The Council has written to the Independent Police Conduct Authority, about its recent report, Review of the policing of public protests in New Zealand. We know that IPCA is not subject to the Official Information Act 1982, but we are asking them for information gathered during the course of producing its report anyway. When we receive a response, we’ll publish that too.

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Judge Kenneth Johnston KC
Chair
Independent Police Conduct Authority
PO Box 25221
Wellington 6140

 

24 February 2025

 

Tēnā koe Judge Johnston,

Report: Review of the policing of public protests in New Zealand

On 18 February 2025, the Independent Policy Conduct Authority (IPCA) published a report entitled Review of the policing of public protests in New Zealand.

Production and Publication of Report was ultra vires

The production of this report by IPCA is, in our view, not included in the functions of IPCA, set out in section 12 of Independent Police Conduct Authority Act 1988.

Section 12(2) states that IPCA “may investigate any apparent misconduct or neglect of duty by a Police employee, or any Police practice, policy, or procedure, which appears to the Authority to relate to the complaint, notwithstanding that the complaint itself does not refer to that misconduct, neglect, practice, policy, or procedure.”

However, this function does not extend to production and publication of a report which goes beyond “Police practice, policy, or procedure” and into the realm of suggesting legislation to limit people’s rights under the New Zealand Bill of Rights Act 1990. Yet this is precisely what IPCA says its report does in paragraph 4:

“It considers what needs to change, including whether reasonable limitations on freedom of speech and freedom of assembly ought to be better defined, whether protest activity should be better regulated, and whether the legal tools available to Police should be reformed so that they are more clearly delineated and circumscribed, while providing the necessary powers for Police to act when they need to.”

It is strange that a Crown Entity headed by a judge should act in an ultra vires manner such as this. Given the importance of the report to our civil liberties, IPCA’s actions in producing this report raises questions that need answering.

Accountability and Access to Information Required

In light of this, and the recommendations made in the report, it is important that IPCA is publicly held to account for its actions and that people are well-informed in order to effectively participate in the debate that the report will stimulate. Public participation and accountability are enabled by access to information, and this requires that IPCA disclose information it holds about the production of this report, and the information it sought and received from other organisations and individuals.

Uniquely amongst Crown Entities established under section 7 of the Crown Entities Act 2004, IPCA is subject neither to the Ombudsmen Act 1975 nor to the Official Information Act 1982. While this intolerable lacuna in our country’s accountability and access to information regimes will have to be addressed when the OIA or IPCA’s Act is reformed, IPCA is nevertheless bound by the New Zealand Bill of Rights Act 1990 (NZBORA).

As a body performing a public function conferred by law, IPCA is bound by section 3(b) NZBORA to act in accordance with the NZBORA and give effect to the rights it contains.

Section 14 of NZBORA states that “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.”

Section 29 of NZBORA makes clear that “the provisions of this Bill of Rights apply, so far as practicable, for the benefit of all legal persons as well as for the benefit of all natural persons.”

As such, the New Zealand Council for Civil Liberties is exercising our section 14 right to seek, receive and impart information from IPCA in relation to its report on policing public protests.

Since section 14 is derived from Article 19 of the International Covenant on Civil and Political Rights, IPCA will want to ensure that its response to our request for information is consistent with New Zealand’s obligations under the Covenant as well as under the 1990 Act. For example, IPCA’s exclusion from the OIA is contrary to paragraph 18 of the Human Rights Committee’s General Comment 34 on Article 19, which states that:¹Human Rights Committee (102nd session, Geneva, 11-29 July 2011) General comment No. 34: Article 19: Freedoms of opinion and expression. CCPR/C/GC/34 https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf

“Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment.”

Paragraph 7 states that:

“The obligation to respect freedoms of opinion and expression is binding on every State party as a whole. All branches of the State (executive, legislative and judicial) and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State party.”

Therefore, although IPCA has not been brought within the OIA, it is nevertheless bound by NZBORA and the ICCPR.

Any refusal to provide the information sought by the Council must be consistent with how the institutions of the United Nations have interpreted Article 19(3), which states:

“The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.”

Paragraph 22 of the Committee’s General Comment states that:

“Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality. Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.”

The Authority will note that the language used by the UN’s Human Rights Committee in paragraph 22 closely relates to section 5 of NZBORA, and how the courts have interpreted the tests for a justified limitation on the rights affirmed in the 1990 Act.

The Police Complaints Authority Act (as it was originally named) predates the Bill of Rights Act by two years. As such, the secrecy clause set out in section 32 of its Act did not require the government to publicly justify its limitation on our section 14 rights. This does not absolve IPCA from its responsibilities to comply with its responsibilities in a manner compliant with the 1990 Act and Article 19 of the ICCPR.

Happily for the Authority, section 32(2) of the IPCA Act states:

“Notwithstanding subsection (1), the Authority may disclose such matters as in the opinion of the Authority ought to be disclosed—

(a)  for the purposes of carrying out an investigation or other duty of the Authority under this Act; or
(b)  in order to establish grounds for the Authority’s conclusions and recommendations,—

other than any matter which is likely to prejudice any of the interests described in subsection (1) of section 26, whether or not any certificate has been given under that subsection.”

