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October 8, 2007 | by  | in Features | [ssba]

Rewriting The Police Act

In 1958, the New Zealand police officer was armed with a set of handcuffs, a baton, a torch and a whistle. Cars were a luxury, radios a thing of the future, and guns, then as now, were generally kept in the station for emergencies. Since the rotary telephone was a new and clumsy invention, 111 calls were yet to become the foundation of policing. Yet our police are still run according to the 1958 Police Act. In order to bring policing into the 21st century, and in light of a plethora of policing scandals over the last four years, the police are currently rewriting the ‘58 Act. Salient Feature Writer Tristan Egarr explores the rewrite of the Police Act and asks just what the NZ Police are for.

The aim of this rewrite, which has included more public consultation than any previous piece of legislative change in this country, is to reflect the real position of the NZ Police. While the police are often seen as enforcers whose job is simply to go about investigating and making arrests, much of their day-to-day work involves engaging with communities. A modern police force should direct society to positively produce order, rather than just going around hitting people when they misbehave. But this rewrite opens up contentious issues surrounding police behaviour and power.

Police Without Force

THE 1958 Police Act contains four sections:

i) The appointment, promotion and resignation of members
ii) Superannuation and retirement of members
iii) General issues (regulation and discipline of members, the use of police dogs, search powers)
iv) Remuneration and conditions of employment

Clearly, the Act is largely concerned with human resources management. Only section three contains more general issues relating to the function of the police, as it sets out officers’ ability to take fingerprints and photographs – yet most police search powers are contained in the Crimes Act and other legislation. In fact, the most significant facet of the 1958 Act is that it changed the name of the NZ Police Force to the NZ Police. Dropping the word “force” not only reflects the NZ Police’s largely unarmed nature, but also their desire to be seen as completely unarmed.

New Zealand’s police have been a largely unarmed force since the 1880s, when they were separated from the military. Yet they continued to recruit officers largely from the military for decades, and still contain a heavily armed component. Furthermore, the fact that this component is termed the Armed Offenders Squad and not the Defenders Squad (as is often believed) shows that the police want us to focus on the use of weaponry by criminals rather than police.

This attitude of largely unarmed policing, coupled with a public relations effort to focus on the lack of arms, is best summed up by historian Richard Hill who called our early police “the iron hand in the velvet glove.” Police have the power to use force, but would prefer that we obeyed them without ever having to see this force in use. To reflect the role of the police within the community, the task of rewriting of the 1958 Act has been given to the police in consultation with the public. A review team led by Superintendent Hamish McCardle has thus released a large number of Issues Papers and conducted public discussions – and even set up an online wiki enabling the public to put forward various ideas on what the NZ Police should be.

Human Resources: Making The Boys Club Accountable.

While the human resources focus of the 1958 Act makes for dull reading, issues surrounding the management of the NZ Police’s 10,000 staff are at the heart of much recent media criticism of the police. On February 3 2004, three days after the Dominion Post broke the Louise Nicholas’ allegations of police sex crimes, a commission of inquiry was set up to investigate police behaviour. This inquiry was supposed to take less than a year, but after delays and changes to the inquiry team, it was finally released as the Bazley Report on April 3 this year, less than a month after the last of the “police sex trials” was concluded. While these trials returned a mix of guilty and not guilty verdicts, what they revealed conclusively is the need to move away from a “boys club” police force.

Dame Margaret Bazley stated in her report that there is no evidence of a widespread cover-up of inappropriate behaviour by the police, yet she was “disturbed to learn” that the police have no code of conduct. She also believes the standard of evidence required to prove police misconduct is currently too high and needs to be reformed. Thus one of the major points to be included in the review of the Police Act is the need for a code of conduct. Superintendent Hamish McCardle and Mike Webb, from the police team leading the review, told Salient that this code of conduct has moved forward faster than the Act rewrite, and is being drafted as we speak.

Meanwhile, the police have had a horror year, at least in terms of media coverage. Besides the convictions of former officers Bob Schollum and Brad Shipton for historic sex crimes and former CIB head John Dewar for attempting to cover up such crimes, we have seen scandals over the standard of police recruits, administrational problems with the 111 call system and a number of fatal police car chases. On the other hand, the police have had to deal with rising gang violence in Wanganui and clashed with rioting drunks in Dunedin.

