the reasons that my colleague Mr Fairbrother has just
outlined. The importance of dealing with the need to restore full public confidence in the Police Complaints Authority, and the complexities of that, are significant enough. That is a matter better pursued more narrowly for the time being.
I want to touch on some of the provisions in the Independent Police Complaints Authority Amendment Bill and the Supplementary Order Paper, particularly as they relate to the recommendations of the Commission of Inquiry into Police Conduct. I will repeat for members that the core reason for the delay in progressing this bill was sound. The delay was in order to ensure that recommendations that arose out of that commission of inquiry could be responded to quickly, gathered up in a Supplementary Order Paper as they have been, and effectively put in place. Had we proceeded—it may well have been ahead of that Commission of Inquiry into Police Conduct—it may well be that we would have had to revisit the whole process in order to give effect to some of those recommendations that we are now addressing here, including jurisdiction of the authority to include a new provision to clarify that the authority may investigate historical complaints that relate to incidents that occurred prior to the establishment of the authority. That is an important addition to the scope of the authority’s jurisdiction.
The time limit on notification of complaints is an issue that a number of members have referred to, either directly or indirectly, in terms of confidence and satisfaction. The Supplementary Order Paper includes a new provision requiring that the police notify the authority within five working days of the receipt of a complaint. This provision addresses one of the recommendations of the Commission of Inquiry into Police Conduct, but it also addresses one of the public concerns about the need for rapid response in dealing with these matters.
The reports to Government Ministers and the provision of the Supplementary Order Paper require the authority to provide a copy of its opinion and recommendations to the Minister of Police and the Attorney-General in certain situations where it is not satisfied with the police response to a recommendation. Again, it is one of those measures that is about strengthening public confidence, and indeed accountability and transparency in the process.
My colleague provided a thoughtful response to the concern—and I think it is a genuinely held concern—behind Dr Sharples’ Supplementary Order Paper. The authority membership provision in the Supplementary Order Paper appropriately addresses the issue about more diverse representation, again in a manner that is consistent with recommendations that fall out of the Commission of Inquiry into Police Conduct. It is also to ensure that there is a wider range of experience and perspective, in terms of the Independent Police Conduct Authority as it will be named.
I want to respond to Mr Guy, because I know he was deeply concerned about this question of a quorum—deeply concerned. Obviously he was fretting that we might have moved on beyond that. I suppose one of the administrative changes that falls out of Supplementary Order Paper 116 is that it removes provisions in the bill itself relating to a range of areas that are now effectively covered by the Crown Entities Act 2004. These are things like membership and appointments, removal or suspension of members, salaries, personnel policies, meeting procedures, and so on—that range of things.
If I could perhaps refer Mr Guy to schedule 5 of the Crown Entities Act, he will see that it deals with this very question. The only circumstances in which the question of a quorum of two is likely to arise is perhaps at the point at which the current authority—and, of course, there is a deputy, so it is a two member authority now—is likely to roll over and become the new Independent Police Conduct Authority. If at that point there are no additional appointees to take the quorum up to the full five, then indeed the quorum would be two for the time being, because under the Crown Entities Act if an entity has a membership of two, the Act requires that the quorum is both members.
Thereafter, as this authority is increased to five members, the requirements of the Crown Entities Act apply. If there is an even number—say, four—then the Act requires that a simple half of the board constitutes a quorum. If it is an odd number, then the quorum is a majority. So in this case, the quorum almost certainly will end up being three of the five members. I hope that settles the member’s concern. I think I have dealt with most of the matters that I want to cover at this stage.
RON MARK (NZ First)
: There is pretty much cross-party consensus on most of the issues here. While some people are highlighting specific issues they wish to have changed, I think that we cannot lose sight of the realities in some of the propositions that have been put. I refer to the two submissions of the Drs Worth and Sharples.
I think Dr Sharples’ submission—the Māori Party’s proposed amendments—is well considered and well written, which indicates that a degree of thoughtfulness has been put into it. But I have to put on the record that New Zealand First will not support these amendments. A couple of issues spring to mind. It is proposed in the Māori Party amendment to clause 6 that a Māori investigative branch be established that consists of three members appointed by the Governor-General on the recommendation of iwi, rūnanga, and the Minister of Māori Affairs. Can members imagine that discussion in the current climate? Various iwi and hapū are at each other’s throats right now, stymying various settlements because of their different views on boundaries, process, and mandate. I can well imagine the degree of debate, discussion, and discourse that would emerge as each iwi tried to assert its position and right to be represented over and above all other iwis.
