Policing Bill

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Explanatory note

General policy statement

Overview

This Bill is the foundation to equip the New Zealand Police to provide the best policing services for New Zealanders. In broad terms, the Bill sets out to achieve 2 fundamental tasks: first, to confirm and strengthen Police governance, accountability and organisational arrangements in a way which is suitable for a contemporary age; and second, to improve the Police’s effectiveness, especially by updating human resource management provisions, and establishing a clear framework for the exercise of policing powers by particular Police employees.

Need for reform

Existing legislation on the provision of policing services, and in particular the governance, organisation and administration of the New Zealand Police, is inadequate. Some of the key weaknesses of the present Police Act 1958 (the 1958 Act) and Police Regulations 1992 include—

  • unclear responsibilities and confused lines of accountability:

  • constraints around the ability to place the right people in the right jobs:

  • an overly prescriptive system for managing staff performance and discipline issues:

  • little guidance to work with partner agencies, domestically or internationally:

  • few supports to enable the use of modern policing tactics.

New legislation is needed to overcome these inadequacies; removing constraints to the delivery of better policing services to the community, and setting a platform for even more effective policing in the future. This Bill responds to that need for reform.

The provisions it contains have been extensively tested and refined, and have benefited from a robust consultation process. In particular, there have been multiple opportunities over a 2 year period for New Zealanders to have a direct say on the features they value most highly in a public policing service, and to express a view on how a modern police agency might be most effectively enabled by legislation.

Summary of key measures

Introduction

The Bill represents a blend of continuity and change. On the one hand, it carries through the best features of the Police’s current legislative environment, including the traditional office of constable, the independence and impartiality of the Police, and the special constitutional arrangements for the Commissioner of Police. On the other hand, the Bill modernises many features of current practice, especially in the area of personnel management, where laws designed for a Victorian age are simply no longer fit for their purpose.

Purpose, principles, and functions

The starting point for the Bill is to confirm the continuation of the organisation known as the New Zealand Police, and to describe its functions. One of the curious features of the 1958 Act is it says almost nothing about the Police as an entity or the Police’s functions, and provides no guidance on how policing might by carried out in a New Zealand context. This is at odds with contemporary departmental statutes in this country, as well as police-specific legislation in other countries.

Without amassing a prescriptive list of functions, the Bill seeks to confirm that the Police’s mandate includes, but is not limited to, the following key domains of activity:

  • crime prevention:

  • keeping the peace and maintaining public safety:

  • law enforcement:

  • community support and reassurance (for example locating missing people, contacting next of kin, and generally helping people in need of assistance):

  • national security (as part of inter-agency responses to threats against the national interest):

  • participation in policing activities outside New Zealand:

  • emergency management.

Policing legislation should also reflect that the Police does not have a monopoly on policing. Successful policing relies on a range of partner organisations in the public and private sectors, as well as the efforts of individuals, families and communities. Notably: all citizens can help uphold the law, keep the peace, prevent crime and crashes, and bring offenders to justice; local authorities can work with the Police to support the social well-being of communities, including through crime prevention and safety services, regulatory activities, environmental design, and planning processes; and other government agencies contribute to public safety, in particular through their lead or joint responsibility for enforcing specific legislation. For the first time, the Bill acknowledges that policing is a shared responsibility, which takes place in a networked and cooperative safety and security environment.

The Bill also reflects the fact that policing operates in large measure by popular consent. Public trust and acceptance of the legitimacy of Police actions are pre-requisites for achieving that consent. This is assisted by the tradition of an independent constabulary in the New Zealand system of policing. Also vital to maintaining the legitimacy of the Police in the eyes of the public is an understanding that policing is done in a principled way.

Part 2 of the Bill contains principles of policing which have stood the test of time. The principles are—

  • principled, effective, and efficient policing services are a cornerstone of a free and democratic society under the rule of law:

  • effective policing relies on a wide measure of public support and confidence:

  • policing services are provided under a national framework but also have a local community focus:

  • policing services are provided in a manner that respects human rights:

  • policing services are provided independently and impartially:

  • in providing policing services every Police employee is required to act professionally, ethically, and with integrity.

Governance and accountability

Part 2 of the Bill also seeks to strengthen the Police’s governance and accountability arrangements. There are major improvements on the 1958 Act in terms of clarity and rigour, including provisions to—

  • provide for the continuation of the New Zealand Police as an instrument of the Crown:

  • define more clearly the processes for the appointment, tenure and terms of engagement of the Commissioner of Police and Deputy Commissioners of Police:

  • clarify the roles of the Commissioner of Police and Minister of Police, and the constitutional relationship between the Commissioner and the Minister.

Organisation

Part 2 of the Bill also outlines critical building blocks for a modern Police workforce. This section of the Bill offers a unified basis for setting employment terms and conditions, featuring a new solemn undertaking for all Police employees, as well as a single code of conduct for all Police staff. Other significant measures confirm the historic strengths of the office of constable while updating the constabulary oath, but also widen the Commissioner’s ability to support constables by authorising designated categories of Police employees to exercise targeted policing powers. The final aspects of Part 2 underscore the Commissioner’s ability to issue binding general instructions to Police employees, as well as reinforce command and control arrangements more generally.

Support for effective policing

Part 3 of the Bill contains provisions to support frontline policing through access to clear powers and protections. It principally covers areas of current policing practice and existing law which can carry forward to a new Act, in some respects with updated language or minor changes. Some Police-related provisions in other statutes are transferred into the new Policing Act by the Bill; notably, a small number of frontline police powers which would have better visibility in a Policing Act for those who use them on a day-to-day basis. Part 3 also includes provisions to strengthen protections against misuse of the Police’s name and update relevant Police-related offences, such as impersonating Police staff.

