Policing Directions in New Zealand for the 21st Century

Consultation document |
Policing directions photo.

Contents



Chapter 5:   Platforms for success

INTRODUCTION

5.1 The previous Chapter outlined the need to get Police’s personnel framework into a better position to support effective policing. This Chapter identifies other platforms for success. It focuses on clear, strong governance and accountability arrangements, and taking industrial friction out of Police’s workplace. It also discusses the importance of effective day-to-day administration of one of New Zealand’s largest public sector agencies. In each of these areas, legislation can play a constructive role.

Key points

5.2 The government intends to put legislation in place to help New Zealand Police deliver a consistently high standard of service to the public. This means ensuring there are clear and robust arrangements for the oversight, management and daily running of Police. Specific measures in the Policing Act might include:

  • confirming the legal status and functions of New Zealand Police
  • defining the process for settling the appointment, terms of engagement and tenure of the most senior Police personnel, as well as delegation arrangements
  • clarifying the respective roles of the Commissioner of Police and Minister of Police, and the constitutional relationship between the Commissioner and Minister
  • offering more certainty about the Commissioner's position in charge of New Zealand's constabulary
  • strengthening the Commissioner's accountability for Police performance
  • widening the ability for arms-length inquiries into any issues of concern
  • enabling regulations to be issued under the new Act to address matters of detail.

5.3 It is also proposed to support Police by continuing its move to a mainstream employment relations environment. New legislation could balance further progress with continued assurances policing will not be impacted by industrial action, and proven mechanisms to resolve disputes if they arise. Updated criteria could also be introduced to improve the backstop arbitration system.

LEGAL STATUS AND FUNCTIONS

5.4 Despite the importance of clear governance and accountability arrangements for policing, New Zealand Police’s basic constitutional position has never been specifically addressed in its own legislation. This silence even extends to Police’s status as a legal entity. It seems unsatisfactory for an important agency like Police not to have its continuity or legal status formally recognised in legislation. This anomaly could be addressed by including provisions in the new Policing Act to confirm Police’s status as an instrument of the Crown, and acknowledge its functions within modern New Zealand society.

DETAILS RELATING TO THE MOST SENIOR POLICE

5.5 Another area that could be covered in the Act is the appointment, terms of engagement and tenure of the Commissioner and Deputy Commissioners of Police. These matters are important because of the constitutional significance of the roles. The Commissioner and his or her Deputies occupy positions which can involve decisions which profoundly affect people’s lives. They can also exercise exceptional powers - for example, requesting assistance from the armed forces to deal with an emergency.[55] A further reason for putting the most senior Police roles on a statutory basis is to create an extra safeguard for the office holders’ independence.

Appointments

5.6 In the interests of clarity and openness, it is proposed to formalise in statute the power to appoint a Commissioner of Police and one or more Deputy Commissioners (who may be required from time to time to act in the Commissioner’s place). The new legislation could also usefully confirm that any serving member of Police who holds the office of constable carries this separate office with them into the new appointment.

5.7 Beyond this, the intention is to give legislative backing to convention. This would involve the State Services Commissioner managing the appointment process, and submitting recommended candidates to the Prime Minister and Minister of Police for decision. Successful candidates would continue to be legally appointed by the Governor-General. This approach would balance the need to ensure Commissioners and Deputy Commissioners of Police have the confidence of government, and the need for a sound and impartial process. In particular, involving the State Services Commissioner would add transparency for all would-be applicants.

5.8 On this latter point, operational policing experience is unlikely to be seen as a statutory pre-requisite for appointment to the post of Commissioner or Deputy Commissioner of Police. The current requirement to appoint a “fit and proper person” has stood the test of time, and seen successive Commissioners and Deputies drawn from the pool of experienced officers within the ranks of New Zealand Police. More relevant is the need to appoint a person who can discharge the specific responsibilities of the job, and maintain appropriate standards of staff integrity and conduct.[56]

Terms of engagement

5.9 Existing legislation is silent on who sets the pay and conditions of the Commissioner and Deputy Commissioners, and who reviews their performance while they hold office. It is proposed to clarify both these issues in the Policing Act by carrying across current practice into law.

