Contents
INTRODUCTION...........................................................................................................
EXECUTIVE SUMMARY..............................................................................................
ANALYSIS OF SUBMISSIONS.....................................................................................
Issues Paper 1: Principles................................................................................................
Issues Paper 2: Governance and accountability.................................................................
Issues Paper 3: Employment arrangements.......................................................................
Issues Paper 4: Community engagement..........................................................................
Issues Paper 5: Powers and protections...........................................................................
Issues Paper 6: Relationships...........................................................................................
Issues Paper 7: Administration.........................................................................................
Issues Paper 8: Conduct and integrity...............................................................................
Additional issues raised in reponses..................................................................................
ANNEX: LIST OF SUBMITTERS.................................................................................
Introduction
In March 2006, Cabinet agreed to a comprehensive review of the legislative arrangements for policing, resulting in a rewrite of the 1958 Police Act and its accompanying set of regulations.
Responsibility for leading the review was given to New Zealand Police, as the organisation most directly affected by the existing legislation, with unique insights into its strengths and weaknesses. The mandate for the review was broad-ranging, signalling a desire for a national conversation about New Zealanders’ expectations of policing. A green light was given to go back to first principles, to challenge things taken-for-granted, and to encourage public debate.
'Testing the waters'
To allow New Zealanders to articulate what kind of police service they want, and to enable them to have a say in shaping the kind of legislation which might help deliver that style of policing, three phases of public consultation were devised. The first of these public consultation phases began in June 2006, with the release of the first of eight Issues Papers. These were designed to 'test the waters' and stimulate discussion on significant policing topics. The themes selected for the Issues Papers were:
· Principles
· Governance and accountability
· Employment arrangements
· Community engagement
· Powers and protections
· Relationships
· Administration
· Conduct and integrity
The Issues Papers were progressively released over a six month period, with copies available in printed form as well as online via a dedicated website (http://www.policeact.govt.nz). The Papers were widely publicised and distributed to a range of individuals, agencies and groups.
In parallel, a platform for debating some of the Issues Papers was created by convening four discussion forums and a symposium, in conjunction with Victoria University of Wellington’s School of Law, School of Government and Institute of Criminology, and Auckland University of Technology’s School of Social Sciences. These events brought together key thinkers from New Zealand and overseas to discuss principles of policing, governance and accountability, community engagement, and the increasingly networked state of security and safety services.
Who responded?
Having opened up discussion, people were invited to provide feedback on the 100+ questions posed in the Issues Papers. Written submissions could be provided by post, fax, email or using an online response option on the Police Act Review website. Indicative deadlines for responding to each Issues Paper were set six to seven weeks after the release of each Paper, although any responses received up to the final deadline of 31 January 2007 were included in the analysis of submissions.
Overall, 226 separate responses to Issues Papers were received from 132 different submitters. Not all submissions sought to answer every question posed in a particular Paper, although comprehensive responses were provided by a number of Police-related organisations (notably, the two union groups which represent the bulk of Police staff - the New Zealand Police Association and the Police Managers' Guild Inc). In addition to submissions made by individual Police employees, respondents came from government sector agencies (e.g., the Department of Corrections), Crown entities (e.g., the Office of the Privacy Commissioner), the local government sector (e.g., elected community boards), various interest groups (e.g., Safer Communities Foundation New Zealand), community groups (e.g., law centres) as well as individual members of the public.
On a numerical basis, Issues Paper 3: Employment arrangements received the most responses, with 42 submissions. This included a high proportion of responses from individual Police employees, perhaps not surprisingly given the subject matter of the Paper. Issues Paper 4: Community engagement also generated a large response, with 40 submissions received. A number of these were from individual city or district councils, community boards and a submission from Local Government New Zealand (incorporating feedback provided by representatives from 14 local authorities). At the other end of the spectrum, Issues Paper 6: Relationships generated the least number of submissions, with just 10 submissions received.
What did the submissions say?
This report presents a summary analysis of the feedback received during this initial public consultation phase of the Police Act Review. It draws on the written responses to the eight Issues Papers, as well notes which were taken at the four university-based discussion forums. It does not include perspectives which were aired at the symposium on networked policing, as the proceedings of this day-long event have already been separately published (accessible online from: http://www.policeact.govt.nz).
