I N   T H I S   S E C T I O N I INTRODUCTION II EXECUTIVE SUMMARY III THE ROLE OF THE POLICE IV THE ACCOUNTABILITY OF THE POLICE V MINISTERIAL RESPONSIBILITY AND POLICE INDEPENDENCE VI THE CONNECTION OF THE POLICE TO GOVERNMENT OBJECTIVES VII THE COMMISSIONER OF POLICE VIII SHOULD THE POLICE ACT BE LINED UP WITH THE STATE SECTOR ACT? IX OPTIONS FOR GOVERNANCE

Preliminary Draft Report 8 June 1998

C O N T E N T S A. Introduction B. Issue Definition C. Background D. Legislative Framework E. Governance F. The Organisational Structure of the Police G. Training H. Outsourcing I. Purchasing of Supplies J. Property Management K. Summary of Savings L. Consultation A P P E N D I C E S 1, 2, 3.

APPENDIX 1: CONSTITUTIONAL ISSUES INVOLVING THE POLICE

AN ANALYSIS FOR THE INDEPENDENT EXTERNAL REVIEW OF THE POLICE ADMINISTRATIVE AND MANAGEMENT LEVELS AND STRUCTURES CHEN & PALMER BARRISTERS AND SOLICITORS PUBLIC LAW SPECIALISTS WELLINGTON MAY 1998 I INTRODUCTION I. 1. The Government has decided to undertake an external review of Police administrative and management levels and structures in order to identify opportunities for achieving efficiency savings without compromising front-line capability. It is necessary to examine the constitutional position of the Police in New Zealand to undertake that task effectively. Otherwise inappropriate measures may be suggested. The Police differ from ordinary Departments of State. The constitutional issues relating to them are unique. It is necessary to understand those issues and be sensitive to them in order to ensure that the constitutional relationships are preserved. The fundamental public purpose of those relationships is to ensure that in a democratic society Police decisions that impact directly on individual citizens are not the result of political decisions. The first purpose of this paper is to define what those constitutional relationships are. II. 2. The second part of the paper will suggest some structural changes that could be considered to provide a more optimal framework through which to administer the Police. The Police Act was passed in 1958. There have been many changes in public administration since then. While the Act has been amended from time to time, it nevertheless bears many of the hallmarks of its earlier history. III. 3. The problems that exist with the current arrangements need to be identified to provide a context for further discussion. It is clear that a number of elements of a constitutional nature contribute significantly to the present situation: (1) 1. The Police Act 1958, though it has been amended, does not fully reflect the changes that have occurred in the state sector during this decade. (2) 2. There is an absence of transparency in present arrangements. (3) 3.The accountabilities of the Police and the Commissioner are numerous and not clearly defined. (4) 4. The role of the Police is not defined clearly in law though the duties of a constable have been developed in both the common law and statute law. (5) 5. While the constitutional independence of the Commissioner in matters of operational law enforcement has long been recognised, its boundaries have not been defined, resulting in a lack of clarity in accountability. (6) 6. The Commissioner's accountability to the Minister is not dealt with in the Act, but in somewhat unsatisfactory terms in the Police Regulations 1992. (7) 7. Some of the mechanisms developed in the state sector to enhance the accountability of chief executives need to be refined to accommodate the constitutional position of the Commissioner with respect to operational law enforcement matters. IV. 4. Though there may be other factors outside the scope of this paper that impact on the shortcomings of present arrangements, attention is given to issues of governance that promise to contribute to better accountability and performance. V. 5. This paper will provide background material on several issues: the contemporary role of the Police aspects of the independence of the Commission in respect to operational law enforcement matters existing state sector mechanisms which address accountability issues overseas approaches to accountability issues. linkages between funding and service delivery II EXECUTIVE SUMMARY VI. 6. There are some decisions made by the Police that have to be exercised on an independent basis free from Ministerial direction. There are other matters where the Police must follow Government policy. The distinction often comes down to the difference between policy and operations. VII. 7. While the boundary may be difficult to draw in practice, it is clear that the Minister of Police cannot direct the Commissioner of Police in respect of the Commissioner's duty to enforce the criminal law either in particular cases or classes of case. The Minister can however impose binding requirements in respect of matters of administration and the level of resources. VIII. 8. The Police Act 1958 is out of date and it is recommended that it be amended to improve the governance arrangements for the Police. IX. 9. It is recommended that the line between policy and operations not be defined, but its workings made transparent by amending the Police Act along the lines carried out in Queensland, with appropriate adjustments for New Zealand circumstances. X. 10. Such a change would allow the Minister of Police to give written directions to the Commissioner and these would be tabled in the House of Representatives. XI. 11. It would be helpful to attempt a statutory statement of the Police role and purpose in the Police Act. XII. 12. The responsibilities of the Commissioner of Police should be clarified by an amendment to the Police Act which, among other things, should set out a provision that now appears in Regulation 3 of the Police Regulations 1992. XIII. 13. Significant advantages would accrue from amending the Police Act to line up with some of the provisions that are contained in the State Sector Act 1988. In this respect, a number of steps should be taken: Clarification of the Appointment process for the Commissioner and Deputy Commissioners including issues of tenure and removal. In respect to financial performance the existing