5.10 Currently, the independent Remuneration Authority determines the Commissioner’s and Deputy Commissioners’ remuneration, with other terms and conditions of their employment being agreed on a bilateral basis with the State Services Commissioner (acting with the delegated authority of the Minister of Police). This approach could be confirmed by the new Policing Act, with the Remuneration Authority remaining the pay-setting body for the most senior roles. To ensure transparency, there would be ongoing requirements for public disclosure of senior Police salary bands.

5.11 To help strengthen accountability for the performance of Police, performance review arrangements for the Commissioner and Deputy Commissioners might also be spelt out in legislation. The new Act could allow, when invited, Police to come within the ambit of the State Services Commissioner’s performance management of public service chief executives. An example of where a similar approach has been adopted in legislation is the State Services Commissioner’s ability to review the performance of the head of the Parliamentary Service.[57]

Tenure

5.12 No changes are proposed to the tenure of Commissioners and Deputy Commissioners. Under the proposed Act, they would continue to hold office “during the pleasure” of the Governor-General, without prescribing the grounds upon which their dismissal might be triggered. What might be new, however, is clarifying in statute that individual appointments are for a maximum five year term, and specifically noting the possibility of re-appointment. Where any such re-appointment is made, the Act could also make it clear no formal recruitment round needs to be held.[58]

5.13 This form of tenure can be seen as necessary because the strong independent powers of Police must be balanced by strong democratic accountability. If an elected government or the public loses confidence in a Commissioner or Deputy Commissioner of Police, the person’s position becomes untenable. Because of their statutory powers, this is true even though, strictly speaking, there may not be ‘just cause and excuse’ for dismissal in an employment context.

Acting and delegation arrangements

5.14 There are over 300 references to the Commissioner of Police in primary legislation, most imposing general obligations or duties, but with ultimate responsibility sheeting home to the Commissioner. A new Act should enable the Commissioner to delegate powers, duties and functions, as a way to lighten the administrative load falling on his or her shoulders. The Act should also clarify how to handle situations where it is necessary or desirable for someone else to act in the role of Commissioner.

5.15 It is intended to address these issues by building on current legislative provisions.[59] In particular, for times when an Acting Commissioner is required, the legislation might avoid the inflexibility of a default approach by allowing the Commissioner to elect who to hand the reins to. This will enable a judgment to be made about who is best suited to act into the role at a given time, thus allowing any operational imperatives to be taken into account. To cover all possible bases, in exceptional times when the Commissioner cannot or should not appoint a temporary replacement (e.g., because of medical incapacity, or where the Commissioner has been stood down from office), the new Act could enable the Governor-General to make an acting appointment on a provisional basis.

5.16 It is further intended to confirm in the new Act the Commissioner’s ability to delegate certain functions, duties and powers. This might include putting beyond doubt the Commissioner’s right to communicate factors which must be taken in account by any member of Police who receives and exercises a delegated authority.

ROLE AND FUNCTIONS OF THE COMMISSIONER

5.17 Surprisingly for such a significant position, current legislation says little about the Police Commissioner’s role and functions. The description of the Commissioner having “general control of the Police”[60] does not actively reinforce expectations of a Commissioner’s responsibilities for a modern police service.

5.18 Responses received during the initial phases of consultation on the Police Act Review generally supported new legislation including a broad description of the Commissioner’s role and functions.[61] This was seen as a way of usefully establishing what the Commissioner’s role is, aiding public understanding and confidence, and providing extra clarity and transparency. The proposal is to include a section in the new Act which confirms the Commissioner’s responsibilities for:

  • carrying out of the functions, duties, and powers of New Zealand Police
  • overseeing the general conduct of Police
  • ensuring the efficient and effective management of Police
  • tendering advice to the Minister of Police and other Ministers of the Crown
  • giving effect to any formal ministerial directions on matters of government policy.

5.19 Another role the Commissioner fulfills is head of the constabulary. In New Zealand, the Commissioner is effectively the chief constable, yet this is not acknowledged anywhere in legislation. To remove this uncertainty, and appropriately recognise the practical reality of the Commissioner’s position in our constabulary system, the government is considering whether its Policing Act should confirm the Commissioner’s status as New Zealand’s chief constable.

