Office of the Minister of Police

 

Chair

Cabinet Policy Committee

 

POLICE ACT REVIEW - RESULTS OF PUBLIC CONSULTATION AND NEXT STEPS

 

Purpose

 

1. This paper reintroduces Ministers to the Police Act Review. It summarises the results of recent public consultation on new policing legislation, and outlines a process for inviting Cabinet to make policy decisions on a planned Policing Bill.

 

Summary

 

2. Over the last 15 months, the Police Act Review has brought a critical focus to Police's current legislation, and explored options for a modern framework to better support governance of Police and effective delivery of policing services. The review's second main phase of public consultation has recently been completed, following the release of a major discussion document in May 2007.

 

3. More than 120 public and partner agency meetings were held in June and July 2007 to invite views on future policing legislation, and in excess of 230 written submissions were received during the two-month consultation period. Efforts were also made to engage with 'hard to reach' and 'hard to hear' populations, especially young people. Feedback received from the consultation round have been analysed, and the results will be made publicly available on 31 August 2007. The views expressed are helping to inform the development of a suite of six Cabinet papers, through which Ministers will be invited to make policy decisions on the content of a Policing Bill. My intention is to submit the papers to Cabinet Policy Committee in September 2007.

 

Background

 

Previous Cabinet consideration

 

4. In March 2006, Cabinet agreed to a ‘first principles’ review of the Police Act 1958 and Police Regulations 1992 [SDC Min (06) 3/2; CAB Min (06) 7/5]. A context for this decision was that the legislative framework for policing in New Zealand has not been significantly updated in nearly half a century. Instead, the Police Act has been amended more than 25 times over the last 50 years. Rather than continue this pattern of ad hoc amendments, Cabinet agreed it was preferable to initiate a comprehensive review of the legislative arrangements for policing.

 

5. The broad terms of reference for the review were subsequently consulted on, agreed, and made available on a dedicated Internet site [www.policeact.govt.nz]. To launch the review, eight Issues Papers on significant topics in policing were progressively released over a six month period, beginning in June 2006. The Issues Papers were designed to ‘test the waters’ and promote discussion, attracting approximately 230 responses from around 130 different submitters. In parallel, a platform for debating some of the Issues Papers was created by convening four university-based discussion forums and a day-long symposium. Research on New Zealanders’ expectations of policing was also commissioned, offering an insight into public views on the sort of police service people want and expect. Cabinet noted the progress achieved during this initial phase of the Police Act Review in February 2007 [SDC Min (07) 1/2; CAB Min (07) 18/6].

6. In May 2007, Cabinet agreed to release a discussion paper, Policing Directions in New Zealand for the 21st Century, for public consultation [POL Min (07) 11/15; CAB Min (07) 18/16]. Cabinet also noted the intention, during June and July 2007, to hold public meetings and undertake targeted stakeholder consultation, as a way of seeking feedback on the discussion paper.

 

Awareness raising

 

7. The Policing Directions discussion paper was released on 31 May 2007, with submissions invited by 31 July 2007. Awareness of the consultation exercise was raised through multiple channels, including paid-for and free media coverage. For example, advertisements were run multiple times on 180 different radio stations around the country, with print advertisements placed in 16 daily newspapers. A quarter-page advertisement was also run in a prominent Sunday paper in the middle of the consultation period [see image]. Innovative use was also made of non-traditional media. For instance, a 30 second item on the Police Act Review was screened via HealthTV in the waiting rooms of 85 GPs across the country, reaching an estimated 100,000 people.

 

8. Awareness of the opportunity to have a say on new policing legislation was aided by mainstream media pick-up. For example, opinion editorial commentary by the Police Act Review team was printed in nearly 90 daily papers, with over 50 stories featuring the consultation exercise in national and local newspapers. In addition, several items on the Police Act Review ran on the major television stations, boosted by numerous radio interviews and talkback coverage, including items on Te Waatea Māori news bulletin and Chinese community radio.

 

9. Particular efforts were made to raise awareness about the consultation exercise with 'hard to reach' and 'hard to hear' populations. To allow maximum uptake of the opportunity to have a say on the discussion paper, a summary booklet version was translated into Māori, and a short pamphlet detailing key proposals was translated into 10 other languages (including Samoan, Tongan, Chinese and Korean). To connect with older New Zealanders, the opportunity was taken to brief the Ministerial Advisory Committee on Senior Citizens' Affairs about the review. And the perspective of new migrant groups were sought from direct mail-out of the discussion paper to identified representative organisations.