Going on in the background is the extension of police work to encompass new areas of crime. The Serious Fraud Office has been renamed the Organised Crime Agency and put under police control. More significantly, police are increasingly being expected to act as social workers attending domestic violence call-outs. In 1958, when domestic violence was less talked about and a woman could not simply call up the police when she was being abused, the police were not expected to intervene in domestic disputes. In a press release last month, Commissioner Howard Broad pointed out that police are now expected to be expert at solving domestic violence crimes.

This expectation is demonstrated by recently released crime figures for the year ending June 2007. These figures show that crime levels have remained steady overall, with 427,000 recorded offences over the year – an increase of only 0.03% on the year before. However domestic violence offences increased by 11%, with more than 20,000 recorded (from a total of over 52,000 violent offences), although this is partially due to better reporting and intervention in these crimes. However, the same cannot be said for sex crimes, which police admit are both under-reported and difficult to resolve, as it is often impossible to collect evidence for such crimes.

Increasing public outrage at sex crimes and domestic violence is one of the main reasons the Police Act is being rewritten. Public desire for a compassionate police has never been more loudly proclaimed than at present. In March this year, when a group of protesters marched through Wellington to the main police station in protest against the acquittals of three officers charged with sex crimes, the police used a line of female officers both to protect the station and to demonstrate that the police are no longer a boys club.

Superintendent Hamish McCardle believes these protests had a largely positive outcome: “I don’t know what your readers might think of this, but I thought the protests against police at the start of this year were actually handled pretty damn well by my organisation. It was a pretty charged situation, made all the more difficult by some of the protestors having really serious personal concerns… This isn’t just “I’ve got a concern about a war in Iraq”…

They had personal grudges, personal concerns, but it was handled calmly.” McCardle points out that the police had to act as “the meat in the sandwich” because they have to allow protesters to express their feelings and cannot call on another agency to deal with such anti-police protests, yet only made one arrest during the events (against a protestor who burnt the effigy of an officer outside the high court).

When Sue Bradford’s “anti-smacking” legislation passed in an amended form earlier this year, it further increased the police role in dealing with domestic violence, as it asks police to use their discretion in determining whether prosecuting parents is “in the public interest.” This piece of legislation may be the nail in the coffin of boys club policing, as it spells out the fact that the police are now social workers expected to protect children, albeit with access to more legal and physical force than other social workers. Expecting the same officer to be able to both counsel traumatised children and to restrain ragingly violent adults places a tough burden on the police – but that is what we expect.

Consolidating Police Power While Allowing A Little Discretion

Police Minister Annette King has stated that the new Police Act should go beyond human resource management to look at the principles of policing, to reconsider and update police powers. In order to achieve this aim, the Police Act review team released an Issues Paper last October entitled “Powers and Protections.” This paper points out that while the term “police powers” conjures up images of violent arrests, good cop bad cop interview techniques and high-tech CSI investigations, such images are not reflective of most day-to-day police work. Mike Webb from the review team told Salient that “the policing mission is much broader and incorporates community support and reassurance.” As the Issues Paper states, while the police have the power to make arrests, “some low-level offending can also be dealt with most effectively by officers’ on-the-spot interviews, without the need to invoke enforcement powers… powers are nevertheless valuable in a symbolic and practical sense.”

The 1958 Police Act in fact contains very few powers. It does give police the power to search a person and take fingerprints and photographs, but only when this person has been formally charged, and only when inside a police station. Most police powers are contained in other Acts, in particular the 1961 Crimes Act and 1975 Misuse of Drugs Act which give police the power to conduct searches without a warrant, when there exist “reasonable grounds for belief” that a crime has been committed.

Like the requirement that police do not arrest parents for smacking their children when it is “not in the public interest” to do so, the statement “reasonable grounds for belief” is a very loose, undefined statement. When I suggested to Superintendent Hamish McCardle that such terms could create dispute about whether police are acting within their powers on any given occasion, he replied that most New Zealanders are law-abiding and will not come into suspicion, whereas “the small minority who unfortunately do break the law are in quite a different situation, because they know that they’ve probably broken the law.”