That is not the only reason we would not agree with such an amendment. I emphasise the point made by Russell Fairbrother, which we believe is quite an astute observation. The reality is that Māori are now climbing through the ranks of the New Zealand Police in a way very similar to the way in which they have climbed through the ranks of the Defence Force. The notion of having an autonomous Māori body set up to investigate decisions made by a newly appointed Māori Commissioner of Police is quite interesting. In effect, we could actually have a group of Māori representing an argument against a police force led by a Māori, and commanded by Māori at district and area levels, challenging those Māoris’ decisions or the appropriateness of the way in which they have dealt with Māori.
I also remind people that the reason that Māori are so overrepresented in crime statistics is that we indulge in crime to that level. The continual argument from people who advocate that there must be something wrong with society because Māori are overrepresented in prisons ignores the fact that we are overrepresented in prisons because we break the law, because we commit crime. Having said that, the argument put forward by Mr Fairbrother that the police force has historically not treated all people equally is pretty widely accepted. We know that well. We know that from the way in which our whānau and our whanaunga have been treated over the years. But that cannot be said of today’s police force. I point to a very senior officer, Wally Haumaha. Some have even tipped him as possibly being the first Māori Commissioner of Police. He has done a tremendous job. As we see more of his ilk working their way through the ranks, we will see a continuance of the improvement of attitudes in the way in which the police administer themselves, the way in which they conduct themselves, and the way in which they administer and enforce the laws of this land.
These laws are, increasingly, being passed by a House with a larger representation of Māori. As we sit here today we can see the evidence of that. Except for the Māori Party, which has 100 percent Māori representation, New Zealand First has traditionally been the party that has had the highest level of Māori representation, of all parties in this House. Indeed, you know, it was not so long ago that Labour would not even—
Dr Wayne Mapp: What about now?
RON MARK: I will get to the National Party in a minute, in the second part of my call. Not so long ago, Labour would not even nominate a Māori candidate in a safe Labour general seat. That happened for many, many years. So that institutionalised approach and attitude towards Māori, well known in the past, was also carried by the Labour Party. I often used to challenge Tariana Turia, now a leader of the Māori Party, when she was in Labour. I used to ask her why the Labour Party would never stand a Māori candidate in a safe Labour general seat. She used to wink at me and say: “I know, Ron. Why do you think that is?”. These things, happily, will become something of our past, something we read about in our history as we evolve and change.
New Zealand First is fully confident that that change is occurring, and we are confident that these changes will give the Police Complaints Authority a far higher degree of scrutiny and a far greater degree of independence. I look forward to the day that, maybe—I say this to satisfy Dr Pita Sharples, my whanaunga from further north—we see Judge Joe Williams appointed to head the Police Complaints Authority. What would we say then? Would we say that Judge Joe Williams is not capable of fairly adjudicating or investigating issues that affect Māori complainants? That would be a nonsense. We in New Zealand First think that New Zealand is moving forward and beyond that. I compliment the Māori Party members on the way in which they have considered their amendment, and on the fact that they have submitted it so comprehensively and completely, but New Zealand First cannot quite see their view and will not be supporting it.
As for Dr Worth’s contribution and his philosophising about the concept of an independent prison inspectorate similar to the Police Complaints Authority, I ask whether he is a member of the same National Party that refused any investigation into the activities of the “goon squad” in Christchurch prisons. Is this the same National Party that appointed the emergency response unit, that oversaw its establishment, and that refused to accept that the unit was in any way acting inappropriately and had caused the death of a Māori inmate in Paparua prison? Is this the same National Party? My golly, maybe things have moved on for the better. Maybe we do have a realisation within the National Party ranks that its members’ behaviour and conduct in respect of the way in which prisons were managed and the way in which complaints put forward by inmates were handled was not proper and was not as it should have been.
But we in New Zealand First still have trouble balancing that view against National’s calls for no compensation for people in prisons who have been wrongly done by. We are looking for consistency in any amendments. I suspect, because Dr Worth has not put forward a Supplementary Order Paper, that much of his argument is simply philosophising, simply tongue-in-cheek surmising, and on that basis I accept it. Were Dr Worth serious, I would fully expect a Supplementary Order Paper to be on the Table and him to be championing the amendments on it. But clearly that is not the case.
We would support Dr Worth, though—New Zealand First would support him—if he wanted to move at some stage, through separate legislation or maybe through an inquiry, to examine the total independence of the Department of Corrections prison inspectorate, because we share the views that he is now espousing. It is a pity he was not the Minister of Corrections in the former National Government. Maybe we would have had a different response to the request of Brian Neeson—that highly valued member of the National Party—who joined forces with New Zealand First to call for an investigation.