 

10. In an effort to reach youth and catalyse thinking about policing from tomorrow's leaders, a national essay competition for secondary school students was run. More than 130 entries were received from across the country, with the top essays being uploaded to the Police Act Review website. Further awareness was promoted through co-sponsorship of the 2007 New Zealand Secondary Schools Debating Championship, and 2007 Joynt Scroll competition run by the New Zealand Universities Debating Council. Work was also done with the Ministry of Youth Development to stimulate awareness of the review via its networks, and “Aotearoa youth voices” website [www.myd.govt.nz/ayv].

 

Direct engagement

 

11. Taking advantage of the fact Police is a nationally distributed organisation, with a human presence in towns and cities up and down the country, steps were also taken to directly consult the Policing Directions document with New Zealanders in their local communities. Over 80 public meetings were held in June and July 2007 to outline the proposals in the paper. The consultation process was generally well received; albeit turn-out at some meetings was poor, while at others there was standing room only. Overall, more than 1100 people attended these events. Key points from discussions at the meetings were noted down and fed back to the Police Act Review team. Members of the public were encouraged to make written submissions on the proposals by post, fax, email, or by using an online response form available on the Police Act Review website.

 

12. As well as holding public meetings, Police managers in each District included discussion of the Police Act Review on the agendas of more than 40 regular partnership meetings they participate in. Partner agencies were encouraged to follow up on the resulting roundtable discussions by making a submission on the Policing Directions document itself. Additionally, briefings were given to key partner agencies and fora in Wellington (e.g., Local Government New Zealand's Chief Executives meeting). Separate meetings were convened in each Police District to ensure Police staff had an opportunity to comment on the proposals in the Policing Directions discussion paper. Attendees were also encouraged to make a submission, either in a personal capacity or through their union groups.

 

Written submissions

 

13. In excess of 230 unique written submissions were received in response to the discussion paper. Submissions came from a wide range of individuals, groups and organisations, including central government agencies, private companies, non-governmental and not-for-profit organisations, Police staff and union groups. A significant number of responses were received from local authorities and community boards, reflecting a strong interest in community safety issues.

 

14. Submissions received via the consultation process have informed this paper. A more detailed summary of submissions is being prepared for public release on 31 August 2007, and will feed into ongoing policy development work by officials.

 

Overview of responses during public consultation

 

15. The multi-pronged consultation yielded many insights. Key themes to emerge from the 120+ meetings included a strong desire for Police to give priority to local policing, endorsement of statutory policing principles, and encouragement to explore a range of measures to enable effective policing - but not go too far. Other issues that attracted particular interest at consultation meetings were the importance of police being free from political direction on operational matters, and differing views on the potential to recover costs for special policing services.

 

16. Understandably, the written submissions addressed a larger number of issues. To help convey the broad tenor of the 230+ submissions which were received, the tables on the following pages: list key questions about policing legislation posed in the discussion paper; indicate the situation under the 1958 Police Act; highlight specific proposals suggested in the discussion paper; and provide a high-level summary of submitters’ views. The tables are organised according to the main chapter headings from the Policing Directions consultation document.

 

Key principles to guide policing

 

 

Issue

Current situation

Discussion paper

Submissions

1

Role statement and legal status Should a new Act say something about the role and functions of New Zealand Police?

The 1958 Police Act contains no purpose or role statement for Police. It is also silent on Police's legal status as instrument of the Crown.

Proposed introduction of a carefully-drafted function statement in a new Policing Act, and confirmation of Police's legal status.

General support for a function statement in new Act, with a broad, rather than a narrow, statement of Police's role. Confirmation of Police's legal status in Act also endorsed.

2

Policing a shared responsibility Should a new Act reflect the reality that Police is not the sole contributor to safe and secure communities?

Current Act silent on the contribution of others to policing.

Suggested there be a clear statement that Police sits at the hub of a networked and co-operative policing environment, with key roles played by other enforcement agencies, local govt., and ordinary citizens.

Little specific comment generated. Several submissions endorsed the role the public can, and should, play in helping Police prevent and detect crime. Also enthusiasm for the contribution of local govt. to be recognised.

