Substantive amendments to principal Act
Clause 3 amends section 2 of the principal Act by updating the definition of police to make it consistent with current drafting style and usage and by inserting a definition of Deputy Commissioner.
Clause 4 amends the principal Act by repealing Part I (which relates to governance and personnel matters), and substituting a new Part 1.
New section 3 sets out the procedure for appointing a Commissioner of Police (the Commissioner). The main features are—
the State Services Commissioner is responsible for managing the appointment process and must forward nominations to the Prime Minister and the Minister:
the Minister must forward a recommendation to the Governor-General in Council:
the Governor-General in Council may appoint a Commissioner:
a Commissioner holds office during the pleasure of the Governor-General.
New section 4 sets out the responsibilities of the Commissioner and preserves his or her independence. The Commissioner is responsible to the Minister for—
the carrying out of the functions, duties, and powers of the police:
tendering advice to the Minister and other Ministers of the Crown:
the general conduct of the police:
the efficient, effective, and economical management of the police:
giving effect to any directions of the Minister on matters of Government policy.
The Commissioner must act independently in relation to the enforcement of the criminal law in particular cases and classes of case, matters that relate to an individual or group of individuals, and decisions on individual members of the police.
New section 5 preserves the Minister’s ability to give the Commissioner directions on matters of Government policy that relate to—
the prevention of crime:
the maintenance of public safety and public order:
the delivery of police services:
general areas of law enforcement.
However, no direction can have the effect of requiring the non-enforcement of a particular area of the law, and the Minister must not give directions in relation to—
enforcement of the criminal law in any particular cases or classes of case:
matters that relate to an individual or group of individuals:
decisions on individual members of the police.
If there is a dispute between the Minister and the Commissioner on any matter under this section, the Minister must provide the instruction to the Commissioner in writing, publish a copy in the Gazette, and present a copy to the House of Representatives.
New section 6 sets out the procedure for the appointment of Deputy Commissioners of Police (Deputy Commissioners).
New section 7 sets out the powers of Deputy Commissioners. It substantially carries over the existing powers contained in section 4 of the principal Act.
New section 8 sets out the procedure for determining the conditions of employment of a Commissioner or Deputy Commissioner. The conditions are to be determined by agreement between the State Services Commissioner and the appointee, but the State Services Commissioner must obtain the agreement of the Prime Minister and the Minister of State Services before finalising the conditions of employment.
These provisions do not affect the persons who hold those offices at the date of commencement of this Bill (see clause 10).
New section 9 sets out the State Services Commissioner’s review and advisory functions in relation to the Commissioner and the police. The provisions of sections 6 to 10 and section 43 of the State Sector Act 1988 apply as if the Commissioner were a chief executive appointed under that Act and as if the police were a department of the Public Service.
New section 9A provides that it is the Commissioner’s responsibility to review the performance of each Deputy Commissioner. The State Services Commissioner must be consulted if a dispute arises in the course of the performance review of a Deputy Commissioner.
New section 10 provides that Part V of the State Sector Act 1988 (which relates to personnel provisions) applies to the police. However, this does not limit or affect the powers and duties conferred or imposed on the office of constable by any enactment or the common law.
The authority to appoint members is contained in new section 10, which applies Part V of the State Sector Act 1988. Section 59 of that Act empowers a chief executive to—
appoint any employees (including acting or temporary or casual employees) that the chief executive thinks necessary for the efficient exercise of the functions, duties, and powers of the Department:
subject to any conditions of employment included in the employment agreement that applies to the employee, at any time remove any employee from that employee’s office or employment.
New section 11 provides that, in appointing an employee, the Commissioner may designate an employee as a sworn member of the police or a non-sworn member of the police. This includes the power to designate an employee as a sworn member generally, or for a temporary period or on a restricted basis determined by the Commissioner. In addition, the Commissioner may assign to any sworn member of the police any rank that the Commissioner considers appropriate.
New section 12 relates to the exercise of powers by non-sworn members of the police and substantially carries over the existing section 6 of the principal Act.
