NEW ZEALAND POLICE ASSOCIATION - TOWARDS A SAFER NEW ZEALAN D POLICE AND LAW & ORDER POLICIES
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New Zealand Police association
Towar ds a Safe r N ew Z ealan d
police and law & order policies
for the futu re
2011
Table of contents
Foreword 3
Summary of policy proposals 4
Part 1: Strategic issues in crime and justice 7
1.1 Organised crime 7
1.2 Violence 9
1.3 Alcohol 12
1.4 Fleeing drivers 14
1.5 Criminal justice system 16
Part 2: Strategic issues in policing 21
2.1 Police resourcing 21
2.2 Police numbers 24
2.3 Police workforce balance 26
2.4 Tactical options and officer safety 30
2.5 Public safety broadband 33
Part 3: Police workforce issues 35
3.1 Legal protections for police officers 35
3.2 Police conduct and discipline 37
3.3 Developing the police profession 39
About the New Zealand Police Association
The New Zealand Police Association is a voluntary service organisation representing some 8,700 constabulary
police officers across all ranks. The Association also represents around 2,600 non-constabulary employees, who
carry out invaluable support and specialist roles across the full spectrum of policing. Members are active in
engaging in debate and discussion within the Association on matters relevant to policing. The high engagement
level of the membership helps ensure the Association’s ability to speak and act credibly on behalf of members.
Front page photos (left to right) courtesy of:
The Dominion Post, The New Zealand Herald, The Press, The Dominion Post, The Dominion Post.
TOWARDS A SAFER NEW ZEALAND
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Published by New Zealand Police Association
PO Box 12344, Willbank House 57 Willis Street, Wellington
Phone (04) 496 6800, Fax (04) 471 1309
www.policeassn.org.nz
October 2011
Foreword
This is only the second time that the New Zealand Police Association has published a
detailed policy document for public discussion ahead of a General Election.
The first such document was published ahead of the 2008 General Election. We did so
because we believe the Police Association has an important role to play, on behalf of its
members, not only in commenting on law and order issues, but also in proposing
solutions.
We believe that document provided a valuable contribution to the incoming Parliament’s
understanding of the issues facing police and policing. Armed with a better
understanding, we have in the last three years seen a significant number of measures progressed which give full or
partial effect to the proposals we advanced. Police are more effective, and the public is safer, as a result.
In 2011, we believe we have an even more important role to play in ensuring the incoming Parliament is well-informed.
These are tough fiscal times. It is no surprise the public consciousness, and political narrative, has therefore been
dominated mainly by economic concerns rather than law and order. The risk is an incoming government, in an effort to
tend to the highest profile immediate concerns, while balancing the books, de-prioritises investment in policing.
To do so would have serious adverse consequences for public safety which would take years of additional investment to
rectify. That was the lesson of budget cuts which occurred during the late 1990s and early 2000s.
Significant additional funding and legislative support has been put into policing in the past six years, in response to a
series of crises. As a result we now have one of the most efficient, effective, adaptable and responsive police services,
for the money we spend, in the world. We are beginning to see the benefits in falling crime rates and falling public fear of
crime. But those gains are fragile and will be easily lost if police lose the new-found capacity, thanks to the resources
they now have available, to act proactively as well as responding to emergencies.
We believe New Zealand should aspire to be the safest, least corrupt country in the world. That reputation should go
hand in hand with our magnificent scenery and Kiwi hospitality to make ours the most attractive country in the world for
people to visit and invest in.
To realise that vision, now is the time to retain and cement the law and order gains we have made in recent years, and
not place them at risk for short-term financial gain.
The Police Association represents over 11,000 Police officers and employees. Not all of those members will agree with
all of the proposals put forward by this document. But the diversity of members’ views is one of this organisation’s key
strengths: it is through engagement and debate that good ideas are formed. In putting forward our ideas, it is my hope
that the Police Association can make a well-informed, positive, and constructive contribution to the debate, and help New
Zealand remain the best country in the world in which to live, work, invest and play.
Greg O’Connor
President of the New Zealand Police Association
TOWARDS A SAFER NEW ZEALAND
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Summary of policy proposals
Part 1: Strategic issues in crime and • Amend bail laws to allow for conditions to be
attached to custodial remand, so that offenders are
justice
not able to intimidate or otherwise interfere with
victims or witnesses from behind bars, including in
1.1 Organised crime
domestic violence cases.
The Police Association believes government policy
on gangs and organised crime should: 1.3 Alcohol
• Build long term cooperation between Police and The Police Association believes government policy
other government agencies, especially those on alcohol should:
involved in border security and financial regulation, • Impose trading hour restrictions to ensure alcohol is
with the specific aim of detecting and taking action not sold after 10.00 pm from an off licence, and after
against organised crime networks. 3.00 am from an on licence.
• Review anti-corruption measures across the whole • Raise the minimum purchase age for alcohol to 20.
of government, for example security vetting and
• Lower the permissible blood alcohol concentration
monitoring of inappropriate personal or business
for adult drivers to 0.05.
associations, and ensure there are appropriate
response protocols across the whole of government • Introduce an infringement regime for liquor ban
to investigate potential compromise of individuals offences, but preserve the Police power to arrest as
and/or systems. a critical tool for managing alcohol-related disorder.
• Continue to increase the pressure on traditional 1.4 Fleeing drivers
gangs, for example through further legislative
measures such as patch bans designed to disrupt The Police Association believes government policy
and reduce recruitment by making the gang lifestyle on fleeing drivers should:
less attractive. • Make licence suspension and vehicle impoundment
mandatory, and imprisonment available as a penalty,
1.2 Violence
for every failing to stop offence.
