OFFICE OF THE MINISTER OF POLICE
Chair
Cabinet Legislation Committee
POLICING BILL – APPROVAL FOR INTRODUCTION
Purpose
Introduction
2. At its meeting on 19 September 2007, Cabinet Policy Committee (POL), having been authorised with Power to Act [CAB Min (07) 34/9-14], made policy decisions on the shape of new policing legislation, intended to replace the current Police Act 1958 and Police Regulations 1992 [POL Mins (07) 22/3-8].
3. Although a Policing Bill was originally awarded a category 5 priority (instructions to be provided to Parliamentary Counsel Office in 2007) on this year’s Legislation Programme [CAB Min (07) 7/1A], an intention to accelerate progress on the Bill has been signaled [as noted in CAB Min (07) 18/6, para 6 and subsequent papers], with a view to its introduction to the House by the end of the calendar year.
Policy
4. The Bill is intended to provide a contemporary legislative platform for the delivery of policing services. In broad terms, the Bill sets out to achieve two fundamental tasks:
to confirm and strengthen Police governance, accountability and organisational arrangements in a way suitable for a contemporary age;
to improve Police’s effectiveness, especially by updating human resource management provisions, and establishing a clear framework for the exercise of policing powers by particular Police staff.
5. The Bill is arranged in five parts. Part 1 contains a small number of preliminary provisions, including an overall purpose statement, a number of defined terms which are used frequently throughout the legislation, and confirms that the proposed new Policing Act will bind the Crown.
6. Part 2 looks to strengthen Police’s governance and accountability arrangements. Its first subpart provides for the continuation of New Zealand Police as a legal entity, clarifies Police’s broad functions, acknowledges its relationships with others in the wider safety and security environment, and spells out principles of policing which have stood the test of time. Subpart 2 includes several key measures, such as better defining processes for the appointment, tenure and terms of engagement of the Commissioner and Deputy Commissioners of Police, and clarifying the roles of the Commissioner and Minister of Police, and the constitutional relationship between the Commissioner and Minister. Next, subpart 3 outlines critical building blocks for a modern Police workforce. This section of the Bill offers a unified basis for setting employment terms and conditions, featuring a new solemn undertaking for all Police employees, as well as a single Code of Conduct for all Police staff. Other significant measures confirm the historic strengths of the office of constable while updating the constabulary oath, but also widen the Commissioner’s ability to support constables by authorising designated categories of Police employees to exercise targeted policing powers. The final two subparts of Part 2 underscore the Commissioner’s ability to issue binding general instructions to Police staff, as well as reinforce clear command and control arrangements more generally.
7. Part 3 of the Bill sets out proposals to 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 changes. A small number of Police-related provisions in other statutes are transferred into the new Policing Act by the Bill; notably, a small number of frontline police powers which would have better visibility in a Policing Act for those who use them on a day-to-day basis (e.g., the ability to temporarily close roads to ensure public safety or to preserve crime scenes). Part 3 also includes provisions to strengthen protections against the misuse of Police’s name and update relevant Police-related offences (e.g., impersonating Police staff).
8. Part 4 of the Bill focuses on the Commissioner’s ability to employ a workforce with the range of skills, powers and protections needed to meet current and future policing demands. Key provisions introduce modern human resource management processes to:
align Police’s human resource arrangements more with the mainstream employment environment;
update the framework for negotiating employment terms and conditions for Police employees, including limitations on the ability to take industrial action and to lock out constabulary staff;
shift internal disciplinary arrangements to the newly established Code of Conduct environment;
update the language and provisions establishing Police medical, physical and psychological health standards, and superannuation arrangements.
9. The final part of the Bill, Part 5, addresses various administrative and miscellaneous issues, including:
establishing a process to gather and manage staff biometric data for use in pre-employment vetting and as elimination data from non-intentional contamination with crime scene samples;
consolidating laws relating to international and United Nations policing;
assisting with improved identification of Police employees and authority to exercise policing powers;
details relating to administrative practices, such as evidencing certain facts in legal proceedings;
provision for a general regulation-making power, various transitional and savings provisions, as well as a large number of consequential amendments, repeals and revocations of other legislation.
Aspects of the Bill that are likely to be contentious
10. Some aspects of the Bill may be contentious, with the possibility of opposition to certain measures (e.g., the proposal to establish a new power for a constable to detain a suspected offender to allow his or her identity to be obtained in order to issue a summons to answer charges, as an alternative to arresting and transporting the person to a police station to carry out such preliminary processes and later bail them). There is also a possibility of contrasting views, especially from some constitutional commentators, on the recommended governance and accountability arrangements for Police. Other areas where there may be divided opinions include the Bill’s proposals to:
continuing limits on the ability of constables to take industrial action (the ‘no right to strike’ rule);
making provision for authorised officers who receive targeted training and limited policing powers, which offers a model for the delivery of particular Police services which do not require full constabulary training or powers (for example, prisoner escorts and jailers, and Police guards);
strengthening Police’s vetting practices of prospective Police staff by allowing for the voluntary submission of a wider range of biometric information, including bodily samples for DNA analysis, as well as allowing for the existing Criminal Records (Clean Slate) Act 2004 exemption for Police to cover all prospective Police staff, not just constabulary employees.
