Office of the Minister of Police


Chair

Cabinet Policy Committee


POLICE ACT REVIEW - PAPER 5: SUPPORT FOR effective policing


Purpose


1. This paper sets out proposals to directly support frontline policing. It is the fifth of six papers through which Ministers are invited to make policy decisions about the content of new policing legislation.


Summary


2. The Police Act Review has identified ways legislation could better support the work of Police staff by providing access to clearly-defined powers and protections. This paper discusses ways to preserve and formalise features of Police's current operational environment, in particular by carrying forward elements of Police's existing legislation, or giving statutory backing to well-accepted police practices. Key provisions recommended for inclusion in the new Policing Act are:


3. Approval is also sought to transfer a small number of Police-related provisions in other statutes to the new Policing Act, and to consequentially amend non-Police legislation to provide a firmer legal footing for a highly-specialised police activity (deployment of explosive material by Police's tactical groups). In addition, it is proposed to better enable lawful use of assumed identities during covert policing.


4. Ministers are invited to agree to this package of proposals, and agree to appropriate enabling provisions being included in the planned new Policing Act.


Background


5. Police's ability to tackle crime and disorder, and to contribute more broadly to community safety, relies on access to effective and proportionate powers. Also important is the ability for Police staff to discharge their duties with the backing of certain protections. Yet it is important not to over-state the place of powers and protections in a new Policing Act. For a start, almost all statutory powers exercised by police are located in legislation administered by other agencies (e.g., the Crimes Act 1961 and Summary Offences Act 1981). Formal use of legal powers is also not the dominant feature of day-to-day policing. Nonetheless, the understanding an array of legal powers can be invoked, if needed, normally encourages compliance with police instructions without the need for compulsion.

6. During the course of the Police Act Review, opportunities have been identified to clarify and modernise current powers and protections available to Police staff. An example is the power under section 57 of the 1958 Act, which allows police to take identifying particulars from suspected offenders. A crucial threshold before this power can be invoked is that detainees must be "on a charge". This is unhelpful, because the word "charge" does not have a fixed legal meaning, and in everyday speech applies to various steps leading to a prosecution. Carrying across the section 57 power to a new Act gives a chance to clarify its application.


7. Development of new policing legislation also creates opportunities to support other accepted police practices. For instance, because it was drafted in an era when such co-operation was less common, the 1958 Act does not clearly enable New Zealand Police's international activities. A new Act can put Police's role in international law enforcement co-operation on a firm footing, offering a more certain operating environment for police and the public. Extra visibility could also come from the new legislation incorporating provisions of two small Acts which deal with dimensions of Police's international work - the United Nations (Police) Act 1964 and the Crimes and Misconduct (Overseas Operations) Act 2004.


8. The 1958 Act also contains a small number of Police-specific offences, such as injuring a police dog without lawful excuse. While some of these offences have already been refreshed, others can be updated with penalties which better reflect relativities in modern New Zealand legislation. Indeed, at least one current Police Act offence could be repealed, because it has been overtaken by more recent legislation - namely, section 55 of the current Act (containing an offence of bribing members of Police) is now covered by section 104 of the Crimes Act (featuring a generic offence of corruption or bribery of a law enforcement officer).


9. Opportunities to update the powers and protections available to police have been subject to careful scrutiny and extensive consultation. There is support to carry across some powers and protections in a new Policing Act, despite a consensus that the bulk of police powers and protections should be spelt out in non-Police legislation. Looking forward, proposals fall into two categories: those involving a 'roll over' of current provisions, or giving statutory backing to well-accepted police practices, and proposals for new or significantly strengthened protections. The way I propose new policing legislation address these two areas is as follows.


Command and control of Police


10. Currently, command and control arrangements for Police are set out in the 1992 Police Regulations (regulation 5), but they sit in an unclear relationship with the independence of the office of constable. This lack of clarity is unhelpful, as it can raise doubts about a senior officer's ability to direct staff to go to certain places and carry out certain duties. A related issue is the lack of certainty regarding command and control decisions involving non-sworn Police staff, including whether they can legitimately direct the actions of sworn colleagues. Increasingly this has become a practical issue, as non-sworn staff in Communication Centres often need to give directions to field staff in order to respond to calls for service.


11. I propose command and control features currently in Regulations be elevated to statute. Added clarity will come by identifying all Police employees work in a chain of command, including any overseas officers who join New Zealand Police temporarily as part of a formal exchange (a point reinforced by the unified Police workforce model detailed in Paper 3). The end result will be a clear statement all Police employees must obey the lawful commands of their superiors, and not act under the control, direction or instruction of any Minister or any other person.

