Fairbrother Russell: Independent Police Conduct Authority Amendment Bill — Third Reading 
Fairbrother Russell: Independent Police Conduct Authority Amendment Bill — Third Reading 
[Volume:641;Page:11682] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I welcome this opportunity to speak in the third reading debate on the Independent Police Conduct Authority Amendment Bill. I welcome its passing into law because it is a major step in the evolution of an independent review of the area where State intervention through the police cuts into the day-to-day activities of individuals. 
It has for a long time been a presumption that the police are well motivated and that their actions are always beyond criticism. Certainly in my experience the police force was not full of the ability to have self-criticism but was brimming with urgent self-defence on any accusation of improper conduct. This was the challenge that the first Police Complaints Authority met when the authority was established in 1988. Although many criticised that authority for being timid in its findings and criticised the subsequent authority for continuing that line one will note that there has been a gradual development of boldness in the decision making of the authority as people have come to recognise that police although often well-intentioned are not above making mistakes. Those mistakes of course are understandable because in the white hot light of police investigations when they carry the responsibility for the rest of the community in investigating allegations both minor and serious they do so with a single-minded purpose that has to be applauded but that single-minded purpose can often be at the expense of civil and human rights. 
I listened to my friend Chester Borrows give the example of two groups walking along the street and one group being described as the little white boys and the other as the little Maori boys. He said that may not be racist but may be biased. I have to say that his recall of two groups is exactly my experience but I say it is racism rather than bias although not deliberate racism. It is racism because a conclusion has automatically been drawn because of the colour of one group and for no other reason. That is the complaint that has often been levelled at the police and has led to areas of dissatisfaction that I think may have been reflected in the Maori Party’s two amendments which were defeated during the Committee stage earlier this week. The argument evolved during that debate and it was an interesting debate on some major principles. It was started by Dr Wayne Mapp when he spoke about the importance of equal treatment under the law. It was picked up on by Dr Pita Sharples and Te Ururoa Flavell when they highlighted the degrees of racism that underline some of our important institutions in society such as the police. The debate was curtailed because of the nature of debates in this House but I think it was a debate that was touching on some important principles that need to be dealt with. 
I do not agree that parties in this House reject the concept of one law for all as referred to by Chester Borrows. I think we are all clear on the concept of one law for all. What is apparent though is that that concept is confused as it was by Dr Wayne Mapp earlier this week with concepts of equality under the law and equal treatment under the law. Dr Wayne Mapp in his speech was talking about equal treatment under the law and that is where examples of bias or racism certainly do appear. It is this lack of equal treatment under the law that in fact undermines the concept of one law for all which essentially is what the rule of law is all about. The rule of law exists and is hard to explain but it is a concept that enables every citizen in this country to go about organising his or her affairs confident that the law that applies to them will also apply to every other person. 
So one can conduct one’s life confident that there is a rule of law that applies to everybody. That is not the problem. The difficulty is how it is applied and this is where the police often run into difficulty—not because they are inherently bad but because they have an onerous responsibility that requires considerable concentration of effort and mind often after a lack of proper sleep and eating while they undertake urgent and important investigations right at the knife-edge of human emotions and sensibilities. Mistakes are then made and conclusions are rapidly reached and behavioural patterns are sometimes picked up as evidence of responsibility. So the Police Complaints Authority has been an important vent to this potential area of conflict in our society and the newly structured authority the Independent Police Conduct Authority which this bill will bring into being is a welcome move in the continuing evolution of what has been a good history in our law as we evolve into a human rights – based society. 
Chester Borrows also spoke briefly about the Maori Party amendment proposing an appellant authority and I had no trouble with voting against that although I am one who believes that the appellant system is a hugely important feature of our legal process. The reason I voted against it is that we are a country still bound by precedent and the doctrine of stare decisis. What that does of course is encourage a legalistic view of disputes before the court. Appeals bodies generally almost invariably do not look at questions of credibility but at legal issues arising by the original finder of fact. If we had an appellant body overlooking the authority the authority would be hindered by necessarily taking a legalistic approach to inquiries rather than a human-rights approach and a robust approach. That is why I have welcomed the appointment of Justice Lowell Goddard to the chair of the present authority and retired judge Michael Lance QC as her deputy. If those two people are rolled over into the new authority then the new authority will certainly start out in very good heart. Both of them are hugely experienced in criminal law issues of human rights and fairness and the onuses that apply to our various jurisdictions in this country. Both can point to a record both at the bar and on the bench of writing decisions and passing judgments that have stood higher scrutiny by the appellant authority. I mention that not because I want to pander to their sensibilities but to demonstrate that the appointment of individuals of competence with great judgment and considerable experience in particular fields arms those individuals with a sense as to what is happening properly and what is not happening properly. These qualities in a judgment applied in the cold light of consideration which will be the authority’s office will enable them to make decisions as to what is important to pursue with vigour and what is less important. 
 What remains however is the vulnerability of the authority to the investigation process by the referral back to the police to investigate complaints. That of course will continue to be the Achilles heel under this authority and it depends upon strong leadership which I believe the authority is capable of providing so that the referral-back system is not sabotaged. I can give ample examples of how that system has been sabotaged—and of course it is usually sabotaged to the disadvantage of those least capable of handling it. Previously individuals would go to the police station to lay a complaint of mistreatment by the police and the duty senior sergeant would look over the desk and say: “We don’t take written complaints today. Come back tomorrow or come back another day.” The complainant would be deterred from following through with what was a real grievance. I trust the new authority will look past that difficulty. 
As we consider the passing of this bill I think it reflects the very good work by the select committee and reflects a very good debate in this House but more important it reflects a very good history of our police force in investigating difficult crimes and prosecuting them to a high standard. Strangely enough having an independent authority will strengthen the arm of the police because it does guarantee to one and all that the actions of the police in times of huge stress can be above reproach and if they are not above reproach that there is a resolution to that problem and a resolution to that lowering of standards. The fact that the authority has only recommendatory powers as does the Ombudsman does not weaken it at all. It is holding up the mistakes of the police to public scrutiny that is the ultimate sanction. That is the matter that gives the authority its real teeth and its real future. 
This is a bill that has taken a while to come through but when we consider that the original authority was established only 19 years ago I think the evolution of this bill reflects on the changing standards in this country and indicates that we are moving to a sophisticated society where human rights are at the forefront and senses of responsibility are reposed in individuals no matter their level or status in society. 
I have listened a little to the discussion about how the police arrest Maori people rather than Pakeha and I think there is a message behind that which we should carry out. It is that paradigm of how we prosecute offences in this country. The police of course carry out society’s wishes but it is facile to suggest that offending is solely in the hands of the lower socio-economic group. White-collar crime is endemic in this country and I would like to conclude with one example. I received a complaint once of lawyers who were inflating their legal aid bill. I tried to lodge it with the police but they were too busy. The Law Society said it could not handle the matter and the Legal Services Agency said that it did not look at that sort of thing. So that law firm and the complaint I received of it inflating its legal aid bills continues perhaps to this day. That is where the real crime in this country lies.