Office of the Minister of Police


Chair

Cabinet Policy Committee


POLICE ACT REVIEW - PAPER 1: OVERVIEW AND PRINCIPLES


Purpose


    1. This is the first of six companion papers through which Ministers are invited to make policy decisions about new policing legislation. It provides an overview of the suite of papers, as well as dealing substantively with principle-based aspects of the proposed new Policing Act.

Summary


    2. The Police Act Review, underway since March 2006, has resulted in a package of proposals for new policing legislation. Ministers are invited, through six linked papers, to make policy decisions on the shape of replacement legislation:


3. This paper provides a high-level overview of all six Cabinet papers, which collectively outline the proposed elements of a comprehensive, modern, Policing Act. The Committee is invited to note the elements of the proposed new policing legislation, and to agree to the inclusion of a role statement for New Zealand Police and guiding principles of policing in the draft legislation.


Background


4. At its meeting on 15 August 2007, the Cabinet Social Development Committee:


1. noted that in March 2006 the Cabinet Social Development Committee agreed to a wide-ranging review of the Police Act 1958 and Police Regulations 1992;


2. noted the completion of the review's second main phase of public consultation, following feedback received in June and July 2007 on the Policing Directions in New Zealand for the 21st Century discussion paper;


3. noted that key themes to emerge during consultation included a desire for police to give priority to local policing, endorsement of statutory policing principles and encouragement to explore a range of measure to enable effective policing, as well as the importance of police being free from political direction on operational matters and differing view on the potential to recover costs for special policing services;


4. noted that the Policing Bill holds a category 5 priority on the 2007 Legislation Programme (instructions to be provided to Parliamentary Counsel Office in 2007);


5. noted the Minister of Police intends to submit, during September 2007, a suite of papers to the Cabinet Policy Committee seeking decisions on the content of the Bill.

[SDC Min (07) 13/3]


5. As signalled, this is the first of a set of papers through which I invite Ministers to make decisions on the broad shape and content of new policing legislation.

Overview of linked series of Cabinet papers

    6. To briefly introduce the scope of the papers which will be put before Ministers, the following overview and discussion of linkages may be of assistance.

    Paper 2: Governance and accountability


    7. Paper 2 explores options to strengthen New Zealand Police's governance and accountability arrangements. It contains proposals to:

    Paper 3: A modern Police workforce structure


    8. Paper 3 focuses on the Police Commissioner's ability to employ a workforce with the range of skills, powers and protections needed to meet current and future policing demands. It contains proposals to:

    Paper 4: Employment relations arrangements


9. Paper 4 is closely linked to Paper 3. It contains detailed proposals relating to:

    Paper 5: Support for effective policing


    10. Paper 5 sets out proposals to directly support frontline policing through access to clear powers and protections. It principally covers areas of current policing practice and existing law which can carry forward to a new Act, in some respects with updated language or minor change. Approval is also sought to transfer a small number of Police-related provisions in other statutes to a new Policing Act, and consequentially amend non-Police legislation to offer a firmer legal footing for one highly-specialised police activity. Linkages with other policy work streams are also noted. The specific proposals in Paper 5 seek to:

    Paper 6: Administrative and miscellaneous matters


    11. Finally, Paper 6 addresses various administrative issues, such as a regulation-making power for the new Policing Act, and details relating to police practices like the execution of Court processes. Largely, these are matters covered by provisions in the 1958 Police Act or 1992 Police Regulations which it is proposed to roll over into a new statute or regulations with updated language.


Confirming the role of Police


12. A natural starting point when developing new legislation to help meet the challenges of modern policing is to confirm the role of New Zealand Police. One of the curious features of the 1958 Act is it says almost nothing about the functions of Police. This is at odds with contemporary departmental statutes in this country, as well as police-specific legislation in other countries.1


13. From a public law perspective, it seems unsatisfactory for the role of an agency as significant as New Zealand Police not to be set out in primary legislation. Including such a purpose statement in a modern Act would allow democratic input to the organisation's reach, which may assist in renewing its mandate in key areas. It could also help in assessing Police's performance, as the lack of clearly defined roles can make it more difficult for both Police and government to understand and act appropriately in their respective areas of responsibility. Furthermore, a purpose statement would provide a firm bedrock which Police could build on with confidence when developing various strategies and policies.


14. For these reasons, I agree with constitutional commentators "it would be helpful to attempt a statutory statement of the Police role and purpose in the Police Act".2 These matters should be dealt with directly rather than indirectly. The question is how to capture the essence of what Police does in legislative language, striking a balance between being either too detailed or too vague.