12. Further, there should be no doubt about a senior officer's ability to give binding orders during a police operation, or the Commissioner's ability to instruct staff to follow certain courses of action when carrying out duties in his or her name. There should also be no doubt about the Commissioner's ultimate authority to direct who takes charge of a particular policing operation, with the ability in extraordinary situations to relieve an officer of command (an existing ability which is accepted in practical terms, but could be made clearer in legislation). I propose these command and control features be clarified in the Policing Act.


13. While it is appropriate to reinforce the Commissioner's role as commander of the constabulary, it is important to note that in certain circumstances lawful tasking of Police staff might come from outside the Police command structure. There are few scenarios when this would apply, but the possibility should be acknowledged. For example, section 9(2) of the Civil Defence Emergency Management Act 2002 anticipates that, during a declared state of national emergency, the Director of Civil Defence Emergency Management may co-ordinate the use of any Police personnel made available by the Commissioner, to help restore critical services and provide assistance to the public. Rather than there being any blanket empowerment of such arrangements in Police's new Act, these exceptional situations can continue to be clarified within the context of the specific legislation.


Identification of Police


14. To provide strengthened assurances to New Zealanders about the status of people presenting as Police employees, I propose to implement a formal warrant card system for all Police employees who are entitled to exercise policing powers. Staff without such powers will continue to hold Police identity cards; the legal status of which will be spelt out in legislation (similar to the way this is done for other enforcement agents - e.g., section 7 of the Customs and Excise Act 1996).


15. The proposed warrant card will positively support the reputation of those working for Police, and provide ready evidence of their policing powers. A link will be made to employment status, so if a Police employee is stood-down, suspended, discharged, resigns, retires, or goes on leave without pay, the warrant card will be retrieved. This will formally identify when a Police staff member ceases to hold powers, and can usefully be paired with an explicit provision to that effect. Currently, a determination of when policing powers cease is provided by section 44 of the Police Act 1958. The basic thrust of that section can be carried forward.


16. I also propose to strengthen protections against impersonating police, especially by unauthorised use of uniforms, identity cards and other Police-branded items. In addition, I intend to more directly protect against misuse of the word "Police". Provisions in the 1958 Act already seek to prevent non-approved use of Police insignia and trading off the name "Police", although the maximum penalties for the relevant offences appear low in comparison with those available for similar types of offences.1 An indication, perhaps, of the lack of deterrence offered by the current penalties comes from the number of people who try to impersonate police. In the past decade, on average around 40 offences of "personating police" are recorded each year. Such offences, especially in the current climate of increased awareness about security risks, have the potential to be very serious.

17. To communicate the seriousness of this type of offending, I believe a significantly higher level of fine and/or longer custodial sentence is appropriate. My proposal is to increase the maximum penalties for this offence to a fine not exceeding $15,000, imprisonment for a term not exceeding 12 months, or both. This is in line with the increased penalties Cabinet recently agreed to for equivalent impersonation offences under proposed new immigration legislation.2


18. It is also sensible to protect against misuse of the term "Police". Contexts where this can be damaging include use in advertisements and operating names of businesses which infer an official endorsement. To strengthen existing protections, while still allowing for legitimate uses to continue, my intention is to introduce a consent system, similar to that used in New South Wales, so the Commissioner of Police can give conditional approval to use the term "Police". This will allow legitimate uses to continue for approved organisations, like the Police Pipe Band. The wording of the legislation will clarify no other person or organisation can carry on any activity or operate under the name "Police" unless they have the prior written consent of the Commissioner of Police. With careful drafting, drawing on existing international precedents, I believe it will be possible to design a consent system which offers sensible and needed protections, but which does not chill otherwise valid expression of ideas about New Zealand Police.


Enabling speedy and positive identification of people being detained by police


19. I further believe a number of common-sense revisions should be made to current provisions in the Police Act which enable police to confirm the identities of people who have been lawfully detained. This is an important part of effective frontline policing, with some offenders treating identity checks as a 'cat and mouse game'. Last year in New Zealand there were nearly 1,000 incidents where people charged with offences gave an innocent person's identity, or provided a fictitious identity. This type of offending impacts heavily on the justice system by wasting precious time and resources. Not only are alleged offenders free to carry on committing offences as their true identity remains unknown (until the law catches up with them), innocent people are sometimes left having to disentangle themselves from charges which should not apply to them.