A modern Police workforce structure and modern employment relations arrangements

Part 4 of the Bill focuses on the Commissioner’s ability to employ a workforce with the range of skills, powers, and protections needed to meet current and future policing demands. Key provisions introduce modern human resource management processes to—

  • align the Police’s human resource arrangements more with the mainstream employment environment:

  • update the framework for negotiating employment terms and conditions for Police employees, including limitations on the ability of constabulary staff to take industrial action, and on the ability to lock out constabulary staff:

  • shift internal disciplinary arrangements to the newly established code of conduct environment:

  • update the language and provisions establishing Police medical, physical, and psychological health standards, and superannuation arrangements.

Administrative and miscellaneous matters

The final part of the Bill, Part 5, addresses various administrative and miscellaneous issues, including—

  • establishing a process to gather and manage staff biometric data for use in pre-employment vetting, and as elimination data in relation to possible non-intentional contamination of crime scene samples:

  • consolidating laws relating to international and United Nations policing:

  • assisting with improved identification of Police employees and authority to exercise policing powers:

  • details relating to administrative practices, such as evidencing certain facts in legal proceedings:

  • provision for a general regulation-making power, various transitional and savings provisions, as well as a large number of consequential amendments, repeals and revocations of other legislation.

Clause by clause analysis

Clause 1 states the Title the Bill will have on enactment.

Clause 2 provides that the Bill comes into force on 1 July 2008.

Part 1
Preliminary provisions

Clause 3 states the Bill’s purpose, which is to provide for policing services in New Zealand, and to state the functions and provide for the governance and administration of the New Zealand Police.

Clause 4 defines certain terms used in the Bill.

Clause 5 provides for the status of examples used in the Bill.

Clause 6 provides that the Bill binds the Crown.

Part 2
Organisation and governance

Subpart 1New Zealand Police, principles, functions, and roles of others

Clause 7 provides for the continued existence of the New Zealand Police, and states that it is the same instrument of the Crown as the present organisation of that name.

Clause 8 states the principles on which the Bill is based. They are—

  • principled, effective, and efficient policing services are a cornerstone of a free and democratic society under the rule of law:

  • effective policing relies on a wide measure of public support and confidence:

  • policing services are provided under a national framework but also have a local community focus:

  • policing services are provided in a manner that respects human rights:

  • policing services are provided independently and impartially:

  • in providing policing services every Police employee is required to act professionally, ethically, and with integrity.

Clause 9 states functions of the Police. These include—

  • crime prevention:

  • keeping the peace and maintaining public safety:

  • law enforcement:

  • community support and reassurance:

  • national security:

  • participation in policing activities outside New Zealand:

  • emergency management.

Clause 10 acknowledges the roles of individual citizens, and agencies and bodies other than the Police, in the performance of the functions of the Police.

Clause 11 makes clear that clauses 8 to 10 neither—

  • impose particular duties on, or give particular powers to, the Police; nor

  • affect the functions, powers, or duties of other agencies or individuals.

Subpart 2Commissioner, Deputy Commissioners, and acting Commissioner

Clause 12 provides for the appointment of the Commissioner of Police. The Commissioner—

  • is appointed by the Governor-General on the recommendation of the Prime Minister; and

  • is appointed for a term not exceeding 5 years; and

  • holds office at the pleasure of the Governor-General; and

  • retains his or her office as constable when appointed Commissioner.

Clause 13 provides, on a similar basis to the appointment of Commissioner, for the appointment of 1 or more Deputy Commissioners of Police.

Clause 14 confers responsibility on the States Services Commissioner for managing the process for the appointment of the Commissioner and any Deputy Commissioners.

Clause 15 provides for the appointment of an acting Commissioner in the event of the Commissioner’s incapacity because of illness, absence, or any other cause. The longest serving Deputy Commissioner is deemed to be appointed acting Commissioner until the acting Commissioner is appointed.

Clause 16 states—

  • the areas in respect of which the Commissioner is responsible to the Minister of Police; and

  • the areas in respect of which the Commissioner is not responsible to, and must act independently of, the Minister of Police.

Clause 17 enables the Commissioner to delegate any of his or her powers, functions, or duties under this Bill or any other enactment.

Subpart 3Police employees

Appointment of Police employees

Clause 18 provides that the Commissioner may appoint the people that the Commissioner thinks necessary for the efficient exercise of the powers, functions, and duties of the Police.

This clause also provides that the Commissioner may assign to a Police employee any level of position that the Commissioner considers appropriate. The concept of position levels in the Bill is intended to encompass what were previously known as ranks under the Police Act 1958 but is no longer limited only to constabulary employees.

Standards of behaviour for Police employees

Clause 19 provides that a new Police employee must give a solemn undertaking to faithfully and honestly perform his or her duties as a Police employee.

Clause 20 provides that the Commissioner must prescribe a code of conduct stating the standards of behaviour expected from Police employees.

This clause provides that it is the duty of every Police employee to conduct himself or herself in accordance with the code of conduct.

It is intended that a breach of the code of conduct may be dealt with as a disciplinary matter.

The existing specific procedures and provisions about discipline in the Police Act 1958 and the Police Regulations 1992 are not carried over into the Bill.

Clause 21 provides for the form of, and requirements for communication of, the code of conduct.

Appointment of constables

Clause 22 provides that a Police employee may become a constable by taking the constabulary oath in either of the forms (English or Māori) set out in this clause.

The person who administers the oath (the Commissioner or a person authorised by the Commissioner) must be satisfied that the person who is to take the oath is adequately trained and capable of exercising the powers of a constable.

Clause 23 contains further provisions relating to constables.