There are many things about this bill that we might wish to ponder, discuss, and muse over, but, essentially, New Zealand First feels that Part 2 will give that degree of independence. We give this caveat, though: we will be watching. I guess we share the
concerns of Dr Sharples. The proof of the effectiveness of this legislation and the true independence of the authority will be seen by its deeds—what it does and how it manages the complaints brought before it. I feel that this bill may not be the final throw of the dice in this respect, and that some of the concerns expressed by some people, the cautions given—including those from Russell Fairbrother—may well need to be further examined when it has a couple of years under the belt.
Dr PITA SHARPLES (Co-Leader—Māori Party)
: Tēnā koe. I would like to respond to some of the comments made about my amendment that proposes a new clause 25A and also to talk to the other one. I will begin by saying that there is a lot of concern expressed about having a different, separate authority for Māori, as opposed to a general one, and I share empathy with that thought, too. But the reality is, it is Māori who are in prison, it is Māori who are being arrested, and it is Māori who are being apprehended in ridiculous numbers, and unless we are prepared to face up to that, nothing is going to change.
I want to tell members something. I have been working with the police since the 1970s, and in those days every single recruit and cadet who was introduced into the police force I took for a course on race relations and Māoritanga—every single one in those days, including the current commissioner, a deputy commissioner, and several assistant commissioners, as they joined the force in the 1970s. I tell members that the hardest day’s work I have ever done was a refresher course for senior sergeants. They had been in the police for 10 years, in charge of the watch-house, and I was talking to them about discrimination, about prejudices. A senior sergeant stopped me and said: “This is bullshit. I don’t want to hear what you have got to say about prejudice against Māoris. The only Māori I see are bad buggers, and I lock ’em up. And you’re not going to change my attitude.”
So I had a bit of a battle with him in front of his colleagues, who were going: “Oh, oh, oh!”, and I told him to stand on the chair and say: “I am a racist.” Of course, he refused to do that. I said: “Well, you are a racist, because of your attitude and what you have said.” Finally, I got him on the chair, and everyone was saying: “Say it! Say it! Say it!”. So, when he finally said: “I am a racist.”, the attitude changed, and they realised what they had done and what they had said.
That is the kind of attitude that appears in
Police Perceptions of Māori
and
, which were published during the 1990s. They were a collection of interviews by the police and Māori about each other. What it showed up was a distrust and a prejudice on both sides, and unless we tackle that prejudice, nothing is going to change. So what I am saying here now is that having a separate, special Māori authority to deal with those things will do much to take away the mistrust of the police that exists amongst Māori. Members know the statistics. Many Māori are arrested and apprehended. Therefore, many Māori go to court, therefore many Māori are in jail, and so on. What does that mean in real life? It means Māori families know the courts, Māori families know the police, and Māori families know all about that negative trauma that is associated with one of their family being arrested.
I am a member of a committee that is trying to do prison reform and we have come up with a lot of things, like the new units—but they are not new any more—and the first one we put in was in Hastings. Peter Grant, the superintendent there now, and I put in our model, and we have had other models come up, and so on. But the whole point of what I am talking about is that we need to do special things if we want to end the prejudice that exists out there. So I am saying to members that we can carry on in the same way and hide behind the premise that we are all equal and, therefore, we have to have one process for all people, and nothing will change. Nothing will change unless we actually make the effort. I am telling members now that the members of the committee I
had that looked into prisons were all university graduates. They were leaders of their iwi or leaders of some authority, but working on this national committee, and together we designed a change in the prison system.
But two of those leading authorities on prisons had brothers in jail. So I am saying that we Māori know the courts, we know the police, and we know the prisons, because it is our families. It is the same thing when we are talking about gangs. We know them because they are our families, as well. So people just cannot talk about them like they are something out there, at all. We have to face the fact that they are us and we are them. It is about getting meaningful examples that really will make a difference and will engender the trust of Māori of the police.
Dr Wayne Mapp: It’s just wrong.
Dr PITA SHARPLES: Yeah, it is wrong, but so is what is happening now; it is more wrong. It is wrong that we have so many people being apprehended so quickly. Kids walking home from an intermediate school social are laughing, and the police are being called because they are making too much noise. One car is on the footpath, another one is on the footpath, and the lights are on, because it is in an area where Māori live.
Hon Member: It’s not the normal situation.
Dr PITA SHARPLES: No, no—this is the reality of it. People can hide behind one law for all kind of kōrero, but at the end of the day they have attitudes like that of the senior sergeant who says that Māoris are bad and that he does not need to know anything about it. I just put that proposition to members.
Anyway, I would like to speak to the clause in my amendment, proposed clause 25A, regarding an Independent Complaints Authority Review Agency. The Māori Party obviously would prefer a Police Complaints Authority to be completely independent, like the Ombudsmen and the Parliamentary Commissioner for the Environment. My amendments introduce the requirement for an Independent Police Complaints Authority Review Agency to be established in order to allow the decisions and activities of the authority to be appealed. Although the Police Complaints Authority reports now to the Minister of Justice rather than to the police, in many respects this is just moving the deckchairs. In all respects the independent investigative role is preferred. Otherwise there is a perception amongst members of the community that the State is acting just as judge and jury in its own actions.