The Commissioner’s role as commander of the constabulary

5.20 Although it might be assumed all constables are part of New Zealand Police, this is not strictly correct. The vast majority of constables are members of Police appointed under the Police Act, but other pieces of legislation also allow for the granting of a constable’s powers and protections.[62] These cases involve the extension of policing powers for worthy reasons, but are increasingly out-of-step with modern approaches. Historical reliance on the office of constable as a way of providing empowerments, for example to harbour police, civil defence police, and so on, has given way to more carefully-targeted assignments of powers. As the constabulary system has matured and expanded in New Zealand, there is arguably less need to call on an outside authority to trigger appointment of extra police to cover short-term operational requirements.

5.21 In light of other proposals,[63] it may be opportune to remove these anomalies. This development could be given effect via the Policing Act. The proposal is anyone sworn in as a constable, under whatever enactment, should be subject to the Police Commissioner’s control and supervision. This would confirm the Commissioner’s responsibility for all individuals who hold the office of constable and ensure all constables work to the same professional standards.

5.22 To reinforce how this line of accountability runs unbroken from street level policing to the Commissioner, it is intended to clearly identify the requirement for all police to obey their superiors’ lawful commands. The size of New Zealand Police, its geographic spread and its broad range of activities underlines the need for disciplined management and a clear sense of who is in charge. There should be no doubt about a senior officer’s ability to give binding orders during an operation, or the Commissioner’s ability to instruct staff to follow certain courses of action when they are 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 which could be made clearer in legislation).

5.23 The fact Police must operate as a command organisation is recognised by the Courts, and is understood not to override the need for frontline officers to make assessments and act according to the situation before them.[64] Independent judgement and careful use of discretion will always be important in good policing, but it would be wrong to think this means individual constables and other Police staff act in isolation from one another. The Policing Act could better reflect these realities of policing.

THE RELATIONSHIP BETWEEN THE COMMISSIONER AND MINISTER

5.24 The relationship between the Commissioner and the Police Minister is a complex area of public administration, about which much has been written by academics, constitutional lawyers and other commentators.[65] Despite its importance, the 1958 Police Act contains virtually no guidance on the boundaries of the Commissioner-Minister relationship.

5.25 As a starting point, it might be worth confirming the ongoing place of constabulary independence in New Zealand’s system of policing. While the meaning of constabulary independence is sometimes disputed, it is well understood police must act independently when enforcing the law. It is also accepted the Police Commissioner has a wide discretion as to how to enforce the law in any given case. It is for the Commissioner to direct how the law is enforced in relation to specific types of offending, or the locations where offences are committed. Decisions on what policing resources are deployed in individual cases, and what general policies apply to particular classes of case, are for the Commissioner alone.

A classic view of constabulary independence

“[L]ike every constable in the land, the Commissioner should be, and is, independent of the executive .... I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one .... The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone”.

Lord Justice Denning, in R v Commissioner of the Metropolis, ex parte Blackburn [1968] 2 QB 118 at 135.

5.26 Despite its special constitutional position, Police delivers services in the same general context as other government agencies, and needs to be answerable to the community for the use of public resources. This is expressed through Police’s accountability to the Minister with portfolio responsibility for policing, who in turn has an accountability to parliament. With that ministerial responsibility comes the need to exercise a degree of control over the general direction of policing, within accepted conventions.

5.27 The Police Minister is generally agreed to have a role in consulting the Commissioner over Police’s operational requirements and allocating resources for specific initiatives. It is also broadly accepted the Minister may provide direction to the Commissioner on overall Police resourcing, and matters of administration which do not directly affect the Commissioner’s operational responsibilities. The expectation is the Minister could legitimately direct the Commissioner on government policy objectives and priorities which relate to crime prevention, the maintenance of order and public safety, and the delivery of policing services. The ability to provide directions on general areas of law enforcement could not, however, have the effect of requiring the non-enforcement of any specific law. Moreover, the Minister may not direct the Commissioner regarding the enforcement of the law in particular cases or classes of case, nor in relation to decisions about individual Police staff members.