15. I believe a new Act should acknowledge New Zealand Police has a broad role. This would help reflect the duties of police constables, each of whom currently takes an oath under section 37(1) of the 1958 Act to "see and cause … peace to be kept and preserved [and] … prevent … all offences against the same … according to law". As the constable's oath makes clear, at the heart of policing in New Zealand is a drive to maintain order and support a peaceful society. Providing assistance to those in need is another traditional police role – be that helping people who are incapacitated, through to responding to incidents, coping with emergencies and managing crisis situations. Investigation, crime prevention and road safety work have also been traditional staples of policing.

16. Within this wide-ranging role, New Zealand Police needs to operate up to the national level and beyond. Cross-border crime like drug trafficking can impact on local communities, making it sensible to concentrate some Police efforts off-shore. In a globalised age, this side of the policing mission has expanded, with increasing effort going into transnational crime and counter-terrorism initiatives. New Zealand's police are also increasingly being looked to to help restore stability after unrest in places like Timor Leste and Solomon Islands.


17. It is appropriate these accepted policing roles be recognised in the legislation which governs New Zealand Police. Without going down the track of amassing a prescriptive list of functions, which may inadvertently invite legal challenges if a given role is not specifically named, I propose the new Act confirm Police's mandate includes, but is not limited to, the following key domains of activity:

    Acknowledging the contribution of others

18. Policing legislation should also reflect that New Zealand Police does not have a monopoly on policing. Successful policing relies on a range of partner organisations, as well as the efforts of individuals, families and communities. This has been true since the arrival of the first constables in New Zealand during the 1840s, who worked alongside traditional Māori forms of authority and incorporated elements of indigenous social control (pirihimanatanga). I propose the new Act reflect this reality by including language which explicitly locates Police within a networked and co-operative policing environment. Specifically, I have in mind to recognise the contribution of other enforcement agencies, local authorities and the wider community as key partners for Police.


19. At central government level, Police sits at the hub of various state agencies which contribute to public safety through their lead or joint responsibility for enforcing the law under particular statutes. Highly-visible examples include work by the New Zealand Customs Service and Ministry of Fisheries. Support is also provided by a range of specialist enforcement units within agencies like the Department of Internal Affairs (which, for example, spearheads efforts to tackle pornography and gambling-related offences). Another key partner is the Ministry of Justice, which amongst its many roles coordinates the overarching Justice Sector Outcomes, and oversees a licensing system for the growing professional network of security personnel and private investigators. I believe Police's new Act should acknowledge these important contributions by other government agencies to the business of policing.


20. Local authorities have a particular community safety role to play under the Local Government Act 2002, and have a number of levers they can use to make a positive difference on crime and disorder - for example, by investing in good street lighting or crime prevention closed circuit television (CCTV) cameras. To recognise the constructive role local authorities can play in supporting the social well-being of communities through crime prevention and safety services, I propose the new Policing Act include a provision which points to the value of joint work on community safety by police and local authorities. The intention would not be to force local connections; it would simply acknowledge the role local authorities can play in helping to deliver safe and secure communities, and possibly prompt closer engagement between police and local government.


21. The roles the private security industry and members of the public can play should also be acknowledged. Policing at a community level is most effective when it is done with the active involvement of citizens. Police's leadership of efforts to ensure public safety and security continues to be assisted by the community sector, for example support from Māori and Pasifika wardens. Information provided by the public or via security personnel is also vital in helping police tackle many problems – from minor offending (e.g., 'tagging') to organised crime (e.g., the existence of illegal drug manufacturing operations). Just as people have a right to live in safe and secure communities, citizens have a reciprocal obligation to personally uphold the law, and arguably help support whole-of-community efforts to minimise offending and victimisation.


22. To recognise the collaboration needed to achieve community safety, policing legislation can reinforce this sense of shared endeavour. For example, section 6(2) of Queensland's Police Powers and Responsibilities Act 2000 provides: "it is not the purpose of this Act to affect the principle that everyone in the community has a social responsibility to help police officers prevent crime and discover offenders". I propose a similar sentiment be included in this country's new Policing Act, by referencing the fact all citizens can help uphold the law, keep the peace, prevent crime and crashes, and bring offenders to justice.

    Principles of policing

    23. Policing in New Zealand operates in large measure by popular consent. Public trust and acceptance of the legitimacy of Police actions are pre-requisites for achieving that consent. Vital to maintaining the legitimacy of Police in the eyes of the public is an understanding that policing is done in a principled way.