I mentioned those two formative studies,
Police Perceptions of Māori and
. They reveal total mistrust and prejudice on both sides against each other, and that is what has to be dealt with. I refer to the fact that too many Māori have been shot by the police, and the people have not been healed over that process. In fact, I think about 14 Māori now have been shot by the police in recent years.
Te Ururoa Flavell: 18.
Dr PITA SHARPLES: Eighteen—there we go. Anyway, the amendments introduce the requirement for an Independent Police Complaints Authority Review Agency to be established in order to allow the decisions and activities of the authority to be appealed, as is consistent with natural justice provisions. There has never been a more relevant time to be considering the role of a Police Complaints Authority, in the wake of the fact that 18 Māori have been shot and killed by the police in recent years. So it is about having trust in the authority. And what is wrong with having an appeal agency for an authority that investigates complaints, so that there is somewhere people can go to if they are not satisfied with that authority’s decision?
The function of the review agency would be to determine appeals brought under section 48. The review agency would consist of at least three members, and all members would be appointed by the Governor-General on the advice of the Minister. Surely a
basic tenet of all democracies is to ensure that there are checks and balances laid against the authority of the State when negotiating with citizens on matters of law and order. We want a system where the focus is restorative rather than adversarial, where reconciliation is valued, and where fairness is applied across the operations of its various parts. We need to demonstrate our belief that we can improve the lives of our victims, families, and communities. This amendment is a means towards that.
Dr WAYNE MAPP (National—North Shore)
: I have been listening carefully to Dr Sharples and in particular to his explanation of his proposal for an autonomous Māori investigative branch of the Police Complaints Authority and what the functions of that branch would be. I have to say that his proposal is fundamentally wrong. This is simply not the way to develop the law of our country. I would like to think that the majority of parties will be voting against his amendment.
I want to put on record why it is wrong. It is not to say that there are not many Māori people who appear before the courts, and it is not to say that many Māori people do not have difficulties with the police. I have listened to Dr Sharples, and that is what he said. I think he overstates the case and that, statistically, the majority of Māori do not have difficulty with the police. It is wrong to suggest that it is the normal or commonplace experience of Māori people in this country.
Dr Pita Sharples: I didn’t say that.
Dr WAYNE MAPP: Actually, the member did. The reason why it is wrong to suggest that is that it reinforces and perpetuates the idea of victimhood, the idea that Māori will always be the victims of the police, the court system, the penal system, and so on and so forth. Surely we want a more aspirational message than that. Even if many Māori—not the majority, but many—do have that experience, surely it is better to concentrate on the successes of real people in life, because they will be the best role models.
I want to talk more specifically about the amendment itself and why I think it is fundamentally wrong. Dr Sharples pointed out that National has the principle or philosophy of one law for all. He mentioned it in a pejorative way, as if it is somehow a bad thing to have one law for all. But he is actually ignoring the reason why the principle exists. Let us forget about the terminology that is used and focus on the principle behind it. It is, surely, fundamental that all citizens of our country, irrespective of ethnicity or background, are treated equally before the law. That is actually what the principle is about. It is about equality before the law. Each one of us, irrespective of our background and ethnicity, can expect fair and equal treatment by our institutions. Our institutions, of course, should reflect the totality of life. So when I hear the suggestion that Judge Joe Williams be put forward as an appropriate representative, that is not because he is Māori; it is because he is a learned judge. He is learned in law and able to apply the law equally to all citizens irrespective of ethnicity. When we say, as a nation, that the law should be colour-blind, we are really saying that the law should treat us all equally.
I must say that I find this idea of having an autonomous branch inserted into the criminal justice system in terms of the Police Complaints Authority offensive. I find it offensive in the sense that it betrays the idea that we all have the rights as citizens to be treated equally and that we should endeavour that our institutions reflect the totality of life. If we want to solve the problem—and I think there is broad agreement that there is an issue to be dealt with—surely the appropriate way to do so is to ensure not separate institutions, which is actually what this is, but rather that the institutions we create reflect the diversity and totality of all New Zealanders. That, surely, is the best way to achieve this.
I say to the Government, which has the responsibility to appoint the relevant people to these organisations, that it must be mindful of whom it appoints so that all New Zealanders have an assurance they will be treated equally and fairly before the law. I wanted to take this call after hearing Dr Sharples’ proposal, to say why his amendment is wrong in principle and why it offends our deepest notions of what our democracy should be about, and that surely is that all citizens have equal treatment and can trust the institutions of our country to deal with them fairly. The right way to achieve that is to ensure that people who reflect the diversity of our country are appointed to its institutions.