relationship between the Treasury and the Commissioner could be extended to require an end of year report on financial performance to be provided to the Minister. Statutory provision for a purchase agreement between the Commissioner and the Minister. A statutory recognition of the authority of the Commissioner to issue directions on specific matters. The State Services Commissioner should be empowered under the Police Act to review and report on the performance of the Commissioner of Police. The Police Commissioner should be under an obligation to furnish a report on the operational components of Police activities and on issues relating to any Ministerial directions in the same way as the State Services Commissioner is required to report under section 19 of the State Sector Act. XIV. 14. The Paper discusses a number of governance options for the Police in the future. The model favoured is an enhancement of the state sector model in respect to the Police. This is favoured because it is thought that policing is a core activity of the State. XV. 15. Other options considered include: an Advisory Board for the Police; an Executive Board which could involve direct external involvement in the governance of the Police; and some other examples of Boards formed from the Public Sector. III THE ROLE OF THE POLICE XVI. 16. The role of the Police has developed over time and particularly over the last two decades. This section briefly discusses the emerging role of the Police together with the underlying operational assumptions behind that role. The section concludes with an operational theory of policing in New Zealand that points towards the increasing inter-relationships of Police within strategic government outcomes and the wider social, economic and criminal justice environment. XVII. 17. It is seldom understood how relatively modern the idea of a Police force is. It was not until 1829 that Sir Robert Peel's Police began to enforce the law in the streets of London. Those first Police were superintended by two Commissioners. The Metropolitan Police Act 1829 provided the "world's first preventive, professional, legally accountable Police force".5 In 1852 in New Zealand a set of rules and regulations of the Constabulary Force of New Zealand were promulgated. Apparently these drew heavily on the Metropolitan Police example in London.6 XVIII. 18. Policing in New Zealand initially tended to follow the British Westminster model. That model focussed on the idea of keeping a watch on communities and keeping the peace (as opposed to a principal focus of enforcing the law). XIX. 19. It is accepted that the nine principles of the Peelite British Policing model were: a) 1. The basic mission for which the Police exist is to prevent crime and disorder. b) 2. The ability of the Police to perform their duties is dependent upon public approval of Police actions. c) 3. Police must secure the willing co-operation of the public in voluntary observance of the law to be able to secure and maintain the respect of the public. d) 4. The degree of co-operation of the public that can be secured diminishes proportionately to the necessity of the use of physical force. e) 5. Police seek and preserve public favour not by catering to public opinion but by constantly demonstrating absolute impartial service to the law. f) 6. Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient. g) 7. Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the Police are the public and the public are the Police; the Police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence. h) 8. Police should always direct their action strictly towards their functions and never appear to usurp the powers of the judiciary. i) 9. The test of Police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it.7 XX. 20. The principles still appear to be appropriate today and their thread can be seen in the New Zealand Police Operational Strategic Approach outlined below . XXI. 21. The early focus of the Peel model was visibility and access of the patrolling officers. Some decades later Police organisations took on greater criminal investigation roles, other social services, and bureaucratic management processes. By the early decades of this century modern policing organisations began to take shape. XXII. 22. The policing role changed to take account of urbanisation, the use of motor cars and other profound social changes which provided a sophisticated and mobile population. Policing by foot patrolling gave way to a new form of mobility and motorised patrolling emerged. The use of telephone dispatch technology and radio altered the function and roles of policing from the minimalist surveillance of the beat officer to an integrated surveillance and attendance system. Police took on a role of crime prevention and emergency response by motorised patrolling. The underlying assumptions of this approach focused on ideas of rational deterrence (based on a view of crime and social disorder as being the product of rational decision making) and rapid response (which would both protect the citizen and have a high probability of apprehending offenders). XXIII. 23. A central theme of the approach was that the more effective the Police became in arresting offenders and patrolling the streets, the more that rational criminals would think twice about breaking the law. This approach is also inherent in the recently published Controlling Crime in New Zealand by Cathy Buchanan and Peter Hartley.8 XXIV. 24. There are problems associated with the rational deterrence model. XXV. 25. First, the research base on the effectiveness of such strategies provides little support for them. United States research from the 1960s tends to discredit the impact of rationalist motivated strategies on crime and disorder problems. The results of this body of work challenged a rational deterrent view of policing. Few patrol strategies were found to be effective in preventing crime from occurring and many of the underlying operational assumptions behind patrolling were not supported. XXVI. 26. It can be argued, however, that the model only needs to work at the margins of crime to make a difference. i.e. if only 5% of property criminals thought this way then providing they were the right 5% they could have a significant impact on property crime. Some more recent (1990s) New Zealand Justice Department research that involved interviewing offenders suggests some support for the notion that perceptions of the risk of capture have a deterrent effect. XXVII. 