An industry watchdog will continue to provide the New Zealand Police with draft reports about the misconduct of its officers weeks before their alleged victims get a copy.
The Independent Police Conduct Authority (IPCA), the Crown entity tasked with investigating complaints about the conduct of police officers, had launched a review of the practice after victims advocate Shannon Parker raised it earlier this year.
Parker, the founder and president of the NZ Police Conduct Association (NZPCA), argued the IPCA's interpretation of the legislation unfairly favoured cops over complainants.
Section 31 of the IPCA Act states the authority shall not "make any comment that is adverse to any person unless that person has been given a reasonable opportunity to be heard".
Currently police, as the subject of the complaints, are given a copy of draft reports before they're released publicly as they always make 'adverse' comments about its employees.
But the reports often include comments that would be deemed 'adverse' about the complainants too - about how they acted during the incident, for instance, or their drug history, or previous run-ins with cops - and they usually only get access to it a day before its contents are made public.
The IPCA in April said it would "review its legal position" on the legislation, but its review has since been completed and the authority has confirmed it will continue to supply draft reports to police ahead of complainants.
'There are very good reasons for it'
In a letter to Parker, IPCA Chair Judge Colin Doherty explained it only supplies reports to police because providing them to complainants as well would "create unnecessary delays and expense".
He argues that the purpose and intent of the legislation is to investigate and resolve complaints about the police, rather than other parties - hence why cops are given time to consider the content of reports and not their alleged victims.
In addition, Judge Doherty says that as the IPCA's decisions depend on them understanding "complex, nuanced" police practices, policies and procedures, additional comments from police are of more benefit than those from complainants.
"While we are not required to provide complainants with draft reports, we are very conscious of the possible perception - touched on in your letter - of unfairness when draft reports are provided to Police but not to complainants," Judge Doherty wrote.
"However, there are very good reasons for this, and we believe the approach we have taken is a proper application of natural justice principles."
While Judge Doherty stood by the IPCA's processes, he recognised there may be some instances where police would make allegations about a complainant beyond what had previously been provided that may be integral to its final report.
He agreed that on such occasions, Section 31 would require the complainant to be given a further opportunity to be heard by way of a further interview, or a letter setting out the allegations and being invited to respond.
But he said with most complaints, a complainant has already been given a reasonable opportunity to be heard at some stage of the process - and there is no prejudice if they're not offered another opportunity at a later stage.
"It is a delicate balancing act, but I can assure you that in all decisions we make we aim to give effect to our core values, including those of independence, accountability and integrity," Judge Doherty continued.
"Your letter and the review we have undertaken have been a timely reminder to all investigators and managers at the Authority of the equal importance of s 31 to all parties involved in our investigations."
Parker is disappointed by the decision.
She says the IPCA are correct to say they aren't obliged to provide a complainant with a draft report, but believes the fact it keeps choosing to send them to police anyway - and not complainants - shows the process still favours cops.
"They have provided me with a list of actions they are not required to take under Section 31 and I agree with their position," she said.
"However every action on that list is a benefit they have extended to the New Zealand Police for years, while claiming to be doing it under section 31. Clearly this was never the case.
"They can dress it up however they want but the fact remains they are not giving complainants the opportunity to be heard on adverse comments and they are giving police multiple opportunities to be heard and full transparency prior to all public releases.
"The IPCA's treatment of complainants compared to their treatment of police is not fair or reasonable, and does not induce trust and confidence in them as an independent body."
Parker's complaint
IPCA reports often include unsavoury details about complainants that most would consider 'adverse' - but while they don't mention them by name, media organisations are often able to identify them anyway.
One such example of this was during the IPCA investigation into an incident involving Whakaari Peri Edmonds, a Northland teen who police fired a Taser at, then pepper-sprayed and verbally abused, in May 2019.
While the IPCA report found police were unjustified in their actions and had used excessive force, it also included allegations that Peri had pushed and tackled an officer and tried to escape police custody. Peri wasn't identified in the report, but was in subsequent news coverage.
Parker said the comments made about him were 'adverse' and argues Peri should've been notified weeks beforehand, just as the officers involved were, so he could challenge what was written about him.
"The whole process favours police," she told Newshub in April.
"The legislation is very clear that it's 'any person' you're making an adverse comment about... I have tried to think of all the reasons that the IPCA doesn't consider the complainant as 'any person', and I just can't think of one that makes sense.
"In my mind, it's quite simple: either solely make your report about the police officer involved and leave every bit of background and context out, or start being fair and reasonable.
"I believe the legislation is clear and they should be doing it anyway. There is absolutely nothing stopping them from giving the complainant the same courtesy they give police. I would argue it's a breach of the legislation."
Parker first raised the matter with the IPCA in 2020. At the time, general manager Warren Young told her the IPCA stood by its interpretation of the law.
However, following another letter of complaint from Parker in March, Young told her she had "raised an important issue" and the IPCA would look into it again.
The IPCA declined Newshub's request for further comment on its review.