I say to the Māori Party members that although their concerns are valid—I accept that aspect of the argument; the concerns are valid and people might feel that they do not receive equal treatment—the solution proposed is wrong in principle. I apologise if Māori Party members were offended by the use of the word “offensive” but I meant it in the sense of being offensive in principle to the ideas of equality and fairness. Although they identify an issue, the solution they have come up with is fundamentally wrong.
I say to the Government that when it appoints the relevant people to the Independent Police Conduct Authority it should listen to the concerns that the Māori Party has put forward to Parliament and take those into account—when the people are appointed to the institutions, to the extent that the Government has that appointing authority. That is the way to deal with the concern.
But I want to put on the record this particular point: our country is built on the principle that all citizens, irrespective of race, gender, or otherwise, are treated equally, and that we should all be able to look to our institutions—
Metiria Turei: What about the foreshore?
Dr WAYNE MAPP: —to treat us fairly and equally. If things need to be fixed—and I acknowledge that things do need to be fixed—there are ways to do that without creating separate institutions. I ask the Māori Party, and its Green Party supporters, to think more imaginatively and more creatively on how the fundamental principles of our country can be realised in practice.
TE URUROA FLAVELL (Māori Party—Waiariki)
: Tēnā koe, Mr Deputy Speaker. Tēnā kōrua ko te Minita. I just want to follow up on a few comments from our co-leader Dr Pita Sharples and speak to his amendment. The motivation for the amendment, of course, is to allow people to have a place to go to against a background of a lack of trust in police policy. That is the motivation to insert new clause 25A. It is quite important, because some people have a theory, as Dr Mapp has mentioned, that there should be one law for all and that everything goes quite well when there is one law for all. But the truth and the reality is that it does not happen like that.
As I have travelled around with the police, our people have talked anecdotally to me about the issues that have happened in Rotorua. I talk with not only Māori people in the community but also Māori people within the police. They talk about institutional racism as being part of the police service.
The report that Dr Sharples alluded to,
Māori Perceptions of the Police, reports the perception of Māori that “the Police Complaints Authority would be self-protecting and biased in favour of the police should Māori bring a complaint against the institution or individuals within it.” Indeed, even within the Minister Mark Burton’s own Government, the previous Minister of Justice the Hon Phil Goff, when releasing the review of the Police Complaints Authority, said: “There is a strong public view that police investigation of complaints against themselves is neither independent or appropriate” and that “it is critical that there is full public confidence that such investigations are independent.” This is the reasoning behind the amendment. The
amendment is to establish an Independent Police Complaints Authority Review Agency so that people have a place to go after an investigation of a particular incident.
There has probably never been a more relevant time to consider the role of a Police Complaints Authority than in the wake of the investigation of the death of Steven Wallace, who, as most of us know, was shot by police in Waitara in April 2000. Steven Wallace’s death made a total of 18 people—as Dr Sharples alluded to, they were mostly Māori—who had been shot by police since 1941. No police officer has been found culpable for any of these killings, but questions remain about the circumstances, and huge questions remain about the background to some of those incidents. In the Steven Wallace case the Police Complaints Authority found that the police officers involved were justified in drawing firearms, even though Steven Wallace was engaged in nothing more than smashing windows. It found that the use of firearms was justified because the riot batons and pepper spray of three officers were allegedly inadequate to disarm one drunken man with a baseball bat.
The heart of the problem is that public perception—well, at least Māori perception; I talk from the Māori perspective, because that has come through loud and clear—is that the Police Complaints Authority has relied a bit too much on police officers for its investigatory capacity. There is a lingering suspicion about the police investigating complaints about their colleagues. The proposed amendment at least provides some opportunity for people to go to some place, as I say, when all else has failed.
The other question that some members have been raising is in respect of the training of police officers. I thought I would put a question to Mr Chester Borrows about the training of officers at Porirua, and ask how many weeks a training course goes for.
Chester Borrows: About 26 weeks.
TE URUROA FLAVELL: It is for about 26 weeks. So the assumption is that if we train those police officers really well in 26 weeks, then they will be able to handle cultural aspects of dealing with Māori relatively easily.
Chester Borrows: We open their minds.
TE URUROA FLAVELL: Well, that might be all very well but that is about all that will be open, because the practical reality is that if people are able to get into the police force at about 18 years of age—or maybe at 20 or 21—then they have a life experience to deal with first before they even get into their training. All of that training is not going to be about dealing with cultural matters.