27. Second, the focus of response is narrowed from a joint Police-community role and responsibility to primarily a Police role and responsibility. This approach is also reactive in that it waits for things to occur and then responds to them. XXVIII. 28. Third, random patrol and rapid response are resource intensive and therefore expensive activities, which give rise to questions whether alternative approaches might be more cost effective. XXIX. 29. These trends gave rise to the development of community orientated policing in the 1970s. This approach sought to rejoin the community into the policing debate and capability and also focus on a broader approach to crime prevention. XXX. 30. While community orientated policing styles vary, fundamental characteristics include: Efforts to restore strong ties between Police, Police officers and communities Decentralisation of command structures Decentralisation of Police stations A re-emphasis on foot patrols and high visibility An emphasis on the reduction of crime and the fear of crime and community support for policing objectives and the Police themselves. More latterly a problem-oriented, as opposed to reactive, approach to policing emphasising pro-activity and partnership with community and other agencies in an effort to prevent crime and risks. XXXI. 31. Successive Governments in New Zealand have embraced this policing model and Police have adopted a community orientation strategy alongside a wider patrol infrastructure and role. Full implementation has yet to be achieved and part of the on-going debate involves the proper function and resourcing of patrol activities, investigation and problem solving policing. IV THE ACCOUNTABILITY OF THE POLICE XXXII. 32. Issues of accountability relating to the Police is a vast topic which cannot be canvassed except in outline in this paper. The essential issue in Police accountability revolves around the following contradiction: How can the Police be made accountable to somebody that is representative of the community, and yet not be subject to political pressures that would diminish the capacity of the Police to administer the law impartially as between different groups or classes in society? The answer to this question has essentially been shaped by practice and convention in New Zealand. XXXIII. 33. One important essay on Police accountability is that of Robert Reiner entitled "Police Accountability: Principles, Patterns and Practices".9 XXXIV. 34. As Reiner points out, accountability is one of the thorniest conundrums of statecraft. The Police, being carriers of the State's bedrock power, a monopoly of legitimate force, raise particular problems in relation to accountability. Reiner's analysis raises the questions that need to be answered in a particularly vivid manner. He says: The police exercise powers which profoundly affect the lives of all citizens. In a democracy it is expected that those who wield public power must be fully accountable for this. The first step in designing an adequate structure for accountability for the police must be to go back to basics. What type of decisions do the police make, explicitly and implicitly, in exercising their powers? To whom should they be accountable for the different sorts of decisions? What type of accountability should they have to relevant bodies? What mechanisms should be established to deliver effectively the appropriate type of accountability to such bodies?10 XXXV. 35. Within the New Zealand framework a number of audit, scrutiny and performance reporting mechanisms currently exist. These include: The Minister of Police's authority to implement an inquiry into Police activities headed by a Judge (section 56 of the Police Act). The requirement to report annually through the Minister of Police to Parliament on Police operations, specifically those involving use of any special Police powers e.g. use of listening devices (section 65 of the Police Act). The independent review of Police operations, practices and procedures as contained within the Police Complaints Authority Act 1988. The requirement to undertake all reporting functions as defined under Section 33 of the Public Finance Act (production of Forecast Reports, Annual Reports and other reports as set out within Treasury requirements). The Annual Report to the Parliament and Safety (Administration) Programme is subject to external audit. Parliamentary Select Committee process scrutinises annual estimates as well as the standard financial Review. Select Committees also can examine topics of concern on their own motion. Cabinet Committees can implement specific reporting procedures (e.g. INCIS). The Minister of Police receives monthly performance reports. Ministers can appoint specific reviews as required (e.g. the current review on Police Administrative and Management Levels and Structures). A capability for the Police Complaints Authority to report on any unactioned recommendations to the Attorney General who can table a report before Parliament (section 29 of the Police Complaints Authority Act). Judicial scrutiny and adverse comment during routine court hearings. Participation in National Committees such as the National Road Safety Committee and peer performance scrutiny e.g. criminal justice Chief Executives group. Continues...

Footnotes 5 Neil Cameron, "Developments and Issues in Policing New Zealand" in Policing at the Crossroads (Eds. Neil Cameron and Warren Young, 1986) 10. 6 Ibid. 10 7 Charles Reith, The Blind Eye of History - A Study of the Origins of the Present Police Era, 154-167 (1952). 8 Cathy Buchanan and Peter R Hartley, Controlling Crime in New Zealand, (New Zealand Business Round Table, May 1996). 9 In Robert Reiner and Sarah Spencer (eds), Accountable Policing - Effectiveness, Empowerment and Equity (1993) 1. 10 Ibid.

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