The Police Association believes government policy
• Introduce mandatory vehicle impoundment, in
on violent crime should:
addition to existing fines, where, subsequent to a
• Review whether Police currently have sufficient legal failing to stop, a vehicle owner refuses to identify the
authority to allow them to intervene early to driver.
effectively tackle ‘precursor’ offending in brewing • Introduce mandatory third-party vehicle insurance.
disorder situations, to prevent disorder erupting into
violence. 1.5 Criminal justice system
• Ensure sufficient frontline police resources The Police Association believes government policy
(especially General Duties Branch shift staff) are to improve the effectiveness of the criminal justice
available to allow rapid and safe responses to system should:
violent incidents, and quell street and public disorder
• Pass the Search and Surveillance Bill as soon as
before violence erupts.
possible to introduce a warrant regime authorising
• Pass the Search and Surveillance Bill to allow a Police video surveillance going forward.
search for a knife where there are ‘reasonable
grounds to suspect’ one is being carried, and
broaden the definition of ‘offensive weapon’ to
ensure it also covers firearms.
NEW ZEALAND POLICE ASSOCIATION
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• Bring into force, as planned on 5 December 2011, 2.2 Police numbers
legislative provisions enabling DNA sampling of all
The Police Association believes government policy on
those whom police intend to charge with an
police numbers should:
imprisonable offence.
• Commit to the principle that the most restrictive and • Work towards better comparability with similar
invasive coercive powers should be exercised only overseas jurisdictions in police to population ratios,
by constabulary police, who uniquely possess the with firm commitments and planning to match
training, organisational support and constitutional Queensland’s ratio.
position as constables to exercise them • At least maintain current police to population ratios in
appropriately. the short term, to avoid falling further behind and
• Amend the law relating to criminal procedure and worsening existing shortages.
evidence to allow judge and jury to draw such • Ring-fence GDB and primary response resources and
inferences as appear proper from a defendant’s introduce an expectation that police staff working in
refusal to answer questions or give evidence, using specialist areas will be used when necessary to fill
the 1994 reform in the United Kingdom as a model. frontline gaps.
• Continue to reform criminal procedure in order to
2.3 Police workforce balance
fully implement a cohesive suite of measures, as
envisaged by the Law Commission, to reduce The Police Association believes government policy on
delays in the court system. police workforce balance should:
• Ensure that non-constabulary support roles are not
Part 2: Strategic issues in policing targeted for short-term cost savings, because the
impact of cutting these roles would be to push a
2.1 Police resourcing greater burden of compliance work onto the
The Police Association believes government constabulary, thus reducing their availability to perform
responses to fiscal pressures in Police should: core policing tasks.
• Commit that Authorised Officers will not be expanded
• Ensure cuts are not made without a detailed
into more policing roles without thorough debate and
understanding of the long-term implications for
consultation, and that long-term public and staff safety
Police’s ability to deliver a sustainable service to the
will not be compromised by proposals that might be
public. It is critical that mistakes like those made in
driven by short-term financial considerations.
the late 1990s and early 2000s are not repeated.
• Ensure that a high level of generalist constabulary
• Evaluate whether the burden of compliance work
capacity is maintained within the Police workforce, to
currently falling on Police has become excessive,
ensure that the flexibility necessary to respond to
and whether the sum total of such activity represents
crises is maintained, and options for future
good use of public safety dollars; and whether by
deployment of resources in response to changing
reducing some of the bureaucratic overhead,
public needs are preserved.
resources could be freed up for core policing tasks.
• Re-assess current attitudes to failure in individual
• Implement cost-recovery for policing of public events
cases, to ensure both that consequences for the
where there is a significant commercial element, and
individual better reflect reasonable expectations of
especially for events involving sale and supply of
them, and that individual cases do not spawn
alcohol.
additional risk-management processes which carry an
organisational compliance burden that is out of
proportion to the risk concerned.
TOWARDS A SAFER NEW ZEALAND
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2.4 Tactical options and officer safety • Explore ways of disposing of unmeritorious
proceedings more quickly and with less expense,
The Police Association believes government policy
including by reviewing whether un-represented
on tactical options and officer safety should:
plaintiffs should be given as much leeway and
• Empower and back police officers to take assistance as they sometimes currently are.
appropriate early action to deal with the anti-social • Introduce statutory name suppression for any police
behaviour which leads to serious disorder and officer who is involved in a fatal incident arising from
assaults on police. performance of their duties. That name suppression
• Ensure inquiries into police actions following should apply from the time they are known to have
incidents do not unnecessarily result in tightening of been involved, until such time as they may be
policies and procedures such that offenders are proved to have exceeded their legal authorities and
actually encouraged to push the limits up to the point obligations as public servants, by being found guilty
where they know or believe police have to of an offence causing the fatality.
disengage.
3.2 Police conduct and discipline
• Support general arming of NZ Police with firearms,
meaning all constabulary police officers being armed The Police Association believes government policy
fulltime. on police conduct and discipline should:
• Plan and train now for a new policing environment of • Commit to the principle that police should have the
greater carriage and use of firearms by general same rights and protections available to any other
duties police. employee, and should not be treated more harshly
than any other employee in their employment
2.5 Public safety broadband relationship.
The Police Association believes government policy • Ensure that the Crown Prosecution Guidelines are
on public safety broadband should: adhered to in cases involving police just as they are
• Reserve sufficient bandwidth within the 700 MHz in cases involving members of the public.
radio spectrum for public safety broadband delivery. • Ensure members of Police are not denied
opportunities for alternative resolutions, including
Part 3: Police workforce issues diversion, which would be available for any other
person, simply because they are employed by NZ
3.1 Legal protections for police officers Police.
The Police Association believes government policy 3.3 Developing the police profession
on legal protections for police officers should:
The Police Association believes government policy
• Consider the introduction of statutory protections to on developing the police profession should:
prevent the unjustified targeting of individual police
• Work with similar jurisdictions to develop a police
officers in private prosecutions and civil suits.
professional registration model that will help set and
• Introduce more systemic disincentives to discourage maintain standards of policing qualification and
the laying of vexatious proceedings, including competence, and enable better workforce mobility
reviewing legal aid availability and apportionment of and employment choices.
costs.
• Review the threshold at which litigants may be
declared by the courts to be vexatious.
