Why is the SIS subject to the Official Information Act while the Independent Police Conduct Authority is not? The chair of the police watchdog defends the secrecy but admits to Guyon Espiner that it does not have enough resources to do its job properly.
"Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."
So said the former US Supreme Court Justice Louis D Brandeis in his 1914 collection of essays Other People's Money and How Bankers Use It.
The head of the Independent Police Conduct Authority (IPCA) Judge Colin Doherty used the quote in his briefing to the incoming government in 2020, to underscore the authority's commitment to transparency.
But it took some gall for the IPCA to use the Brandeis quote.
Despite being a Crown Entity, the IPCA is not subject to the Official Information Act (OIA), which closes down a vital accountability mechanism for proper scrutiny.
The result is that the IPCA is subject to less sunlight than the Security Intelligence Service (SIS) - the spies are subject to the OIA but the police watchdog is not.
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Christopher Stevenson, the co-founder of the Defence Lawyers Association, says open justice is essential to a free and democratic society.
"The important point is that the public are able to have confidence in the investigations undertaken by the IPCA and the outcomes. How can that possibly be when they're cloaked in secrecy," he asks. "It's really difficult to see any rational reasoning for such an important public process being cloaked in secrecy."
Judge Doherty isn't cloaked in secrecy today, nor in the robes of his former profession. He's suited up and has set aside an hour for full media scrutiny under lights and cameras at the IPCA's central Wellington office.
He doesn't duck the secrecy provisions of the IPCA either - in fact he says they are vital and legislated for.
"That is designed so that people will be free and frank. We cannot divulge anything that comes in here," he says.
"We have police officers telling us things they don't tell police in the criminal investigations against them. The reason for that is that they are able to tell us and what they do tell us cannot ever be used against them. That's in the legislation."
So what does the IPCA do with that secret information that it alone can gather? What are the powers of the IPCA and are they genuinely independent?
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The New Zealand police, 14,000 strong and backed by a budget of $2.2 billion a year, is a giant machine with coercive powers. Monitoring them is the IPCA - with a staff of 41 and a budget of $5 million a year. Does the IPCA have the resources to do its job?
"In a word, no," says Judge Doherty.
"We don't have the resources to really do the job the way I think it should be done," he says. "I'm very comfortable with the quality of people and the quality of the job that we do. But people wait too long [to have complaints investigated] and that's primarily because we don't have sufficient resources."
A 2020 review of the IPCA, by consultants Martin Jenkins, found that the IPCA needed up to 64 staff - about 50 percent more than current levels.
Official briefing documents prepared for Justice Minister Kris Faafoi in October 2021 say the authority "faces material risks to capacity and capability". Low pay rates and high caseloads are leading to major staff losses, with a 50 percent turnover of investigative staff, it says.
The documents show the IPCA is clearly struggling. "Only seven of fourteen (performance) measures were met," justice officials told their minister. "IPCA will not be able to improve its performance to a point where it is consistently able to meet timeliness targets under current conditions."
Those conditions include an environment where more and more New Zealanders are complaining about the police.
In 2012 the IPCA received just under 2000 complaints. That more than doubled to 4257 last year and this year's tally will include an additional 1900 complaints about police actions during the anti-mandate protests at Parliament.
In just the last three years the number of complaints rose 64 percent.
"We did at one stage not investigate complaints because we just did not have the resources," Doherty says. "We were overwhelmed."
The decision was made to simply reject 25 percent of complaints to get on top of the workload.
"I took that decision because what was happening here was a total burnout of staff," he says. "I was getting complaints about keeping them safe in the workplace because of the overwhelming work that they were obliged to do."
Doherty says one reason there are more complaints about police is that there are more of them.
But there was another reason for the backlog. When people were complaining directly to police, the police weren't passing them on to the IPCA as they are supposed to do.
Internal IPCA documents describe this as "an unintended previous failure of police to notify us of all complaints made directly to police".
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The IPCA, initially just called the Police Conduct Authority, was only established in 1988 and for much of its life has just been a single person.
In 2000, when it investigated perhaps New Zealand's most controversial police shooting, the killing of Steven Wallace in Waitara, the authority didn't even have its own investigators and relied entirely on police resources.
The authority appointed its first independent investigators in 2003 but by 2005 it still only had five.
To some degree it was Louise Nicholas, still a major campaigner for the rights of victims of sexual violence, who forced real change on the authority.
Louise Nicholas, centre, forced change at the authority Photo: NZPA / Wane Drought
In 2004, Nicholas accused high-ranking police officers of pack raping her when she was a teenager in Rotorua in the 1980s. The accused officers, Brad Shipton, Bob Schollum and Clint Rickards, who was assistant commissioner of police at the time, went on trial for rape.