11. Key factors in managing any potential criticism of some aspects of the Bill are the level of institutional support it has received from key groups which represent Police staff (notably, the New Zealand Police Association and Police Managers’ Guild); as well other agencies, particularly the Law Commission (which has been closely consulted on the Bill, and took up an invitation to draft the clause relating to principles). Stakeholders have been involved throughout the Police Act Review, testing ideas for new policing legislation, and were also joined to policy development work on the Bill itself. This has helped ensure a high level of understanding about, and broad consensus around, the major proposals contained in the Bill.
Need for legislative change
12. Although amended more than 25 times over the years, the thrust of the legislation governing Police has not been updated significantly in nearly half a century. This places New Zealand at odds with comparable overseas jurisdictions, where foundational police statutes have been refreshed in recent decades. Some of the inadequacies of the present Police Act 1958 and Police Regulations 1992 include:
unclear responsibilities and confused lines of accountability;
constraints around the Police Commissioner’s ability to place the right people in the right jobs;
an overly prescriptive system for managing staff performance and conduct issues;
little guidance for Police to work with partner agencies, either domestically or internationally.
13. New legislation is needed to overcome these weaknesses; removing constraints to the delivery of better policing services to the community, and setting a platform for even more effective policing in the future.
Outstanding policy issues
14. There are four outstanding policy issues related to the Policing Bill:
A final decision is required on whether the principles of policing which have guided the drafting of the Bill – and which have been reflected in clause 8 – should, in fact, be included in the legislation. This was a question which POL agreed deserved further consideration [POL Min (07) 22/3, para 9].
During POL consideration of the suite of papers on the content of a new Policing Bill, Ministers agreed to amend the Passports Act 1992 to allow passports to be issued to covert Police personnel [POL Min (07) 22/7, paras 19-20]. This is not currently required as a recent amendment to the Births, Deaths and Marriages Registration Act 1995 provides some clarity. However, further work appears needed to provide additional certainty and legal backing for all agencies working in this area.
Ministers have agreed to support the development of a Policing Registration Board [POL Min (07) 22/5, paras 17-18] and the option of establishing such an agency is discussed below [para 21 refers]. While no decisions have been made about whether a board structure would be used to implement a system of policing registration, further policy development work would need to be completed if this were the preferred option.
It is also appropriate to indicate that the select committee which considers the Bill may be asked to consider whether there should be an amendment to clause relating to Police employee involvement in politics, to broaden its scope beyond the potential for certain Police employees to play roles as election officials during parliamentary and local body elections. When considered by POL, Ministers noted there is a case for extending the rules around election-related leave for involvement in national level politics to cover any Police employees who wish to contest elected political roles at the local government level. I was specifically invited to raise this policy issue during my first reading speech on the Bill, and invite submissions on whether greater legal protections in this area should be included in the Bill [POL Min (07) 22/8, paras 16-17].
Requirements for omnibus bill
15. Although it is not designed as a wide-ranging law reform bill, in seeking to provide a modern legislative platform for the delivery of policing services, the Bill proposes to amend, repeal or revoke a significant number of enactments. As such, it may be regarded as an omnibus bill. To this extent, the Bill meets the requirements of Standing Order 261 (omnibus bills must relate to one subject area), as its multiple consequential amendments deal with an inter-related topic that seeks to implement a single broad policy [Standing Order 264(a)].
Compliance
16. The Bill complies with each of the following:
a the principles of the Treaty of Waitangi;
b the principles and guidelines set out in the Privacy Act 1993;
c relevant international standards and obligations;
d guidelines in the Legislative Advisory Committee report, Legislative Change: Guidelines on Process and Content.
17. Police, Crown Law and Ministry of Justice officials are working to resolve issues involving the way the Bill aligns with freedoms contained in the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. Based on refinements made during the preparation of the Bill, the Ministry of Justice has provisionally indicated that, in its view, the Bill does not need to be drawn to the attention of the House under section 7 of the New Zealand Bill of Rights Act. The Ministry’s final opinion will be able to be confirmed by the Attorney-General when the Committee considers this memorandum at its next meeting.
Consultation
18. The following departments or agencies have been consulted during the development of the Bill: the Ministry of Justice, State Services Commission, Department of the Prime Minister and Cabinet, Treasury, Department of Labour, Crown Law Office, the Law Commission, the Office of the Privacy Commissioner and the Human Rights Commission. Aspects of the Bill with agency-specific relevance were consulted with the Ministry of Health, Department of Internal Affairs, Land Transport New Zealand, and Ministry for the Environment. The Police Association, Police Managers’ Guild and Public Service Association were also consulted on the Bill’s proposals in relation to Police’s human resources environment.