3

Idea of principles Should a new Act establish principles to help guide how policing is done in New Zealand?

No principles of policing contained in 1958 Act. (But the constabulary oath offers some hints.)

Identifies several principles of policing which might be given statutory recognition.

A clear majority of submitters supported the inclusion of such principles in a new Act. Strong endorsement of the policing principles included in the paper.

 

Effective policing for New Zealanders

 

 

Issue

Current situation

Discussion paper

Submissions

1

Command and control issues Should a new Act deal more directly with how the chain of command works within Police?

Arrangements for command and control currently set out in regulations. Also not as definitive as they could be.

Proposes to elevate command and control features to statute, and deal more clearly with issues such as obedience to superior orders and working in multi-agency settings.

Few comments made on this issue. Of the submissions which did address this point, most favoured a new Act bringing greater certainty to this area.

2

Allocation of policing powers How might a new Act best allow for appropriate powers (and protections) to be assigned to different categories of Police staff?

Current Act enables some powers to be assigned by warrant, but not search and arrest. Mainly relies on powers flowing to staff from being sworn as constables.

Suggests broad categories of Police employees who might receive targeted powers (incl. search and arrest) be set out in statute, and linked to skills and training.

General support for improving the system for allocating targeted powers to Police staff. Some submitters emphasised the need to retain the office of constable.

3

Info. sharing Should policing legislation enable, or speed up, the legitimate sharing of information?

Current Police Act does not separately provide for sharing information; mainly dealt with under the Privacy Act 1993.

Carefully-framed amendments to the Privacy Act noted as an option being looked at in other legislative reviews.

Strong support for effective information sharing between law enforcement agencies.

 

 

Issue

Current situation

Discussion paper

Submissions

4

Identity checks Should new policing legislation enable faster identification of people being detained by police?

Provisions in the 1958 Act allow for people's identifying particulars to be taken, subject to some limitations (e.g., detainee must be "on a charge")

Suggested updating the existing provision, to remove reference to a person being "on a charge", potentially allow for particulars to be taken outside of police stations, and allow a wider range of biometric information to be used for checks.

Mixed views. More submissions supported the proposals than opposed them. But anxieties were voiced by some about identity checks being done at the roadside (although many concerns went well beyond what was proposed in the paper).

5

Searching visitors to police stations Should there be a specific power to search entrants to police-controlled buildings?

Current Police Act focussed solely on searches of people to be locked up in custody, rather than people visiting detainees, etc.

Noted assurances from legal advisors that adequate search powers can be exercised by consent.

Although public views were not specifically sought on this issue, a number of submitters nonetheless observed that a clarified search power would be useful.

6

'Move on' power Would a statutory dispersal power be a sensible addition to police's tool kit?

At present, there is no legislative basis for police to request a person to move away from danger, or away from a crime/crash scene.

Responses invited on whether New Zealand police should have access to a 'move on' power, similar to in other jurisdictions.

No clear consensus among submitters, but majority support for such a power. Strong opinions were voiced against and for the proposal.

7

Handcuffing Should handcuffing by police be legally presumed to be a reasonable use of force, unless there is evidence to the contrary?

Currently no specific statutory authority for the use of handcuffs by police. Handcuffing must be justified on a case-by-case basis.

Idea floated that police use of handcuffs might be legally presumed a reasonable use of force; but this legal presumption could always be rebutted on a case's specific facts.

Support shown for providing greater legal certainty for police's use of handcuffs. But some anxiety that such a step may result in police using handcuffs more often.

8

Police assisting the incapacitated Should the power to assist the drink- and drug-affected people be moved to the Policing Act?

The power to help incapacitated people is currently set out in the treatment-focussed Alcoholism and Drug Addiction Act, not Police Act.

Proposed to transfer the ADA Act power to a new Policing Act. Suggestion also made to resolve difficulties with 12 hour maximum 'sobering up' time.

Majority support for proposals. Some who voiced concern did so on the basis of not wanting to overburden police with a role others could (and should) perform.

9

International policing activity Should the new Act mandate Police's co-operation with enforcement agencies overseas?

The 1958 Act is silent on the role New Zealand Police plays internationally and does not give express support to information sharing.

Idea floated that new Act might expressly enable appropriate co-operation between New Zealand Police and enforcement agencies overseas.

