Phil Goff Speech: Police Complaints Authority (Conditional Name Protection) Amendment Bill, First Reading

Mr Speaker, this Bill involves the serious issue of if, when, and under what circumstances the right of free expression and the principle of open justice should be abridged.

Under section 14 of the New Zealand Bill of Rights Act 1990, “everyone has the right to freedom of expression including the freedom to seek, receive and impart information and opinions of any kind in any form.”

The principle of open justice requires the conducting of criminal proceedings in public with the news media having the constitutional right to investigate and scrutinise the circumstances of cases and report what happens in court proceedings.

Both rights are crucial in a democratic society but neither is absolute. While the principles set out should be the norm, there are circumstances where exceptions can and should be made.

Section 5 of the New Zealand Bill of Rights Act explicitly states that freedoms can be subject to reasonable limits prescribed by law that can be justified in a free and democratic society.

The issues this Bill responds to arose from the shooting in Waitara by a constable whom the Courts have subsequently found to have acted reasonably and in self defence in the course of carrying out his public duties.

Earlier the Constable’s application for interim identity suppression was declined in the case of A v Wilson and Horton. The High Court ruled that there was no legitimate privacy interest for a police officer carrying out a public duty in a public place.

It seems a harsh judgement that an officer who, acting reasonably and in accordance with his public duties, takes the life of an offender, suffers not only the trauma of knowing he has killed a human being but also had his name publicised through the media.

Not only does this deny the officer and his family any right to privacy but it may also subject the officer and his family to threats and harassment. This was indeed the case in regard to this officer.

The media itself has traditionally recognised the unfairness of this sort of situation. There is, as a result, a long-standing convention among the major news media organisations that police officers involved in fatalities should only have their names released in exceptional circumstances.

Generally an officer’s name would be published only at the point that disciplinary action was taken against him or her, or criminal charges laid.

I support that convention and believe that a police officer acting reasonably and in the line of duty is entitled to that protection unless and until there is sufficient evidence that the officer acted wrongly, and disciplinary action was taken or charges laid.

I had real concerns in the Waitara case when some media outlets chose to publish the name of the constable concerned without any evidence of his wrongdoing. The constable had already been forced to leave his home and the town his family lived in because of threats against him arising from the shooting.

In 2001, in response to this situation, I asked the Ministry of Justice to prepare a proposal to provide name suppression in such circumstances.

I also met with a cross-section of media representatives to express my concerns and to indicate the policy response I was considering by way of legislation. At that meeting a clear undertaking was given by the media that the convention of not publishing an officer’s name unless charged or disciplined would continue to be upheld.

The media now has the opportunity to demonstrate its commitment to do this on a voluntary basis. I believe that this would be a better outcome than the Government imposing constraints on the media by statute.

If that outcome, however, does not eventuate, the option remains for me to seek executive and parliamentary approval for a change in the law.

I support this Bill going to a select committee because I believe it is valuable for the issues surrounding the suppression of a police officer’s name to be debated and for submissions to be invited and considered before a Select Committee.

I do not however support this Bill going further than this, not simply because it is at this point premature to advance such legislation, but also because as a vehicle for law change this Bill is fundamentally flawed.

If legislation were to be required it should take a different form. The proposal I have advanced to the Ministry of Justice would involve automatic suppression of name for a police officer involved in a fatal accident, which would last up to 20 working days.

For suppression to continue after that point, the officer would have to apply for a court order. The victim’s family would have the right to be heard on the application, as would the police and anyone else, including the media, with a public interest.

The Court would consider and give due weight to:

risk to the physical safety and security of the officer and his or her family; whether, without suppression, the officer and family is likely to suffer an unwarranted invasion of privacy; and the public interest in upholding law and order by protecting the police in the lawful discharge of their duties.

In the event that the application for suppression was granted, it would be subject to an ongoing right by interested parties to apply for review on the ground of changed circumstances, and would be compulsorily reviewed if the officer faced criminal or private prosecution or disciplinary proceedings.

I believe this would be a preferable approach to that proposed in Dr Hutchison’s Bill. Through policy and drafting flaws, this Bill would not achieve its stated purpose.

The Bill does not make it clear at what point name suppression would come into effect. It leaves a gap in time when the name could be published between the incident and when it was notified to the Police Complaints Authority by the Commissioner of Police.

Secondly, the Bill does not cover all cases of death or serious injury as a result of police involvement. It is not clear why shootings, for example, should be distinguished from cases where death is caused by the use of a carotid hold or pepper spray.

It also unclear that the Police Complaints Authority is the appropriate body to determine name suppression. The primary role of the Authority is to receive and investigate complaints relating to Police misconduct or neglect of duty.

Weighing up the factors relevant to prohibition of a police officer’s identity being published is more properly a function of the Court. No good reason is given in the Bill for why this function should instead be carried out by the Police Complaints Authority.

Notwithstanding these flaws, the Bill is nevertheless useful for allowing debate over the issues involved. For this reason I support its reference to a Select Committee.

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