Goff Phil: Police Complaints Authority (Conditional Name Protection) Amendment Bill — First Reading 
Goff Phil: Police Complaints Authority (Conditional Name Protection) Amendment Bill — First Reading 
[Volume:610;Page:7466] 
Hon PHIL GOFF (Minister of Justice) 
: 
 The Police Complaints Authority (Conditional Name Protection) Amendment Bill involves the serious issue of if when and in 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 everyone “has the right of freedom of expression including the freedom to seek receive and impart information and opinions of any kind in any form.” Equally 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 an absolute right. Although the principles set out should certainly be the norm there are circumstances in which 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 that 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 that same constable’s application for interim identity suppression had been declined in the case of  
A Plaintiff 
 v  
Wilson and Horton 
. In that case the High Court ruled that there was no legitimate privacy interest for a police officer carrying out a public duty and in a public place. That seems to me a harsh judgment. An officer who acting reasonably and in accordance with his public duties takes the life of an offender not only suffers the trauma of knowing that he has taken a human life but also has his name publicised throughout the media. Not only does that deny the officer and his family any right of privacy but also it may subject the officer and his family to threats and harassment and that indeed was the case in relation to that officer. 
The media themselves have traditionally recognised the unfairness of this sort of situation. As a result there is a longstanding convention amongst the major news media organisations that police officers involved in fatalities should have their names released only in exceptional circumstances. Generally an officer’s name would be published only at the point at which disciplinary action was taken against him or her or criminal charges were laid. I support that convention and I 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 is 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 wrongdoing on his part. The constable had already been forced to leave his home and the town that his family had lived in because of threats to him arising out of the shooting. In 2001 in response to that situation I asked the Ministry of Justice to prepare a proposal to provide name suppression in such circumstances through legislation. I also made a point of meeting with a cross-section of media representatives in order to express my concerns and to indicate the policy response that 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 the officer was charged or disciplined would continue to be upheld. The media now have the opportunity to demonstrate their commitment to do that on a voluntary basis. I believe that that would be a better outcome than the Government imposing constraints on the media by way of statute. However if that outcome does not eventuate and the convention is again broken the option remains for me to seek executive and parliamentary approval for a change to the law. 
I support this bill going to a select committee because I believe that 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. However I do not support this bill going beyond that point not simply because at this stage it is premature to advance such legislation but also because as a vehicle for law change this bill has some fundamental flaws. 
If legislation were to be required it would take a different form and the proposal that I have advanced to the Ministry of Justice would involve in the first instance automatic suppression of the name of a police officer involved in a fatal accident for 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. Under legislation the court would be instructed to consider and give due weight to firstly the risk to the physical safety and security of the officer and his or her family; secondly whether without suppression the officer and family were likely to suffer an unwarranted invasion of privacy; and thirdly the public interest in our 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 and should 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. 
That would be a preferable approach to the approach proposed by Dr Hutchison in this bill. The policy and drafting flaws of this bill mean that it would not achieve its stated purpose. Firstly the bill does not make it clear at what point name suppression would come into effect. It leaves a gap in time between the incident and when it was notified to the Police Complaints Authority by the Commissioner of Police when the name could be published. That is an oversight. 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. Why should that be treated differently? It is 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 factors relevant to the prohibition of a police officer’s identity being published is more appropriately in my view a function of the court. No good reason is given in the bill as to why that function should be carried out by the Police Complaints Authority instead. 
Notwithstanding those flaws this bill is a useful vehicle for allowing debate over the issues involved. I believe that those issues are serious and should be debated. For that reason I support its referral to a select committee.