19. Due to the parliamentary recess, it will not be possible to brief the government caucus about the Bill before it is introduced. However, caucus members have been kept updated about the proposals for new policing legislation throughout the Police Act Review process, and were specifically briefed about the scope and content of the Bill following Cabinet policy approvals in September [POL Mins (07) 22/3-8].
20. Other parties represented in Parliament have also been consulted over the policy directions to be given effect in the Bill, as part of an ongoing effort to seek multi-party input to the Police Act Review project.
Creating new agencies or amending law relating to existing agencies
21. While the Bill does not create any new agencies, it foreshadows that a matter which may be progressed by regulations is the development of a system of professional certification and registration for Police employees. One of the options for how the movement to a professionalised model may occur is to set up a formal Policing Registration Board, similar to professional registration bodies for police which operate in some overseas jurisdictions. While Cabinet has given initial agreement to support the activation of a professional registration system by the Commissioner of Police at a future point in time [POL Min (07) 22/5, para 17 refers], it noted supporting processes would need to be put in place first. In any event, should the Commissioner wish to set up a formal professional registration body for Police employees in the future, making use of the regulation-making power provided under the Policing Act, this would involve separate Cabinet consideration.
Allocation of decision-making powers
22. The Bill does not involve the allocation of decision-making powers between the Executive, the Courts or tribunals.
Associated or deemed regulations
23. The Bill proposes to revoke the Police (United Nations) Regulations 1964 and Police Regulations 1992. There is a general regulation-making power contained in the Bill, however, and it is anticipated that an accompanying set of regulations will be issued under the new Policing Act, dealing with a relatively small number of technical matters (e.g., reproducing the Police crest to enable it to be covered by protections in the Bill aimed at preventing misuse of Police-specific designs). My intention is to ask Police officials to commence work on an appropriate set of regulations early in the new year. It is anticipated this discrete drafting task will be able to be completed before the Bill is enacted, allowing for a seamless transition. Although the regulations are expected to have little effect on the public, meaning a waiver to the 28 day rule could legitimately be sought, my expectation at this stage is that such a waiver will not be necessary.
24. The Bill does not include any provisions which empower the making of deemed regulations.
Definition of Minister/department
25. The Bill contains an updated and simplified definition of Police. Whereas the Police Act 1958 provides: “The Police means the Police of New Zealand; and includes all members of either sex appointed to the Police under this Act”, clause 4 of the Bill proposes that this be substituted with: “the Police means the instrument of the Crown continued in existence by section 7(1) [of the Policing Act]”. The Cabinet Office does not object to this clarification of the definition of Police.
26. The Bill also contains a modernised definition of the responsible Minister. The 1958 Act states: “Minister means the Minister in Charge of Police”. In contrast, clause 4 of the Bill proposes to adopt the standard formula which is used in contemporary statutes: “Minister means the Minister of the Crown who, under the authority of a warrant or with the authority of the Prime Minister, is responsible for the administration of this Act”. Again, the Cabinet Office does not object to this updated definition.
Binding on the Crown
27. As previously agreed [POL Min (07) 22/8, para 24 refers], the Bill proposes that Police’s new statute should bind the Crown. This is in keeping with the general principle the Crown should be bound by statutes unless the application of a particular Act to the Crown would impair the efficient functioning of government [CO (02) 4 refers]. No such considerations arise in this case.
Commencement of legislation
28. It is intended that the Bill will come into force on 1 July 2008. While confident that the necessary steps are being taken by Police to allow for this commencement date, if for any reasons it becomes appropriate to defer commencement (e.g., because of unanticipated delays in the Bill’s parliamentary passage), it may be prudent to substitute a later date, or even explore the option of commencement being triggered by an Order in Council. For present purposes, however, it sends a positive message to fix a clear mid-year date for the Bill’s commencement.
Parliamentary stages
29. It is intended that the Bill should have the following stages:
a the Bill should be tabled by 18 December 2007;
b the Bill should have its First Reading early February 2008;
c the Bill should be referred to the Law and Order Committee;
d the Bill should be enacted by 30 June 2008.
30. This recommended timing is possible because of the carefully-stepped process which has been followed in the Police Act Review, spread over an 18 month period, involving multiple rounds of public consultation. As a result, I firmly believe the national conversation about policing which was imagined for this process has been allowed to mature. The multi-party approach adopted throughout has also generated a real sense of commitment to providing Police with the best form of legislation fit for the 21st century. In particular, recent discussions with representatives from other political parties who are members of the Law and Order Committee indicate a willingness to prioritise this Bill’s consideration during the early part of 2008. With this commitment, it should be possible to complete the Bill’s parliamentary phases in time to allow for its enactment by the middle of the year.
7.2 enacted by 30 June 2008.
Hon Annette King
Minister of Police
/ / 2007