'New' PCA? Background summary

10 May 2001

This background summary is in two parts: 1) the recommendations made by Justice Rodney Gallen in his review of the PCA; and 2) Cabinet decisions on the recommendations as released by Phil Goff, 11 April 2001.

1. The name of the Authority should be changed to "the independent Authority for the Investigation of Complaints against the police". The Authority will then generally be known under the acronym IACP.

2. The Authority should be an Officer of Parliament reporting to Parliament and directly responsible to Parliament.

3. The Authority should consist of three persons of whom the Chairperson should be someone who holds or has held high judicial office. The second member of the Authority should represent the Maori section of the New Zealand population as a recognition of Treaty Partnership responsibilities. The third member should represent the lay population of New Zealand as a whole.

4. In appropriate cases, the Authority should investigate complaints by way of a hearing attended by parties and their representatives. Such a hearing should be presided over by the Authority with the power to regulate its own procedures and should be inquisitorial in nature. For the purposes of conducting such an enquiry, the Authority should have the powers of a Commission of Enquiry. The Authority could also have the power to engage a qualified person or persons to conduct hearings in appropriate cases. 5. In any form of investigation, the standard of proof which should be sought ought to be one which reflects the seriousness or signficance of the complaint to the community.

6. In categorising complaints with the purpose of deciding what form of investigation should be followed, the Authority should take into account the seriousness of the complaint, the seriousness of the harm done, whether a public hearing is necessary to restore or preserve public confidence in the complaint process and in the police. Regardless of whether or not any of the foregoing criteria apply, the Authority should have an overall concern as to the significance of the complaint from the point of view of the public.

7. The majority of complaints should continue to be disposed of by investigation and disposition by the police at district level subject to oversight from the Authority and the right of a complainant to request the Authority to undertake the investigation directly. The Authority should not be bound however to accept such a request, it being the responsibility of the Authority to determine the appropriate method of disposition.

8. The Authority ought to be resourced to provide an independent investigative capacity.

9. For this purpose, the Authority should be authorised to engage the services of investigating officers together with the necessary supporting staff.

10. The Authority should endeavour to obtain the services of persons appropriately qualified to conduct investigations but who come from a background other than the police.

11. Investigating officers might also be either retired police officers or officers approaching retirement seconded by the police to the Authority for appropriate periods during which time they would be engaged by the Authority and work only for the Authority, not retaining any police duties. The Authority should also have the power by arrangement with the Commissioner, to coopt police officers for specific cases.

12. Police officers seconded in this way must be to such matters as superannuation rights.

13. There should be an emphasis in respect of all complaints on conciliation and persons appointed in an investigative capacity should have the necessary skills to ensure that this emphasis is maintained.

14. In appropriate cases, the principles of restorative justice as developed by the Thames Valley Police in the United Kingdom, should be applied.

15. The Authority ought not to be a prosecuting Authority. Where on its investigation, the Authority considers it possible that a criminal act has occurred then the Authority ought to refer such matters to the Solicitor General for a determination as to whether or not further action should be taken.

16. The Authority on the conclusion of an investigation, should be confined to the making of recommendations to the Police Commissioner and should have the necessary power to obtain a response. If the Authority does not consider the response satisfactory, then it should have the right to refer the matter to Parliament to whom it is responsible.

17. In considering its recommendations to the Commissioner, the Authority should consider whether or not any pattern of behaviour may be perceived which gives rise to concern and advise the Commissioner accordingly.

18. The Authority must maintain discussions with the Commissioner or persons appointed by him to ensure that the police are aware of the standards which the Authority considers appropriate and whether such concerns should be included in codes of practice.

19. While bearing in mind the right of the public to be aware of matters which concern the community at large, the Authority must retain a discretion as to the extent to which investigations or material obtained upon investigations are made public, bearing in mind the need to ensure privacy as far as complainants are concerned and the protection of police officers against malicious complaints, or where circumstances require confidentiality. Similar considerations apply to the release of reports on the conclusion of such enquiries.