In fact—and Mr Borrows might be interested in this—I visited one intake, the Mita Mohi wing, earlier this year. Mita Mohi is well known in circles back in my area. Of the intake of around 80 people, three were Māori. So what are the chances of us getting officers who will be culturally safe? This is not to say that one can necessarily be safe in the police ranks, but officers should at least be able to deal with some situations around Māori people.
Some have talked about iwi liaison officers. Mr Mark talked about iwi liaison officers, as did Russell Fairbrother. Sure, iwi liaison officers do a fantastic job in terms of keeping liaison with the Māori communities, and that is acknowledged by all of us. But we cannot put everything to do with Māori communities on to them. It is not just about iwi liaison officers, and it is not just about the cultural component of police training. It is about trying to provide a net, if you like, that allows people to go to a place should all things turn to mush, in particular in investigating issues around the notion of one law for all.
My colleague Metiria Turei spoke up for us in saying that Mr Mapp’s view about one law for all is all very nice, but let us not forget that not long ago there was a law to allow Māori to have access to the courts of this land to test the issue of customary ownership over the seabed and foreshore of this country. Not long after, because the
ability to do that was so disdainful to this Government, the law was changed. To whose detriment? It was to the detriment of those people who could not even test the customary ownership.
It is all very well to talk about one law for all, I say to Dr Mapp, but let us put it in perspective. Laws are easily changed, and in a sense the fact that the Māori Party is in this House is about trying to ensure that a Māori house is represented within this institution—albeit with four members, but the time will come when that might well change. Let us not forget that that is a part of the whole notion of Treaty responsibilities.
Therefore, we ask that all parties consider again the amendments to clause 25A. We believe it is appropriate that an Independent Police Complaints Authority Review Agency is one place to go to, to allow people at least to seek some way of redress, against the background I indicated earlier, should the Police Complaints Authority decisions and outcomes remain to be tested. That is the contention from the Māori Party, and I hope that people give it further consideration.
NANDOR TANCZOS (Green)
: I rise to speak to this part of the bill because I was a little bit astounded to hear Dr Mapp’s contribution. He told us that basically we should ignore the presence of racism in our country, and we should simply celebrate Māori success.
Dr Wayne Mapp: I didn’t say that at all.
NANDOR TANCZOS: I listened pretty carefully at least to the beginning of his speech, as halfway through it I was on my way to the Chamber. I had to come down to make a contribution because I was so astounded at what Dr Mapp had said. This is the party that has been engaging in dog-whistle politics for some time. This is the party that put up billboards telling us that iwi was not Kiwi. When we talk about celebrating the success of Māori, let us get real about what we are dealing with here.
The reality is that one law for all is not a founding notion of this State. We have only to look at the history of legislation that has been passed through this Parliament to see the plethora of laws passed specifically to discriminate against Māori. There is a list as long as my arm, and the most recent example, of course, is the foreshore and seabed legislation. But that was not an isolated one. This House has passed numerous pieces of legislation specifically to dispossess Māori and specifically to disadvantage Māori. The idea that somehow our laws are based on this principle of one law for all is a fallacy. Certainly it could not be said to be a founding principle of the State of New Zealand. [Interruption] Certainly it could be an aspiration, I say to Mr Borrows. I totally agree with that. I think that this is our opportunity to put right those injustices of the past. But we do not do that by pretending we have this level playing field and that all is fine and dandy. We have to face up to the reality of the institutional racism that pervades our country and the way that this happens through the institutions of our State.
I was at a party recently and a number of the Māori people at that party, it seemed to me pretty clearly, experience the police and the New Zealand State as a colonial imposition, as a colonial occupation, because of the racism that is inherent in the institutions of the State that they face, the passing of racist laws, racism in the application of the law, and racism in the implementation of the law.
Those feelings of those people will continue until we actually start to get a system that treats Māori people with genuine fairness and starts genuinely to address the injustices that are so longstanding and so deep-seated in our nation. That includes racism in the police and in other Government departments, as well. The Green Party is supporting Dr Sharples’ amendments, because we think he raises an extremely important issue. He is looking for solutions on how to address this matter in a realistic and significant manner.
It may be that if we develop a genuinely independent Police Complaints Authority that shows itself able to fearlessly investigate the police, to hold the police to account, and to fearlessly tackle head-on the racism that studies have shown quite clearly exist in the police service—and I am not saying that all police are racist, by any means; I am talking about the institutional racism and the racism that is certainly present among some police officers, and I have observed that for myself firsthand—then we do need the kind of body that Dr Sharples suggests. It may be that a genuinely independent Police Complaints Authority would prove such a body to be unnecessary, because that authority itself can properly deal with those issues. But why would anyone have any faith that there is an ability to do that, until there is a proven track record, which certainly is not the case to date? Until we have actually seen some proof that the Police Complaints Authority as a body is able to address these problems, then how can we have assurance that there is any way of addressing these issues without the kinds of measures that Dr Sharples is proposing? The Green Party is supporting his amendments, because it is so crucial that we have an effective and fearless Police Complaints Authority.