NEW ZEALAND POLICE ASSOCIATION
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Part 1: Strategic issues in crime an justice
1.1 Organised crime
The changing face of organised crime
Until recently, most New Zealanders would use the term
‘organised crime’ interchangeably with ‘gangs’. In the
absence of a historically established ‘mafia’-style criminal
fraternity, the patched motorcycle and so-called ethnic
gangs were the closest this country came to crime
syndicates.
Photo courtesy of USDEA
That has changed. It is now increasingly recognised that
New Zealand’s organised criminal enterprises have grown
beyond ‘gangs’. Expansion and growing sophistication
has been largely funded by enormous wealth derived from
bringing marketable quantities of the full range of drugs to
methamphetamine.
New Zealand, including cocaine, heroin, MDMA (Ecstasy)
New Zealand now has a true organised crime problem, and Ecstasy mimics.
much like Australia and elsewhere, in which the traditional
Gangs today are organised with one aim – to make
gangs are merely one part of complex organised crime
money. Cash flows and illegally-funded lifestyles are now
networks. These networks involve overseas crime groups
at levels gang members in the 1980s could not even have
and apparently legitimate businesses, with dealings
dreamed of. The methamphetamine trade alone is
obscured by layered holding companies and trusts.
currently estimated to be worth up to $1.5 billion a year in
Crime networks are supported by professional directors New Zealand.1 To put that in perspective, that is about
and expert advisers, including the best lawyers, 50% more than the annual value of New Zealand’s entire
accountants, and financial advisors money can buy. wine exports.2
Wealth is generated not only from drugs, but also from
Generally speaking, in major cities the intimidating public
crimes like large-scale organised fraud and identity theft,
presence of the traditional gangs has reduced. Today’s
and criminality affecting a wide range of industries and
gang leaders are older, smarter and more ambitious –
sectors including fisheries, forestry, property development,
they know attracting attention is bad for business. That
banking and finance.
business is growing, as the drugs trade carries the gangs’
The old face of gangs still exists, especially in provincial sphere of influence and intimidation out of the poorer end
and rural areas. But the old gangs are also now involved of town and into middle-class suburbs.
in true organised crime. In some cases they are simply
‘P’ problem has become an organised crime
providing distribution networks or ‘muscle’ for others; other
problem
gangs are initiating and putting together sophisticated
criminal deals across a range of industries. Gangs are The Police Association began calling for a Commission of
dealing higher value drugs, and coordinated supply and Inquiry into organised crime in 2003. It was becoming
distribution syndicates have replaced many of the old clear to us then that criminals were rapidly organising,
inter-gang rivalries. New gangs with offshore connections, professionalising, developing international linkages, and
who wear suits rather than patches, are now present and diversifying their enterprise, largely on the back of
heavily involved especially in the drugs trade. enormous profits from dealing methamphetamine.
It’s no longer just methamphetamine. Established, 1 According to estimates contained in 2008 Cabinet papers relating to the Organised
sophisticated importation channels are now capable of Crime Strategy.
2 Exports in 2009/10 year were $1.04 billion. Source: New Zealand Wine.
TOWARDS A SAFER NEW ZEALAND
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The Association was gravely concerned that the authorities The Police Association has been encouraged by the work
would be too slow to react to the new threat. When we had of OFCANZ to date, particularly Operation Explorer, in
warned about the rising threat of methamphetamine, from which an undercover agent infiltrated a Hells Angels
as early as 1997, we were largely ignored, and the rise of feeder gang in Nelson resulting in multiple arrests early
‘P’ was downplayed by the Police administration of the day. this year. OFCANZ operations have confirmed much of
Drug and organised crime squads were actually being shut the information revealed by the Association’s research,
down around the country as resources were redeployed, such as links with businessmen in New Zealand and
largely onto volume crime. overseas, large scale money laundering, and the strategic
approach to shared business enterprise between major
The first real action to specifically focus on
gangs, like the Head Hunters and Hells Angels.
methamphetamine did not happen until Budget 2002. By
then the response was too little, too late to stop the Nevertheless the Police Association remains concerned
epidemic. Failure to deal with ‘P’ allowed organised crime that law enforcement authorities need to broaden their
to mature. focus beyond gangs, to target the businessmen with
whom they are linked and who are crucial to organised
By 2003 the Association began to grow extremely
crime finances and money-laundering. Also of grave
concerned not only at the risks posed to New Zealand
concern is the fact that everywhere in the world where
society from entrenched organised crime networks, but
organised crime takes hold, corruption goes hand in hand
also the risk posed directly to our members through
with it. Organised crime controls such wealth, that if
corruption and infiltration of Police and other institutions.
Police does not act to protect its staff, it is unfortunately
Representations on the issue continued, and the inevitable that, sooner or later, we too will face a
Government in 2008 decided to establish the Organised corruption scandal, as so many police services overseas
and Financial Crime Agency (OFCANZ). This was an have.
encouraging and tangible elevation in priority of the
New Zealand’s goal should be clear and unequivocal: to
authorities’ response to organised crime. There was also
reverse the growth of organised crime. To do this we
agreement in principle prior to the 2008 General Election
need a sophisticated, multi-layered approach utilising all
to hold a Commission of Inquiry.
the tools that can be made available to Police. Long term
However, by the end of 2008 a survey of our members cooperation between multiple agencies – including for
showed that the growing threat of organised crime and example Customs, IRD, the Financial Markets Authority,
drugs had become the number one crime issue of Reserve Bank, Immigration, and Housing – will help to
concern for police. The Association decided it could not uncover the extent of complex criminal networks, and
afford to wait for official action and engaged in its own enable more effective enforcement action.
research to establish the extent to which organised crime
At the same time, Police and the community need to
had grown in New Zealand. Some of the less security-
attack both the upper echelons of gangs and ‘minor’
sensitive general findings of that research were published
street-level crime. Restrictive measures such as gang
in a series of reports in the Association’ magazine, Police
patch ban bylaws have their place in such a strategy.