They were acquitted in 2006. But the government asked Dame Margaret Bazley to conduct a Commission of Inquiry into Police Conduct. Her report was damning and, among other findings, recognised that a woman complaining of rape by police officers was unlikely to be believed, let alone have her complaint fairly investigated.
In 2007, the Police Conduct Authority was given the same powers as a Commission of Inquiry - including the power to receive evidence, examine documents and summon witnesses.
It was also renamed the Independent Police Conduct Authority. But by its own admission, the IPCA isn't fully independent.
A review of the authority in 2000 by retired High Court judge Sir Rodney Gallen said it could only be truly independent if it were separated from the executive arm of government - the ministers who form the Cabinet.
"It should be an Office of Parliament in the way in which the Ombudsman reports directly to Parliament," Gallen wrote.
This has never happened and the IPCA still sits within the Ministry of Justice, left to compete for funding with other justice sector budget bids.
That might sound quite technical but think about it like this: in an election year is a Minister more likely to authorise spending on beefing up police resources or improving the monitoring of police conduct?
As well as the Ombudsman, there are two other Offices of Parliament: the Parliamentary Commissioner for the Environment and the Auditor General.
Doherty thinks the IPCA should be the fourth. Ultimately that's a constitutional question. The more immediate question is whether the ICPA is independent from the police.
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One woman feels so strongly about this question that for her the answer was to set up her own police watchdog.
In her day job Shannon Parker is an operations manager for a finance company. In her spare time she runs the New Zealand Police Conduct Association, helping people resolve complaints against the police and navigate the official IPCA process.
"I don't get paid to do it. I do it because I care and I believe that there is a huge gap there."
Shannon Parker has been an offender, a victim and a juror. Now she watches the watchers Photo: RNZ / Cole Eastham-Farrelly
Parker grew up in a small North Island town where everyone knew everyone. "We had local officers drinking and driving along with the rest of us. We had friends that got off drink driving because they played rugby with local officers," Parker says. "Police officers were having sex with people at the station or in police vehicles."
Parker says she's seen the justice system from all angles over the years.
"I've been an offender, I've been a victim, I've been a juror, I've been a private prosecutor. You see how much power and control an officer has and how much credibility is put into an officer's word."
Over the last nine years she says she has taken on hundreds of cases. "I've got little resources, no legal training, no training in dealing with mental health. I'm not highly educated. But for some of these people, I'm all they've got."
It was Parker who dug around and found out the police weren't passing on complaints to the IPCA. She also called the IPCA out for giving police - but not complainants - their investigation reports in advance.
Under the IPCA Act, the authority can not make adverse comments about anyone "unless that person has been given a reasonable opportunity to be heard". But it seems to only extend that favour to the police.
"They give it to the police six weeks in advance," Parker says, allowing police to challenge the findings. "It gets given to the complainant the day before it's publicly released."
Parker says the IPCA works so closely with the police it can't be seen as genuinely independent. The two agencies even have a Memorandum of Understanding governing how they will work together.
Shannon Parker is a name well known to the staff at Grey Street in central Wellington, where the IPCA has its office. 'Frequent correspondent' would be one way to describe it. A thorn in its side would be another.
A highly motivated, determined, one-woman NGO operating an unofficial organisation with a similar name to the IPCA certainly presents a challenge.
That may be part of the reason visitors to the IPCA website are hit with rolling banner headlines in large font which say: "We are the only NZ Police Oversight Body. We are not part of the NZ Police. Under law we are fully independent."
The head of the IPCA speaks about independence in almost reverential tones.
"Whenever I publicly speak about us I say it's the most important word that we have and that is to give confidence to people that they can come to us, that we aren't in cahoots with the police," Doherty says. "We hold the independence label very highly. It's treasured here and we try to live up to that."
But does it live up to that?
The IPCA, despite its name, independently investigates only about 2 percent of the total complaints it receives about the police.
"In an ideal world we'd do them all ourselves. We just don't have the resources," Doherty says.
Many of the complaints that go before the IPCA get thrown back to the police to investigate themselves, with the IPCA taking a backseat or oversight role.
But the powers of the IPCA in these situations are weak and the law unclear, according to a briefing the authority gave to the incoming government in 2020.
"The authority's role is effectively limited to signalling what we consider the issues to be [at] the outset and reviewing investigation material as it is generated," the briefing says. "We often struggle to engage successfully with the investigating officer and the final outcome is often not as robust as we believe it should be."
But it's actually worse than that. The IPCA does not have any power to force police to give them drafts of investigation reports before police make their decisions.
"We often see investigation reports only after a final decision has been made," the briefing paper says. If the IPCA doesn't agree with the outcome or believes the police investigation was too weak, it's too late," Doherty says.