DARREN HUGHES (Junior Whip—Labour)
: I move,
That the question be now put.
Dr WAYNE MAPP (National—North Shore)
: I just want to pick up on a couple of points. There are, of course, two lots of amendments in the name of Dr Sharples. The first is the one I spoke about earlier in relation to the establishment of an autonomous Māori investigative branch. I set out why I thought that was wrong in principle. The second amendment seeks to institutionally establish—which, I think, was the institution Mr Tanczos was speaking about—the appellate organisation. I would have to say that this idea is an interesting one, and I can see the motivation and argument for it. The whole purpose of tonight’s debate is to establish in a much more deeply grounded way the idea in the public mind of an Independent Police Complaints Authority. There is no question about that, and that has broad support within the Chamber. To reinforce that point further, Dr Sharples then proposes essentially an appellate authority, and his long, complex amendment sets out the rules on it.
One of the difficulties, I guess one would say, about our legislative procedures is that it is asking a bit much of Parliament to vote for something we have had 30 minutes’ notice of, in terms of establishing a new institution.
Russell Fairbrother: You’re a quick reader.
Dr WAYNE MAPP: It is not just a question of whether one is a quick reader; it is a question of whether, in principle, one should establish an entirely new institution on the basis of an amendment that has been introduced at very short notice. I would suggest—and I say to the Government—that perhaps the best way to deal with this is not to support it tonight but to hold the issue under observance and consider it after the new organisation has been established for some time. See whether the authority works in practice, then actually determine by review whether an appeal authority would be the right way to go.
So I say to Dr Sharples that this is an interesting idea, and I can see merit in it. I am, however, reluctant to support it at this point in time. Indeed, I do not think it should be supported at this point in time, because institutions of this nature should not be established, effectively, ad hoc. But I do think it is one of those things that ought to be kept under review. I would hope that the Government will take the appropriate steps—certainly we would in Government—to look at this concept once the independent authority has been established. We are bound to get a sense of its track record. Does it need this addition? Should there be a proper review? Should an appellate authority be established for the authority itself?
So I congratulate the Māori Party on this issue, as opposed to the other issue, on at least putting forward the idea, because it is one of those things that will, and should, be taken into account in the future once the authority has been established.
- The question was put that the following amendment in the name of Dr Pita Sharples to clause 6 be agreed to:
to insert in clause 6 the following new heading and new section 4AA before “Independent Police Complaints Authority”:
Autonomous Māori Investigative Branch
4AAAutonomous Māori Investigative Branch established
(1)This section establishes the Autonomous Māori Investigative Branch (in this section and section 12C called the Māori Branch).
(2)The Māori Branch consists of at least three members, appointed by the Governor-General on the recommendation of iwi rūnanga and the Minister of Māori Affairs.
A party vote was called for on the question,
That the amendment be agreed to.
| Ayes
10 |
Green Party 6; Māori Party 4. |
| Noes
109 |
New Zealand Labour 49; New Zealand National 48; New Zealand First 7; United Future 2; Progressive 1; Independents: Copeland, Field. |
| Amendment not agreed to. |
- The question was put that the following amendment in the name of Dr Pita Sharples to clause 12 be agreed to:
to add to clause 12 the following new section 12C:
12CFunctions of the Māori Branch
(1)The functions of the Māori Branch are—
(a)to receive and investigate complaints from Māori—
(i)alleging any misconduct or neglect of duty by any member of the Police; or
(ii)concerning any practice, policy, or procedure of the Police affecting the person or body of persons making the complaint in a personal capacity:
(b)to investigate of its own motion, where it is satisfied that there are reasonable grounds to carry out an investigation in the public interest, any incident involving death or serious bodily harm of a Māori person notified to the Authority by the Commissioner under section 13 of this Act:
(c)to make recommendations which are binding on the Authority on the action(s) to be taken in respect of complaints, incidents, and other matters as is contemplated by this Act:
(d)to conduct substantive periodic reviews of relationships between the Police and Māori people and report on these to the Authority.
(2)In the course of taking action in respect of any complaint the Māori Branch may investigate any apparent misconduct or neglect of duty by a member of the Police, or any Police practice, policy, or procedure, which appears to the Authority to relate to the complaint, notwithstanding that the complaint itself does not refer to that misconduct, neglect, practice, policy, or procedure.