This report provides an indication of the level of support for ideas which were put forward in the Issues Papers, and highlights common themes which emerged in the responses. Care has been taken to reflect the breadth of views received, whether from private individuals, sector groups, government departments, Police staff or their union bodies. As this was a 'testing the waters' phase, priority was placed on the range of views presented, rather than adopting a strict quantitative approach. While some numbers are included in the following commentary, they should be treated with caution, as submissions ranged from those sent in by a single individual to those (e.g., from the Police Association) which can be taken to represent the views of thousands of people. With this caveat in mind, indications are given of whether there were "mixed views," "general support," "some support," and so on, to give a sense of the general reaction from submitters to various possibilities which are floated in the Issues Papers.
Direct quotations have been used liberally to represent the individual voices of respondents. While some editing was done in the interests of brevity or clarity, efforts have been taken not to alter the original intent of respondents, or to take statements out of context. Where appropriate, quotes are attributed to submitters; although in the interests of privacy, quotes from people who made submissions in a personal capacity have not been attributed by name.
Next steps
Looking forward, this report will help to inform the preparation of a discussion document, called Policing Directions in New Zealand for the 21st Century, to be released in mid 2007. The discussion document will outline the government's proposals for new policing legislation, and will form the basis for the second phase of public consultation during the Police Act Review. Submissions on the discussion document will be called for over a two month period, and there will be a series of public meetings to seek direct feedback. Policing Directions in New Zealand for the 21st Century will provide another opportunity for New Zealanders to have a say on the future legislative arrangements for policing.
Executive summary
Principles
Structure of the Act
· There was support for a new Police Act to be enabling and set out broad principles, with matters of detail not put into primary legislation. Some emphasised the need for appropriate checks and balances if much of the detail was to be left to secondary legislation.
Consolidation of Police-related law
· Although there was a level of support for the idea of consolidating police-relevant aspects of other legislation - predominantly police powers - some worried it might prove difficult and overly bureaucratic.
Reflecting the special character of New Zealand policing
· There was support for drafting the new Act in a way that emphasises the New Zealand way of policing, with respondents identifying a number of themes they felt contributed to the special character of New Zealand policing.
Principles for the process of developing a new Act
· The most common suggestion for other process-type principles to take into account when drawing up new legislation was compliance with the New Zealand Bill of Rights Act. Overall, most respondents focussed their attention on guiding principles for policing.
Principles of policing
· There was support for including a set of guiding principles for policing in a new Act, although there was little consensus on the scope of the principles. The most favoured options for inclusion were ethics-type principles and Peel's principles (possibly with more contemporary wording).
Clarifying the purpose of New Zealand Police
· There was wide support for legislatively defining Police's role and functions, although participants at a discussion forum on the topic generally disagreed this was the best way to go.
Governance and accountability
Options for strengthening and formalising Police's governance and accountability arrangements
· There was broad support to clarify the relationship between Police and government in legislation, in particular to confirm the independence of Police and to define the relationship between the Commissioner of Police and the Minister of Police.
Legal status of Police
· There was general support for clarifying the status of New Zealand Police as a legal entity, although there were mixed views about referring to Police as an "instrument of the Crown".
Police's name
· There was strong support to keep "New Zealand Police" as the official title of New Zealand's police, rather than shifting to other possible names (for instance, "New Zealand Police Force").
Appointments
· Formalising the appointment processes for the Commissioner and Deputy Commissioners in its current form was favoured by most respondents. There was also support for statutory criteria to guide the appointment processes for these roles. Submitters tended to support either introducing an 'operational experience' requirement, or adopting more flexible criteria.
Terms of engagement
· There was a strong preference to retain the Remuneration Authority as the body which determines the pay of the Commissioner and Deputy Commissioners. Fewer suggestions were received on who should set the Commissioner's and Deputies' other conditions of employment.
· There was a spread of views on the performance review arrangements for the Commissioner. Of those who addressed the Deputy Commissioners' performance review arrangements, most favoured the Commissioner undertaking such reviews.
Tenure of senior officers
· Fixed terms for appointment as Commissioner and Deputy Commissioner were favoured, although some respondents felt a five year term was too long. A provision for re-appointment was supported by some, although others felt this might lead to overly-long tenures.
· There was support for non-exhaustively stating the grounds for suspending or removing a Commissioner or Deputy in legislation. Safeguards to protect appointees from political interference were also suggested.
· There was a level of support for specifying a process if a Commissioner or Deputy is suspended or removed, but some felt the breadth of the Commissioner's role would make such a process unworkable.
Role and functions of the Commissioner
· There was some support for broadly listing the Commissioner's responsibilities in the new Act, however some felt this might create reporting responsibilities which could impede the independence of the Commissioner.