Clause 23(1) deals with the relationship between the Commissioner’s rights, duties, and powers as an employer of a Police employee (conferred on the Commissioner by clause 18(4)) and the powers and duties of the office of constable. This subclause provides that nothing in clause 18(4) limits or affects the powers and duties of the office of constable.

The rest of this clause provides that—

  • the Commissioner and a constable may agree that the constable will cease to hold the office of constable:

  • the ability to agree does not limit the circumstances in which a constable may cease to hold office:

  • if a person ceases to be a constable, that does not, of itself, mean that the person is no longer a Police employee:

  • a person ceases to be a constable if he or she ceases to be a Police employee.

Authorised officers

Clause 24 provides that the Commissioner may authorise a Police employee to—

  • (a) exercise any particular power of a constable under any enactment other than this Bill, except the power to arrest or search any person:

  • (b) perform 1 or more of the policing roles set out in Schedule 1.

Under existing section 6(2) of the Police Act 1958, the Commissioner has the ability to authorise a non-sworn member of the Police in the manner described in paragraph (a) above. The ability to authorise a Police employee to perform a policing role is new.

The Commissioner must be satisfied that the person is adequately trained and capable of exercising the power or carrying out the policing role.

The Commissioner may withdraw the authorisation at any time.

Clause 25 provides that a Police employee authorised to perform a policing role has the powers specified in Schedule 1 in relation to that role.

Clause 26 provides that an authorised officer, when exercising his or her powers,—

  • has the same ancillary or incidental powers a constable would have:

  • is subject to the same requirements that would apply to a constable exercising that power:

  • has the same protections from liability that a constable would have.

Clause 27 provides that Schedule 1 (which sets out policing roles and powers for each role) may be amended by Order in Council.

Subpart 4General instructions

Clause 28 provides that the Commissioner may issue general instructions for Police employees. General instructions must not be inconsistent with this Bill or any regulations made under it.

Clause 29 requires the Commissioner to take steps to ensure that all new general instructions are communicated to all Police employees, and states how a general instruction is taken to have been communicated to Police employees.

Subpart 5Command and control of Police

Clause 30 sets out the key provisions for the command and control of Police employees.

Every Police employee must obey and be guided by—

  • general instructions; and

  • the Commissioner’s circulars; and

  • any applicable local orders.

In the event of a conflict between general instructions, the Commissioner’s circulars, or any applicable local orders, clause 28(4) states that the general instructions prevail.

Clause 30(2) requires every Police employee to obey the lawful commands of a supervisor.

Clause 30(3) provides that in the absence of a supervisor, the supervisor’s authority and responsibility devolves on the Police employee available who is next in level of position. If, however, there are 2 or more employees available of the same level of position, the supervisor’s authority and responsibility devolves on the longest serving Police employee.

Clause 30(4) states that no Police employee may, in the course of duty, act under the direction, command, or control, of—

  • (a) a Minister of the Crown; or

  • (b) a person who is not authorised by or under this Bill or any other enactment or rule of law to direct, command, or control the actions of a Police employee.

Clause 30(5) provides that clause 30(4) does not apply to Police employees engaged in overseas operations or United Nations activities.

Clause 31 enables the Commissioner to take charge of any policing operation. The Commissioner may relieve a Police employee in charge of a policing operation if the Commissioner considers it necessary for the effective and efficient exercise of the powers, functions, and duties of the Police.

Part 3
Powers, operations, and offences

Identification of people detained by Police

Clause 32 is about the identification of people detained by Police.

In taking a person’s identifying details, a constable may only use reasonable force that may be necessary to secure those details.

If a person is in the lawful custody of the Police, a constable may take the person’s identifying details for the purpose of enabling the commencement of a prosecution against that person. This provision is substantially the same as section 57 of the Police Act 1958.

If a person is not in the lawful custody of the Police, a constable who has good cause to suspect the person of committing an offence may, for the purpose of enabling the commencement of a prosecution against that person, detain the person at any place in order to take the person’s identifying details. However, the following restrictions apply in this situation:

  • only those details necessary to identify the person may be taken:

  • the person may be detained only for the period reasonably necessary to take those details:

  • the person’s details must be taken in a manner that is reasonable in the circumstances:

  • there is no authority to conduct a strip search of the person.

A person commits an offence who, after being cautioned, fails to comply with a reasonable demand or direction of the constable exercising his or her powers under this clause. The penalty for committing an offence against this clause is liability to imprisonment for a term not exceeding 6 months, a fine not exceeding $5,000, or both.

In this clause and clause 33, identifying details means, in relation to a person, any or all of the following:

  • the person’s biographical information (for example, the person’s name, address, and date of birth):

  • the person’s photograph or visual image:

  • details of the person’s height, fingerprints, palm-prints, or footprints, and any scars, marks, or tattoos:

  • any other physical details relevant to the offence that the person is suspected of committing.

Clause 33 provides that the identifying details of a person that are obtained under clause 32

  • may be entered, recorded, and stored on a Police information recording system; but

  • must, as soon as practicable, be destroyed—

    • after a decision is made not to arrest the person in respect of any offence:

    • after a decision is made not to bring proceedings against the person in respect of any offence:

    • after the completion of proceedings against the person in respect of any offence, unless the person is convicted or an alternative resolution is imposed where the person admits to an offence (for example, diversion).

Other Police powers

Clause 34, which relates to temporary road closures by Police, is taken from section 342A of the Local Government Act 1974.

Clause 34 enables a constable to temporarily close to traffic any road leading to or from or in the vicinity of a place, if the constable has reasonable cause to believe that—

  • public disorder exists or is imminent at or near that place; or

  • danger to a member of the public exists or may reasonably be expected at or near that place; or

  • an indictable offence not triable summarily under section 6 of the Summary Proceedings Act 1957 has been committed or discovered at or near that place.