5.28 Freedom from political interference in operational decisions is a fundamental value of New Zealand’s policing tradition. Consideration could be given to recognising this in legislation by putting the notion of constabulary independence on a statutory footing. However, going further and attempting to capture the relationship between the Commissioner of Police and Minister of Police in statute risks creating a ‘legislative strait jacket’, which might work against the flexibility needed for such broad roles. For this reason, it may be unhelpful to try and prescribe this relationship. The suggested approach is to continue to allow it to be guided by convention and case law.

SUPPORT AND ACCOUNTABILITY FOR PERFORMANCE

5.29 Another way to strengthen Police’s governance arrangements is to focus on accountability for performance. In this area, there is scope for Police to benefit from management supports available as of right to other public sector agencies.[66]

5.30 While there are reasons why Police should not be treated as a regular government department, it is possible to better reconcile its special constitutional position with the fact it is a large publicly-funded agency, which shares many of the same accountabilities as other state sector organisations. Just as more orthodox performance review arrangements can be applied to the Commissioner of Police, a case exists to adapt standard public sector management and accountability systems to Police. To achieve this, carefully-designed proposals could be incorporated in the Policing Act. The aim would be to remove legislative barriers to the State Services Commissioner giving formal advice and guidance to Police’s leaders - a move recommended by the Commission of Inquiry into Police Conduct[67] - but without compromising Police’s operational independence.

5.31 Another issue to consider is Police’s statutory reporting requirements. Current legislation imposes few general reporting requirements on Police, other than a need to produce an Annual Report and Statement of Intent. Additionally, there are a series of one-off statutory obligations to report on the exercise of specific policing powers.[68]

5.32 There is no consistency behind legally requiring Police to report on the use of these specific powers versus any number of other policing activities. Moreover, it is broadly accepted some existing reporting requirements are unnecessary. Police’s current statutory reporting requirements are also increasingly out of place in an age where Police is subject to regular external scrutiny by parliamentary select committees, the independent Police Complaints Authority, and oversight bodies such as the Controller and Auditor-General, the Ombudsmen, and the Office of the Privacy Commissioner.

5.33 Views are invited on the best way to ensure reporting on the use of police powers. One approach would be to add to existing statutory reporting requirements, including matters recommended by the Law Commission in its upcoming report on Search and Surveillance. Another option might be to remove one-off reporting requirements, replacing them with a strengthened obligation under a new Act for Police to produce an Annual Report containing relevant information about its overall operations. If appropriate, this obligation could be paired with a specific duty to report on the exercise of basic policing powers - for example, the number of arrests made each year. Either way, any future framework should allow for continued transparent reporting of key areas of policing activity.

ARMS-LENGTH INQUIRIES

5.34 Independent inquiries can be a catalyst for improvement in any organisation, and the 1958 Police Act contains a specific power to launch an inquiry.[69] Whilst noting the existence of a parallel Law Commission review into public inquiries,[70] an equivalent power could be carried across into new policing legislation.

5.35 Unlike at present, the ability to convene a formal inquiry might not be restricted to the Minister of Police, but could also extend to the Commissioner of Police. This would line up more closely with international approaches.[71] It would also reflect the trend for New Zealand Police Commissioners to act swiftly to set up arms-length inquiries into any issues of concern. Where it has been accepted there should be an independent inquiry into a policing matter, Commissioners have typically appointed a Queen’s Counsel to lead the inquiry. If a more sweeping examination is called for, the practice has been to initiate a broader inquiry with formal terms of reference, often involving senior police from overseas as expert peer reviewers.[72] This practice of Commissioners taking responsibility for launching inquiries should be encouraged. Further, it seems appropriate to be less prescriptive about who conducts any inquiry. The important point is such inquiries should be conducted by a person or people with relevant experience.