Clarifying the relationship between the Commissioner and Minister
· There was some support for clarification of when ministerial directions are appropriate, although there was no consensus on how precise the clarification should be.
· Situations where matters of policy and administration arose were considered appropriate for ministerial direction. The specificity of the direction was suggested as another way of classifying appropriate areas for direction. Areas of operational/constabulary independence were generally seen as inappropriate for ministerial direction. Others felt directions would be inappropriate without prior consultation with the Commissioner and/or Cabinet.
Providing for ministerial directions in a new Act
· There was some support for providing a ministerial directions power in the new Act. If a ministerial directions power were to be legislated for, respondents generally preferred presenting a copy of the direction to Parliament, and/or publishing a copy in the Gazette, as ways of making it publicly known the Minister has given a direction to the Commissioner.
Ministerial ability to request reports from the Commissioner
· There was some support for compelling a Commissioner to provide reports on the request of the Minister, with little discussion of whether other types of communication between Ministers and the Commissioner should be set out in statute.
Help with assessing Police's performance
· Most submitters felt Police's existing statutory reporting obligations needed to be rationalised.
Provision for inquiries
· There was support for retaining the power to set up an independent inquiry, although views were mixed on who should hold such an inquiry. Respondents generally favoured leaving the make-up of the inquiry to the person convening it.
Employment arrangements
More closely aligning to the state sector standard
· There was support for new policing legislation to reflect the principle that whatever employment arrangements apply to the rest of the state sector should also apply to Police, although some felt this should be limited due to the 'uniqueness' of the role and functions of Police.
Commitment to act as a 'good employer'
· There was support to remove the qualification on the 'good employer' principle which exists in the current Police Act. Alignment with the state sector was a common reason for supporting such a move. Some felt any limits due to the nature of police work should be explicitly stated, while others felt operational limits meant the "as far as possible" rider should be retained.
Staffing options
· There was enthusiasm to introduce more flexibility into Police's employment arrangements. The three options with most support were a model linking roles to powers and training; some specialist jobs being removed from the sworn-only domain; and more flexibility between sworn and non-sworn roles. Many respondents favoured some form of checks and balances.
Entry points to Police
· There was a mixed reaction to new legislation making clear provision for direct entry of suitably-qualified Police staff. Overall, a desire emerged for a "best person for the job" approach, with a fair process, appropriate training, thorough vetting, and ongoing supervision.
· There was support for legislation expressly allowing overseas police working under the Commissioner's control for short term stints. Longer term work received a mixed reaction, with a strong focus on the necessary amount of training and vetting. Several respondents raised the idea of using overseas exchanges.
· There was support for new policing legislation to make explicit allowance for transfers of staff to and from non-Police agencies, although some support was conditional on training expectations. Opposition to such a move was often based on a reluctance to allow staff from non-Police agencies into sworn roles.
Supporting senior staff
· Mixed support was given to legislation continuing to limit senior managers to five year terms of appointment. Arguments for retention varied, while the most common reason for change was aligning with current employment law and dealing with performance issues in other ways.
· There were mixed views on who should be responsible for building management and leadership capability within Police. Reaction was also evenly divided between accepting and rejecting a statutory requirement for the Commissioner to build such capability within Police. The main reason for legislating seemed to be increasing the focus and priority of leadership building, while the dominant reason for opposition was a view it was inappropriate to legislate for what is a standard expectation of any state sector employer.
Professionalism and skill portability
· There was little in-depth discussion on this issue. Overall, there was support for a professional policing model, although there was little support for enshrining such a model in legislation.
Medical standards and fitness requirements
· There was support for the Commissioner retaining the right to set fitness standards in legislation. However, numerous submissions sought a review of the current testing regime.
Superannuation
· Reaction was mixed to keeping the Commissioner's power to compel sworn staff to contribute to a superannuation scheme. Perceived benefits of this model were highlighted by supporters, while opponents argued for better alignment with non-sworn staff and the wider state sector.
Employment relationship problems
· There was support for the Commissioner to retain the current statutory defence to personal grievance actions on operational grounds, although few respondents expressed a preference for where it should be located in legislation. Those who supported doing away the defence felt it would conflict with the Commissioner's 'good employer' obligation.
· There was wide support for transferring comprehensive jurisdiction of Police employment disputes to specialist employment institutions. The dominant reason for this was increased alignment with the state sector, and with mainstream employment practice.