Clause 35, which relates to the care and protection of intoxicated people, is taken from section 37A of the Alcoholism and Drug Addiction Act 1966.

A constable who finds a person intoxicated in a public place, or intoxicated while trespassing on private property, may detain and take the person into custody if—

  • the constable reasonably believes that the person is—

    • incapable of protecting himself or herself from physical harm; or

    • likely to cause physical harm to another person; or

    • likely to cause significant damage to any property; and

  • the constable is satisfied it is not reasonably practicable to provide for the person’s care and protection by—

    • taking the person to his or her place of residence; or

    • taking the person to a temporary shelter.

A person who is detained—

  • must be released as soon as the person ceases to be intoxicated:

  • must not be detained longer than 12 hours after the person is first detained, unless a health practitioner recommends that the person be further detained for a period not exceeding 12 hours.

A health practitioner must not recommend the further detention of the person unless the health practitioner is satisfied that certain criteria are met.

Clause 36 enables a constable who has good cause to suspect a person of killing or injuring a Police dog to require the person’s name and address or evidence of that name and address. A person commits an offence who, without reasonable excuse,—

  • refuses or fails to provide the details or evidence required; or

  • provides details or evidence that he or she knows to be false.

Clause 36 carries forward section 44E of the Police Act 1958 and has the same effect as that section except that the penalty for committing an offence against it is now updated to a fine not exceeding $5,000 (instead of $500).

Searches of people in custody

Clause 37 empowers constables (and searchers used in accordance with clause 38) to conduct general searches of people who—

  • have been taken into custody; and

  • are either at a Police station, or in premises or a vehicle, being used for Police purposes; and

  • are to be detained securely (before a first appearance in Court or a decision on bail, or for the taking of identifying details under clause 32(1)).

A constable or searcher may search such a person, and take from him or her all money and any property found in his or her possession.

The constable or searcher may use any reasonable force necessary to conduct the search or take the money or property.

The clause does not affect the common law right of constables to search a person on arrest.

Clause 38 empowers the Police employee in charge of the place or vehicle in which a person is detained in custody to use a searcher to conduct a search of the person under clause 37 if—

  • the searcher’s use is necessary to enable the search to be carried out—

    • by someone of the same sex as the person; or

    • within a reasonable time of the person’s being taken into custody; and

  • the searcher has received appropriate training.

The searcher must conduct the search in accordance with all relevant general instructions, as if he or she were a Police employee.

Clause 39 relates to property taken from people in custody. All money and property taken from a person under clause 37 must be returned when they are released from custody, except—

  • money or property that may need to be given in evidence in proceedings:

  • money or property whose possession constitutes an offence.

But if the person is later taken into custody in a prison, money and property taken (unless it may need to be given in evidence, or its possession constitutes an offence) must, where practicable, be delivered to the manager of the prison.

Clause 40 empowers a District Court Judge to determine title to property if—

  • it is in the possession of the Police; and

  • it is not distrained; and

  • there is doubt whether a person claiming it, or which of several claiming it, is entitled to it.

The Judge—

  • may make an order for the delivery of the property to any person appearing to be its owner, or to be entitled to its possession; or

  • if the owner or person entitled to possession cannot be found, may make any order the Judge thinks fit.

Neither Police employees nor the Crown can be sued for the recovery of the property dealt with under the Judge’s order (or for its value).

Clause 41 relates to lost property in Police possession.

If it is not claimed after being held for 3 months or more, it must be sold by auction.

The auction may be held—

  • at premises open to the public; or

  • through the Internet; or

  • in any other way the Commissioner considers will give the public a reasonable opportunity to bid for the property.

Before the property is sold, a notice of its proposed sale must be published in a newspaper circulating in the district in which the sale is to be held, or on a website.

The requirement to sell by auction does not apply to perishable property, which may be sold at any time and in any manner as the Commissioner directs, or if valueless may be destroyed.

Clause 42 relates to unclaimed money, and the proceeds of sales under clause 41.

Unclaimed money must be paid into a Crown Bank Account.

The proceeds of sales of goods under clause 41 must be paid into a Crown Bank Account after deducting the costs of—

  • advertising and conducting its sale; and

  • storing, transporting, testing, or otherwise preparing the goods for sale.

Operational provisions

Clause 43 requires constables to obey and execute all lawful criminal court processes. It also provides that—

  • a court process directed to one constable may be executed by another (and in that case the other constable has the rights, powers, and authorities he or she would have had if the process were directed to him or her by name):

  • a constable may arrest a person under a court process without having the process in his or her possession.

Clause 44 protects Police employees acting under court processes. A Police employee acting under a court process is not responsible for any irregularity, or any lack of jurisdiction, in its issuing.

If a Police employee is sued in respect of acts done under a court process, all the employee needs to do to obtain judgment (and costs) is produce the process, and prove that—

  • the process was issued out of a Court, or signed in the handwriting of a person whose name appears on it, who is reputed to be a judicial officer, or Registrar or Deputy Registrar of a Court; and

  • the employee’s actions were done under the process.

Clause 45 provides that in certain proceedings any Police employee can act in place of any other Police employee who is to appear in the execution of his or her duty (unless the other Police employee is to appear as a witness). The proceedings are those in a District Court, or before the Liquor Licensing Authority, a District Licensing Agency, or any other Commission, Inquiry, Board, or Tribunal.

Clause 46 authorises a Police dog handler to bring a Police dog into any place the handler can himself or herself lawfully enter in the course of Police duties.