New section 13 enables the Commissioner to authorise transfers and deployments within the police. The power conferred by this section includes power to—
initially deploy members upon graduation from The Royal New Zealand Police College:
temporarily deploy members to meet police requirements associated with a particular event, occasion, or commitment in New Zealand or overseas:
transfer members for welfare reasons at the member’s request:
transfer members if the Commissioner considers it necessary to do so to efficiently carry out police duties.
The usual appointment procedures in sections 60, 61, and 65 of the State Sector Act 1988 do not apply to transfers under this section. Section 64 of the State Sector Act 1988 does not apply to temporary deployments or transfers for welfare reasons.
New section 14 relates to the resignation of sworn members of the police and substantially carries over existing section 14 of the principal Act, except that the maximum level of the fine that may be imposed where a sworn member resigns otherwise than in conformity with the section is raised from $100 to $1,000.
New section 15 relates to the review of appointments and decisions under section 28D and substantially carries over existing section 11 of the principal Act.
New section 16 empowers the Commissioner to issue 1 or more codes of conduct in relation to different groups of members of the police. A code of conduct may include—
minimum standards of conduct, performance, and integrity (including actions, omissions, behaviours, and classes of criminal offences that constitute different grades of unsatisfactory performance, misconduct, or neglect of duty):
procedures for investigating and managing different grades of unsatisfactory performance, misconduct, or neglect of duty:
criteria for taking any action referred to in new section 16A or new section 16B:
procedural rules, in accordance with the principles of natural justice, that are to be complied with when taking any action referred to in new section 16A or new section 16B.
Every code of conduct issued under this section forms part of the general instructions under section 30 of the principal Act.
New section 16A sets out the Commissioner’s powers in cases where there is unsatisfactory performance, misconduct, or neglect of duty in terms of the relevant code of conduct. The section empowers the Commissioner to—
direct that the member undergo a specified assessment or remedial programme:
issue a formal warning to the member:
reduce the member’s remuneration for a specified period:
bar the member from consideration for promotion for a specified period.
If the Commissioner is satisfied, in accordance with the code of conduct, that a member is unsuited to continue in the member’s present role, having regard to the member’s competence, integrity, performance, or conduct, the Commissioner may, in addition,—
The usual appointment procedures in sections 60, 61, 64, and 65 of the State Sector Act 1988 do not apply to reductions in rank and transfers under this section.
If the Commissioner is satisfied, in accordance with the code of conduct, that a member is unsuited to continue as a member of the police, having regard to the member’s competence, integrity, performance, or conduct, the Commissioner may dismiss the member.
New section 16B empowers the Commissioner to suspend members on pay, or on reduced pay, or without pay, pending the outcome of an investigation under section 16A, and to vary or rescind any suspension.
Clause 5 amends section 87 of the principal Act, which relates to personal grievances by sworn members of the police, to ensure that Part 10 of the Employment Relations Act 2000 applies to those grievances as well as Part 9 of that Act. Part 10 establishes the Employment Relations Authority and the Employment Court, and contains appeal rights and important procedural measures.
Clause 6 effects consequential repeals, revocations, and amendments.
Clause 7 amends the compulsory arbitration procedure in clause 24 of Schedule 3 of the principal Act to require an arbitrating body to have regard to the Commissioner’s ability to fund any resulting police expenditure, as determined by Vote: Police appropriations. Any compulsory arbitration commenced but not completed before the date of commencement of this clause must be completed as if the clause were in force when the arbitration commenced.
Clause 8 consequentially amends the Higher Salaries Commission Act 1977. The conditions of employment of any Commissioner and any Deputy Commissioners appointed after this Bill comes into force must be determined under new section 8 of the principal Act.
Clause 9 effects consequential amendments to section 44 of the State Services Act 1988.
Clause 10 is a transitional provision that relates to the conditions of employment of the Commissioner and Deputy Commissioners in office when this Bill comes into force. Their conditions of employment will not be affected by section 8 of this Bill until the fifth anniversary of the date of their appointment. The principal Act and the Higher Salaries Commission Act 1977 will continue to apply in relation to those conditions of employment during that period.