The IPCA chair's call to be excluded from the threat of judicial review is turned down, but justice officials are to scope wider changes
An urgent call from the Independent Police Conduct Authority chair to be excluded from the threat of judicial review was turned down last year, but legislative reform of the IPCA Act could be on the cards.
In March 2022, decisions made by the IPCA not to investigate complaints laid by Frank Deliu were judicially reviewed – the first time the process has been used against it. READ MORE: * Outgoing IPCA chair makes final call for greater prosecution powers * Behind the story: The secrecy around how we police the police
Deliu had made five complaints in early 2018 - one in related to an allegation police breached his privacy, another that a detective had misled the court in a search warrant application and that this detective had conspired with two criminals to harm him.
He also complained that a sergeant had refused to charge a judge with fraud and that police had conducted a bad faith investigation into him.
He told the High Court the IPCA had failed to make a decision on each of his complaints.
The IPCA argued its decisions were protected from judicial review, similar to the Ombudsman, but the High Court disagreed and found it did not address three of the five complaints appropriately.
Then then-IPCA chair Judge Colin Doherty wrote to the Secretary of Justice shortly after the judgment, asking for an urgent clarification of the law.
“The recent High Court judgment … has far reaching implications for the work of the authority. Considering the nature and volume of the authority's work, this judgment has created a precedent with substantial risk to the authority's ability to perform its core role of independently handling, investigating, and resolving complaints about the police.
“There are strong policy reasons that support the argument for a privative clause, and the authority's current engagement in several large-scale contentious and high-profile inquiries underlines the need for immediate action,” he said in a letter released under the Official Information Act.
An increased workload for the IPCA was also part of Doherty’s concern.
"A number of complainants are extremely persistent in their endeavours to relitigate the independent opinion of the authority and refuse to accept a finding not in their favour. Threats of legal action in general, and judicial review in particular, are not uncommon.
“Several other complainants have, over the past year, indicated their intent to seek judicial review. We cannot presume these to be idle threats, given that these complainants include individuals who have previously taken judicial review or other civil proceedings against NZ police and/or other governmental agencies.”
“Gault J's judgment has significant, far-reaching, and immediate implications for the authority and its operations.”
Justice Policy deputy secretary Rajesh Chhana replied advising removing the option for judicial review would not be possible.
“The Deliu case does highlight some important policy questions concerning the status and independence of oversight agencies, such as the IPCA, and the relationship between your oversight role and the judicial system.
"There are no immediate plans to undertake significant policy work at this stage – the Ministry of Justice has a busy work programme and this work needs to fit within my current priorities." - Kiri Allan
“However, as you will appreciate, removal of access to judicial review through a privative clause is a highly significant step, and one that would require detailed policy and rights analysis and public consultation.”
Late last year officials recommended to Justice Minister Kiri Allan that policy options be explored with regard to the judicial review concerns.
“Including whether some form of restrictive clause might be suitable and preferable to a total ouster.”
They also suggested work on whether to extend the IPCA’s prosecutorial powers; something it has called for a review on for a long time.
"We agree that there is merit in exploring whether such a change is appropriate. We note that such a change could fundamentally change the nature of the IPCA from an advisory and review body to something more akin to an enforcement body.
“For example. if the ICPA had powers to prosecute in its own right, this would change the nature of its role in advising the commissioner of police. Consequential changes may also be necessary to strengthen its powers of investigation (for example it may be necessary to give it powers of entry and seizure).”
Allan said she had since instructed officials to work with the IPCA to determine what, if any, issues might be part of a larger policy project.
“I would expect them to work with the IPCA on these issues as part of their regulatory stewardship role and administers of the Independent Police Conduct Authority (IPCA) Act 1998.
“However, there are no immediate plans to undertake significant policy work at this stage – the Ministry of Justice has a busy work programme and this work needs to fit within my current priorities for the sector. There are also no plans to change the IPCA Act at this time.”
Judge Doherty left the role at the end of April and told Newsroom the time had come for a serious discussion about who should be prosecuting police when they were wrong.
“The issue really is that over the period I've been here, I've seen from time to time a reluctance by police to prosecute police officers where if it had been an ordinary member of the public, I've got no doubt that a prosecution would have been made.”
Whether those powers should lie with the IPCA is something a review, which he has long advocated for, would consider.