Very few comments made in submissions on this possibility, but none opposed the idea.

10

Covert policing Might the new Act give clearer recognition and support to covert policing activities?

No provisions in the 1958 Act address covert police work (although there is some mention in other legislation, eg. Evidence Act 2006).

Suggestion made to formalise the use of assumed identities by authorised Police staff.

Did not attract a lot of comment. Of those who submitted on this, most welcomed the prospect of greater legislative support for covert policing work.

 

 

 

 

 

 

Issue

Current situation

Discussion paper

Submissions

11

Legal protections for tactical staff Should the work of Police's tactical groups be given greater protection?

Generic hazardous substances laws create doubt about aspects of the work of Police's tactical groups (eg. use of distraction devices).

Proposal to replicate exemptions which apply to New Zealand Defence Forces re: the storage/deployment of explosive material.

No opposition to this scenario raised in the submissions, although very few responses on this issue were made.

12

Identifying police Might the new Act provide greater assurances about the status of people who present as Police employees?

No basis in 1958 Act for a formal ID card or warrant system.

Proposal to implement a warrant card system for all staff entitled to exercise policing powers. Also, warrant card to be linked to employment status.

Strong support for proposals.

13

Protecting against impersonation How might the new Act best protect against misuse of the Police name, uniform, and other branded items?

Current Act contains offences relating to personation of police (albeit with relatively low penalties). Little ability to protect against misuse of the name "Police".

Recommendation that penalties for relevant offences be increased, reinforcing the gravity of such offences. Also proposal for a consent system to manage use of the name "Police".

Proposals supported by most submissions addressing this issue.

 

People in policing

 

 

Issue

Current situation

Discussion paper

Submissions

1

Good employer Should a new Act clearly state the Commissioner will act as a "good employer"?

Under the 1958 Act, the Commissioner is only obliged to follow the good employer principle "as closely as possible".

Proposes to remove the qualification to the full good employer principle.

Overwhelming support for the Commissioner of Police to be held to the same standard as all other state sector employers.

2

Employee vetting Should a new Act allow for enhanced pre-employment vetting of aspiring Police staff?

Present Act does not contain provisions on vetting. Criminal Records (Clean Slate) Act 2004 applies to unsworn employees, but not constables.

Strengthened checks proposed in relation to scope of Clean Slate Act, routine collection of biometric data from all Police staff, and use of new financial/ integrity statements.

Support for enhanced vetting processes, but questions whether they would need to be legislated for. Some concerns about wider collection of biometric information from staff.

3

'One Police' idea Should a new Act, as far as possible, unify all Police staff under a single workforce model?

Current Act divides employees into two categories - sworn and unsworn staff. Approach impacts in various ways (eg. different systems for managing conduct).

Proposes to create a single employment framework for all staff, supported by a solemn undertaking all staff would take, and introduction of one Code of Conduct.

Clear support for more unified approach in a new Act, so long as office of constable not 'muddied'. Also general level of comfort with Police being covered by the ERA in most cases.

4

Role of constable How might a new Act strengthen the office of constable?

Constables dealt with often indirectly in 1958 Act. Ability to appoint "casual" and "temporary" constables (used for roles like jailers and prisoner escorts).

Proposes to reserve the office of constable to fully qualified staff, with targeted powers able to be assigned to staff for defined roles (instead of swearing them in as constables).

Solid support received for greater assurance about who holds the office of constable, and for limited powers roles to be enabled by new policing legislation.

 

Issue

Current situation

Discussion paper

Submissions

5

Registration Should a new Act build on Police's existing certification system, and pave the way for a full professional registration model?

Virtually no detail in 1958 Act about need for prior training etc. before staff may undertake certain functions (with the sole exception of Police dog handlers).

Views sought on the possibility of making future provision for a Policing Registration Board, to support a system of registered practitioners who are certified in key skills.

General endorsement of taking steps to lift recognition of policing as a profession, underpinned by more robust training.

6

Lateral entry Should a new Act contain provisions enabling for inward and outward staff movements?

Secondments to and from Police not a feature of 1958 Act.

Suggests there might be value in a new Act expressly allowing for secondments to and from Police.

Little specific comment generated, but general support in submissions which addressed this issue. Some questioned the need for legislation.