News, in 2010, while information about specific alleged
Sustained, relentless pressure on gangs will make them
criminal offending was passed to Police.
increasingly difficult to maintain and involvement in them
Sophisticated crime requires sophisticated an unattractive lifestyle. Reducing the influence of gangs
response will not rid New Zealand of organised crime, but it will help
The time for a Commission of Inquiry has now probably curb some of its offending and impact.
past. We now know enough of the current nature of
organised crime in New Zealand to focus on action.
NEW ZEALAND POLICE ASSOCIATION
8Policy • Review anti-corruption measures across the whole of
government, for example security vetting and monitoring
The Police Association believes government policy on
of inappropriate personal or business associations, and
gangs and organised crime should:
ensure there are appropriate response protocols across
• Build long term cooperation between Police and other the whole of government to investigate potential
government agencies, especially those involved in compromise of individuals and/or systems.
border security and financial regulation, with the
• Continue to increase the pressure on traditional gangs,
specific aim of detecting and taking action against
for example through further legislative measures such
organised crime networks.
as patch bans designed to disrupt and reduce
recruitment by making the gang lifestyle less attractive.
1.2 Violence
Crime down; violence up But equally undeniable is the fact violent crime has not
followed that trend. Instead, it has continued to increase
Two facts are undeniably clear from official crime statistics
virtually unchecked. While it dropped slightly in 2010, it is
over the past two decades. One is that overall crime
too early to tell whether that signals a change in the trend,
reached its peak in New Zealand in the mid-1990s, and has
or simply a dip. The fall in overall crime has been almost
generally been trending downwards since, with around
entirely due to large reductions in high volume property
50,000 fewer offences recorded in 2010 than in 1996.
crime – especially burglary and vehicle-related crime.
Figure 1*
Recorded Crime 1990-2010
Total recorded Violent recorded New (ANZSOC) violence series
700,000 70,000
650,000 65,000
600,000 60,000
550,000 55,000
Violent offences
Total offences
500,000 50,000
450,000 45,000
400,000 40,000
350,000 35,000
300,000 30,000
250,000 25,000
200,000 20,000
150,000 15,000
1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
*Sources: Statistics New Zealand and NZ Police official calendar year crime statistics. From 2010, official crime statistics are
only produced using the ANZSOC (Australian and New Zealand Standard Offence Classification) crime categories. This means
a continuation of the earlier ‘Violence’ series, which used the previous TPOC (Traffic Precedent and Offence Classification)
categories, is not possible beyond 2009. Creation of a new ‘Violence’ series using the new ANZSOC classifications is possible
only back until 1994. While the new series tends to follow the same trend (as it should, given the vast majority of violent offences
are grouped within a violent-offending subcategory under either classification system), both series are reproduced in order to
give the entire 20-year historical perspective.
TOWARDS A SAFER NEW ZEALAND
9The increasing LA-styled gang culture, with its glorification
of violence, is almost certainly a factor in increased youth
and street violence. New Zealand’s failure to reduce the
strength and appeal of gangs has also turned gang
members into role models, especially in our most
economically deprived communities.
Alcohol and drugs are huge factors in most violent
offending, whether domestic or otherwise. Places where
intoxicated people gather are frequently and continually
the scenes of disorder, intimidation, and serious violent
crime.
Photo courtesy of The New Zealand Herald
Disorder leading to violence
Disorder, intimidation and anti-social behaviour –
frequently alcohol-fuelled – have a serious impact on the
community by generating a sense of insecurity and fear. It
also fuels an atmosphere of arrogance and impunity
amongst the perpetrators that encourages escalating
behaviour, such as serious disorder, property damage,
Complex factors
and violence directed against members of the public and
There is little agreement on the reasons for crime trends. police.
Because property offenders are frequently each
However, precursor behaviour may not itself clearly
responsible for a large number of offences, significantly
constitute criminality, or might be considered too low-level
improved resolution rates are likely to have played a major
to justify prosecution. This is particularly the case
role as prolific offenders are taken out of circulation. This
following Supreme Court rulings in Brooker4 and Morse,5
is a credit to Police efforts on crimes like burglary as well
which have raised the bar for public order offences
as advances in DNA sampling. A strong economy and low
(disorderly and/or offensive behaviour) such that the
unemployment may also have been factors relating to
threshold now is effectively where violence or public
reduced property crime over the last decade, and it
disorder is being intentionally incited or clearly on the
remains to be seen whether a lift in ‘economically
verge of breaking out. If conduct has reached that level,
motivated’ offending follows the recent tightening of
especially in a group situation where crowd dynamics
economic and employment conditions.
come into play, any officer attempting to regain control of
Reasons for increasing violence are equally unclear. a situation is placed at significant risk.
Improved reporting of domestic violence incidents is
This makes it increasingly difficult for Police to intervene
frequently cited as a factor, but cannot be the only
to ensure violence and disorder do not break out, because
explanation. Violent offences appear to be becoming
on one hand they lack the legal authority to intervene
more serious, on average, with the biggest growth being
early; while on the other hand they generally lack ready
in serious and grievous assaults. There is also anecdotal
access to the significant numbers of well-equipped staff,
evidence that violent offending by young offenders is
trained in crowd-control tactics, necessary to safely
increasing in seriousness, with Principal Youth Court
intervene in a simmering crowd situation.
Judge Andrew Becroft, among others, publicly making this
observation on several occasions.3
4 Brooker v Police [2007] NZSC 30
3 For example, in comments to the Bluelight Conference in May 2008, reported in the 5 Morse v The Police [2011] NZSC 45
New Zealand Herald 9 May 2008.