Unfortunately, this situation is complicated by the existence of laws which do not reflect the reasonable views and beliefs of many generally law-abiding citizens. Take, for example, the readership of Salient, who are largely university students aged between 17 and 30 years of age. Almost all young people possess illegally copied material, such as MP3s. These people are perfectly aware that this material is illegal, but do not consider this a major problem.

Furthermore, a slight majority of people in this age bracket will have tried illegal drugs, without considering it a heinous action, even though they have technically committed a criminal offence. Clearly, it is “not in the public interest” for the police to arrest every person who copies a CD or smokes pot – as demonstrated by the Dunedin police in 2003, when they allowed around seventy people to smoke marijuana in the foyer of the police station as part of a J-Day protest.

While laws are laws and thus are required to be upheld, McCardle told us that the principles of policing set out by Robert Peel in the early 19th century (when he created the first proper professional police force, the London Metropolitan Police) and contained in the Police Oath within the 1958 Act implicitly give police a level of flexibility in their enforcement of the law. The Oath requires police to keep and preserve “Her Majesty’s peace”. Since arresting everyone who ever breaks a law would create mass public tension and thus threaten the peace, the flexibility of enforcement does have a legislative basis. Mike Webb agreed that New Zealand police are not “standing there like Judge Dredd issuing out tickets or making summary judgements on the street” because the public “want some area for interpretation and common sense to have its role.”

The need for policing to reflect community perspectives has been embraced by the Police Act review team, who set up an online wiki to allow the public to “write” the act as they wanted to see it. When I looked at the wiki on September 27, it contained many statements opposing ticketing quotas for traffic offences: “burglaries, car theft, stalkers, intruders, assaults, muggings and any other violent behaviour take priority over ticketing speeding motorists.” The wiki also asked the police be more flexible in allowing people to “defend their property with whatever force is required without fear of being charged… even at the point of a gun until police arrive.” The Police Act review team told Salient that while they appreciated hearing what the public thought, the wiki was quickly shut down by the ministry who did not appreciate such criticisms being aired as part of the review process.

Despite the desire for flexibility inherent in both the principles of policing and the views expressed in the wiki, the Issues Paper on Powers and Protections states that people should be able to understand what specific powers police do have. Thus one suggestion contained in the paper is that a new Act could consolidate the police powers which are currently dispersed through many statutes. However, most public respondents to this suggestion disagreed, saying that this would require constant amendment whenever laws change. For example, the NZ First Party wants to use proposed drug-driving tests to allow police to make arrests for drug use, giving police much wider powers than they currently possess under the Misuse of Drugs Act. Allowing such powers to multiply among various statutes makes it difficult for the public to understand what police can and cannot do. Thus, while the review team have largely rejected placing all such laws under the Police Act, they have embraced the idea that such powers could all be collectively referred to in a schedule added to the act, thus creating greater transparency.

Curative Discipline: The Power To Produce Order

The review of police powers also reflects a need to allow police to act preventatively without resorting to arrest – the “symbolic” value of police power. The philosopher Michel Foucault famously argued that the democratic societies which have arisen since the 17th century have moved away from expressing power in a purely punitive sense (shouting “thou shalt not” and hitting anyone who misbehaves), towards using regulative powers to produce order by surveying, categorising and directing the public.

The modernisation of productive power which cures as well as punishes offenders is reflected in many of the suggestions contained in the Issues Paper on Powers and Protections. The paper suggested allowing police to collect a wider range of biometric data, such as DNA samples, in a wider range of locations outside of the police station. This would give police greater surveillance abilities. The paper also suggests allowing police to share such information with agencies including customs and immigration. Such a move has been resoundingly criticised by Green Party MP Keith Locke, who has questioned whether it is appropriate to use “mobile fingerprint scanners” on individuals who have not been charged with an offence. Also contentious is the police’s desire to introduce tasers.

While tasers could prevent police from having to use firearms against violent offenders, critics allege that police will use tasers much more widely than they currently use firearms. Such a move could erode the unarmed nature of our police.

In line with a move towards productive, curative policing is the suggestion that police should be able to act preventatively. For example, the Issues Paper on Powers and Protections suggests giving police the ability to disperse large crowds – in essence tightening current loitering laws. Hamish McCardle and Mike Webb stated that this suggestion arose from the existence of “flash mobs” which can spring up at a moment’s notice in public places unsuitable for large gatherings, thus posing a threat to public safety. However, this power would also give police a greater ability to prevent political protests without resorting to arrest.