Offences

Clause 47 makes it an offence to gain employment with the Police by false representations. It carries forward and updates section 49 of the Police Act 1958.

A person commits an offence who, for the purpose of gaining employment with the Police, intentionally submits false or forged documents or makes false representations when applying for employment. The penalty for committing an offence against this clause is updated to a term of imprisonment not exceeding 6 months (instead of 3 months), a fine not exceeding $5,000 (instead of $200), or both.

Clause 48 makes it an offence to do any of the following things without reasonable excuse:

  • impersonate a Police employee (whether by words, conduct, or demeanor, or by assuming the name, designation, or description of Police employee, or by wearing a Police uniform or uniform that closely resembles it):

  • represent any vehicle, craft, or other conveyance as being in the service of the Police.

Clause 48 carries forward and amalgamates sections 51 and 51A of the Police Act 1958 and is similar in effect to those sections except that—

  • the offence of representing a vehicle, craft, or other conveyance as being in the service of the Police is new; and

  • a uniform and increased penalty is imposed whereby a person who commits an offence against clause is liable to imprisonment for a term not exceeding 12 months, to a fine not exceeding $15,000, or to both.

Clause 49 prohibits a person from using the term Police or New Zealand Police in the person’s operating name.

A person commits an offence who, without reasonable excuse, carries on an activity under an operating name that includes the word Police or the words New Zealand Police, in a manner reasonably likely to lead a person to believe that the activity is endorsed or authorised by the Police or any part of the Police.

A person who commits an offence against this clause is liable,—

  • in the case of an individual, to imprisonment for a term not exceeding 6 months or to a fine not exceeding $5,000:

  • in the case of a body corporate, to a fine not exceeding $20,000.

Clause 50 relates to unlawful possession of Police property and carries forward section 52 of the Police Act 1958 and aspects of section 61A of that Act.

A person who, without lawful authority or reasonable excuse, has in his or her possession any Police property—

  • commits an offence; and

  • is liable to imprisonment for a term not exceeding 3 months, to a fine not exceeding $2,000, or to both.

Clause 4 provides that Police property

  • means property used by, or in the possession or under the control of, the Police (whether belonging to the Crown or not); and

  • includes a confidential Police document or copy of that document. (A definition of confidential Police document is also provided in clause 4.)

Clause 51 carries forward section 53 of the Police Act 1958, which relates to assistance that may be required by a Police employee from a member of the public.

A Police employee lawfully carrying out his or her duties may, if it is reasonably necessary in the circumstances, ask a person (18 years or older) to help the Police employee to—

  • apprehend or secure a person:

  • convey a person in the Police employee’s charge to a Police station or other place.

A person who fails to give help, when so asked, commits an offence and is liable to a fine not exceeding $2,000.

Clause 52 carries forward section 54 of the Police Act 1958 and relates to unlawful dealings with prisoners.

A person commits an offence who, without the permission of a Police employee,—

  • holds any communication with a prisoner in the custody or charge of a Police employee; or

  • delivers any thing, or causes it to be delivered, to that prisoner; or

  • attempts to do any of the things described above.

Clause 52 is substantially the same as section 54 except that the financial penalty for an offence against this clause is a fine not exceeding $5,000 (instead of $400).

Clause 53 provides that a person who intentionally kills, maims, wounds, or otherwise injures a Police dog without lawful authority or reasonable excuse commits an offence.

This provision is similar to section 44C of the Police Act 1958 except for the insertion of the word intentionally and the substitution of a different penalty.

A person who commits an offence against this clause is liable to imprisonment for a term not exceeding 12 months (instead of 2 years), to a fine not exceeding $15,000 (instead of $10,000), or to both.

Part 4
Provisions relating to employment of Police employees

Clause 54 defines certain terms used in this Part.

Clause 55 provides that, except as expressly provided in the Bill, the Employment Relations Act 2000 applies in relation to the Police.

Under section 96 of the Police Act 1958, the Employment Relations Act 2000 does not apply in respect of members of the Police unless expressly provided (although the employment of non-sworn members of the Police is, in accordance with section 75 of the Police Act 1958 and Part 6 of the State Sector Act 1988, made subject to the Employment Relations Act 2000).

Therefore, under the Bill the employment of all Police employees is now subject to the Employment Relations Act 2000 unless expressly stated otherwise.

Clause 56 provides that certain privacy principles in the Privacy Act 1993 do not apply where the Commissioner is assessing the suitability of a person for employment with the Police. The privacy principles that do not apply are—

  • principle 2 (which generally requires that personal information must be collected from the individual to whom the information relates):

  • principle 3 (which relates to steps to be taken when collecting personal information from the individual to whom the information relates):

  • principle 10 (which sets out limits on the use of personal information for a purpose other than the purpose for which it was obtained).

Clause 57 requires the Commissioner, subject to the Bill, to comply with the principle of being a good employer as set out in sections 56 and 58 of the State Sector Act 1988. This clause replaces, with some amendment, section 7 of the Police Act 1958. It is one of a number of clauses (see also clauses 58 to 61) that in a number of specific respects are intended to impose the same or similar obligations on the Commissioner as are imposed on a chief executive of a government department in relation to the employment of employees.

Clause 58 provides that the Commissioner must appoint employees on merit. There are certain exceptions to this, namely certain transfers of employees (see clause 63) and temporary assignments, secondments, etc (see clause 64). This clause replaces section 8 of the Police Act 1958.

Clause 59 provides that the Commissioner must notify vacancies. This is subject to the same exceptions as for clause 58, namely certain transfers of employees (see clause 63) and temporary assignments, secondments, etc (see clause 64). This clause replaces section 9 of the Police Act 1958.