NEW ZEALAND POLICE ASSOCIATION
10It would be timely to review whether police officers now Crimes Act 1961 gives the power to stop and search
have sufficient legal authority to intervene early, to take where there are reasonable grounds to believe an
preventive action to stop violence erupting from situations offensive weapon is being carried. However, ‘reasonable
of simmering disorder. grounds to believe’ is a relatively high threshold, which
requires a specific reason to form a belief in relation to the
It is also important to ensure that the GDB (General
specific individual. This does not allow for the sort of pre-
Duties Branch) shift sections, who are the 24/7 frontline
emptive checks which could prevent needless injuries and
responders, are sufficiently well-resourced to respond
deaths, and discourage carriage of such weapons.
quickly to quell violence and disorder. Currently, despite
Consequently, police are effectively currently unable to
police numbers having grown in recent years, GDB
take any action against those who are likely to be carrying
sections in many parts of the country are more short-
knives until the weapon is produced or used.
staffed than ever.
The Search and Surveillance Bill, which was yet to be
Knife crime
passed at time of writing, will re-enact these provisions
In recent years there has been a disturbing trend towards with the threshold ‘reasonable grounds to suspect’. This
carriage of knives by young people, particularly those who is a more realistic and workable threshold to prevent knife
associate with or style themselves as street gangs or crime, and should be enacted. The definition of ‘offensive
‘crews’. Partly this trend appears to be associated with weapon’ should also be amended to ensure it
presenting a tough ‘gangsta’ image to their peers, since a unambiguously also covers firearms, for which separate
knife has the dual qualities of being a weapon which is search provisions exist (with ‘reasonable grounds to
both easily obtainable and easily concealable (compared suspect’) in section 60 of the Arms Act 1983. Otherwise,
for example to a handgun, which is difficult to obtain, or a there is a risk that a search invoked for an offensive
softball bat, which is difficult to conceal). weapon will not empower action to be taken if, instead, a
The person carrying the knife may not have armed firearm is found.
themselves with a specific intention of committing an
offence with it. However, once so armed, confrontations
can quickly spiral out of control, and a minor scuffle
between youths can quickly become a homicide. This is
particularly the case where alcohol is involved. We have
also seen cases where youths have used knives to
threaten or rob others such as taxi drivers. Such
situations can also easily escalate to homicide, as
occurred in the murder of Christchurch taxi driver
Abdulrahman Ikhtiari in December 2008.
It is important that police are able to search people for
knives in circumstances where there is good reason to
Photo courtesy of The Dominion Post
suspect such weapons may be carried. This might for
example include where rival groups of youths are
congregating in a public place like a park and drinking.
The search involved need only be a quick ‘pat-down’ and
check of bags and jackets. Currently section 202B of the
TOWARDS A SAFER NEW ZEALAND
11Custody conditions 1.3 Alcohol
While defendants who are released on bail can have Alcohol-fuelled disorder
certain conditions imposed on them, there is no power to
impose conditions such as non-association or non-contact An enormous proportion of Police time is currently taken
conditions on a defendant if they are remanded in up dealing with alcohol-related incidents.6 These include
custody. This means defendants are able to interfere with crime and disorder, and road crashes. The costs to the
witnesses or complainants from behind bars, through justice sector alone are also significant, at more than $700
telephone or face-to-face contact. million per year.7
This creates a particular risk in family violence cases, and In late 2010, following a Law Commission review, the
potential also exists for similar disruption of the course of Government introduced the Alcohol Reform Bill. The Bill
justice in organised crime or other very serious cases, aims to impose further restrictions on the sale and supply
where key witnesses may be known to, or even be of alcohol. However, the measures contained in the Bill
sympathetic to the accused. do not go far enough in key areas.
Controlling availability
Policy
Controlling the availability of alcohol – particularly access
The Police Association believes government policy on to the ‘last drink’ that often leads to trouble – is key to
violent crime should: preventing many of the sorts of alcohol-related incidents in
• Review whether Police currently have sufficient legal which Police become involved.
authority to allow them to intervene early to effectively Currently, the trend is towards ubiquitous 24-hour
tackle ‘precursor’ offending in brewing disorder availability of alcohol. This encourages both late-night ‘pre-
situations, to prevent disorder erupting into violence. loading’ with cheap off licence liquor before hitting central
• Ensure sufficient frontline police resources (especially business district ‘party zones’; and also continuation of
General Duties Branch shift staff) are available to allow lengthy uninterrupted binges that frequently lead to trouble.
rapid and safe responses to violent incidents, and quell Most trouble happens later at night, and there is evidence
street and public disorder before violence erupts. that earlier closing reduces alcohol related violence.
• Pass the Search and Surveillance Bill to allow a search According to Police, a trial reduction in hours of trade in
for a knife where there are ‘reasonable grounds to Timaru from October 2007, by closing all bars at the
suspect’ one is being carried, and broaden the earlier time of 3 am across the board (rather than allowing
definition of ‘offensive weapon’ to ensure it also covers 5 am closing at some bars and 24 hour trade by one
firearms. premises), resulted in an 8% reduction in violent crime
over the following 12 months, with no evidence of
• Amend bail laws to allow for conditions to be attached displacement of this crime.
to custodial remand, so that offenders are not able to
intimidate or otherwise interfere with victims or The Police Association believes hours of trade should be
witnesses from behind bars, including in domestic restricted by law, so that alcohol may not be sold after
violence cases. 10.00 pm for off licences, and after 3.00 am for on
licences.
6 Alcohol is implicated in 30% of all recorded offences, including 50% of homicides,
34% of domestic violence incidents and at least 20% of sexual offences, according
the Ministry of Justice’s Regulatory Impact Statement (RIS) accompanying the
Alcohol Reform Bill introduced in 2010.
7 Alcohol related harm was estimated to cost the justice sector $716.5 million per year
(source: Alcohol Reform Bill RIS).
NEW ZEALAND POLICE ASSOCIATION
12then be evaluated to inform any subsequent decision on
lowering the threshold.
The Police Association believes there is already sufficient
evidence to justify lowering the adult BAC to 0.05.
Liquor ban offences and associated disorder
The introduction of local liquor bans, backed by Police
enforcement, has been the single most effective tool for
regaining control in some of New Zealand’s most
notorious trouble spots: especially at times such as New
Year’s eve or during special events.
