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Police Complaints Authority (Conditional Name Protection) Amendment Bill (Consistent) (Section 14) [2003] NZBORARp 12 (5 March 2003)
Last Updated: 1 November 2020
Police Complaints Authority (Conditional Name Protection) Amendment
Bill
5 March 2003
Attorney-General
Legal Advice
Police Complaints Authority (Conditional Name
Protection) Amendment Bill:
Consistency With The New Zealand Bill Of Rights
Act 1990
INTRODUCTION
- We
have considered the Police Complaints Authority (Conditional Name Protection)
Amendment Bill, a Member's Bill in the name of Dr
Paul Hutchison, for
consistency with the New Zealand Bill of Rights Act 1990 (the "Bill of Rights
Act"). This Bill was introduced
to the House on 5 December 2002 and is likely to
be read for the first time at the next Member's day, which is scheduled for
Wednesday
5 March 2003.
- While
the matter is finely balanced, we consider that on balance the Bill does not
appear to be inconsistent with the rights and freedoms
affirmed by the Bill of
Rights Act.
- We
have consulted with the Crown Law Office on this advice and they agree with the
view taken.
- The
following summary provides you with:
- a brief overview
of the contents of the Bill,
- a note of the
provision of the Bill which appears to raise issues under one of the sections of
the Bill of Rights Act, and
- our conclusion
as to the Bill's consistency with the Bill of Rights Act.
- This
summary is followed by a fuller analysis which discusses each of the issues
raised under the Bill of Rights Act noting, where
relevant, the justificatory
material in each instance.
SUMMARY
Overview of the Bill
- The
Police Complaints Authority (Conditional Name Protection) Amendment Bill seeks
to amend the Police Complaints Authority Act 1988
(the "principal Act") by
inserting a new section 19A. This new section provides that, where any
investigation is being conducted
by the Authority, no person may publish the
name of a Police officer who is under investigation for an incident involving
the use
of firearms which contributed to the death or serious injury of any
person. This amendment would reverse the current practice whereby
names of
officers involved in firearms incidents can be published unless the officer
obtains a court order suppressing his or her
personal details.
- The
Bill provides that name protection will continue until such time as the
investigation is completed, or:
- The Authority
permits publication; or
- The officer is
charged with a crime related to the investigation; or
- A High Court
Judge concludes that the public interest is best served by not protecting the
identity of the officer.
Issue of consistency with the
Bill of Rights Act
- The
Bill raises a prima facie issue with section 14 of the Bill of Rights Act
(the right to freedom of expression). The proposed new section 19A provides for
a
bar on the publication, in any report or account relating to the
investigation, of the name of any member of the Police involved
in a firearms
incident or any information likely to lead to the identification of the Police
officer or his or her family. We consider
that this clause serves the purpose of
enabling the Police Complaints Authority to carry out a thorough and unhindered
investigation
into the incident. As this is an important and significant
objective, and a number of protections are built into the Bill to protect
the
right to freedom of expression, this prima facie inconsistency appears
justifiable.
Conclusion on consistency of the Bill with the Bill
of Rights Act
- Although
we consider the issues in this Bill to be finely balanced, we have concluded
that the Bill does not appear to be inconsistent
with the Bill of Rights
Act.
FULLER ANALYSIS: THE BILL OF RIGHTS ACT ISSUE RAISED BY THE
BILL
Section 14 of the Bill of Rights Act: The right to freedom of
expression
- The
prohibition in proposed new section 19A on the disclosure of the name of an
officer involved in a firearm incident while an investigation
into the incident
is completed by the Police Complaints Authority, raises a prima facie
issue of inconsistency with the right to freedom of expression issues under
section 14 of the Bill of Rights Act. This issue arises
as the right to freedom
of expression, as protected by section 14, includes the freedom to seek,
receive, and impart information
and opinions of any kind in any form. Clearly, a
prohibition on the ability to impart the name of a Police officer under
investigation
infringes on the freedoms protected by this right. Similarly, the
prohibition would impact on the freedom to seek and receive this
information.
Section 5 of the Bill of Rights Act: Justified
limitations
- Where
a provision is found to be prima facie inconsistent with a particular
right or freedom, it may nevertheless be consistent with the Bill of Rights Act
if it can be considered
a "reasonable limit" that is "justifiable" in terms of
section 5 of the Bill of Rights Act.
- In
Moonen v Film and Literature Board of Review,
[1] the Court of Appeal
developed a set of guidelines that are of assistance when assessing whether a
provision constitutes a justified
limitation in terms of section 5 of the Bill
of Rights Act. The inquiry required by Moonen is essentially two-fold;
whether the provision serves an important and significant objective; and whether
there is a rational and
proportionate connection between the provision and that
objective.
A significant and important objective?
