OFFICE OF THE MINISTER OF POLICE
Chair
Cabinet Business Committee
MODERNISING POLICE LEGISLATION
Purpose
1. This memorandum updates Ministers on efforts to modernise the legislative framework for New Zealand Police, and outlines the way in which it is proposed to move forward.
Background
2. Incremental change over successive years has allowed policing practice and structures to adapt to community changes, take up new technology, and respond to government initiatives. However, the key legislation governing New Zealand Police has not changed significantly in nearly half a century. This places it at odds with comparable overseas jurisdictions, where foundational police legislation has been refreshed in recent decades.
3. Modernisation of New Zealand Police’s legislative framework has nevertheless been acknowledged over many years as a necessary plank in a wider strategy to develop Police into a more modern state sector organisation: one with stronger and more transparent governance and accountability arrangements, and improved ability to responsively manage its human resources. The sense of urgency to pursue these linked goals was heightened in 2000/01, when a series of cost pressures facing Police quickened the pace of efforts to introduce the Police Amendment Bill (No 2).
4. It was originally foreseen that the Police Amendment Bill (No 2) would be enacted by October 2001 [LEG Min (01) 15/1 refers]. However, due to competing legislative priorities, and the need to gain agreement on a Supplementary Order Paper (SOP) to the Bill, the Bill’s progress was delayed. Given that key aspects of the SOP dealt with the Police wage bargaining framework, it was considered prudent not to bring the SOP before Ministers while a multi-year wage round agreement was being negotiated during 2002/03. Further delay therefore resulted. More recently, a desire to await the outcomes of the Commission of Inquiry into Police Conduct has been a reason not to accelerate progress on the Police Amendment Bill (No 2). Nevertheless, it was confirmed by Cabinet as a category 2 priority bill (‘must be passed in 2005’) on the 2005 Legislation Programme [CAB Min (05) 5/1A refers].
5. If we are to leverage off the existing strengths of Police, modern legislative building blocks must be put in place to support the organisation’s effectiveness, efficiency and accountability. This is a view shared by both the Office of the Police Commissioner and the main groups representing police employees (the Police Association and Police Managers’ Guild). In light of this broad consensus about the need for contemporary and empowering legislative arrangements to better position policing into the future, the challenge is to find a way forward. This brief memorandum outlines options to advance the modernisation agenda.
Options
Option 1: Continue to seek enactment of the current Amendment Bill
6. The first option would be to push ahead with the Police Amendment Bill (No 2) - the fundamentals of which continue to be sound in the eyes of informed commentators. While some positive developments could be achieved by enacting the Bill currently before the House, this is not the recommended option. The Bill was self-consciously promoted in 2001 as a vehicle to effect some of the most urgently needed amendments to Police’s legislative framework. Clearly, this rationale becomes difficult to sustain five years after the Bill was introduced. Moreover, during the intervening period, there have been reforms of police legislation in several overseas jurisdictions that could usefully be fed into the development of the optimal arrangements for New Zealand Police going forward. The opportunity to do so would be lost if a decision were made just to push ahead with the 2001 Police Amendment Bill.
Option 2: Commit to a more comprehensive review, leading to a new Bill
7. Rather than seeking to enact the Police Amendment Bill (No 2), I believe that a better path forward would be to initiate a comprehensive review of legislative arrangements for policing, which leads to a ‘first principles’ rewrite of the current Police Act 1958 and Police Regulations 1992.
8. I have discussed this approach in principle with senior Police officials, who share my enthusiasm for its potential to ensure that policing has a legislative platform which is ‘fit for purpose’. I have also received representations from the Police Association on the future of the Police Amendment Bill (No 2), and note its support for a comprehensive review of the Police Act, and its undertaking to participate in any such review process.
Proposal
9. The recommended approach has a number of advantages. Central here are the ability for a ‘first principles’ review to allow for a carefully thought through, dispassionate and open examination of the legislative requirements for policing into the 21st century. More broadly, this will allow New Zealanders to articulate what kind of police service they want, and to give them a direct voice in shaping the kind of legislative arrangements that can help deliver that style of policing. In my view, such a genuine engagement and debate about the fundamental underpinnings of policing is long overdue in New Zealand. The commitment to enter into such a broad-ranging review process might also be a positive way in which to channel some of the issues or concerns that may arise as a response to the report of the Commission of Inquiry into Police in 2006.
10. Such a review could also usefully be informed by the experiences observed in international policing reforms. Key features of international reforms in western policing jurisdictions include; moving policing to a position where it more closely participates with other agencies in identifying underlying causes of community problems as well as playing its role in responding to those problems; addressing community fear of crime concerns through greater attention to offences that are signals to a community that there is a decline in social cohesion, and improving policing services to support public trust and confidence in policing.