Purchase age
Until now, enforcement of liquor ban offences has required
A vast majority of Police Association members believe that
the offender either to be simply warned, or to be arrested
the reduction of the alcohol purchase age to 18, in 1999,
and dealt with through the court process.
has contributed to increased alcohol-related disorder.
There is no doubt that the reduction in purchase age The Alcohol Reform Bill proposes to introduce an
increased the number of patrons in and around licensed infringement notice regime to deal with liquor ban
premises, a proportion of whom become intoxicated and enforcement; but to preserve the power of arrest. This
problematic. combination would allow Police to remove trouble-makers
from the area before issuing them with an infringement
The age reduction has also coincided with, and seems
notice and then releasing them. However, it has been
likely to have driven, the development of an increasing
argued from some quarters that the proposed retention of
range of cheap, sugary ‘ready-to-drink’ (RTD) pre-mixed
the power to arrest for this offence is incompatible with an
drinks. These RTDs are invariably marketed at younger
infringement regime.
drinkers, and are flavoured and sweetened to mask the
taste of alcohol. The arbitrary alcohol content of such The infringement regime offers potentially considerable
drinks has trended upwards over time as manufacturers savings in police processing time (thus allowing officers to
seek to give their price-sensitive target market ‘more bang spend more time on the streets policing the ‘hotspots’)
for the buck’ than their competitors. and in court time downstream. Issuing an infringement
notice is also likely to be a response more commensurate
While the alcohol purchase age alone is not a silver bullet
with the gravity of the offence, in most cases, and will
for New Zealand’s problems with alcohol, the vast majority
avoid criminalising the offenders.
of Police Association members believe raising the age to
20 would reduce the volume of drink-related problems. However, it is critical that Police also retain the power to
arrest for breach of liquor ban offences. Liquor bans were
Drink-drive limits
introduced because communities were suffering a serious
Police, and others, have identified that New Zealand’s negative impact from uncontrolled drinking in public
current permissible blood alcohol concentration (BAC) for places exploding into mayhem. Police response after
an adult driver is high by world standards, at 80mg of such disorder begins is resource intensive, hugely
alcohol per 100ml of blood (or ‘0.08’). disruptive to affected communities, is often unable to
Despite this, governments have to date declined to lower prevent property damage, and exposes officers to
the adult BAC. The current government has instead opted violence. Imposition of liquor bans, backed by the power
to gather data on the number of drivers involved in serious of arrest, has been critical to keeping control of likely
crashes who record between 0.05 and 0.08, which will flash-point situations before they boil over.
TOWARDS A SAFER NEW ZEALAND
13Alternative provisions giving power to arrest, such as for 1.4 Fleeing drivers
disorderly behaviour and disorderly assembly, are less
Fleeing drivers – those who refuse to stop for police – all
suitable because they require behaviour to have already
too frequently drive dangerously in their selfish attempts to
escalated to the point of serious disorder.8 In the case of
evade responsibility for their offending. Unfortunately,
disorderly assembly, this also implies that a constable is
their actions sometimes lead to serious injuries or deaths
already facing a disorderly group, with the greatly
of themselves, their passengers, or innocent law-abiding
increased risks and difficulties that situation entails. The
road users. Fatalities in such situations are occurring far
dynamic of drunk crowds means taking action once such
too often.
a situation has already arisen actually risks sparking off
wider disorder. However, many of these offenders pose a danger to the
public even before they choose to flee. Their dangerous
The Police Association is strongly of the view that the
road behaviour is usually the reason Police have sought
Alcohol Reform Bill’s proposed liquor ban offence regime
to stop them in the first place.
is a pragmatic solution which offers the best of both
worlds. Any policy which required Police to let such drivers go,
unhindered, would simply invite every law breaker – such
Policy as drink-drivers – to evade responsibility for their offending
The Police Association believes government policy on by driving away dangerously. Allowing, for example, a
alcohol should: drunk and dangerous driver to continue to drive, simply
because they fail to stop, would allow that driver the
• Impose trading hour restrictions to ensure alcohol is opportunity to kill somebody in an alcohol related road
not sold after 10.00 pm from an off licence, and after crash.
3.00 am from an on licence.
Police pursuit policies are therefore a careful balancing
• Raise the minimum purchase age for alcohol to 20. act between the need to apprehend offenders who are
• Lower the permissible blood alcohol concentration for placing the public at risk through their actions, and the
adult drivers to 0.05. potential for the risk to be heightened by offenders who
respond by driving even more dangerously.
• Introduce an infringement regime for liquor ban
offences, but preserve the Police power to arrest as a Unfortunately, following fleeing driver crashes, reports and
critical tool for managing alcohol-related disorder. commentary in recent years have tended to criticise police
for not abandoning pursuits. There has been
considerable attention and publicity given to the
circumstances in which police are expected, under their
policy, to abandon a pursuit. The public now widely
Photo courtesy of The Dominion Post
8 See comments in section 1.2 regarding Brooker and Morse.
NEW ZEALAND POLICE ASSOCIATION
14believes the conditions for abandonment to be such few hundred dollars, at the most) is generally insignificant
factors as very high speed (e.g. 150 km/h), driving through in the context of the penalties being imposed at the same
red lights, and driving on the wrong side of the road. time for other driving offending, such as the offending that
brought the driver to police attention in the first place.10
This has actually encouraged some drivers to refuse to
stop for police. There are now several instances where If, on the other hand, a driver successfully evades police
fleeing drivers who have later been arrested have made by driving so dangerously that police have to pull out of a
statements to police indicating they believed police would pursuit, they can avoid all penalties – both for the original
be forced to abandon pursuit due to the dangerous nature offending, and the failure to stop. Police are only able to
of their driving. Such comments have also been made to demand after the event, under section 118 of the Land
Independent Police Conduct Authority investigators after Transport Act 1998, that the vehicle owner identify the
fatal incidents. For example: driver (assuming the vehicle was not stolen). The owner
almost always refuses to do so; at which point the owner
“In interview, Mr Heta described his driving as
is liable to be fined up to $20,000. However, as it is well
dangerous because: ‘…of how fast I was going.