Clause 60 provides that the Commissioner must notify Police employees of appointments to a vacant position in the Police (other than an acting, temporary, or casual appointment). This clause replaces section 10 of the Police Act 1958.

Clause 61 provides that section 65 of the State Sector Act 1988 applies to the appointment of employees to the Police. The effect of this is that the Commissioner must put into place a procedure for reviewing appointments (other than acting appointments).

Clause 62 provides that the Commissioner may appoint an employee to an acting position that is above the employee’s existing level of position or carries with it the exercise of powers and performance of duties of a level of position that is above the employee’s existing level of position. This clause replaces section 13 of the Police Act 1958.

Clause 63 sets out certain circumstances in which the Commissioner may transfer an employee to other duties without being bound by the provisions of clause 58(1) about appointing employees on merit or notifying a vacancy under clause 59(1). The ability to transfer under this clause is subject to any applicable employment agreement. This clause replaces section 15 of the Police Act 1958 although section 15(2) is not carried forward.

Clause 64 provides that the Commissioner may assign a Police employee to a temporary position in the Police, and relocate employees for various reasons (set out in subclause (1)(d)). The Commissioner may also second Police employees to other employers and second a person who is not a Police employee to a position in the Police. The Commissioner may do these things without being bound by the provisions of clause 58(1) about appointing employees on merit or notifying a vacancy under clause 59(1). The ability of the Commissioner to appoint, second, etc, under this clause is subject to any applicable employment agreement.

This clause provides that a temporary assignment or secondment made without complying with clauses 58(1) and 59(1) may last only for a maximum period of 14 months before the Commissioner is obliged to re-assign it in compliance with clauses 58(1) and 59(1).

This clause contains matters currently provided for in regulations 4 and 6 of the Police Regulations 1992. However, the references to secondments in this clause are new. Also, the 14-month maximum time period for temporary assignments and secondments is new.

Special provisions concerning terms and conditions of employment

Clause 65 provides that before entering into negotiation for terms and conditions of employment of Police employees the Commissioner must consult with the State Services Commissioner over the terms and conditions to be negotiated. The State Services Commissioner may at any time indicate to the Commissioner that he or she wishes to participate with the Commissioner in the negotiations.

Under existing sections 67 and 75 of the Police Act 1958 there is a similar role for the State Services Commissioner in relation to negotiation of terms and conditions of employment.

Clause 66 is new and is a special provision relating to collective bargaining for terms and conditions that are applicable to constables. If the processes under the Employment Relations Act 2000 have failed to settle a dispute concerning the terms and conditions in the bargaining the matter must be referred to the final offer arbitration procedure set out in Schedule 2.

This point of difference between constables and other Police employees is related in policy terms to the fact that a strike by, or lockout of, constables is illegal (see clause 68).

Superannuation schemes

Clause 67 provides that the Commissioner has the same ability as an employer in the State services to establish a State services superannuation scheme. This clause replaces section 26A of the Police Act 1958.

This clause also provides that the Commissioner may make it a condition of employment of constables that they contribute to a State services superannuation scheme. This power is substantially the same as that provided by existing section 67(7) of the Police Act 1958.

Strikes and lockouts involving constables

Clause 68 provides that a strike by, or lockout of, any number of constables is unlawful. This clause replaces, in substantially similar terms, section 80 of the Police Act 1958. The terms strike and lockout have the meanings given to those terms in the Employment Relations Act 2000.

Removal of Police employees

Clause 69 provides that the Commissioner may at any time remove any Police employee from that employee’s employment. This is subject to the Bill and also to any conditions of employment in any applicable employment agreement.

Clause 70 provides that if a Police employee is convicted of the offence of gaining employment with the Police by false representations (see clause 47), any employment contract between that employee and the Commissioner is cancelled and the person must be treated as having been removed from his or her employment with the Police.

Compulsory retirement and compulsory and voluntary disengagement from Police

Clause 71 provides that the Commissioner must prescribe standards of physical, medical, and psychological health required of Police employees.

The standards may apply to all Police employees generally or to particular classes or descriptions of Police employees.

This clause provides for consultation with service organisations, the Government Superannuation Fund Authority and trustees of State services superannuation schemes about standards to be prescribed.

Under existing section 28A of the Police Act 1958, the Commissioner must prescribe standards of medical and physical health in relation to sworn members of the Police.

Clause 72 provides for circumstances in which the Commissioner may require a Police employee to retire from, or leave, the Police. These circumstances are related to the employee’s inability to perform his or her duties because of his or her inability to meet standards prescribed under clause 71.

This clause replaces sections 28 and 28C of the Police Act 1958. The main differences are—

  • the new clause applies to all Police employees rather than being limited to sworn members of the Police who belong to a State superannuation scheme:

  • where psychological health is the issue, that will be assessed with reference to standards prescribed under clause 71:

  • the special right of appeal provided by section 28 of the Police Act 1958 against compulsory retirement is not carried forward. It is intended that an employee who wishes to challenge a decision to compulsorily retire or disengage that employee will rely on other legal remedies that may be available such as a personal grievance under the Employment Relations Act 2000.

Clause 73 sets out provisions about the exact time at which a Police employee who is compulsorily retired or disengaged ceases to be a Police employee. It is substantially similar to section 28C(3) and (4) of the Police Act 1958 but makes it clear that if the employee takes a personal grievance action the employee must be placed on unpaid leave pending the outcome.

Clause 74 relates to voluntary disengagement from the Police. The Commissioner may permit a Police employee to leave the Police if the Commissioner is satisfied that—

  • the circumstances exist that would justify compulsory retirement or disengagement of the employee under clause 72; or

  • the Commissioner is satisfied that the employee cannot perform his or her duties because of any personal factor relating to the special circumstances of the employee and directly attributable to the employee’s employment with the Police.