11. If a far-reaching approach to the review is taken, it would also be possible to float some ideas for consideration that could hold significant potential for the future. Because such ideas would be seen as part of a ‘first principles’ review, they are likely to be viewed as less threatening than they might otherwise be (if, say, the proposals arose in response to a particular incident or challenge Police faced in the short-term). If a carefully managed review process were followed to start a conversation about different communities’ expectations of policing, it may be possible to work towards a broadly-based agreement on issues as diverse as:
the overall role/scope of policing;
opportunities for more effective public input into national and local priority setting;
the appropriate governance and accountability framework for policing;
the future exercise of constabulary powers;
future-proofing Police search and seizure powers and facilitating better use of forensic/technological tools, to aid prevention and investigation of crime;
providing maximum scope for flexible deployment of Police personnel, both nationally and internationally;
the bargaining environment for Police pay negotiations;
the impact/consequences of policing in any reshaping of the criminal justice system.
Project-team approach
12. In order to comprehensively surface as many of the salient issues as possible, and ensure an appropriate level of testing of ideas and maximum buy-in from stakeholders, a stepped review and development process over a fairly lengthy timeframe is optimal. Following my preliminary discussions with Police officials, I would foresee that the review exercise would be co-ordinated by a small multi-disciplinary project team, working out of the Office of the Commissioner. I am also eager to explore the idea that the project team be supported by a formal Advisory Group structure, which could bring together a range of key opinion leaders and influential stakeholders, that can act as a reference group for the review exercise. In addition, there may be merit in formalising the role that could be played by an eminent persons group, or one or two key overseas policing experts, who could help to inform our domestic review and development work.
Timeline
13. Benchmarking against processes used to refresh police legislation in comparative international jurisdictions, a ‘first principles’ rewrite of the existing Police Act and comprehensively update Police Regulations might occur over a two year period. Such an approach would allow for a careful and deliberative process, which ideally follows a classical Green Paper/White Paper evolution, prior to introducing a new Police Bill into the parliamentary cycle.
14. An initial breakdown of key project steps likely to be involved is as follows:
Activity |
Possible phasing/dates |
Project team established |
By end February 2006 |
Advisory/Reference Group established |
By end March 2006 |
Deconstructing Police Amendment Bill (No 2)
|
|
Implementing any initial measures by Regulation
|
|
Produce a Green Paper
|
|
Produce a White Paper
|
|
Consult on White Paper |
November -December 2006 |
Report on White Paper and consultations |
By end February 2007 |
Drafting work on proposed new Bill |
April 2007 |
Inter-agency consultation on exposure draft of new Bill |
June 2007 |
Formal drafting instructions to Parliamentary Counsel |
Beginning July 2007 |
Cabinet consideration/approval of draft Bill |
October 2007 |
Introduction of new Police Bill to the House |
By end November 2007 |
15. The proposed review of the Police Regulations over the next six months would provide a vehicle for any urgent or critical changes to be addressed.
16. Amending certain aspects of the Police Act and Regulations would have fiscal implications, some of which were provisionally costed in the development of the Police Amendment Bill (No 2). Any legislative initiatives that are taken forward, however, would benefit from a robust cost/benefit analysis to better understand the financial implications of various component proposals.
17. The immediate legislative implication arising from this paper is that the Police Amendment Bill (No 2) currently before the House will not be carried over to next year’s Legislation Programme. In due course, a ‘first principles’ rewrite of the Police Act 1958 and Police Regulations 1992 would result in the development of new draft legislation.
Regulatory impact and compliance cost statement
18. A regulatory impact or compliance cost statement is not required at this time.
Human rights and Bill of Rights implications
19. This paper has no immediate human rights or New Zealand Bill of Rights Act 1990 implications.
Consultation
20. The preparation of this memorandum has benefited from dialogue with officials from the Ministry of Justice, State Services Commission and Department of Prime Minister and Cabinet. Aspects of commentary in the paper were informed by discussions with representatives from the police service organisations. The prospect of modernising Police legislation has also been part of semi-regular discussions between senior officials and leading academics. In a formal sense, however, the paper has not been consulted on.
21. If Ministers endorse the proposed way forward, it would be my intention to issue a short media release at an appropriate point in the near future, confirming the decision to launch a comprehensive review of legislative arrangements for policing, and consequentially allowing the 2001 Police Amendment Bill (No 2) to lapse.
3 agree that the best way forward at this time is to initiate a comprehensive review of legislative arrangements for policing, which leads to a ‘first principles’ rewrite of the current Police Act 1958 and Police Regulations 1992
4 note that a consequence of the decision in paragraph 3 is that the Police Amendment Bill (No 2) 2001 will not be carried over to the government’s 2006 Legislation Programme
5 note that the concept of a comprehensive review of Police’s legislative framework is supported by both Police and the main groups representing police employees
6 note the intention that the review and ‘first principles’ rewrite process be managed by a project team led out of the Office of the Commissioner of Police, most likely over a two year timeframe, appropriately supported by a range of expert advice and support
7 note that the first priority for the project team will be to comprehensively review and update the Police Regulations
8 invite the Minister of Police to report back to Cabinet at regular intervals, to update Ministers on the progress of the review
Hon Annette King
Minister of Police