known the actual penalty imposed by the courts is $100-
How fast I was going around corners. Sometimes
200 (far lesser penalty than the driver – who of course,
the car was like sliding towards the other side of
may also be the owner – would otherwise have faced),
the road but sometimes I was driving on the wrong
section 118 is no disincentive whatsoever.
side of the road. I did that because I thought the
Police would abandon the chase.’”9 Failure to stop represents a calculated and deliberate
attempt to evade punishment for offending, and put that
It is vitally important that we restore in potential offenders
evasion ahead of the safety of passengers, innocent road-
a belief that if they refuse to stop for police, they will be
using members of the public, and police. All too
caught. Offenders who know that police will catch them
frequently, such a decision has a tragic outcome in
have no incentive to put themselves and others at risk by
serious injury or death.
running.
This is the case for every failure to stop; not just a third or
Offenders must also know that by running, they are making
subsequent occasion. Every such event is a potential
things far worse for themselves. That means a law change
multiple fatality.
to ensure that the act of fleeing from police itself results in
charges with serious and meaningful penalties. Monetary penalties generally do not work for persistent
road offenders, who know amassed fines will eventually
Failing to stop
be remitted for a period of community work. Instead,
At present the penalties available in law for failure to stop, these offences should be punishable by sanctions that are
and for failure to identify the vehicle’s driver after the more effective. Licence suspension and vehicle
event, actually encourage drivers to believe they have impoundment should be mandatory, and imprisonment
nothing to lose by running, and so create a perverse should be available as a penalty where warranted by the
incentive for an irresponsible driver to flee. circumstances, for every failing to stop offence. Where
The penalty for failing to stop for police (i.e., failure to fines are imposed, on default they should result in
comply with a direction under section 114 of the Land confiscation and sale of the vehicle.
Transport Act 1998) is a maximum court imposed fine of 10 Under recent changes (2009) to section 52 of the Land Transport Act 1998, a second
$10,000. If a driver is caught and prosecuted for the conviction for failing to stop, or driving fast or dangerously while failing to stop, will
also attract a mandatory 3 month licence suspension. A failure to stop accompanied
offence, the penalty actually imposed (usually a fine of a by excessive speed and dangerous driving is a scenario where (generally speaking)
police are currently expected by policy to abandon a pursuit, so apprehension of
the driver is not assured. Imprisonment for up to 3 months is possible only on a
9 Serious bodily harm to a Police officer during Police pursuit, IPCA report [December third conviction for the same offence; which requires that police have been able to
2010] successfully apprehend the fleeing driver on 3 occasions.
TOWARDS A SAFER NEW ZEALAND
15Penalties must also provide a sufficiently strong incentive 1.5 Criminal justice system
for the vehicle owner to assure themselves that anyone
they allow to use their vehicle will do so responsibly, and Keeping pace with crime
cooperate with police if they don’t; and so remove any New Zealand Police and individual police officers are
perceived advantage for the driver to seek to evade subject to considerable oversight and compliance
police. Where a vehicle owner refuses to identify the requirements. Virtually every decision is scrutinised,
driver, the vehicle should also be subject to mandatory reviewed and often criticised. Vociferous opposition to
impoundment. perceived extension of police powers from some parts of
society can significantly slow down the already tortuous
Mandatory insurance
process of adopting new equipment such as Tasers, or
Fleeing drivers are frequently (though not always) younger passing new legislation needed to enable Police to catch
drivers, driving financed and/or modified vehicles. up with criminals – for example in the field of
Introducing mandatory third-party insurance may therefore communications technology.
assist by providing financial disincentives for parents to There is always a balance to be struck. However,
register modified vehicles in their names, and give police criminals face no such scrutiny and bureaucracy, and are
further leverage to remove unsafe (and thus uninsurable) able almost instantly to adopt new methodologies and
vehicles and drivers from the road. technologies to enable and conceal crime. While police
plead for greater powers to keep up, criminals continue to
Policy take advantage of privacy principles, process protections
The Police Association believes government policy on and State assistance that were intended as safeguards for
fleeing drivers should: the innocent.
• Make licence suspension and vehicle impoundment Video surveillance
mandatory, and imprisonment available as a penalty,
Video surveillance, and especially covert video
for every failing to stop offence.
surveillance, is absolutely vital to Police’s ability to act
• Introduce mandatory vehicle impoundment, in addition effectively against serious crime. This is particularly the
to existing fines, where, subsequent to a failing to stop, case for organised crime, where a large number of
a vehicle owner refuses to identify the driver. offenders interact in very complex ways, over a long
period of time in the planning and execution of their
• Introduce mandatory third-party vehicle insurance.
offending – such as establishing a drug distribution
network, arranging a complex importation, landing and
moving the product to market, and laundering the
proceeds through complex business and financial fronts.
Without lengthy covert surveillance operations, it would
simply be impossible to gather sufficient evidence to
seriously impact on such a syndicate. At best Police
might be able to arrest individuals, such as those caught
in possession of drugs at the border or at dealer level.
While the use of interception devices (e.g. telephone
bugging) and tracking devices has for many years been
subject to judicial authority (i.e., a warrant), no such
authority has ever been necessary for the use of video
NEW ZEALAND POLICE ASSOCIATION
16surveillance devices; and there has been no statutory
provision under which such an authority could be granted
(although a warrant has always been necessary to
authorise entry onto private property to covertly place a
surveillance device). That is because the act of filming
someone is not itself generally prohibited,11 whereas (for
example) bugging someone’s telephone is.