7

Leadership Should a new Act explicitly encourage the development of leaders/managers?

Development of senior staff not a feature of 1958 Act.

Suggests there might be value in confirming the Commissioner's responsibility to develop senior staff.

General support for the proposed provision, but again little specific comment generated. Need for legislation was again questioned.

 

Platforms for success

 

 

Issue

Current situation

Discussion paper

Submissions

1

Details relating to Commissioner and Deputies How should a new Act deal with the appointment, tenure etc. of the top office holders? Should there be a fuller description of the Commissioner's role in a new Act?

Under the 1958 Act, the Comm. and any Deputies are appointed by the Governor-General, serve 'at pleasure', and may delegate functions. Default rule for when Acting Comm. is required. Only limited role statement for Comm.

Proposes to be much clearer in legislation about details relating to the Commissioner and Deputies. Basic approach to lift up the current conventions into statute, or bring across provisions from the 1992 Regulations up to the primary Act.

Few submissions dealt with these issues in detail. Most seemed to be comfortable with specific proposals in discussion paper. Some support evident for prior policing experience to be a statutory pre-requisite for appointment as Comm. or Deputy.

2

Commissioner/ Minister rel'ship Should a new Act define parameters of the relationship between Minister and Commissioner?

Virtually no guidance on the relationship between the Minister and Commissioner in the 1958 Act.

Proposes a new Act reflect conventional understandings of the relationship, including the Commissioner's independence on operational matters.

Strong endorsement of clear statement in Act about freedom from political direction on operational matters.

3

Accountability for performance How might a new Act provide greater support for Police to be accountable for performance?

Standard supports not available to Police under State Sector Act 1988 (eg. advice on machinery of government issues). Subject to various ad hoc reporting rules.

Proposes to allow Police to benefit from greater SSC support. Questions whether a comprehensive Police Annual Report might be better than one-off reporting obligations.

Many supportive submissions, but little commentary. Seemed to be general support for reinforcing a strong culture of accountability for performance, esp. to local communities.

4

Inquiry power Should a new Act contain an inquiry-calling power?

Section 56 of current Act provides a power for the Minister to convene an inquiry.

Notes this power has never been used, and questions whether it remains necessary.

Support to roll-over the existing power, so long as the Commissioner is also able to set up an independent inquiry.

 

 

Issue

Current situation

Discussion paper

Submissions

5

Regulations Can more technical issues be put into regulations, rather than a new Act?

Broad empowerment in the 1958 Act to pass regulations, but only one current set of regulations issued.

Suggests updating current regulation-making power in Act, and transferring more detail to regulations.

Broad agreement on proposed approach.

6

Industrial options Should a new Act continue to prohibit the right to strike for sworn police, balanced by special wage bargaining arrangements?

Prohibition against strikes and lockouts set out in 1958 Act. Legislated approach to wage bargaining, using compulsory conciliation and final offer arbitration.

Proposes a new Act extend the limitations on industrial action to all Police employees, retention of final offer arbitration system, but additional balance in arbitration criteria.

Most welcomed assurances about the continuity of policing, but did not go into detail. Some opposed any limit on the right to strike, or widening the ban to all Police staff.

7

Decisive action to remove staff Might a new Act allow employment action to be taken against Police staff, despite any parallel legal proceedings?

Present Act allows for dismissals due to "incompatible behaviour", linked to disciplinary process. But no equivalent to powers in overseas legislation re: loss of confidence removals.

Proposes the new Act allow a Commissioner to dismiss staff if, due to their competence, integrity, performance or conduct, they are not suitable to remain in Police. This would be a separate to the Code of Conduct processes.

Some strong opposition to aspects of the proposal, based on perceived natural justice concerns, but also some support for the Commissioner to be able to take decisive action to maintain confidence in Police.

 

Anticipating the future

 

 

Issue

Current situation

Discussion paper

Submissions

1

Reducing bureaucracy Could a Bill leading to a new Policing Act be a vehicle to allow infringement notices to be used to deal with more low-level offences?

The ticket option is typically listed in the legislation creating offences (eg. Sale of Liquor Act 1989). Not all lower-level offences can be dealt with by 'on the spot' tickets at present.

Notes parallel reviews are examining the infringement system. Asks whether there might still be value in adding to police's tool kit ahead of these reviews (eg. for liquor ban bylaw breaches).