"The authority's role is then limited to making adverse comment. This invites the criticism that the authority is toothless and it does little to enhance public trust and confidence in the police."
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So, is the IPCA a toothless tiger?
"We're gummy. I wouldn't say we're toothless," Judge Doherty says. "We do have quite a bit of influence on police but we are toothless, legislatively, in the sense that we are not the organisation who can make decisions about prosecution, nor can we bring a prosecution."
Doherty made this point to the incoming government in his 2020 briefing, saying that in other countries "bodies similar to ours have the ability to pursue prosecutions directly".
Leaving this solely to the police, as we do in New Zealand, means leaving police open to accusations of bias.
"Police may, at times, lack enough objectivity to make good decisions," the IPCA said in its 2020 briefing to the government.
The IPCA has actually been seeking the power to prosecute for ten years.
In 2012, the IPCA told then Justice Minister Judith Collins that it was seeking powers similar to the police.
"The powers envisaged, but not confirmed, are similar to those exercised by police officers in respect of search and seizure, the interception of communications, tracking, and possibly a power of arrest in tightly prescribed circumstances."
But it never happened. "We've got the power of persuasion, we don't have the power to prosecute," Doherty says.
All the IPCA can do is make recommendations to the police. If the IPCA is not satisfied with the police response to those recommendations, it can try to shame the police into action.
The IPCA Act says if police won't act on a recommendation then the IPCA can send it to the Attorney General or the Minister of Police and have it tabled in Parliament.
But even those weak powers have never been used. "No, but it's been threatened on a number of occasions and it's come close," Doherty says.
The IPCA's strategy is to use those powers as a last resort. The fact they haven't used them certainly doesn't mean the police always act on their recommendations. In fact sometimes they ignore IPCA recommendations on serious matters for years.
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In the thousands of documents and dozens of cases RNZ looked at for the Licence to Kill series, perhaps the most striking example of the police ignoring IPCA recommendations is the failure to introduce drug and alcohol testing for officers involved in critical incidents, such as police shootings.
When Steven Wallace was shot and killed by police in Waitara in April 2000, neither the shooter, nor the officer accompanying him, was tested for drugs or alcohol.
The IPCA report into his death, not released until 2009, recommended the police fix this quickly. "Police should urgently develop policy and procedures for compulsory alcohol and drug testing. The police accept this and have advised the authority that the policy is under review and that the review is well advanced."
After Stephen Bellingham was shot and killed by police in Christchurch in September 2007, the IPCA again noted, in its 2009 report, there was no requirement for breath testing of police.
"In the authority's view, mandatory testing following critical incidents would be of considerable benefit to police and should be introduced," the IPCA said.
But it would be another decade before it would be implemented and then only after an incident where the commander of an elite police squad refused a request for his officers to be breath tested.
At around 10.20am on Saturday, 16 July, 2011, police shot and killed Anthony Ratahi at the Headlands Hotel in Opunake. Ratahi had taken a hostage and police thought he had a gun (he actually had an empty air pistol) and they shot him after a long stand-off.
Police shot Anthony Ratahi after he took a hostage at a hotel in Opunake Photo: Stuff Limited
This was a crack squad of 32 police officers, including members of the Special Tactics Group (STG) and the Armed Offenders Squad (AOS). When questioned by detectives investigating the shooting, the STG commander refused a request for his squad members to be breath tested.
But during the IPCA investigation, 14 of the 32 officers admitted that they had consumed alcohol within the 10 hours prior to the callout. Police later conceded that one officer (not the shooter) had drunk five pints of beer in the five hours before attending the incident.
A police 'code of conduct' investigation determined that no action would be taken against the officers because "there was confusion about the requirements of police policy in respect of alcohol consumption by officers while off duty but on call for AOS and STG duties".
The 2014 IPCA report into the Ratahi shooting police, once again, said police were "currently in the advanced stages of implementing a policy for compulsory alcohol and drug testing of officers involved in critical incidents".
But it still took three more years before mandatory testing was introduced, in 2017.
Clearly the police were not listening to the IPCA. "Well, they obviously weren't there," Doherty says. "Or they were convincing the authority that they were doing something about it. But that's far too long."
It was before his time but he questions why the IPCA didn't put the matter to ministers and then try to shame the police by having the recommendations tabled in Parliament. Ultimately that is the only power the IPCA really has.
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The time allotted for my interview with Judge Doherty is running out. His time is ending too. His five-year term finishes in August. Retirement in Wanaka beckons.
What about the IPCA of the future though? Should it grow real teeth and have the power to prosecute police? Yes it should, he says, that would give true confidence to the public.
"I think it's important to those who are dealing with police to know that they are ultimately held to account and can be, independently, just like any other member of the public."