Policing Directions in New Zealand for the 21st Century

Contents

• Executive summary

• Chapter 1: The case for change
• Chapter 2: Key principles to guide policing
• Chapter 3: Effective policing for New Zealanders
• Chapter 4: People in policing
• Chapter 5: Platforms for success
• Chapter 6: Anticipating the future
• Chapter 7: Next steps

• References
• Appendices

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Chapter 6:   Anticipating the future

INTRODUCTION

6.1 A challenge faced by all legislators is how to keep pace with a rapidly changing world. One response is to pass amending legislation to plug emerging gaps. While this allows for incremental improvements, a disadvantage is the difficulty in maintaining a legislative framework which is coherent and internally consistent. The 1958 Police Act has somewhat fallen into this trap, having been patched more than 25 times since it was first enacted.

ENABLING USE OF NEW TECHNOLOGY

6.3 Police has had a long-standing and well-understood ability to gather biometric data. This has evolved from measuring people’s heights and having artists make charcoal sketches of criminals’ faces, to taking photographs of prisoners and rolling inked impressions of their fingerprints. Even today, recording a prisoner’s height remains a key piece of identifying data gathered by police, along with manually noting any scars, tattoos or birth marks.

6.4 The rationale for such identification practices is simple: police need to be sure people are who they claim to be; and just as importantly, sometimes proving they are not who they claim to be. Legal permissions are granted to police to allow biometric data such as fingerprint images to be taken, stored, transmitted and cross-checked. The information is stored in secure databases that link to each arrested person’s profile, giving certainty about who police are dealing with. This also protects the interests of those who may have unwittingly become the victims of identity theft.

6.5 Given rapid technological advances, many of which will offer faster and more reliable methods of identification than earlier systems, the Policing Act could adopt a technology-neutral approach to legally support Police’s use of improved processes. Put another way, the new Act could enable police to obtain biometric data as they have done for over a century, but not specify the particular technology to be used, as this will most certainly change over the coming decades. The detail of what technology is lawfully able to be used at a given time might be listed in regulations. In this way, future Police Commissioners might approve new identification techniques via a transparent process that is open to public and parliamentary scrutiny.

6.6 The proposals to ‘future proof’ current Police identification powers were outlined earlier in this paper,[81] including the possibility identifying particulars might be obtained in non-arrest situations, for example during roadside breath tests. One of the advantages of this proposal is that information submitted for comparison with Police’s central database could match against biometric data recovered from unsolved crime scenes. Any matches achieved in this way would guide officers whether to detain a person for further questioning, or escort him or her to a police station to conduct more detailed inquiries. This would directly benefit both Police and the wider community, in terms of detecting, apprehending and bringing offenders to justice, as well as providing an even stiffer deterrent to would-be criminals.

6.7 As noted earlier, in any such cases, the rights of the individual could be safeguarded with a requirement that biometric data taken in a roadside context would not be permanently retained or added to Police’s national database. In other words, it could not become a ‘catch and release’ exercise, whereby ever-greater biometric data holdings could be added to Police databases. However, if a person were summonsed or arrested for an offence after initial checks are carried out, then a full set of biometric information would be taken, as part of the normal investigative and detainee handling process. This would be a reasonable outcome in such circumstances.

6.8 One thing is certain: the technologies to support these ideas are already available. Over the next decade, such technologies are likely to become cheaper, increasingly accurate, and more commonly used in daily life. Already many laptop computers are fitted with a fingerprint reader as a biometric security measure, while facial recognition software helps confirm the identities of Kiwis travelling through some overseas airports. The benefits of greater use of these technologies are recognised, but the government seeks further input from New Zealanders on how new legislation might appropriately tap into this potential while balancing legitimate privacy interests.

REDUCING BUREAUCRACY AND PRESSURE ON THE CRIMINAL JUSTICE SYSTEM

6.9 A lot of fresh thinking is already being applied to make the administration of justice more effective and efficient. For example, the trial of a Criminal Justice Support Unit (CJSU) in South Auckland is showing promise as a way of supporting the work of frontline police. The CJSU streamlines arrest processing and file preparation, allowing constables to return to active patrol in a shorter time frame. The instinct to explore models like the CJSU reflects a wider feeling that a disproportionate amount of frontline officers’ time can be spent preparing prosecution files for relatively minor offences, with resulting paperwork flows which burden other justice sector agencies. Sanctions eventually imposed by Courts for these less serious offences sometimes bear little relation to the expense of taking the case through the prosecution process, with delays in the process also meaning sanctions are not immediate for offenders.