20. Ways to improve the identification of people detained by police were canvassed as part of the Police Act Review, with discussion of how to better protect citizens' rights by reducing opportunities for criminals to misuse other people's identities. Attention focussed on whether current legislative provisions are fit for purpose, in particular section 57 of the Police Act, which is triggered when a person "is in lawful custody on a charge of having committed an offence", and "the person in lawful custody is at a police station, or on other premises, or in any vehicle, being used for the time being as a police station". Based on the analysis done as part of the review, there are three revisions I believe it would be appropriate to make when carrying forward an equivalent to section 57 in the new Policing Act.


21. First, I propose the language in the operative provision should continue to take a technology-neutral stance by referring simply to "any identifying particulars". This leaves open the possibility of being able to confirm identities using more advanced techniques as they are developed. This is a logical carry-over, and reflects the underlying interest the state has in being certain of the identity of people who are lawfully detained.


22. Secondly, I propose Police be provided with a new power of detention to enable particulars of identity to be obtained in situations where there is good cause to suspect a person has committed an offence, which in turn means grounds exist to summons or arrest. The period of detention would be limited to a period reasonable for the purposes of obtaining the particulars of identity only. This alters the current requirement for detainees to be "on a charge" before particulars can be obtained. In practice, it will remove the perceived incentive to arrest suspects and take them into custody to obtain particulars of identity and ensure they are positively identified. Making arrests for these purposes may not be necessary or desirable in all circumstances (e.g., for historic fraud offences). When paired with the ability to identify people in remote locations (discussed below), making this change will increase the opportunities for frontline police to make use of the summons procedure to have suspects answer charges in Court. While the detention power is new, the object of the power (obtaining particulars to enable certainty over the charging process) remains the same.


23. Thirdly, I propose to allow more flexibility as to locations where particulars can be taken. The current language of "at a police station" made sense in previous decades when a police station's single camera was a scarce commodity (and was bolted to the wall), and rolling inked impressions was the only way to obtain fingerprints. Development of cheaper mobile technology makes such identification processes more efficient. The 1958 Act already allows vehicles (such as roadside impaired driver testing buses) to be deemed as police stations. I propose the new Act continue this evolution, by authorising police to obtain identifying particulars without forcing suspects to be physically taken to processing facilities in police stations, or other places which are legally designated as police stations.


Additional safeguards


24. The ability to confirm the identities of people who have been lawfully detained already comes with safeguards, but I believe it is timely to update these as well to take account of legitimate privacy considerations. My proposals are as follows:


Acknowledging New Zealand Police's role in international policing


25. Effectively fighting crime and securing New Zealanders' safety requires Police to join forces with partner agencies at home and abroad. In areas like preventing drug trafficking and people smuggling, obvious benefits come from Police co-operating with overseas enforcement agencies like the Australian Federal Police, or organisations such as Interpol. To underpin this growing involvement in international policing, I propose there be a specific provision in the new Policing Act empowering Police to co-operate with foreign enforcement agencies, where it is in New Zealand's interests to do so, and it is consistent with New Zealand's obligations under domestic and international law. Such an enabling provision will remove doubt about Police's ability to co-operate with overseas law enforcement partners; for example, by sharing relevant information which has been lawfully obtained in New Zealand, and receiving similar types of information in return.


26. While some encouragement for international police co-operation can be read into existing laws (e.g., the Mutual Assistance in Criminal Matters Act 1992), there are a growing number of occasions where Police operate closely with foreign enforcement agencies, and information flows are increasing outside of the mutual assistance arena. Recent examples include deployments to restore stability in the Solomon Islands, disaster victim identification work after the tsunami in Southern Thailand, and multi-jurisdictional efforts to break up a large methamphetamine production facility in Fiji. Such valued international policing roles should have clear backing and protection in Police's foundational legislation.