Industrial action
· There were mixed and strongly-held views on whether Police staff should have the right to take industrial action. Support for the ability to take strike action was generally limited to action meeting a public safety test and/or 'working to rule'. Opposition came from those who felt industrial action by police would imperil public safety, and possibly violate the constabulary oath of office. Many felt that, whatever the final position, there should be one rule for both sworn and non-sworn staff.
Wage bargaining and arbitration
· There was some support for retaining the current 'final offer' arbitration model, including some which saw this as the quid pro quo for sworn staff having no right to strike. Others rejected the 'final offer' arbitration model, often in favour of a 'down the middle' approach.
· There was unanimous support for a review of the present arbitration criteria, with some stating they should go wider than the current criteria. There was strong support for a system of arbitration where both parties are able to nominate matters for consideration by the arbitrator.
Employee representative groups
· There was some support for allowing Police staff to have the same general options for representation as other employees, rather than limiting rights of representation to pre-defined police service organisations.
Secondary employment
· Overall there was a positive reaction to lifting conditions for secondary employment to a statutory level, although some felt legislation on this topic was not necessary (recommending instead that this could be dealt with in a Code of Conduct). Of those who mentioned a possible legislative model, the Ontario Police Services Act gained some support.
Community engagement
Options for communities to engage with Police on setting priorities and determining services
· There was no consensus on a legislative process to underpin connections and priority setting between communities and Police. Those who supported legislation often stated formalising current practice was their preferred option. Opposition to this idea came from those who believed current arrangements work efficiently and allow for greater flexibility.
· There was divided opinion on the idea of spelling out in legislation a process for consultation between Police and territorial local authorities. Opponents felt it was unnecessary and would duplicate the Local Government Act 2002. Supporters felt it would ensure greater consultation through a consistent and transparent process.
Local Police performance and accountability
· There was a mixed response to the idea of making it a legislative requirement for police to report results of their activities to local areas. Respondents often supported this concept on the basis it would increase Police-community engagement, while those who rejected it either felt it was unnecessary or favoured less formal incentives for greater reporting, such as a policy guideline. There were few submissions on whether it would be appropriate for Police to report to territorial local authorities, with mixed support for the idea in those submissions which did.
Provisions empowering active involvement in policing by interested citizens
· There was a variable response to the idea of formalising Police volunteer roles in legislation. Generally speaking, there was opposition to giving volunteers a limited range of police-like powers, with concern expressed that such volunteers could be used as a 'stop-gap' for a shortage of fully-trained Police staff, and could even lead to vigilante activity.
Special constables and other civilian reserve models
· There was some support for formalising police support roles, although this was qualified by a number of respondents. Supporters suggested checks and balances, such as appropriate training, identification, selection processes and protections. Opposition came from those who thought current legislation was adequate, with one submitter proposing an alternative to the current practice of giving temporary sworn officers all the powers of a constable.
Powers and protections
The most appropriate statutory home for police powers
· Most respondents believed the Police Act would be an inappropriate place to locate most police powers, mainly due to the need for continual revision as other statutes are amended. One respondent felt it depended on the purpose of the new Act. Some respondents suggested a cross referencing system in the new Act.
Improving public understanding of police powers
· The most commonly proposed suggestions to increase understanding of police powers were cross referencing the powers in a schedule to the new Act, and/or making the powers more accessible by publishing them on Police's website.
Testing whether particular powers are necessary and/or desirable
· Varied suggestions were received on which (if any) current police powers should be transferred to other agencies. Some of the more common suggestions included the enforcement powers of agencies such as Customs, Immigration and the Ministry of Fisheries. However, some respondents were against transferral of powers where it was done because of insufficient Police resources. Concerns were also raised that the enforcement staff of other agencies might not be as accountable or as well trained as police.
Opportunities for greater clarity about policing practices
· General support was given to codifying practices that currently have no statutory backing, such as the youth fingerprinting scheme and use of undercover agents. Cautions were expressed that such a move could allow non-codified practices to be challenged in the Courts.
Section 57: Identifying particulars
· There was support for revising section 57 of the current Police Act to clarify when identifying particulars can be retained or must be destroyed. Some respondents favoured extending powers to take particulars, while others rejected this. There was a similar mix of views on when identifying particulars should be destroyed.
What particulars may be taken
· There was support for updating section 57 to allow a wider range of biometric data to be used for identity confirmation purposes. A number of suggestions were offered on safeguards which could usefully accompany such a revision.