6.10 Earlier consultation for the Police Act Review contemplated the idea of streamlining responses to lower-level offending by making greater use of on-the-spot infringement notices.[82] One example given was the ability to issue Liquor Infringement Notices (LINs) for a wider range of offences, such as minors attempting to illegally gain entry to licensed premises with ‘fake ID’, rather than requiring such cases to be dealt with through the time-consuming and costly summons procedures. Widening the options for infringement notices to be used for summary offences received qualified support in public submissions.[83] This provides encouragement to do further work in this area.

6.11 To recapture the anticipated advantages of extending the ability to use infringement notices for lessserious offences, such on-the-spot policing responses:

• deliver swift, simple and effective justice which carries a deterrent effect
• reduce the amount of time police spend completing paperwork and attending Court, while simultaneously increasing the amount of time police can spend on the streets dealing with more serious crime
• reduce the burden on the Courts of dealing with low-level offending, while simultaneously freeing up the Courts to deal with more serious offending.

6.12 A separate review of the entire infringement system, led by the Ministry of Justice, may generate recommendations on the principles which are relevant to whether infringement notices might be an appropriate option for particular offences. Conceivably, it might even be possible to allow for the careful extension of the infringement notice option via consequential amendments in the Policing Bill. For example, police could be given the option of issuing LINs for ‘fake ID’ offences through a targeted amendment to section 162A of the Sale of Liquor Act 1989. Similarly, the option of making liquor ban by-law breaches infringement offences under section 147 of the Local Government Act 2002 could be explored, as a further way of alleviating pressure on the Court system. The government is keen to hear if New Zealanders support such moves, or whether people would rather wait and see if other reviews result in proposals for law reform.[84]

INTEGRITY TESTING AS AN ADDITIONAL WAY TO SUPPORT ETHICAL BEHAVIOUR

6.13 Another area in which the proposed Policing Bill might sensibly prepare for the future is to lay the groundwork for integrity testing of Police employees. Such testing is not currently part of the mainstream employment environment in New Zealand, but it is used as an anti-corruption strategy by police forces in several Australian states (Victoria, New South Wales and Queensland), the United Kingdom, and in New York. The jurisdictions essentially use integrity testing to simulate misconduct opportunities to gauge staff responses. Schemes range from the use of covert agents in elaborate test environments (e.g., use of cash bait at mock crime scenes) through to the use of ‘mystery shoppers’ to check for racism, sexism or neglect of crime victims.

6.14 Although New Zealand Police is widely considered to be one of the least corrupt police services in the world, this is not a reason to be complacent. Forward-looking legislation for New Zealand Police might therefore include an explicit authority to implement a formal staff integrity testing programme at some future point in time. The reason for legislating would be to provide additional transparency and certainty, by putting any future programme on a firm statutory footing, similar to overseas.[85]

6.15 The decision whether or not to explore this option in New Zealand should be taken after discussion with groups representing Police staff and any other relevant interest groups.[86] It is accepted there would need to be detailed procedural guidelines drafted before any such scheme were introduced, but the time to mitigate any concerns about integrity testing would be during development of such protocols. For present purposes, it seems feasible that integrity testing might be considered a necessary or desirable component of a wider Police anti-corruption programme. As such, when formulating a new Act to set a platform for policing over the coming decades, it seems sensible to make provision for the introduction of integrity testing within the Police workplace. Such an enabling provision would not mean integrity testing has to occur, simply that it could occur if the Commissioner of the day saw a need for it.

6.16 While persuaded it makes sense to prepare the way for future Police integrity testing, the government is keen to explore a broad range of opinions on the merits (or otherwise) of passing enabling legislation at this time. As with other ideas put forward in this paper, no final determinations have been made, and public views will be taken into account before any drafting work begins on the proposed Policing Act.

A POLICING OVERSIGHT AND IMPROVEMENT AGENCY

6.17 Wider issues in the review of the Police Act are how the network of policing agencies are appropriately monitored, and how best to spur improvements in policing services.

