Opposition parties united against police bill
Tony Ryall National Police Spokesperson
27 September 2001
Opposition parties united against police bill
The Opposition Parties are firmly against the Police Amendment Bill (No 2) which was reported back from the Law and Order Select Committee today.
The Bill has been reported back unamended because the Opposition parties have refused to co-operate with the Government to make any amendments in the select committee. This means the Government will have to move and justify amendments in the House.
"This signals that the Opposition parties will be fighting this Bill every inch of the way," National's Police spokesman Tony Ryall said today.
"The Government wants to put politics into policing. Labour wants to have the final say in day-to-day police decisions.
"The Opposition says New Zealand wants a police force free of political influence."
Attached is the view of Opposition members on the select committee. "In a fit of pique, Labour members blocked the inclusion of this report in the Committee's report back," Mr Ryall said.
POLICE AMENDMENT BILL (NO.2)
VIEWS OF OPPOSITION PARTIES
The Opposition parties oppose this bill and recommend it does not proceed.
In this section of the Committee's report, the National, Act and New Zealand First Members will set out their concerns about the bill.
Undue haste and "ineffectual" consultation
Before detailing our reasons for opposing the bill, we would draw the House's attention to the undue haste with which this bill was considered. The bill was referred to the Committee on 14 August with only six weeks to hear public submissions and consider the bill.
For such an important bill that seeks to codify years of convention on Police governance and accountability, six weeks, in our opinion, is an affront. We consider that the Government is more intent on changing the bargaining environment for this year's police pay round than on observing meaningful consultation and reflection. We will comment further on this later.
This haste was also reflected in the submissions of the Police Managers' Guild and the Police Association; both expressed concern that they did not believe they or their members had been meaningfully consulted The Guild called the limited select committee process "a significant abuse of process". The Police Association described the consultation process as "ineffectual". In a letter to the Police Association dated 11 August 2000 where Ministers Mallard and Hawkins undertook to consult with the Association further about the review. The Association believes it was never appropriately consulted in terms of that undertaking.
Deputy Commissioner Prouvost advised the Police Minister on 14 June 2001 that the timeframe seemed too short "[given] the novelty of some of the governance proposals...and the possible precedent for other holders of public office with a degree of independence".
Governance and Accountability
Policing should be free of political influence.
The Opposition parties believe this bill, if passed, will give the Government undue influence over police actions. The Government will be able to direct Police on staffing, delivery, public safety issues and "general areas of law enforcement" if Ministers think those decisions go against their wishes, as set out in "government policy".
A schedule attached to the Cabinet paper on this bill shows that the Minister will be permitted to intervene even if the Commissioner redirects staff or resources to a priority area like violent crime!
We are unconvinced by the Government's comments that Ministers will not be able to direct on individual cases or types of cases. As Auckland Law School's Paul Rishworth points out "In the end, a "general area" is only the sum of a set of "particular classes of cases"...there is real scope for confusion here".
Former Police Commissioner Walton is his submission warned "Government control over Police could be seen as a "Police State" and the temptation to give directions for political consideration could be too strong. The Police must be seen to be free of political influence and bias".
Former Commissioner Thompson, making his first public comments since retirement in 1987, summed it up well when he wrote "In some countries around the world there is an element of political control and direction in the operation of police organisations. I have seen many of these systems in action and they do not work as well as the New Zealand model...The cornerstone role in our democracy, which the police provide, will be eroded if the Bill is passed into law in its present form".
The Police Managers' Guild advised the Committee that "the changes if implemented will undermine the effectiveness of the Police as an institution of Government and will impact on the established convention of Police independence from direct political influence. The Guild further submits that the proposed changes will reduce the overall effectiveness of Police operations".
Trying to codify the responsibilities and roles of the Police Commissioner and Police Minister has not been attempted elsewhere. Opposition members can see why. This is an area fraught with confusion and potential conflict.
As the Law Commission pointed out "It is generally accepted that in the absence of a definition of the boundary there is a need for both Minister and Commissioner to exercise caution and tact".
Conventions are a pillar of our democratic and legal systems. Our government and Parliament revolve around conventions. It seems to the Opposition parties that convention, in this case, would serve New Zealand better than this attempt to provide written boundaries and rules.
Commissioner Appointment, Pay, Performance and Removal
Minister Mallard told Cabinet [POL(01)147] that this bill would "bring Police closer to the centre and the public service". That worries Opposition members.
This bill will remove the Police Commissioner from the small group of public officeholders with a degree of independence whose salaries are set by the Higher Salaries Commission and have no at-risk salary component. The Police Commissioner's salary would be set by the State Services Commissioner, and the former's performance would be assessed by the latter.
The Police told cabinet that they "believe that the clarity of responsibility for independent law enforcement decision making will become blurred by the performance based salary and enforcement proposals". The further stated "there are real risks in migrating the Police Commissioner to a salary with an at-risk component".
The Ministry of Justice told the Cabinet that it opposed the State Services Commissioner setting the Police Commissioners salary. They preferred the Higher Salaries Commission.
Former Commissioner Walton warned the Committee that "Having the State Services Commissioner in the relationship could interfere with the Commissioner's need to be operationally decisive and could adversely affect the Commissioner's effectiveness in managing the Police".
The Police Association submitted "We are concerned about about any backdoor control of the Commissioner's operation independence through contractual obligations and at-risk performace pay".
Opposition Members are concerned that salary and accountability arrangements in this bill will compromise police independence. Performance pay is a lever that could be used to bring undue political influence on the Commissioner's decision-making.