    24. But what are the principles by which policing should be done in New Zealand? The 1958 Police Act says nothing about the principles which underpin policing. Again, this puts New Zealand's legislation out-of-step with many overseas police statutes.3 In my view, filling this gap and putting principles of policing into a new Policing Act would provide a helpful source of guidance about how New Zealand's police go about their wide-ranging role.


Policing with co-operation

    25. Several underlying principles of policing have stood the test of time, and have been endorsed by New Zealanders from all walks of life during the Police Act Review. Fundamental concepts which endure include accountability of police to the law, independence from political control over operational policing matters, and a commitment to act with total integrity. The nine principles of policing attributed to Sir Robert Peel in 1829, when London's Metropolitan Police first began walking the beat, also continue to be seen as a benchmark by many.

    26. I believe the new Act should include principles relevant to New Zealanders. First, I propose to draw forward Peel's idea "the police are the public and the public are the Police". This concept of 'citizen police' is a very powerful one. It suggests policing of the public by the public, and emphasises how a police service like New Zealand's is made up of people who have taken on a personal responsibility for protecting their fellow citizens, with and through the support of their community. The style of policing in New Zealand which has been able to develop because of the close relationship between police and the public has many positive features. For example, a characteristic of New Zealand policing which is admired by many, and contributes to a sense of national identity, is having a police service which does not routinely carry guns.

    27. My proposal is to reflect New Zealand Police's heritage as an organisation which does not stand apart from the community, by referring in the new Act to the tradition of policing with public support and co-operation. While some provisions exist in overseas policing legislation which express a similar ideal,4 I believe such a principle has particular resonance in this country and deserves to be recognised in legislation.

    28. Other principles of policing identified as important in a New Zealand context, which I propose be included in a new Policing Act, are set out more fully below.


National reach with a local focus


29. A defining feature of this country's policing is national coverage, rather than regional or local police forces operating their own policing systems. Not only does the unified police service model avoid some of the jurisdictional conflicts and duplications seen elsewhere in the world, it creates a basis for consistency in key areas of practice.


30. A whole-of-country approach also protects against the dangers of policing decisions being made solely on the basis of local wishes. Localised approaches to national laws risks variation between different parts of the country, which can create uncertainties in the public mind, and lower overall respect for the law and Police. This is another important reason why New Zealand Police rightly maintains a national overview, and has the operational independence necessary to make decisions about where and when to deploy Police resources.


31. In saying this, maintaining a cohesive national policing organisation need not detract from a local focus. Despite its national character, the New Zealand way of policing has allowed meaningful connections to be built between police and communities at the local level. This should continue. My proposal would be for a statutory principle to be drafted which encourages development of strong links with local people within a nationally-organised policing framework.


Respect for human rights and diversity


32. Another core expectation of police is they treat people fairly, regardless of their personal backgrounds. All New Zealanders are equal under the law, and in their unique position upholding the law, constables take an oath to protect other citizens "without favour or affection, malice or ill-will". Police also have specific statutory duties to act in ways which are consistent with the New Zealand Bill of Rights Act 1990 and Human Rights Act 1993. The theme binding these overlapping obligations is a commitment to a consensual style of policing. I propose this be reflected as a statutory principle about respecting human rights and valuing the diversity of the community.


Impartiality and freedom from improper control


33. The political neutrality of police is a settled part of New Zealand's constitution, and impartiality and freedom from improper direction are core policing values in this country, as elsewhere. There is a long line of authority which confirms police are operationally independent of the government of the day, and Ministers cannot involve themselves in or direct how police operations are conducted. This operational independence is closely linked to the independence guaranteed to all police constables, whose duty to preserve the peace and prevent offences against the peace does not yield to political considerations.5


34. I propose to include a clear statement about police impartiality in the new Act. New Zealanders should have confidence police will do their jobs in the best interests of the whole community, not just certain sectional interests. Independence from the political process is especially important; not just to ensure separation of powers between the legislative and executive branches of government, but also to support public trust in a non-partisan style of policing. Any hint of political interference in operational policing can have a highly corrosive effect on public trust and confidence. No less so than for other powerful state agencies, Police's political neutrality should be affirmed.6 A good way to do so would be via recognition as a statutory principle of policing.


Personal and professional standards


35. Those who put themselves forward to serve in Police are expected to model high standards of ethics, integrity and conduct. This is a legitimate expectation of people who hold privileged positions, and who in many cases have access to special powers and protections. With these special positions, powers and protections comes a responsibility to act professionally and with total integrity at all times. To this end, the professional standards New Zealanders expect of their police have been confirmed by public research and the extensive Commission of Inquiry into Police Conduct.7 Accordingly, I propose maintaining appropriate standards be one of the guiding principles in the new Policing Act.

