-
26.
- The New Zealand Police is governed by a number of legislative provisions contained within the Police Act 1958, the State Sector Act 1988, the Police Complaints Authority Act 1998, and the Public Finance Act 1989. These provisions govern the role of the Commissioner of Police, Police accountability, and the operational authority of the New Zealand Police. There are also important common law principles and constitutional understandings governing the exercise of Police discretion. The most important statute is clearly the Police Act.
- (i)
- Role of the Commissioner
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27.
- Under section 3(1) of the Police Act, the Governor-General appoints a Commissioner of Police whose main function is "general control of the Police". The Commissioner is also the administrative head of the New Zealand Police. The Commissioner remains in office during the pleasure of the Governor-General (Police Act, section 3(2)).
-
28.
- The Commissioner has a substantial degree of independence as the result of judicial decision and constitutional conventions that operate in this area. The Commissioner does not exercise powers delegated from the Minister, rather, he or she maintains constitutional separation and independence. The Commissioner is recognised as occupying a distinct constitutional position in the State sector (section 44 of the State Sector Act). Independence is also an inherent characteristic of the office of Constable. The Commissioner is, in this context, the Chief Constable.
-
29.
- One or more Deputy Commissioners are also appointed by the Governor General (Police Act, section 4). In general, each Deputy exercises such powers or functions of the Commissioner of Police as the Commissioner delegates (section 4(3)). Each Deputy's delegated power is revocable at will (section 4(4)-(6)).
-
30.
- The New Zealand Police receive appropriations from Parliament in accordance with the provisions of the Public Finance Act 1989. The Minister of Police and the Minister of Transport purchase a range of services provided by the New Zealand Police. The mechanism for achieving this is the Purchase Agreement. Purchase agreements between Ministers and departments specify individual outputs in terms and conditions similar to private sector contracts. In the case of the Agreement between the Minister of Police and the Commissioner of Police, the Minister's right to impose binding requirements in respect of matters of administration is subject to the limitation that these shall not directly affect the Commissioner's duty to enforce the law. In this respect, the constitutional independence of the New Zealand Police is preserved in areas where that is necessary.
- (ii)
- Police Accountability
-
31.
- 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. The Commissioner's accountability to the Minister is not dealt with in the Act, but in somewhat unsatisfactory terms in the Police Regulations 1992.
-
32.
- The Police Act does contain a number of audit, scrutiny and performance reporting mechanisms that apply to the Police. Section 56 affords the Minister of Police authority to implement an inquiry into New Zealand Police activities headed by a Judge. Section 65 requires the Commissioner of Police to report annually (at the end of each financial year) through the Minister of Police to Parliament on Police operations, specifically those involving use of any special Police powers (for example, use of listening devices).
-
33.
- Some State sector practices are also relevant to New Zealand Police accountability. Objectives against which New Zealand Police performance can be measured are contained within the set of KRAs, developed by the New Zealand Police in consultation with the Minister. The development of KRAs takes place within the wider public sector, within a performance agreement framework coordinated and administered by the State Services Commission under the framework of the State Sector Act. The New Zealand Police have developed this method of reporting to the Minister of Police through a Memorandum of Understanding. Memoranda are monitored by the State Services Commission which also provide feedback to the Commissioner upon performance.
-
34.
- The Police Complaints Authority Act 1988 also governs New Zealand Police performance. Under the Act, an independent review of Police operations, practices and procedures can take place. Section 29 provides the capability for the Police Complaints Authority to report on any unactioned recommendations to the Attorney General who can table a report before Parliament.
-
35.
- A system of financial accountability applies to the New Zealand Police under the Public Finance Act 1989. The Commissioner of Police is responsible to the Minister of Police for the financial management and performance in terms of Regulation 3 of the Police Regulations 1992.
-
36.
- In a similar fashion to core Government departments, the Public Finance Act requires the New Zealand Police to make an annual financial report (section 39), comply with Treasury instructions (section 80), meet Treasury requests for financial information (section 79), and forward a copy of the financial statement to the Audit Office (section 35(5)). The financial statement and the Commissioner's financial management of performance is subject to annual Audit Office opinion (section 38). The New Zealand Police must undertake all reporting functions as defined under section 33, including production of Forecast Reports, Annual Reports and other reports as set out within Treasury requirements.
- (iii)
- Operational Authority of the Police
-
37.
- There is no statutory basis for the prosecution functions that are carried out by the New Zealand Police. The powers of the New Zealand Police to prosecute arise indirectly because Parliament creates many statutory offences and it is the responsibility of the New Zealand Police to investigate alleged breaches of these offences. In this regard, the powers of arrest and seizure are conferred on the New Zealand Police to enable them to undertake their investigatory role and charge persons with particular offences where there is sufficient evidence.
-
38.
- However, in carrying out their prosecution functions, the New Zealand Police are required to follow the Police General Instructions that are issued under section 30 of the Police Act. The Commissioner of Police can issue General Instructions, and all members of the New Zealand Police must obey them (Police Act, section 30). These Instructions must be notified either by publication in the Police Gazette or a Manual of General Instructions issued by the Commissioner, or by bringing them to the personal notice of a member (section 30(3)). The Instructions set out the role for prosecutors and are currently being superseded by the Manual of Best Practice, which incorporates the Prosecution Guidelines issued by the Attorney-General and Solicitor-General.
-
39.
- The State Sector Act also has some relevance to the operational authority of the New Zealand Police. The State Sector Act deals with key matters relating to the State Services Commissioner, the administration of the State Services Commission and of "Departments" and the "Public Service". The New Zealand Police has never been part of the Public Service, though as an instrument of the Crown, it is part of the State sector. Accordingly, some parts of the State Sector Act apply to the New Zealand Police, but others do not.
-
40.
- For example, as an employer, section 7 of the Police Act requires the Commissioner of Police to apply the personnel policy and EEO policy contained respectively in sections 56 and 58 of the State Sector Act. Under section 5 of the Police Act, the Commissioner has all the rights, duties and powers of an employer in respect of the New Zealand Police as an organisation. He or she must notify all job opportunities to enable suitably qualified people to apply for positions (section 9 of the Police Act), and employ the person best suited to the job (section 8 of the Police Act).
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