6.18 As noted in Chapter 1, policing today is more diverse and networked than in 1950s New Zealand. The modern policing landscape is marked by an increasing array of public and private organisations with police-like functions and powers.[87] Some changes have happened virtually without comment, for instance the way in which private security staff now typically play a central role in policing large shopping centres and sports stadia. At the other end of the spectrum, blue-uniformed fisheries officers and other agencies’ enforcement staff can sometimes blur the boundaries with police constables in the public mind.

6.19 Even as the provision of safety and security services in New Zealand becomes more co-operative and integrated, there will continue to be a need for independent oversight and guidance on how the country’s national police organisation does its job. Recently announced changes will enhance the ability of the Police Complaints Authority (PCA) to discharge its mandate to review policing polices and procedures, and provide an independent process for members of the public to air concerns or complaints about Police actions.[88] However, there is no equivalent oversight body which monitors or offers advice on how to improve the performance of other policing agencies. A question that might be asked is whether, over time, there would be benefit in developing an independent policing oversight and improvement agency, which looks broadly across all organisations performing policing functions (e.g., enforcement officers working for organisations such as the Department of Internal Affairs, New Zealand Customs Service, Ministry of Agriculture and Forestry, etc.).

6.20 There are certainly precedents for such developments in some overseas jurisdictions, where enhanced inspectorates have been built up around police forces, but have progressively expanded their field of vision to encompass broader policing functions. An example is the Republic of Ireland’s new Inspectorate provided for under Part 5 of the Garda Síochána Act 2005. One of the most interesting models is the National Policing Improvement Agency (NPIA) established in the United Kingdom under the Police and Justice Act 2006. The NPIA is set up as a non-departmental public body; roughly equivalent to a Crown entity in New Zealand’s public sector. Its role is to identify and disseminate good policing practice, assist police forces to deliver on ‘mission critical’ priorities, and provide operational policing support when needed. The NPIA’s enabling legislation allows the Agency to support police forces either directly or indirectly, by carrying out activities itself (e.g., providing training) or helping forces to carry out activities themselves.

6.21 In New Zealand, a move towards broadly grouped inspection agencies in other areas of the public sector has become increasingly well-established. Examples include:

• the Education Review Office, which reviews, investigates and reports on the provision of schoolbased education in both public and private school settings
• the Mental Health Commission, which has a wide-ranging 'watchdog' function, with monitoring and reporting roles on performance issues, the effectiveness of systems, and the extent to which the Ministry of Health and District Health Boards have exercised leadership in implementing the National Mental Health Strategy
• the Health and Disability Commissioner, whose mandate includes promoting and protecting the rights of consumers of health and disability services, helping resolve problems between consumers and providers of such services, and also improving the quality of those services with both public and private health care providers.

6.22 Mindful of these precedents, consideration could be given to pairing the PCA with a new oversight and improvement agency, to provide heightened assurance for governments and the public about the high-quality delivery of policing services. Such an agency would not necessarily require statutory underpinning, but it might nevertheless be helpful if it had a legal status equivalent to the PCA, as an independent Crown entity. The Policing Act could enable the establishment of such an agency at an appropriate point in the future, with the new body perhaps brought into existence by Order in Council. These are mechanical issues, however. More substantively, the government welcomes thoughts on whether such an agency could play a useful role in the future development of New Zealand Police, and policing in New Zealand more generally.

RECOVERING COSTS FOR SPECIAL POLICING SERVICES

6.23 One of the scenarios debated as part of the Police Act Review last year was the possibility that, in the future, Police might be able to recover policing costs in special circumstances.[89] Times when such an ability might be triggered include requests to provide a police presence at what are essentially private money-making events, such as music festivals and sporting events. One of the key issues identified was a question of equity: if Police resources were being directed to offer safety and security services at commercial events (albeit to members of the public who have paid to attend such events), they are not available to respond to wider community needs. A constable providing a crowd control presence at a cricket match or rugby game is a constable providing a public service, but is not a constable who is available to attend a burglary call-out or perform other policing functions. This raises issues of fairness, and to what extent it is reasonable for a publicly-funded policing service to subsidise the safety and security interests of profit-generating companies or organisations.[90]

6.24 In recognition of these issues, many overseas jurisdictions give policing organisations the ability to charge fees for what are considered ‘over and above’ services.[91] In fact, along with The Netherlands, New Zealand is one of the only western countries where there is no legislative support for such cost recovery.[92]

6.25 While commonplace overseas, fee-for-service policing raises balancing considerations. For example, some may be concerned about the perception of ‘policing for sale’. Policing in New Zealand is based on the obligation to uphold the Queen’s peace, and any move to require payment for fulfilling this duty from commercial event organisers could risk distorting that basic obligation. If this were to occur, something precious about the New Zealand way of policing might be seen as lost.