20. In the case of investigations and material ascertained on investigation the present requirement of secrecy ought to be maintained subject to a discretion in the Authority to disclose material where it considers it appropriate to do so in the public interest.

21. The vast majority of conclusions will not merit publication. In the case of conclusions which it is in the public interest to publish the Authority should continue to do as it has done, publish subject to an overriding discretion to suppress all or part of conclusions where there are good reasons to do so.

2) Cabinet decisions on recommendations from the media background paper released by Phil Goff, 11 April 2001.

Cabinet has agreed the following:

* that the Authority should have an independent investigative capacity, independent of the Police.

The Authority receives around 2500 complaints a year. With a proposed staff of 6 independent investigators, this team will obviously focus on the most serious cases where independence from the Police must most clearly be demonstrated, such as cases of death and serious bodily harm which appear to have been caused by the police. As the institutional experience of the Authority's investigators grow they will expand their capacity to investigate other serious complaints.

* that the Authority should be renamed the Independent Police Complaints Authority.

* that the Authority should remain a Justice Crown Entity.

Currently, there are only two officers of Parliament, the Ombudsman and the Parliamentary Commissioner for the Environment. A third has just been proposed, the Controller and Auditor-General. Cabinet considered that the PCA as a justice Crown entity will enjoy a high degree of independence. It is funded via Vote Justice rather than Vote Police. This lessens the likelihood of the Authority being compromised by being funded through the very agency it is monitoring. The members of the Authority are appointed by the Governor-General on the recommendation of the House of Representatives. The Authority also makes its annual report directly to me. I have no power to edit the report and I am required to table the report in the House.

* that the Authority should consist of three persons, a Chair who holds or has held judicial office, and two Deputies.

It was decided to implement a provision based on the guidelines established by the State Services Commission which requires consideration of "the need for a balance of gender, ethnicity, and community representation, while appointing on the merit principle." Appointments to the Authority will be made after consulting with the Minister of Maori Affairs, Women's Affairs and Pacific Island Affairs to make sure the interests of the Pacific Island community, women and Maori are taken into account when appointing members to the Authority. The appointment of investigative staff and the operation of the Authority generally should also take into account the need for the Authority to be responsive to Maori, Pacific Island and women's needs.

* that the Authority should continue to be based in Wellington, with this situation to be reviewed within three years by the Ministry of Justice in consultation with the Authority.

* that the implementation of the report recommendations should gradually build on the existing structure and capacity of the Authority and enhancing the expertise it already has.

Issues requiring further consideration

Sir Rodney Gallen also recommended that the secrecy and privacy provisions be retained and made a number of recommendations about the daily operations of the Authority. Further consideration of these two issues (set out in more detailed below) is required before making a decision whether to accept Sir Rodney Gallen's recommendations or to consider legislative amendments.

* Secrecy and privacy provisions: Sir Rodney recommended the retention of the status quo with regard to the secrecy and privacy provisions set out in the Act. That is, while as a general principle the public has a right to be aware of matters which may properly be seen as in the public domain, the Authority must nevertheless have a discretion at least to maintain secrecy where this is desirable, both from the point of view of the complainant and police officers concerned. His view is the discretion must relate to material obtained on investigation and also to the release of the ultimate decision.

* Day to day operations: The Gallen report also makes a number of recommendations which directly affect how the Authority conducts its day-to-day operations. These include the consideration of procedures for handling complaints, such as hearings, conciliation and restorative justice, and recommendatory powers. The majority of these recommendations relate to operational and procedural matters which are more appropriate for the Authority itself to determine.

* Fiscal costs: Currently the PCA budget is around $700,000. Fiscal and operational implications of implementing Cabinet decisions will cost around a further $1 million p.a. In addition the New Zealand Police expend approximately $10 million in investigating complaints.

* Legislative timetable: It is expected that drafting instructions can be provided to PCO by the end of November 2001 to implement the recommendations requiring legislative amendment. Legislation is expected to be introduced by the end of the year, and passed by July 2002.

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