This clause replaces section 28D of the Police Act 1958. The main differences are—

  • the new clause applies to all Police employees rather than being limited only to sworn members of the Police who belong to a State superannuation scheme:

  • where psychological health is the issue, that will be assessed with reference to standards prescribed under clause 71.

Also, the provision of the Police Act 1958 (section 11) that required the Commissioner to establish a procedure for reviewing refusals to permit employees to voluntarily disengage under section 28D of that Act is not carried forward. It is intended that an employee who is refused voluntary disengagement under this clause will rely on any other legal remedies that may be available.

Clause 75 applies if a Police employee in question under clause 72 or 74 is a member of the Government Superannuation Fund or a State services superannuation scheme. In that case, the medical practitioners or psychologist appointed to examine the employee’s incapacity must be chosen from those approved by the Government Superannuation Fund Authority and the trustees of the State services superannuation schemes.

This clause replaces, with some amendment, sections 28(5A), 28C(1A), and 28D(1A) of the Police Act 1958.

Clause 76 provides that a Police employee who is compulsorily retired or compulsorily or voluntarily disengaged is entitled to receive the allowances and other benefits under the Government Superannuation Fund Act 1956 or the State services superannuation scheme to which the person belongs.

Restrictions on resignation

Clause 77 provides that if in the Governor-General’s opinion special circumstances require that no constable resign without permission, the Governor-General may, by warrant, declare that no constable may resign except on the conditions set out in the warrant. This clause replaces section 14 of the Police Act 1958.

Part 5
Biometric information, international policing, and other miscellaneous provisions

Subpart 1Biometric information relating to prospective Police employees, Police employees, and certain associates

Clause 78 defines terms used in clauses 79 to 83. These are—

  • biometric information (which is a DNA profile, fingerprints, or palm-prints):

  • Police associate (which is a person who is not a Police employee, but performs for Police employees duties that may involve the risk of contaminating crime scenes or evidence):

  • staff biometric information (which is—

    • (a) biometric information from prospective Police employees; and

    • (b) biometric information voluntarily given by Police employees and Police associates).

Clause 79 allows prospective Police employees to be required to provide a bodily sample (for obtaining a DNA profile) and biometric information.

Clause 80 provides for Police employees and Police associates to provide voluntarily bodily samples and biometric information.

No Police employee or Police associate can be required to provide a sample or information.

Fingerprints of Police employees taken by the Police before the commencement of the Bill will be dealt with in the same way as information voluntarily provided under the clause.

Clause 81 restricts the use of staff biometric information.

Staff biometric information relating to a prospective Police employee must be used only for matching against other information held by the Police to—

  • determine whether the person has been convicted of an offence; or

  • if it indicates that the person may have been involved in the commission of an offence, investigating the offence and prosecuting a person charged with committing it; or

  • if the person later becomes a Police employee, eliminating him or her from being considered in the investigation of a crime.

Staff biometric information relating to a person who is a Police employee or Police associate—

  • must be used only to eliminate him or her from being considered in the investigation of a crime; and

  • is not admissible in evidence in any proceedings against the person.

Clause 82 requires bodily samples obtained under clause 79 or 80(1) to be destroyed once a DNA profile has been obtained.

Clause 83 requires staff biometric information to be deleted—

  • in the case of a prospective Police employee, promptly after the Commissioner decides not to employ him or her; and

  • in the case of a person who is a Police employee or Police associate,—

    • promptly after he or she asks the Commissioner to delete it; and

    • in any event, no later than 12 months after he or she ceases to be a Police employee or Police associate.

Subpart 2International policing

International policing: overseas operations

Clauses 84 to 88 substantially re-enact the Crimes and Misconduct (Overseas Operations) Act 2004. The purpose of clauses 84 to 88 is to—

  • ensure that Police employees and other persons serving in overseas operations involving peacekeeping, the maintenance or restoration of law and order or functioning government institutions, or similar activities, are subject to the jurisdiction of New Zealand courts for offences against New Zealand law committed overseas, unless there is good reason why they should not be subject to that jurisdiction:

  • ensure that Police employees engaged in such operations are subject to the disciplinary processes that apply to Police employees in New Zealand.

The key change to note is the definition of overseas operations group, which—

  • means any group of people that, before, on, or after the commencement of this Bill, is authorised by the Government of New Zealand to participate in duties overseas involving peacekeeping, the maintenance or restoration of law and order or functioning government institutions, or any other activity in respect of which the Government of New Zealand wishes to provide assistance (whether or not in conjunction with personnel from 1 or more other countries); but

  • does not include any Police employee who is part of a United Nations activity and to whom clauses 89 to 93 apply.

The words any other activity in respect of which the Government of New Zealand wishes to provide assistance replace the words or similar activities. This change ensures that these clauses apply to activities that do not necessarily relate to peacekeeping, or the maintenance or restoration of law and order or functioning government institutions but are, nevertheless, significant (for example, the provision of New Zealand Police assistance in the identification of tsunami victims overseas).

Clause 87 carries forward section 7 of the Crimes and Misconduct (Overseas Operations) Act 2004 and updates that provision to relate to breaches of the code of conduct prescribed under clause 20.

International policing: United Nations operations

Clauses 89 to 93 substantially re-enact the United Nations (Police) Act 1964. Clause 93 carries forward section 6 of the United Nations (Police) Act 1964 and updates that provision to relate to breaches of the code of conduct prescribed under clause 20.

Subpart 3Miscellaneous provisions

Clause 94 requires the Commissioner to provide every Police employee with evidence of the employee’s identity and authority.