Consequently, the Court has in the past generally upheld
Police use of video surveillance as lawful. Recently,
Photo courtesy of New Zealand Police
however, the Supreme Court has altered this
interpretation by ruling that Police video surveillance of
any activity where the protagonists have a reasonable
expectation of privacy against being observed by the
Police, constitutes a search that, without explicit legal
authority, is an unreasonable search or seizure in terms of
the Bill of Rights.12 The mere fact such video surveillance
is not prohibited by law (and may be lawful for a private authority to meet the Supreme Court’s concern. This Bill,
individual) is now held to be insufficient general authority which was not passed at time of writing, must now be
for Police surveillance. This judgment renders Police passed as soon as possible.
video surveillance without explicit authority illegal; and as DNA sampling
the law does not currently contain any mechanism for
DNA sampling technology has now matured to the point
granting the required authority, there is now no way for
where it is reasonable and practical to take samples from
Police to conduct such operations lawfully.
all those arrested, for comparison against the crime scene
This is an extremely serious matter which if unaddressed sample database. Sampling is cheap, easy and non-
would make policing of organised crime, including drug invasive by way of a mouth swab. Profiling from the
dealing, extremely difficult, if not impossible. An urgent law samples continues to be relatively more expensive, and
change was made following the Supreme Court ruling to ESR analysis capacity limited, though costs are likely to
temporarily authorise Police to use video surveillance reduce over time as technology continues to improve.
going forward. Existing serious drug offending cases
These facts have been recognised in the passage of the
which rely on such evidence, and represent years of
Criminal Investigations (Bodily Samples) Amendment Act
Police and Court time, remain in jeopardy.13
2009. However, that Act has a two-stage implementation.
The Search and Surveillance Bill contains provisions The provisions enabling sampling from all those police
which would introduce a warrant regime covering visual intend to charge with an imprisonable offence, which are
surveillance devices. That regime would provide the legal the provisions which will have the biggest impact on
11 The Crimes (Intimate Covert Filming) Amendment Act 2006, for example, made crime, are currently due to be brought into force on 5
filming of people in certain circumstances without their consent illegal, though the
restrictions do not apply to Police actions taken in the course of their duty. The
December 2011. It is important this implementation date
Search and Surveillance Bill, which was introduced in 2009 but yet to be passed by is not further delayed.
Parliament at the time of writing, would introduce statutory provision for the granting
of judicial authority (i.e., a warrant regime) for the use of visual surveillance devices.
12 Hamed v R [2011] NZSC101
13 While some ‘unlawfully obtained’ evidence may nevertheless be admitted under
section 30 the Evidence Act 2006, that is a complex balancing provision which
must be assessed on a case-by-case basis. Each and every case might therefore
be considerably delayed as rulings on admissibility of evidence are sought and
appealed. The outcome of the s30 balancing is far from assured in light of the
Supreme Court’s ruling.
TOWARDS A SAFER NEW ZEALAND
17Proliferation of coercive powers to non-Police Current proposals in the Search and Surveillance Bill to
agencies consolidate and modernise search and surveillance
powers are, on balance, welcome. However, in doing so
Police are currently empowered by law to exercise
government should be guided by a principle that the most
coercive powers of search, surveillance, arrest and
restrictive and invasive coercive powers should be
detention. They are permitted, if necessary, to use
exercised only by constabulary police, who uniquely
reasonable force in doing so. Police need these powers
possess the training, organisational support and
to allow them to carry out their duties effectively in dealing
constitutional position as constables to exercise them
with crime, threats to public safety, and other
appropriately.
emergencies.
Refusal to give evidence
Constabulary police officers are highly trained in the
exercise of these powers and the judgment required in Under section 23(4) of the New Zealand Bill of Rights Act
deciding when to use force, and to what level. They take 1990, everybody who is arrested or detained has the right
an oath of constabulary office, conferring a unique role to refrain from making a statement. Under section 25(d) a
and relationship with society. The Police service has an defendant also has the right not to be compelled to give
organisational structure, culture, policies and procedures evidence or make a confession. These together make up
to provide control, oversight and (where necessary) what is widely known as the ‘right to silence’ or ‘privilege
disciplinary action to ensure these powers are used against self-incrimination’, and this is considered by most
appropriately. people to be a fundamental civil right.
At all times, police exercising these powers are also However, it is less widely known that there are also other
subject to judicial oversight, either through the need to legal provisions which go further, and provide defendants
apply for warrants, and/or by being potentially subject to with immunity from the consequences of exercising their
civil or criminal liability if they exceed their legal authority. right to silence. These provisions include sections 32 and
Police are also, uniquely, subject to the further oversight of 33 of the Evidence Act 2006, which forbid the prosecutor
the Independent Police Conduct Authority (IPCA). or judge from referring to a defendant’s failure to give
evidence, and forbid a jury from drawing an inference of
Specialist enforcement officers working for agencies other
guilt from a defendant’s failure to answer questions put to
than Police (such as fisheries and prison officers)
them during the police investigation.
currently have some limited coercive powers in relation to
particular offences or locations. This is rational, since it While some people consider these immunities inseparable
does not make sense to require police officers to attend all from the fundamental right to silence, others disagree,
enforcement activity. However, there is a balance to be pointing out the immunities are an illogical procedural
struck when considering extending these powers. There extension, which has no historical basis.14 The
are risks in proliferating more extensive coercive powers fundamental ‘right to silence’ evolved in English common
to enforcement officers who do not have the training, law from a rejection of medieval inquisitions, where people
oversight, organisational structure, and unique social role could be forced to incriminate themselves under the threat
of constabulary police officers. The risks apply particularly of punishments for refusal including torture or death –
to the more invasive and intensive powers, where granting though despite this early origin the right was not written in
of such powers must be matched by investment in the English law until the twentieth century, and has only been
organisational and technical capability to use those codified in the last few decades. The right to silence
powers effectively. The investment itself may then almost protects defendants from such compulsion. But
compel the use of the powers, in order to justify the
expense. 14 See for example the Northern Territory Law Reform Committee’s Report on the Right
to Silence, March 2002, citing Australian High and Federal Court judges McHugh J
and Davies J. Davies J describes the present situation as “a rule without a reason.”
NEW ZEALAND POLICE ASSOCIATION
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