CLEAR AND EFFECTIVE REGULATIONS

5.36 The ‘nuts and bolts’ of how New Zealand Police operates are critical to the delivery of effective services. They may attract less attention than other aspects of policing, but the arrangements put in place to allow Police to function are still the building blocks of success. Naturally, not all administrative details need the backing of legislation. For example, deployment planning and rostering, which help Police run smoothly, sit comfortably outside legislation. But some administrative details need or benefit from legislative support. One of the ways of providing such support is through regulations.

5.37 Governments already have the ability to issue regulations under the 1958 Police Act, giving a broad empowerment to address matters of detail or a technical nature.[73] However, only one current set of regulations has been issued under the 1958 Act (the Police Regulations 1992), mainly concerned with human resource management issues. Although another set of regulations is due to be issued shortly, to support the move to a new Code of Conduct, greater use of regulations could be made in the policing environment. It is desirable that a new Act transfer more of the detail into regulations. Indeed, in some situations, it will be appropriate to allow largely administrative matters to be properly dealt with through Commissioner’s General Instructions, or moved into internal Police policy documents.

5.38 The proposal is to continue to provide for a regulation-making power in the Policing Act. This will confirm the ability to make general regulations for the effective operation of Police, as well as more specific regulations on particular policing topics.[74] This approach will offer extra certainty and transparency, and at a level which means Police’s new Act is not weighed down by unnecessary detail.

MANAGING POLICE’S EMPLOYMENT ENVIRONMENT WITH CONFIDENCE

5.39 Continuing Police’s movement to a mainstream employment relations environment is another means of helping Police advance. The Policing Act offers opportunities to support this evolution.

5.40 As outlined in Chapter 4, changes are required if Police is to become a more cohesive organisation. These shifts will be meaningful and symbolic for Police employees, but are not entirely novel. All Police staff became “members of Police” after 1989 amendments to the Police Act. But the job was left incomplete. The Commissioner was left employing two distinct groups of people: sworn and nonsworn members. For a step change to occur, all Police employees need to be unified under a common employment relations framework. This means challenging some long-standing assumptions.

A structurally divided organisation

Under the 1958 Police Act, employees are appointed as either “sworn members” or “non-sworn members”. There is no intermediate step. While all staff are unified as members of Police, in practice the sworn/non-sworn division streams people according to their designation. For example, positions in Police are designated as being available to sworn, non-sworn or sometimes both types of employee. Sworn staff can only select from positions which are designated as sworn roles, and vice versa.

Under the current Act, sworn staff also default away from mainstream employment-related provisions in the State Sector Act 1988 and Employment Relations Act 2000. The effect of this is to treat sworn members differently to the vast majority of New Zealand workers, as well as their non-sworn co-workers. Some areas where these differences are most pronounced include approaches to wage bargaining, representation and access to employment institutions.

5.41 One of the most persistent assumptions is the idea constables must retain standalone employment arrangements, rather than generally having the same employment rights and responsibilities as other state sector workers. There is now ample evidence to show police officers can work under standard employment relations laws without compromising the office of constable.[75] Rather than continuing to have those with constabulary powers operating under their own set of rules, it seems possible to apply general employment legislation to Police’s workforce, with special provisions only needed when there are compelling reasons for treating police differently from other workers.

5.42 The opportunity to take this next step is recognised by Police’s leaders and groups representing Police staff. Operating in a mainstream world would make portions of the current Police Act redundant, and there is broad agreement the standard environment under the Employment Relations Act 2000 could apply to Police, except in situations where Police genuinely stands apart from most other work environments (discussed further below).

5.43 If Police’s new Act is silent on employment relations issues, the Employment Relations Act will cover all Police staff, and standard employment law and existing employment institutions will automatically be on hand for use by Police employees and managers. This would allow outdated provisions in the 1958 Act to be replaced, for instance limits around what employment conditions can be settled through formal bargaining.[76]

Providing assurances about continuity of policing

5.44 While Police’s employment framework can be updated to better reflect mainstream public sector practices, it is sensible to retain some features of the existing arrangements which have stood the test of time, and recognise factors which set Police apart from most other workplace environments.