Former Commissioner Thompson questioned the State Services Commissioner role in assessing Police performance: "What judgements is he going to make on law and order issued prescribed by the direction of the Minister? Is he going to use a statistical method of analysing success or failure, or is he going to suddenly be gifted with years of experience in law enforcement to know whether or not action taken or not taken on particular issues was appropriate having regard to all the prevailing circumstances?"
His predecessor former Commissioner Walton further noted that "Police would be able to hide behind government direction rather than being accountable for the decisions and action".
In papers to their own Minister, the Ministry of Justice commented that under this bill "there is a risk of the Police Commissioner being removed for purely political reasons, or by a process that contradicts the principles of natural justice". Opposition members share that concern.
Section 80 of the Police Act prevents police officers from striking. In return for this prohibition, police officers have a compulsory arbitration process. The Police Managers' Guild describes "the intent of this procedure is to ensure that neither of the parties involved in bargaining act in any excessive way because to do so provides a certainty of losing".
The third schedule of the Police Act sets out the criteria to be observed by the arbitrating body. These include supply and demand factors, fairness and equity in rates of pay, productivity and relativity.
The Opposition members are strongly opposed to the Government's plan to make "the Commissioner's ability to pay" a part of those criteria. We consider this provision bad faith bargaining. Known appropriately as "Clause (fa)", this provision was roundly criticised by most submissioners.
The Police Managers' Guild told us "Under the proposal contained in this Bill, if the Commissioner raises an issue of inability to pay, he or she need hardly concern him or herself with any of the other criteria. Inability to pay becomes a complete argument which effectively prevents the arbitrator considering any other listed criteria".
The Police Association advised "Clause (fa) grossly skews the Police bargaining and arbitration process in favour of the Commissioner and Government...controlling the arbitration process to favour the employer is a misuse of the Government's legislative power and contradicts the obligations Government has rightly imposed on other employers".
The Police Association asked several constitutional and employment advisers for their comments on this controversial provision. These were most informative.
Barrister David Goddard advised that "[the Crown] can unilaterally introduce a cap on the total of....remuneration. This is wrong in law, as well as being a surprising and unreasonable assertion".
The current government makes much of adhering to International Labour Organisation (ILO) conventions. ILO specialist Geoff Davenport stated: "In my view there are a number of arguments supporting the view that the proposed amendment is contrary to the spirit of the ILO, its Declaration and its jurisprudence".
He went on to say "In short, police employees will be treated considerably less favourably than state sector employees despite the assertions of the Government, and, if the predictions of the Government are to be believed, the effect of the amendment will be to skew the outcome of the arbitration in the Government's favour. Such a result cannot be consistent with the desire for impartiality as noted by the ILO".
Sir Geoffrey Palmer said "...tying of the Commissioner's ability to pay to the Vote suggests that the Government will be able to ensure that there is never any money for an increase by keeping the Vote screwed down".
The Opposition members consider a more appropriate model would be "fairness to the taxpayer". The Minister rejected this suggestion in advice to the Committee.
Opposition members believe that this Bill is being passed with undue haste so that the "Commissioner's ability to pay" has effect in the police pay-round later this year. We believe that Policing in New Zealand will suffer under this bill, just as it did last year when the Government initially tried to fund last year's pay-round from within existing budgets.
The Police Minister's Cabinet paper of 18 June 2001 noted that "Changes to the arbitration environment could mitigate risks around Police wage bargaining outcome and any relative improvement in bargaining strength present opportunities for fiscal benefits".
Opposition members suspect that paragraph is the kernel of this bill.
The Police Association's submission makes it clear that they do not consider there was appropriate consultation from the Government on this or any other provision.
Appointments and Transfers
The two police service organisations registered concerns also about sections 10, 11 and 13; where the Government seeks to impose a state sector employment model on the New Zealand Police.
Sworn police are called "sworn" because they take the constabular oath. Sworn police may exercise special functions and coercive powers. Their obligation and accountability is then to the law.
The Bill provides for the Commissioner to now designate someone as sworn or to remove that designation.
Opposition members are unconvinced by arguments and explanations of this proposed power. We agree with the Association that such a "radical departure from the current understanding of the sworn Police role" is premature and requires further study.
We are insistent that appointment and promotion should be based on merit, rather than an efficiency basis. Police must be free of cronyism and influence peddling. Opposition members fear that a move from merit based appointment will undermine the integrity of policing.
The bill provides a statutory power to transfer staff by passing merit based selection and right of review. Currently 1 in 30 police appointments are reviewed compared to 1 in 60 in the rest of the state sector. 45% of Police appointments are overturned on review, which again is considerably higher than elsewhere in the state sector.
The Police Association believes that proposed transfer and appointment provisions will be used to save money and remove more positions from the merit based appointment process.
Opposition members share many of the service organisations concerns because there does not appear to be a compelling case for change.
There must be separation between Police and executive government. This bill will make sweeping changes to the statutory independence of the Police Commissioner. Opposition members fear this will give government greater influence over police actions. We believe Police independent law enforcement decisions will be compromised.
Opposition members are of the opinion that if the Government is intent on amending Police Legislation it should first implement the review proposed in the letter of 11 August 2000 to the Police Association which was co-signed by the Minister for State Services and the Minister of Police. This letter clearly infers that before any legislation is introduced which affects the police structure a review will be conducted. We believe the Government should act in 'Good Faith' and in the first instance honour the commitment to such a review.
Therefore, the Opposition members of National, Act and New Zealand First oppose this bill and recommend it does not proceed.