6.26 On the other hand, public research suggests there may be a level of comfort with enabling New Zealand Police to take cautious steps towards a cost recovery model in certain defined situations.[93]

6.27 Overall, there seems to be merit in the idea that policing costs could be recovered in a limited number of special circumstances. Despite such arrangements being fairly standard in many other countries, including England, Ireland and Australia (where New Zealand inherited its constabulary system from), the introduction of such an ability in this country would still be breaking new ground. The government therefore believes it is appropriate to provide some additional time for the concept to develop, so interested parties can have further input. Depending on responses received to the suggestion, it might be possible to draft an enabling clause for the new Act. Precedents for how such a trial power could be drafted are available in a number of overseas policing statutes.94 This would simply allow a costrecovery system for policing to be activated in the future, most probably through regulations, when it was felt the conditions were right for such a progression to occur.

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Footnotes

[81] See Chapter 3, paragraphs 3.24 to 3.28.

[82] Police Act Review, Issues Paper 5: Powers and protections (2006), pp 15-16.

[83] Police Act Review, Perspectives on policing (2007), pp 47-48.

[82] In relation to 'fake ID' offences, the government is currently reviewing the effectiveness of age-related restrictions on the sale and supply of liquor. For the review's scope, see Hon Mark Burton and Hon Damien O'Connor, Terms of reference for the review of the sale and supply of liquor to minors (2007).

[85] An example is Part 10A of New South Wales' Police Service Act 1990.

[86] Some of the opposing issues raised by integrity testing were highlighted in earlier Police Act Review consultations, with the overall concept eliciting a mixed response. See Police Act Review, Issues Paper 8: Conduct and integrity (2006), pp 14-15; Police Act Review, Perspectives on policing (2007), p 68.

[87] See, further, Police Act Review, Securing the future: Networked policing in New Zealand (2006).

[88] Hon Mark Burton, Media release: Police Complaints Authority Bill to implement recommendations (2007).

[89] See Police Act Review, Issues Paper 7: Administration (2006), pp 15-19.

[90] As a Judge in a recent English case noted: "There is a strong argument that where promoters put on a function such as a music festival or sporting event which is attended by large numbers of the public the police should be able to recover the additional cost they are put to for policing the event and the local community affected by it. This seems only just where the event is run for profit." Justice Scott Baker in Reading Festival Ltd v West Yorkshire Police Authority [2006] EWCA Civ 524, para 72.

[91] For example, in New South Wales, section 208 of the Police Service Act 1990 and regulation 106 of the Police Regulations 2000 combine to allow NSW Police to recover costs of attending sporting and entertainment events, as well as to provide supplementary policing services to local councils and also shopping centres. The Victorian model is similar. Section 130 of the Police Regulation Act 1958 enables regulations to be made prescribing services that may be charged for - with the resulting Police (Charges) Regulations 1992 allowing for charges to be imposed for policing services at sporting and entertainment events, providing escort or guard services, and for provision of certain information.

[92] Julie Ayling and Clifford Shearing, Taking care of business: Public police as commercial security vendors (2007), p 3.

[93] UMR Research, What the New Zealand public want and expect from their police in the 21st century (2007), p 15.

[94] For example, section 63 of the South African Police Service Act 1995 contains a power to charge fees for special policing services, but also enables the National Commissioner of the South African Police Service to "authorise that any function, duty or service may be performed free of charge on behalf of any deserving charity, or in any case considered to be of general, culture or educational interest".

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Contents

• Executive summary

• Chapter 1: The case for change
• Chapter 2: Key principles to guide policing
• Chapter 3: Effective policing for New Zealanders
• Chapter 4: People in policing
• Chapter 5: Platforms for success
• Chapter 6: Anticipating the future
• Chapter 7: Next steps

• References
• Appendices