27. In seeking to give New Zealand Police's offshore work greater visibility and support in its own statute, I also believe the time is right to bring together the provisions of two small Acts which deal with dimensions of international policing - the United Nations (Police) Act 1964 and the Crimes and Misconduct (Overseas Operations) Act 2004. The Acts are mainly concerned with ensuring Police staff serving offshore are subject to the jurisdiction of New Zealand Courts for any offences against domestic law committed overseas, and to ensure such staff are subject to standard New Zealand Police disciplinary processes. It is increasingly common for such matters relating to international service to be dealt with in other nations' policing statutes, and consolidation could also usefully occur here. I do not propose there be any changes to the operative provisions of either piece of legislation. It simply makes sense to incorporate the substance of the two Acts, each of which only contains eight sections, in a comprehensive new Policing Act.3


Other sensible consolidations


28. The example of bringing together provisions of two small Acts about off-shore policing prompts consideration of whether there are any other consolidations that could usefully occur. While accepting it is generally inappropriate for policing powers to be contained in Police's own Act, I am persuaded there is a good case to transfer a small number of police-related provisions in other statutes to new policing legislation. The provisions are largely enabling and none create offences. The first is section 342A of the Local Government Act 1974, which provides:


Temporary closing of roads by Police

Where the senior member of the Police for the time being in charge at any place has reasonable cause to believe that —

(a) Public disorder exists or is imminent at or adjacent to that place; or

(b) Danger to any member of the public exists or may reasonably be expected at or adjacent to that place; or

(c) An indictable offence ... has been committed or discovered at or adjacent to that place,—

he may temporarily close, for such period as is reasonably necessary, any road at or leading to or from or in the vicinity of that place, or any part of that road, to all traffic or to any specified type of traffic (including pedestrian traffic).

29. This provision is strongly backed by common-law duties police have to preserve order and keep the peace, protect life and property, and detect and bring offenders to justice. It therefore seems odd this policing power remains located in an Act addressing local government issues. In my view, it would be more logical and transparent if current section 342A were consolidated in the new Policing Act.


30. The second provision which might usefully be transferred into a new Policing Act is section 37A of the Alcoholism and Drug Addiction Act 1966 (ADA Act). Section 37A empowers constables to take anyone found publicly drunk or debilitated from other drug use to their home, a detoxification facility, or as a last resort to a police station for safe custody. This backstop power needs to be used depressingly often. Last year alone Police records show more than 15,000 people were assisted after becoming incapacitated due to the after-effects of intoxicants.


31. While a regularly-used policing power, section 37A sits oddly in a statute focused on treating people with substance use disorders (rather than ensuring the safety of those who typically have just abused alcohol or other drugs on an occasion), and could more comfortably be located in policing legislation. In proposing this transfer, I recommend there be an adjustment to the 12 hour maximum 'sobering up' time associated with the current ADA Act power. The level of incapacitation in people who abuse alcohol and other drugs sometimes lasts beyond 12 hours, and the current limit can cause practical problems. Accordingly, I suggest still-intoxicated people should be able to be held by police for a further period of up to 12 hours, if a medical practitioner judges it still unsafe to release them after an initial 12 hour period of detention.


32. Linkages with other traditional policing powers could also be highlighted in a new Policing Act. Opportunities for cross-referencing will be explored as the Bill is drafted, and guidance will be sought from the Legislation Design Committee. However, at a minimum, there is one police power I believe it would be helpful to make express reference to in the new Policing Act: the power to detain people who are found in public in distressed states, giving rise to psychiatric concerns.


33. This power is currently spelt out in section 109(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992. Because this policing power is directed towards facilitating examination of the distressed person by a medical practitioner, with a view to triggering other provisions of the Act, it would be inappropriate to migrate the provision as a whole into new policing legislation. To do so would divorce the power from its wider context. But helping people who are mentally distressed is one of a range of community support and reassurance roles performed by police, and it would be useful to signal this explicitly via an appropriate cross-referencing to the section 109(1) power in the new Policing Act.


Bringing forward existing sections of the 1958 Police Act and removing others


34. The current Act contains a small number of Police-specific offences, for example special provisions for police dogs and police dog handlers. Only minor changes to these existing provisions are sought, and it is possible in the final drafting of the new statute some sections can be more appropriately listed in regulations.



35. Of the offences listed in sections 49 to 55 of the current Act, four are useful to retain, with updated language, while one can be repealed. The sections proposed to carry over to the new Act are: section 49 - "Gaining admission to Police by false representation"; section 52 - "Unlawful possession of Police property"; section 53 - "Failing to give assistance to a member of Police"; and section 54 - "Unlawful dealings with prisoners". The section I suggest can be discarded is section 55 - "Bribing members of Police". This has been overtaken by section 104 of the Crimes Act 1961 ("Corruption or bribery of a law enforcement officer").