In February this year, Joel Cosgrove (now President-elect of VUWSA) was arrested for “disturbing the peace” when John Howard appeared at Victoria University. The charges against Cosgrove were later dropped, and he has told Salient that he believes police “use arrest as a way in which to disrupt protests.” Cosgrove also stated that while he may disagree with the “reactive” policing method of arresting protestors, the current situation is better than allowing police greater “preventative” powers with which to disperse gatherings, as preventative powers are by nature much more subjective. McCardle and Webb told us that the suggested powers were in no way aimed at political actions, and that police action in such situations should only be concerned with ensuring public safety, because freedom of expression is an important part of democracy. Nevertheless, the suggestion that police powers to disperse crowds be increased appears to have been rejected and will not in fact appear in the new Act.

To Punish Is The Hardest Thing There Is

Lying behind issues of human resource management and police power is the question of just how we should expect our police force to behave. The extraordinary amount of media criticism directed at police this year suggests that we want our law-enforcers to adhere to a higher standard of behaviour than the average civilian. This expectation is explicitly stated in the Bazley report: “in order to maintain public trust and credibility police officers need to adhere to high standards of ethical behaviour, both on and off duty.”

Statements made on the Police Act wiki reject such high standards of behaviour, arguing that “police are human”. A recent email circulated by a Christchurch police officer, entitled “Why Cops Shoot Guys With Knives,” stated that if a person attacks the police with a knife then they should be shot. In defence of this email, the wiki states “There has to be humour in a work place – sometimes the humour will be dark and I would guess that the large majority of us accept this.”

Yet the contents of this email became more controversial when, on Wednesday September 26, a Christchurch officer shot dead Stephen Jon Bellingham, who was smashing vehicles with a claw hammer.

While some witnesses said the man was directly threatening police with the hammer, others said he was simply standing around, thus creating a large degree of controversy over the acceptability of the shooting. But before we accuse the police of being trigger-happy, we should look at another event which took place the following Sunday morning in Napier. When a man wielding an axe charged at two police officers, they hid behind a car before pepper-spraying the assailant and placing him in handcuffs.

Since 1941, when Stanley Graham was shot by police after killing four police officers and three civilians, the NZ police have fatally shot 21 civilians. On the other hand, 23 police officers have been slain in the line of duty since 1886. These figures remind us that policing is both a necessary and dangerous job. Because police have more power than the ordinary civilian, the potential harm caused by police misbehaviour is greater than the potential harm caused when a civilian misbehaves in the same manner. Therefore, it is reasonable for us to demand and expect a high standard of behaviour from police. If police live up to this high standard of behaviour, they earn more respect from us than that which we give to the average citizen, because we rely upon them to keep us safe from acts of violence.

Similarly, we must resist devolving police powers to outside agencies such as private security firms. The number of private security guards in New Zealand is rapidly increasing and overtaking the number of police. Yet anyone who has watched the behaviour of bouncers towards bar patrons on a busy evening can attest to the fact that the behaviour of private security guards is almost always worse than the behaviour of police – after all, security guards are only employed to protect the property of their employers, whereas police officers are responsible for protecting everyone.

We give police more powers than security guards because we expect a higher level of behaviour from them. Unfortunately, our ability to respect the police is reduced by the existence of unrealistic laws, such as the Misuse of Drugs Act, which police have to enforce against the wishes of large sections of the community. Nevertheless, we need to recognise the difference between the laws and the police who are required to enforce them, and understand that police discretion only extends so far.

Michel Foucault once wrote that “To punish is the most difficult thing there is. A society such as ours needs to question every aspect of punishment as it is practised everywhere.” We need to give police the ability to protect, but we must always question the way they use that ability.

The new Police Act will probably have its first reading in parliament by the end of this year. After then, it will move to a select committee stage, before being passed into law before the next election. We the public need a police force which has enough power to keep us safe from harm, yet which is open and accountable for the misbehaviour of a few crooked cops. In order to ensure that a balance is achieved between ability and accountability, we need to get involved in the writing of this act. For further information, take a look at the website –


About the Author ()

Tristan Egarr edited in 2008. He threw a chair once.

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