The evidence provided—

  • must be in the prescribed form; and

  • must specify whether or not the Police employee is entitled to exercise policing powers; and

  • must be surrendered by the Police employee if he or she—

    • goes on any form of leave that exceeds 12 months; or

    • resigns or retires; or

    • is suspended or removed.

However, if any question arises as to the right of any constable to hold or execute his or her office,—

  • common reputation is evidence of that right; and

  • it is not necessary to produce evidence of the constable’s identity and authority.

Clause 95 provides that—

  • all powers and authorities vested in a Police employee cease immediately when the employee is suspended or ceases to be a Police employee; and

  • all powers and authorities vested in a Police employee by virtue of holding office as constable cease immediately when the Police employee ceases to hold the office of constable, or is suspended.

Clause 96 provide for evidentiary matters relating to Police dogs, Police dog handlers, Police uniforms, and Police articles.

Clause 97 provides that no constable, authorised officer, or supervisor may take part in an election as—

  • an electoral official within the meaning of section 5 of the Local Electoral Act 2001; or

  • an electoral official within the meaning of section 3 of the Electoral Act 1993.

Nothing in clause 97 limits sections 52 and 53 of the Electoral Act 1993.

Clause 98 provides that any review of the performance of the Police carried out by the States Services Commissioner under section 11 of the State Sector Act 1988 may relate only to the matters referred to in clause 16(1).

Clause 99 relates to the annual report of the Police required under section 43 of the Public Finance Act 1989. Sections 65(2) and (4) of the Police Act 1958, which are annual report requirements relating to sections 216B(3) and 317B of the Crimes Act 1961, are now added to section 312Q of the Crimes Act 1961 (Schedule 4 refers).

Clause 100 provides for the making of regulations.

Transitional and savings provisions

Clauses 101 to 106 deal with transitional and savings matters relating to employment of Police employees.

Terms relating to Police in other enactments

Clause 107 provides for the interpretation of terms describing Police employees (constables, commissioned and non-commissioned officers, and non-sworn members of Police) in other enactments.

Clause 108 states that in any enactment other than this Bill, unless the context otherwise requires, constable has the meaning given in clause 4.

Amendments to Employment Relations Act 2000

Clause 110 inserts new sections 100F and 100G into the Employment Relations Act 2000. These new sections provide for a code of good faith for employment relationships in relation to the provision of services by the Police. This code of good faith will be set out in a new Schedule 1C of the Employment Relations Act 2000 (see Schedule 3 of the Bill). The code of good faith applies to the Police, Police employees and service organisations. It also applies to other employers, employees, and their unions to the extent that the other employers and employees provide services to the Police in its role as a provider of emergency response services (as defined in new Schedule 1C).

New section 100F sets out provisions relating to the application of the code and about the consequences of compliance, or non-compliance, with the code.

New section 100G provides for amendment of the code by Order in Council.

Clause 111 amends Part A of Schedule 1 of the Employment Relations Act 2000 to provide that the provision of Police emergency response services (as defined in new Schedule 1C) is an essential service. This means that under sections 90 and 91 of the Employment Relations Act 2000 extra notice will be required by, or in relation to, Police employees employed in providing emergency response services before any strike by, or lockout of, those employees.

Clause 112 provides for the insertion of new Schedule 1C into the Employment Relations Act 2000.

Amendment to Criminal Records (Clean Slate) Act 2004

Clause 113 amends section 19(3)(d)(iii) of the Criminal Records (Clean Slate) Act 2004. The amendment ensures that applications for employment as a Police employee are excepted from the general effect of the clean slate scheme.

Amendments to Land Transport Act 1998

Clause 114 amends section 22 of the Land Transport Act 1998, which relates to driver’s duties where accidents occur. The amendment removes from section 22(3) and (5) of the Land Transport Act 1998 the requirement to report an accident to the nearest police station. The effect of this amendment is that those accident reports need only be made to an enforcement officer.

Amendment to State Sector Act 1988

Clause 115 amends section 44(2)(d) of the State Sector Act 1988, which relates to the application of that Act to certain chief executives. The amendment provides that the Commissioner of Police is, for the purposes of the State Sector Act 1988, the chief executive of the New Zealand Police. (Currently, section 44(2)(d) of the State Sector Act 1988 states that the Commissioner of Police shall be chief executive in respect of the Police Department (civilian staff)).

Amendments to Summary Offences Act 1981

Clause 117 amends section 2 of the Summary Offences Act 1981 by providing definitions of authorised officer, Police dog, and Police dog handler.

Clause 118 amends section 23 of the Summary Offences Act 1981. Under section 23, it is an offence to resist or obstruct, or incite or encourage a person to resist or obstruct a constable, prison officer, or traffic officer. The amendment ensures that section 23 applies to an authorised officer or a Police dog working under the control of a Police dog handler.

Amendment to Hazardous Substances (Classes 1 to 5 Controls) Regulations 2001

Clause 119 amends the Hazardous Substances (Classes 1 to 5 Controls) Regulations 2001 to ensure that the restrictions and prohibitions on the use of class 1 to 5 hazardous substances do not apply when used—

  • in policing operations by Police tactical groups; or

  • on a vehicle, ship, or aircraft authorised to carry class 1 substances in policing operations by Police tactical groups; or

  • in any Police training in respect of the activities referred to above.

Other enactments amended, repeals, and revocations

Clause 120 states that—

  • the Acts specified in Schedule 4 are amended in the manner set out in that schedule:

  • the regulations specified in Schedule 5 are amended in the manner set out in that schedule:

  • the enactments specified in Part 1 of Schedule 6 are repealed:

  • the enactments specified in Part 2 of Schedule 6 are revoked.