5.45 Notably, for almost all of Police’s history, it has been a strongly held view police should not withdraw their labour, or limit their policing activity for industrial ends. This tradition, which was later codified,[77] offers assurances policing will continue irrespective of what might end up being difficult negotiations on pay and conditions. This provides comfort to members of the public and the government of the day. It also serves wider interests, by preserving public trust and confidence in the legitimacy of police actions, which is a pre-requisite for police being able to do their jobs with popular consent.

5.46 Access by Police staff to industrial options raises complex issues, which in many ways are finely balanced. These issues were opened up for discussion in earlier phases of the Police Act Review, but did not yield clear cut results.[78] A cautious approach is suggested as the most appropriate way forward.

5.47 A contemporary Police industrial relations environment could also support the move to bring all Police staff together under a unified framework - where all members work under the same Code of Conduct and disciplinary system. This is important in principle, as well as in practice. For example, given the teamwork patterns of modern policing, where non-sworn staff often perform central roles, it is increasingly tenuous to draw a sworn/non-sworn distinction over which staff should be able to take strike action. In particular, Police’s ability to effectively respond to emergency calls for assistance would be severely compromised if non-sworn Communications Centre workers were ever to take industrial action. Strike action by non-sworn staff in vital support roles could potentially cripple Police’s ability to provide essential public safety services.

No right to strike

The readiness to accept a legislative bar to strike action by police is partly based on observed problems overseas, such as the Boston Police strike in 1919 and the Victorian Police strike in 1923. On a smaller scale, experiences of striking police also reverberate in New Zealand from colonial times, during the few occasions when police went on strike. The internal acrimony and dented public confidence in police which flowed from such strike action continues to motivate police forces to avoid such action, if at all possible. Governments, too, are wary of strike action by police. Some of the key concerns are summed up in the following memorandum from then Attorney-General Geoffrey Palmer, to Police Commissioner Ken Thompson, dated 24 January 1986:

“The unique status of the Police is fundamental to this whole issue. Society entrusts to the Police the common law and statutory powers of arrest, search, detention and prosecution. It relies upon the Police for assistance in times of emergency. In the enforcement and upholding of the law the Police hold powers and occupy a place no one else has. The refusal by the Police to carry out any or all of those functions involves not only a breach of the law but raises a question of public credibility. If the Police refuse their duties of protection of the community and enforcement of the law two consequences follow. Firstly, society is left unprotected. Secondly, 100 years of nurtured credibility is imperiled”.

5.48 Balancing these considerations, it is proposed a new Policing Act:

  • extend the current limit on police officers taking industrial action to all Police staff, with an equivalent extension of the barrier against any lock out of Police employees
  • make representation of Police staff more contestable, while still ensuring certainty over which parties can competently negotiate a collective employment agreement
  • retain the current independent 'final offer' conciliation and arbitration procedure, if required, to promote negotiated settlements
  • enable all parties to an arbitration to nominate issues for the arbitrator to consider.

Protecting confidence in Police

5.49 A final area of special consideration in Police’s employment relations framework is the Commissioner’s need to act decisively to shore up public confidence in Police.

5.50 In earlier public consultation, majority support was expressed for the Commissioner to have an ability to take employment action against Police staff, despite the fact criminal action may be contemplated or already underway.[79] New policing legislation could support the Commissioner to deal robustly with discipline issues involving his or her staff. Arguably, the public interest would be best served if a Commissioner can act in an employment context where cases of the most serious misconduct come to light, notwithstanding there might be parallel criminal processes or Police Complaints Authority investigations underway.

5.51 In the new Policing Act, it is proposed to confirm the Commissioner’s express power to suspend or dismiss a member of Police if, due to his or her competence, integrity, performance or conduct, the Commissioner forms the view the member is no longer suitable to continue service with Police. This is a backstop protection which exists in several other jurisdictions,[80] and does not work to deny natural justice requirements. Due process still occurs, with the practical effect of being able to clearly separate the alleged wrongdoing from behaviour which is acceptable in a policing environment. An equivalent power should be available to New Zealand’s police chief, offering an effective response to very rare cases which involve the most extreme cases of misconduct. The government looks forward to stakeholders working with Police to design the most appropriate provisions for New Zealand conditions, balancing the need to treat staff as fairly as possible with the need to safeguard public trust and confidence in Police.