Providing greater certainty for operations by Police's tactical groups


36. I also propose to put the work of Police's tactical groups on a firmer legal footing. At present, generic legislation creates some doubt about the ability of specially trained police to deploy explosive items such as distraction devices in closely-confined areas (e.g., securing a building an armed offender is refusing to leave).


37. In line with an existing exemption for the New Zealand Defence Force in similar circumstances, I propose the deployment of explosive items by Police's tactical groups be exempted from the requirements of the Hazardous Substances (Classes 1 to 5 Controls) Regulations 2001.  Such an exemption can be achieved by a consequential amendment in the Bill leading to the planned Policing Act.  The exemption would recognise the impracticality of Police's tactical groups always meeting the strictures of the hazardous substances regulations. However, current safety requirements would be maintained, as the explosive items would continue to be deployed only by specialist staff and according to national Police guidelines.


Better enabling lawful use of assumed identities in covert policing activities


38. Infiltrating organised criminal networks is a vital way for police to disrupt serious offending, especially crimes like the manufacturing and trafficking of illicit drugs. To be effective, covert Police staff need access to good quality cover identities. While the use of assumed identity documents like driver licences is currently possible by virtue of agreements between Police and the issuing agencies, such agency-to-agency arrangements do not have the backing of legislation. This puts some issuing agencies in a dilemma of wishing to assist Police to enforce the law, but not wanting to issue an official document outside of usual practice.


39. Forthcoming amendments to the Births, Deaths and Marriages Registration Act 1995 will clarify the basis for the Registrar of Births, Deaths and Marriages to work with Police in this area,4 but other issuing agencies responsible for identity documents like passports and driver licences work in a less certain environment. In my view, this uncertainty should not continue.


40. I propose rules be put in place to ensure authorised Police staff (e.g., undercover, surveillance and witness protection officers) can acquire assumed identity documents for use during covert operations. This will offer clearer legal authority for an important part of policing, and serve the wider interests of certainty and transparency. The Bill leading to a new Policing Act would be one vehicle to make the necessary amendments to the Passports Act 1992 (covering the issuing of passports) and Land Transport Act 1998 and Land Transport (Driver Licensing) Rule 1999 (covering the issuing of driver's licences). In relation to the latter, another option would be to invite the Ministry of Transport to include the necessary changes in the forthcoming Land Transport Legislation Amendment Bill - which was awarded a category 5 priority (instructions to Parliamentary Counsel in 2007) on the government’s 2007 Legislation Programme [CAB Min (07) 7/1A]; and Driver Licensing Amendment Rule - which has been allocated a place on the Cabinet approved 2007/08 Rules Programme. At this stage, my suggestion is to fold the required amendments into these Transport-led pieces of law reform work.

Issues related to proposed amendments to the Passports Act


41. The Department of Internal Affairs has identified several issues with the proposal to formalise Police's use of passports with assumed identity for covert operations. Drawing an analogy with the agreed changes to the Births, Deaths and Marriages Registration Act 1995, Internal Affairs officials suggest any amendment to the Passports Act 1992 would, at a minimum, need to encompass undercover police, protected witnesses and New Zealand Security Intelligence Service (NZSIS) staff. While I appreciate this would be an efficient way to make the desired changes, the priority is to provide additional certainty to legitimate Police-run operations, and it would be inappropriate in my role to propose legislative amendments that impact on NZSIS personnel, or indeed staff of other government agencies. I thus seek support to simply progress the changes which would allow police to operate more sure-footedly in their approved undercover and witness protection roles.


42. Guided by advice from the Department of Internal Affairs, my proposal is for the Passports Act to be consequentially amended by the planned Policing Bill to allow:


Linkages with other policy development work


43. Finally, I wish to draw attention to ideas which have been raised in the context of the Police Act Review, but which are now being progressed via other channels. While it has been useful to discuss these ideas during a wider conversation about policing, it makes more sense to try to take them forward through other means.


'Move on' power


44. First, the Police Act Review raised the potential usefulness of a dispersal or 'move on' power to prevent gatherings of people developing into dangerous situations. An important context for this idea was the trend, internationally and domestically, for large gatherings of young people to congregate unpredictably, and in a short space of time. These events have been given several names, including "text parties" and "flash mobs". Worrying aspects of this phenomenon include that many attendees are unknown to each other, and party supervisors (if any) are in a poor position to know who is legitimately at the event. In turn, this raises the risk of 'gate crashers', whose attendance can precipitate violence.


45. Several overseas jurisdictions have moved to strengthen frontline policing options to disperse unplanned crowds before serious problems arise. One response has been to