- The
explanatory note to the Bill states that "... legislation is necessary [to
protect Police officers and their families] after the
High Court's landmark
decision on A plaintiff v Wilson and Horton." In that judgment the High
Court was asked to consider an application for an interim injunction to prevent
the publication of the
name of a Police officer who fatally shot a member of the
public.
- As
the applicant had not been charged with an offence (although he was under
investigation by the Police Complaints Authority) section
140 of the Criminal
Justice Act 1985 allowing the Court to prohibit publication of names did not
apply. Therefore, the injunction
was sought under three separate causes of
action based on defamation, privacy and section 25 (right to a fair trial) of
the Bill
of Rights Act. The High Court dismissed the application on all three
grounds. Notably, the Court also held that there was no legitimate
privacy
interest for a Police officer carrying out a public duty in a public place.
[2] It also held that
fair trial arguments could not succeed at a stage when neither criminal nor
private prosecutions were actually
apprehended.
[3]
- It
is apparent, from the decision in Wilson and Horton, that there is a
window of opportunity, between when the incident occurs and the laying of any
charge, for anyone who wishes to do
so to publish information relating to the
identity of the officer. This Bill seeks to close that window. The stated
intention of
the Bill is to protect the security and well-being of Police
officers and their families.
- We
consider that the Bill also serves a significant and important objective by
preserving the integrity of the investigation by the
Police Complaints
Authority. Restrictions on the coverage of the incident will provide the
Authority with an opportunity to conduct
its investigation into fire-arms
incidents unhindered by heightened media interest created by the public
disclosure of the officer's
identity. Clearly, the personal safety of Police
officers and their families is also an important objective.
A
rational and proportionate connection?
- We
also consider that the clause is rationally and proportionally connected to its
objective. In forming this view, we note that the
prohibition in the Bill is
limited to incidents involving injuries and fatalities caused as a consequence
of the use of firearms.
The explanatory note to the Bill states that this is
because of New Zealand's conservative tradition of Police not normally carrying
firearms. It follows that the level of public interest in such incidents may be
greater than incidents involving motor vehicles for
example. This would appear
to us to be borne out by the particularly high level of media scrutiny and
public interest in the events
that followed the fatal shooting of Stephen
Wallace. Accordingly, there appears to be a greater need for the protection
afforded
by this Bill.
- In
addition, the Bill would allow the name protection to be waived in some
circumstances. Both the Police Complaints Authority and
the High Court will have
discretion to allow publication. The High Court's discretion in this regard is
predicated on their determination
that "the public interest is best served by
not protecting the identity of the member of the police". Both the High Court
and the
Police Complaints Authority would need to exercise their discretion
consistently with the Bill of Rights Act (including section 14).
- On
its face, a proposal for blanket suppression of Police officers' identity in
certain classes of cases is contrary to the principle
of equality before the
law; ordinary citizens do not have an automatic statutory protection of this
kind. On the other hand, the
Police are sometimes required to exercise
exceptional powers in the interests of enforcing the law and protecting the
public. Also,
in practice, members of the Police are much more likely to be
subject to an extended period of investigation between the incident
and the
laying of any charge, and therefore be subject to a longer period during which
the protection afforded by section 140 of
the Criminal Justice Act does not
apply.
Conclusion
- In
our view, although proposed new section 19A is prima facie inconsistent
with section 14 of the Bill of Rights Act, it is justifiable as a reasonable
limit on the right to freedom of expression
in terms of section 5 of the Bill of
Rights Act.
CONCLUSION
- On
balance, we have concluded that the Bill does not appear to be inconsistent with
the Bill of Rights Act. In accordance with your
instructions, we attach a copy
of this opinion for referral to the Minister of Justice. A copy is also attached
for referral to Dr
Paul Hutchison MP, if you
agree.
Val Sim Chief Legal Counsel
|
Allison Bennett Principal Legal Adviser
|
cc Minister of Justice
Dr Paul Hutchison MP
Copy for your
information
Disclaimer
In addition to the general disclaimer for all documents on this website,
please note thefollowing: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the Police
Complaints Authority (Conditional Name Protection) Amendment Bill. It should not
be used or acted upon
for any other purpose. The advice does no more than assess
whether the Bill complies with the minimum guarantees contained in the
New
Zealand Bill of Rights Act. The release of this advice should not be taken to
indicate that the Attorney-General agrees with
all aspects of it, nor does its
release constitute a general waiver of legal professional privilege in respect
of this or any other
matter. Whilst care has been taken to ensure that this
document is an accurate reproduction of the advice provided to the
Attorney-General,
neither the Ministry of Justice nor the Crown Law Office
accepts any liability for any errors or omissions.
[1] Moonen v Film and
Literature Board of Review[2000] 2 NZLR 9
[2] A v Wilson &
Horton [2000] NZHC 326; 6 HRNZ 106, 109 para 12
[3] A v Wilson &
Horton [2000] NZHC 326; 6 HRNZ 106, 109 para 14
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