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Footnotes

[55] Under section 9(4) of the Defence Act 1990. A Commissioner of Police or Deputy Commissioner of Police may also need to invoke powers under the International Terrorism (Emergency Powers) Act 1987 .

[56] These are amongst various criteria that must be considered before public service chief executive are appointed by the State Services Commissioner: refer to section 35(12) of the State Sector Act 1988.

[57] See section 15 of the Parliamentary Service Act 2000.

[58] An analogy is section 37(5) of the State Sector Act, which explicitly allows the Government Statistician to be re-appointed "without first notifying the impending vacancy or examining other applicants".

[59] Refer to sections 4, 13 and 55A of the Police Act 1958.

[60] Section 3(1) of the Police Act 1958.

[61] Police Act Review, Perspectives on policing (2007), p 20.

[62] See section 33 of the Fire Service Act 1975 (which enables volunteer "fire police" to be appointed to support fire services personnel) and section 192 of the Summary Proceedings Act 1957 (which enables "special constables" to be appointed by District or High Court Judges, on application by the senior member of Police in a particular location, if the area's policing needs cannot be met by other means).

[63] Notably, the Commissioner's ability to directly appoint additional constables in extraordinary circumstances under a new Policing Act would make it redundant to retain an indirect ability to appoint special constables under the Summary Proceedings Act. Further, proposals for new fire and rescue service legislation may result in any future volunteer "fire police" receiving appropriate legal powers and protections directly under the new Act, rather than such personnel obtaining the full set of policing powers by being deemed to be constables. See Department of Internal Affairs, New Fire Legislation (2007).

[64] See, for example, Neilsen v Attorney-General [2001] 3 NZLR 433.

[65] For an overview, see Police Act Review, Issues Paper 2: Governance and accountability (2006).

[66] The State Services Commissioner's ability to routinely offer Police advice on machinery of government and conduct and integrity issues is currently impeded by section 96 of the Police Act.

[67] See Dame Margaret Bazley, Report of the Commission of Inquiry into Police Conduct (2007), para 8.28 and recommendation R59.

[68] Police's current statutory reporting obligations cover the use of road blocks [under section 65(4) of the Police Act 1958], interception warrants and emergency permits [under section 29 of the Misuse of Drugs Amendment Act 1978 and section 312Q of the Crimes Amendment Act (No 2) 1987], call data warrants [under section 10R of the Telecommunications (Residual Provisions) Act 1987) and bodily samples [under section 76 of the Criminal Investigations (Bodily Samples) Act 1995].

[69] Under section 56 of the Act, the Minister may appoint a Committee of Inquiry to investigate and report to the Commissioner on any non-remuneration or employment-related matter connected with Police. Such a Committee of Inquiry is to consist of a District Court Judge and one or more members of Police.

[70] See, further, Law Commission, The Role of Public Inquiries (2007).

[71] For example, refer to section 24.1(1) of the Royal Canadian Mounted Police Act 1985.

[72] An example was the 2004/05 expert review panel that reported on the Police Communications Centres.

[73] Section 64 of the Police Act 1958.

[74] For example, it may be more appropriate for regulations to address the work of Police dog handlers, rather than in the Act as at present (see sections 44A-E of the Police Act 1958). Similarly, new policing legislation provides the opportunity to consolidate two small statutes which cover situations under which New Zealand Police staff work off-shore: the United Nations (Police) Act 1964 and the Crime and Misconduct (Overseas Operations) Act 2004.

[75] Sir William Morris et al., The case for change: People in the Metropolitan Police Service (2004), p 52.

[76] See subsections 67(3) and (4) of the Police Act 1958.

[77] Section 80 of the Police Act 1958.

[78] See Police Act Review, Issues Paper 3: Employment arrangements (2006), pp 16-21; and Police Act Review, Perspectives on policing (2007), pp 30-33.

[79] Police Act Review, Perspectives on policing (2007), p 70.

[80] In Australia, examples include section 33L of Western Australia's Police Act 1892, section 68 of Victoria's Police Regulation Act 1958 and section 181D of New South Wales' Police Services Act 1990.

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