Where particulars may be taken
· There was some support for broadening section 57 of the current Police Act to enable police to require production of identifying particulars outside of police stations. Some respondents believed existing safeguards would suffice, although others made additional suggestions. Ideas included setting clear parameters on where and how biometric data could be collected, and rules to ensure data collected would not be retained or stored on any Police database.
New technology
· There were several suggestions on how to ensure police powers under other legislation might most effectively support modern technology, including sharing identification information with Environmental Science and Research Limited (ESR) to reduce identity fraud, empowering the Commissioner to authorise suitable technologies as they arise, and adding a verification scheme to licences to target their fraudulent use.
Section 57A: searching detainees
· Some widening of search powers (particularly in light of the Corrections Act 2004) were suggested, as was allowing scans to search for drugs or to promote staff safety.
Police equipment
· There was some support for providing more certainty in legislation around the use of equipment by Police. While some were in favour, others believed it could limit future flexibility and restrict the independence of the Commissioner.
Information sharing provisions
· There was general support given to strengthening the ability to share information between Police and its partner agencies. Some saw this as a role for policing legislation, while others preferred non-legislative mechanisms, such as memoranda of understanding.
Changing the ability for Police to enforce particular offences
· There was qualified support for legislation to extend police enforcement responsibilities for some offences, with some respondents supporting an extension mandated through other Acts, while others sought safeguards around the use of any extended powers.
Introducing whole new powers
· Although some respondents thought it would be unnecessary, most submitters gave support for legislation to extend general police powers in particular areas.
· There were mixed views on the adequacy of current police powers in specialised areas. Several respondents felt powers were generally adequate, while others highlighted areas of concern. Some submissions suggested that, where special powers were needed, they might be better located in separate legislation.
Allowing for greater targeted empowerment of non-sworn Police staff
· There was some opposition to new legislation allowing for a greater range of powers to be exercised by staff who are not fully-warranted constables. Balancing this, there was some support for extending limited powers to non-sworn staff for specific roles, such as jailers and prisoner escorts, so long as adequate training was provided.
Enabling special powers to be used by a select group of staff
· There was mixed support for legislation to allow for new ring-fenced powers to be used by supra-warranted officers. However, no respondents argued against existing examples of where additional powers are allocated to senior and/or specially-trained Police staff.
Allowing for police (and police-like) powers to be exercised by others
· The prospect that police(-like) powers could be exercised by other than Police staff was opposed by most submitters. Examples cited of where extending police(-like) powers to other agencies might make sense included 'secondary' law enforcement roles, such as investigating Electoral Act offences.
Facilitating access to police powers
· There was unanimous support for maintaining the office of constable as an access point to general police powers; the main factors being the historical nature and respect for the oath, and the lack of compelling reasons to change the status quo.
Police-specific offences
· Further protections were suggested for Police staff, such as limits on civil and criminal liability and name suppression. As a counterpoint, an independent review body for policing was suggested by several respondents, to strengthen the scrutiny of actions by Police staff.
Protections for people who interact with Police staff
· There were mixed views on whether new policing legislation should clarify the duties of care police owe to particular members of the public. In general, concerns centred on how a duty of care could workably be defined without overriding other principles. There was also some support for addressing the roles and protections of members of the public who assist Police staff.
Relationships
Clarifying Police's broader relationships
· There was a mixed response to spelling out in legislation the type of relationships Police has with other agencies, with varying suggestions on the level and detail of any such statements. Some saw an opportunity to include in legislation a principle outlining Police's relationships, while others thought Police's relationships were better described in corporate documents.
Relationships with justice and enforcement partners
· There was a mixed reaction to clarifying in legislation Police's relationships with justice sector agencies and law enforcement partners, with those in support generally suggesting a broad or principles-based approach.
Specific relationships with monitoring agencies and oversight bodies
· There was some support for a new oversight mechanism which might recognise the range of public and private agencies involved in policing and security activities, although no consensus emerged on the best model for such a body.
Prosecutorial relationships
· There was a mixed reaction to whether legislation should set out a process for the Commissioner to seek independent advice on prosecution decisions. There was some support for providing a statutory ability for the Commissioner to transfer prosecutorial responsibility to someone such as the Solicitor-General, where police officers were charged with offences.
Recognising Police's increasing role in international affairs
· Respondents supported clarifying Police's international relationships in a non-restrictive way, with a number approving of the Australian Federal Police Act model. Opinions were divided on whether this should include incorporating the United Nations (Police) Act 1964 and Crimes and Misconduct (Overseas Operations Act) 2004 into new policing legislation.
Administration
Composition of Police