This provides the Authority with a broad discretionary authority to disclose information, and thereby to meet its section 14 NZBORA duties.

Section 6 NZBORA requires that enactments be interpreted wherever possible to give a meaning that is consistent with the rights and freedoms contained in the BORA. Using the discretion of section 32(2) to release information in the public interest would be such a meaning.

Notwithstanding IPCA’s exclusion from the Ombudsmen Act 1975, it will nevertheless want to behave in an administratively reasonable manner when responding to the Council’s request for information. This means that if IPCA chooses not to exercise its discretion under section 32(2) to provide the Council with the information we are seeking, it will need to provide us with a reasoned explanation of why it is impairing our section 14 NZBORA rights.

Request for information

The New Zealand Council for Civil Liberties requests that IPCA provide us with the information described below.

1. Paragraph 5 of the report states, “However, the need to undertake this review was discussed and agreed with Police from an early stage, and some components of the review have been conducted jointly with Police.” Please provide us with (a) the correspondence, (b) the notes of any meetings, and (c) any agreement between IPCA and the Police relating to the ‘need’ for and scope of the review, Please provide us with the information held by IPCA which makes clear which ‘components of the review have been conducted jointly with Police’.

2. All communications sent to or received from the Police that were needed by IPCA “in order to establish grounds for the Authority’s conclusions and recommendations”, including any policies or email attachments, but not including personal information relating to the specific complaint investigations detailed in the appendices of the report.

3. Paragraph 5 of the report also states that IPCA “collaborated with the Ministry of Justice and the Department of Internal Affairs on the preparation of the main body of the report.” Please provide the Council with all (a) correspondence, (b) notes of any meetings, (c) briefings, (d) advice, and (e) other documents provided to IPCA by (i) the Ministry of Justice and (ii) the Department of Internal Affairs.

4. Paragraph 5 also states that IPCA “consulted with a wide range of stakeholders, from frontline officers with expertise in public order policing, to academic and policing experts both within New Zealand and from comparable jurisdictions including the United Kingdom, Northern Ireland and some Australian states.” Please provide the Council with a complete list of the people and organisations consulted by IPCA in the course of undertaking the review and producing the report.

5. Please also provide (a) all correspondence sent to and received from all those consulted by IPCA, including any attachments to the emails IPCA sent and received, and (b) the notes of any meetings held with these stakeholders.

6. Please provide all correspondence relating to the review and report sent to (i) the Attorney-General, (ii) the Solicitor-General, (iii) Crown Law.

7. Paragraph 4 of the report states that “the Board of the Independent Police Conduct Authority (IPCA) [approved] this inquiry.” Please provide a copy of all the papers presented to the Board of the Authority in relation to the approval of the inquiry and publication of the report of the review.

8. Please provide all (i) relevant internal policies on the conduct of inquiries and reviews; (ii) briefings and aide memoire generated within IPCA in the course of the inquiry/review; and (iii) legal advice generated within or received by IPCA from external sources relating to the inquiry/review.

In relation to all the requests for information detailed above, the Council does not wish to receive information about any individual complainant or any individual police officer in relation to the matters detailed in the three appendices to the report.

Conclusion

IPCA’s report calls for fundamental changes to civil liberties in Aotearoa New Zealand and for limitations on people’s rights under the New Zealand Bill of Rights Act. Given the international legal underpinning, and the domestic constitutional nature, of the New Zealand Bill of Rights Act, the significance of IPCA’s suggestions, proposals and recommendations means that the public interest in full disclosure could not be higher. Disclosure of information relating to policy and law reviews by government departments is a routine occurrence in Aotearoa, and much of it takes place voluntarily, outside the requirements to respond to requests under the Official Information Act.

In 1980, the Danks Committee said in its report Towards Open Government:

“The case for more openness in government is compelling. It rests on the democratic principles of encouraging participation in public affairs and ensuring the accountability of those in office; it also derives from concern for the interests of individuals. A no less important consideration is that the Government requires public understanding and support to get its policies carried out. This can come only from an informed public.

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Another argument often stressed is that access of citizens to official information is an essential factor in making sure that politicians and administrators are accountable for their actions. Secrecy is an impediment to accountability, when Parliament, press, and public cannot properly follow and scrutinise the actions of government or the advice given and options canvassed. Divisive suspicion of government and its advisors is encouraged when decisions are made without recognisably comprehensive public presentation of how they have been arrived at.”

Democracies around the world are under threat, often from authoritarian impulses within agencies of the state that are meant to be upholding and protecting the rights and liberties of the public they are created to serve. New Zealand’s own performance under the International Covenant on Civil and Political Rights is being scrutinised by the UN’s Human Rights Committee this year. We urge the Authority to recognise the strong public interest in openness and disclosure, and exercise its discretion under section 32 to provide the Council with the information we are seeking.

If you need any clarification from the Council about our requests for information, please do not hesitate to get in touch.

Ngā mihi,

 

Thomas Beagle
Chair
NZ Council for Civil Liberties

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  Human Rights Committee (102nd session, Geneva, 11-29 July 2011) General comment No. 34: Article 19: Freedoms of opinion and expression. CCPR/C/GC/34 https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf