Tuesday, 26 August 2014

A Policy A Day: Disestablish the IPCA

In the lead-up to the election, we are going to examine one policy per (working) day. We've selected policies to be as balanced as possible across a range of policy areas and across the political parties. The idea is to explain the background, analyse the policy to investigate the pros and cons, and give a verdict on the policy at the end. Inevitably, some opinion will make its way in and we make no apology for that - after all, we're voters too. Also, I say 'we' because this series will feature some guest posts from other young people, to share their thoughts and ideas as well. A list of all the articles is available hereEnjoy!

Today's post is written by Gayathiri Ganeshan.

Background
The Independent Police Conduct Authority (IPCA) is a self-described “independent body that considers complaints against New Zealand Police and oversees their conduct.” The IPCA, by way of the Independent Police Conduct Authority Amendment Act 2007, replaced the former Police Complaints Authority in November 2007. The main differences between the PCA and IPCA involved the appointment of independent investigators and enhancement of investigatory powers.

The Māori Party proposed in 2011 that the IPCA be disestablished, with its functions transferred to a new Anti-Corruption Commission. The Kāwanatanga policy document  is still on their website and the Māori Party has recently repeated its position on the IPCA, so I assume this policy still stands this election:
It is important that the public has trust and confidence in New Zealand Police. The Independent Police Conduct Authority will be disestablished. Its functions will be transferred to the Anti-Corruption Commission. 
The MANA Movement also mentions the IPCA as part of its wider Responses to Wrongdoing policy, but would restructure (rather than disestablishing) it:
Restructure the Independent Police Complaints Authority as a truly independent body whose decisions can be appealed, and with an autonomous Māori investigative branch to review Māori complaints against, and Māori relationships with, the Police.
While their policies are different, both the Māori Party and MANA Movement seem to be primarily concerned with the independence of the IPCA and its handling of complaints by Māori.

The Policing of Māori; or “Not All Cops”
This post is written from the perspective of an outsider in regard to NZ Police/IPCA procedures—I’m only using information from academia and whatever has been reported. What I do know, however, is that the Police and Māori have a long history of fraught relations in New Zealand. This traces back to colonial-era New Zealand: today’s police are descendants of the institutions responsible for 19th-century military actions against and social control of Māori. It was only after New Zealand was considered “tamed” that the police were hived off from the military and de-armed. 

In recent decades, major police actions have targeted Māori activism. The breaking up of protests at and occupation of Bastion Point (with military assistance); terror raids in the Uruweras; the haka party incident at the University of Auckland; even the pre-emptive deployment of police in riot gear at Waitangi every February 6th—there is a proven pattern of responding to Māori protest and activism with antagonistic policing tactics. Moana Jackson, in his 1988 report Māori and the Criminal Justice System: A New Perspective, He Whaipaanga Hou, argued that our criminal justice institutions reflect dominant Western culture; he attributes Māori offending to the failure of these institutions, together with colonisation and the attendant breakdown of Māori culture. 

However, dominant justice ideology in New Zealand has instead led to the construction of Māori as a criminal and problem population. In 1998, two studies were conducted to analyse police perceptions of Māori and Māori perceptions of police (NZ Police’s summary of the two reports can be read here). A third of police officers said that they were more likely to suspect Māori of an offence; two thirds reported having heard their colleagues use racist language about suspects/offenders. On the whole, a quarter of police respondents held negative attitudes towards Māori. On the part of Māori, an overwhelming majority of respondents said that they felt police were, as an institution, hostile to Māori because they viewed them as criminal. These institutional perceptions of Māori are also evident within criminal justice discourse and academia: Greg Newbold, a professor at the University of Canterbury who is widely-regarded as a leading criminologist in the country, refuses to entertain the possibility of systemic police bias and discrimination and instead sees Māori offending as a “fact of life”.

What Does Police Oversight Look Like?
Encounters with the Police can lead to apprehension: in 2012 and 2013, Māori accounted for 42 – 45% of all Police apprehensions. This over-representation is also visible in prison at the other end of the conviction process—which represents the harshest sentence our courts can impose. In 2012, Māori prisoners were 58% and 51% of women and men in prison respectively. Figures from 2011 also reveal that apprehended Māori youth face a higher likelihood of being prosecuted for an offence.

We know that encounters between Māori and the Police can be fraught, largely due to historical events and systemic bias evident in state institutions and processes. We also know that the image of the Māori offender has become normalised in our criminal justice system. Add to this the fact that police powers allow for (at times) unfounded and potentially violent intrusion into the lives of civilians. We need to ensure that the state agency that commonly signifies (and in most cases determines) entrance into the criminal justice system does not breach civilians’ rights or abuse its powers. We need oversight; and this needs to be civilian, well-resourced and independent.

Lack of Independence
Since Judge Sir David Carruthers took over the IPCA, a number of promising changes have been made. All reports are publically released, and investigators without ties to the NZ Police have been added to the investigatory team. But putting the word “Independent” into the Authority’s name (as was done in 2007) and hiring investigators from outside the Police family doesn’t necessarily make it so. In 2012/2013, 1997 complaints were received: of these only 62 were investigated (with nine reports released); around 270 were referred to the police for investigation; about 1600 were disregarded. The IPCA clearly lacks the resources to investigate even the “meritorious” complaints it receives.

Selective Investigations
This also means the IPCA only investigates major complaints, generally when death or serious injury is involved. By these criteria, events such as the recent police entry onto a marae in Stratford—in which children as young as four years old were woken in the middle of the night and lined up outside so that police could inspect their hands—are unlikely to be investigated, even though the circumstances imply targeting of Māori. These events may be regarded as less serious in terms of immediate impact, but need to be understood within their political and historical context and could be evidence of more insidious harm.

The fact that the IPCA refers most of its investigable complaints to the Police also allows the government to maintain an illusion of separation between the IPCA and NZ Police. Some might argue that investigators should have ties to the Police in order to be able to carry out meaningful investigations: but how fair can an investigation be when a fact-finder is from the same notoriously fraternal institution? (This is also a point that The Civilian has made with punchy effect.)

Time Delays
The under-resourcing of the IPCA manifests in lengthy investigations. On 15 June, the NZ Herald reported on one such protracted investigation, which did not involve a court case (ongoing proceedings are commonly-cited as a reason for dragged-out investigations):

A police officer digs a thumb into Jai Bentley-Payne’s windpipe and tries to lift him off the ground by his jaw. Another officer yanks him by his legs. The University of Auckland student says when police pulled him out of the crowd, they bound his hands behind his back and carried him to a police van so that his feet couldn’t touch the ground. He was left in the van for an hour, his wrists bruised.
Bentley-Payne, 38, was among 43 people arrested on 1 June 2012, during a “peaceful” protest against Government cuts to student budgets. They were kept in a police holding cell for six hours and not allowed to call family and friends.
(…)
Two years later, he is still waiting for a decision from the Independent Police Conduct Authority (IPCA) as about whether excessive force was used to quell the demonstration.
Ignorance of Structural Problems
It took more than five years for the IPCA to release its report on the Operation 8 raids. This report criticised police for unlawfully searching and detaining people during the raids, and also critiqued other operational elements of the raids. However, it failed to address serious concerns that racial discrimination played a part in the raids, in which hundreds of police officers descended upon sleepy townships, imposed roadblocks and questioned civilians. It is hard to imagine that the Police could employ similar tactics in a majority non-Māori town; it is also troubling that the raids were cast as necessary to protect the public from supposedly-seditious Māori activism.

Narrow Range of Powers
Although the Police Commissioner accepted criticisms in the Operation 8 report and recently issued an apology, he did not feel they warranted disciplinary action against the officers in question. This is another key criticism of the IPCA: its findings only have the weight of recommendations. It has been suggested that the IPCA be able to make binding statements, lay criminal charges against police officers, and open its own investigations (rather than waiting for a complaint). I’m not certain whether these would improve the situation (due to a lack of information necessary to make such a call), or whether a solution lies elsewhere—but the Police being able to ignore the IPCA clearly devalues it as an oversight body.

Verdict: The Māori Party clearly feels that the reforms of 2007/2008 were insufficient to address systemic defects in the operation of the IPCA. It recommends the investigation of complaints against the Police as part of a wider Anti-Corruption Commission: this would presumably be more independent from the Police, and not face similar resource constraints. Crucially, it would also mean that Māori complaints about the Police are not investigated either by that same body, or an institution with close police ties.

The IPCA is at best benignly toothless; at worst, it is a wing of the NZ Police. Either way, we have not had meaningful and effective police oversight in New Zealand. The Māori Party and MANA Movement have highlighted real concerns that need to be addressed, regardless of which parties are in government after the election.

Gayathiri Ganeshan is a student union advocate and Criminology graduate student at the University of Auckland. She believes in being critical of institutions of power. She likes cats and chai.

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