      Comment

      36. Some commentators raise concerns about including principles of policing in legislation. Feedback received during earlier phases of the Police Act Review has drawn attention to the possibility that codifying principles in a Policing Act may have unintended and undesirable consequences, particularly in terms of litigation risks. While respectful of this viewpoint, I remain unconvinced by it.

    37. Incorporating principles in legislation is becoming more common. In some cases, principles specify considerations to be taken into account when acting pursuant to the legislation.8 Where these types of principles are concerned, there is a risk that actions which are inconsistent with the statutory principles, or which do not have sufficient regard to them, may be open to judicial review. There are several examples of where expressions of statutory principles go beyond mere aspirational objectives and give rise to potential litigation risks.9 I believe such unintended consequences can be minimised by careful drafting.

    38. It could also be clarified in the proposed principles section of the new Act that its effect is not to impose new obligations. There are several precedents on the statute book which adopt an aspirational tone,10 and a principles section of the new Policing Act might follow a similar approach. Moreover, I believe it would be appropriate to expressly remove any perceived financial incentive to litigate on alleged breaches of the statutory principles. I have in mind here an equivalent to section 50(2) of the Victims Rights Act 2002, which provides: "No person (for example, the Crown in right of New Zealand) may be required (for example, by any court, tribunal, or other body) to pay any money (whether by way of damages, compensation, or otherwise) to any other person just because of a breach of any of the specified provisions".


Communication and publicity

    39. Following Cabinet decisions on all six Police Act Review papers, I intend to issue a media release which indicates Cabinet has agreed on the shape of new policing legislation, and to confirm the timeframes for an appropriate Bill to be introduced to the House. Continuing the transparent approach maintained over the last 15 months, I intend to make copies of all six papers available on the special Police Act Review website following Cabinet's approval.

Financial implications


    40. Costs associated with the Police Act Review are being met through baselines.

    Legislative implications


41. The Police Act Review will result in the repeal of the Police Act 1958 and the revocation of the Police Regulations 1992. A replacement Policing Bill was awarded a category 5 priority (instructions to Parliamentary Counsel in 2007) on the government’s 2007 Legislation Programme [CAB Min (07) 7/1A refers].


Regulatory impact analysis


42. A regulatory impact analysis is not required.


Human rights, Privacy Act, Bill of Rights and Treaty of Waitangi implications


43. The proposals outlined in this paper have no specific Privacy Act 1993 or Treaty of Waitangi implications, and appear to be consistent with the New Zealand Bill of Rights Act 1990. Proposing one of the statutory principles to guide policing in New Zealand be "showing respect for human rights" is broadly consistent with Police's obligations under the Human Rights Act 1993. A final view will be possible when the proposed new legislation has been drafted, and justificatory material is provided and considered. Police officials will continue to work with officials from the Ministry of Justice in this regard.

Consultation

44. The State Services Commission, Treasury, Department of the Prime Minister and Cabinet, Ministry of Justice, Crown Law Office and Law Commission were consulted on this paper. A draft of the paper was also shared with the two main groups which represent Police employees (the Police Managers' Guild Inc. and New Zealand Police Association) and also the Police Complaints Authority.

    45. The Law Commission has asked for the following comment to be included:

Cabinet is asked to agree to recognition in the new Act that policing is a shared responsibility, and in particular, that the contributions of citizens, local authorities, and other government agencies should be specifically recognised. Cabinet is also asked to agree to the legislative confirmation of five policing principles. Depending on how these policy approvals are translated by Parliamentary Counsel in the drafting of the Bill, we would have a concern that there is a potential to give rise to litigation risk. On the language included in this paper, we do not perceive a large risk. However, care will be necessary to ensure that this is not inadvertently altered in drafting or at select committee.


If the absence of, or minimal, litigation risk can be ensured, it might be thought that there is little harm, and much to be gained from some non-legal perspectives, by the inclusion of non-binding principles. However, the Law Commission considers that legislation should not be used to state moral or social duties, express matters of administrative good practice, articulate aspirations, or state facts. Legislation is for making law, and creating and regulating legal rights and duties. If the principles do not achieve this, then we consider that they are not proper matters for inclusion on the statute book. The framing of the proposed principles, their supporting provisions (such as those outlined in rec 9 [below]), and our analysis of the corresponding absence of litigation risk, suggests that they are not intended to be legally binding.

Recommendations


46. The Minister of Police recommends the Committee:


Background


1 note in August 2007, Cabinet Social Development Committee noted the Minister of Police intends to submit, in September 2007, a suite of Cabinet papers seeking decisions on new policing legislation<