A party vote was called for on the question,
That the amendment be agreed to.
| Ayes
10 |
Green Party 6; Māori Party 4. |
| Noes
109 |
New Zealand Labour 49; New Zealand National 48; New Zealand First 7; United Future 2; Progressive 1; Independents: Copeland, Field. |
| Amendment not agreed to. |
- The question was put that the following amendment in the name of Dr Pita Sharples to Part 2 be agreed to:
to insert the following new clause:
25A
To insert the following heading and new sections 48 to 52:
Independent Police Complaints Authority Review Agency
48Appeal Against the Independent Police Complaints Authority
(1) An appellant may appeal to the Independent Police Complaints Authority Review Agency against the decisions and activities of the Independent Police Complaints Authority.
(2)The appeal must be brought within 90 days of the decision or activity in question.
49Independent Police Complaints Authority Review Agency established
(1)This section established the Independent Policy Complaints Review Agency (in this section and sections 50 to 52 called the Review Agency).
(2)The function of the Review Agency is to determine appeals brought under section 48.
(3)The Review Agency consists of—
(a)At least three members; and
(b)The members are appointed by the Governor-General on the advice of the Minister.
50How to appeal
(1)An appeal under section 48 must be brought within the 90-day period referred to in section 48(2).
(2)In the notice of appeal, the appellant must set out the grounds and the circumstances on which the appeal is based.
(3)An appeal under section 48 may at any time be withdrawn by notice in writing to the Review Agency.
51Procedure in appeals
(1)An appeal to the Review Agency under section 48 is to be determined by the Review Agency with all reasonable speed.
(2)On any such appeal it is the responsibility of the appellant to ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are received by the Review Agency within the 60-day period for bringing the appeal.
(3)On the lodging of an appeal under section 48—
(a)The Review Agency must give to the Independent Police Complaints Authority a copy of the notice of appeal and any information, evidence, or submissions lodged by the appellant; and
(b)The Review Agency must allow the Independent Police Complaints Authority a specified time to—
(i)Lodge with the Review Agency any file relating to the matter under appeal that is held by the Independent Police Complaints Authority; and
(ii)Lodge with the Review Agency any such other information, evidence, and submissions in relation to the matter under appeal that the Independent Police Complaints Commission thinks fit.
(4)In determining the appeal, the Review Agency—
(a)May seek and receive such information as it thinks fit, and consider information from any source; but
(b)May not consider any information which relates to matters arising after the date the appeal was lodged unless it is satisfied that there are exceptional circumstances that justify the consideration of such matters.
(5)The Review Agency must disclose to the appellant any material or information that the Review Agency proposes to take into account in determining the appeal if that material or information—
(a)Is or may be prejudicial to the appellant; and
(b)Is material lodged with the Review Agency by the Independent Police Complaints Authority, or is information obtained by the Review Agency from a source other than the appellant.
(6)The Review Agency must give the appellant an opportunity to rebut or comment on any material or information disclosed under subsection (5) within such reasonable time as the Review Agency specifies.
(7)Subsections (5) and (6) do not require the Review Agency to disclose to the appellant any material or information whose disclosure would be likely to endanger the safety of any person, but the Review Agency must notify the appellant of the fact of any such non-disclosure.
52Decision on appeal
(1)As soon as practicable after coming to a decision on an appeal, the Review Agency must notify both the appellant and the Independent Police Complaints Authority in writing of its decision and the reasons for that decision.
(2)The decision of the Review Agency on an appeal is final.
(3)Unless a court otherwise directs, the Review Agency has no jurisdiction to reconsider an appeal after the appellant has been notified of its decision.
A party vote was called for on the question,
That the amendment be agreed to.
| Ayes
10 |
Green Party 6; Māori Party 4. |
| Noes
109 |
New Zealand Labour 49; New Zealand National 48; New Zealand First 7; United Future 2; Progressive 1; Independents: Copeland, Field. |
| Amendment not agreed to. |
- The question was put that the amendments set out on Supplementary Order Paper 116 in the name of the Hon Mark Burton to Part 2 be agreed to.
Part 3 Consequential amendments and repeals
- The question was put that the amendments set out on Supplementary Order Paper 116 in the name of the Hon Mark Burton to Part 3 be agreed to.
- Part 3 as amended agreed to.
Schedule 1
not agreed to.
Schedule 2
not agreed to.
New Schedule 2 Consequential amendments to other Acts
- The question was put that the amendment set out on Supplementary Order Paper 116 in the name of the Hon Mark Burton to insert new schedule 2 be agreed to.
- New schedule 2 agreed to.
Clause 1 Title
- The question was put that the amendment set out on Supplementary Order Paper 116 in the name of the Hon Mark Burton to clause 1 be agreed to.
- Clause 1 as amended agreed to.
- Bill reported with amendment.
