The fight for police power

Who really controls the police? A bill which may boost the Government's role is already causing conflict, write PAUL YANDALL and PATRICK GOWER.

Ken Thompson was sitting in the conservatory of his Waikanae home when he caught sight of a news article.

In the 14 years since he left the force as Commissioner of Police, he had barely given the police any thought, paying attention instead to his golf handicap of 16 and the small garden he tends with partner Anne.

He had not uttered a single word on police issues - but this time he could not stay silent.

The way he read the news of changes in the legislation affecting how the police are governed meant the Government was about to end more than 100 years of police independence with a bill that would result in an unacceptable level of political control.

"I decided to go in boots and all," says Thompson. "An independent police force is a cornerstone of democracy and I had to tell the politicians what I thought of their ideas to get rid of it."

The 69-year-old was one of 42 parties that made submissions to the select committee on law and order on the Government's Police Amendment Bill (No 2).

The bill seeks to clarify the Commissioner's relationship with the Minister of Police and bring the police into line with the accountability expected of other government departments.

But opponents view it as a power-grab by the Government - and a battle for the control of the police is on.

Apart from groups within the force itself, the Human Rights Commission, the New Zealand Council of Trade Unions, and both the Auckland and New Zealand Councils of Civil Liberties have all raised concerns over the increased political influence the bill could allow.

In an indication of how contentious the proposals are, the select committee was unable to agree on whether the bill should be passed, splitting evenly along party lines. The bill arrives back in the House for its second reading this month.

In his time as Deputy Commissioner from 1978-83, and then Commissioner to 1987, Thompson remembers politicians itching to flex some control over the police. The only thing that stopped them was the convention that police be independent of Parliament.

"If I was Commissioner right now I would be in a state of shock."

If the present Commissioner of Police, Rob Robinson, is in a state of shock, then he isn't telling. He declined to speak to the Weekend Herald, referring us to his earlier comments in police publications.

While he has written that the changes are about creating transparency in the relationship between the Commissioner and the Minister, he is quick to distance himself from those changes.

"Let me reiterate that this is Government legislation. We have provided advice, but ultimately the final outcome is in the hands of the Government and the parliamentary process."

He acknowledges that "there is a view among some of the troops that the Commissioner is in bed with the Government". But he insists "this is simply not the case".

There has always been tension between police and Government. Recent conflicts have centred on former Commissioner of Police Peter Doone, who was found to have acted inappropriately at a drink-driving checkpoint. He was given a six-month "sunset" term in the Prime Minister's office after the Government found it too difficult to sack him outright.

And, of course, there was Incis, the computer project that was supposed to slash paperwork and release officers for frontline work. Incis collapsed half-finished in 1999, littered with delays, unforeseen problems and unauthorised spending that stung the taxpayer for more than $100 million.

Police Minister George Hawkins credits Incis with providing the impetus for the new bill, saying a similar debacle must never happen again. "I think the police realise they have got to be more accountable. They are no different from any other government department in that regard."

Labour MP Janet Mackey, who chaired the select committee, points to the state visit of President Jiang Zemin of China to New Zealand in 1999 as an example of the quandary the police and Government face because their powers are not clearly delineated. Police used a bus to block protesters from the President's view.

"There was confusion over whether or not the Prime Minister [Jenny Shipley] at the time had, either in a direct or indirect way, made a suggestion to the police. It was very grey and that's why the relationship needs to be spelled out better."

Constitutional law expert Professor Phillip Joseph, of Canterbury University, whose work following President Zemin's visit forms the basis of the new bill, says the bus incident highlighted a weakness.

"Our Police Act is so constitutionally deficient because it doesn't institute the legal separation between the Commissioner, who is responsible for the day-to-day operations of the police, from the political executive."

The new bill's aim is actually to enshrine police independence, not dilute it, says Joseph. Until now, despite the so-called doctrine of constabulary independence, the relationship has been governed more by personality than act of Parliament.

The convention that police officers are independent from politicians derives from common law that goes all the way back to the origins of the constabulary in England in 1361.

The New Zealand Commissioner's role was created in 1886 when the country's many police forces were unified under one banner - the New Zealand Police Force.

Police historian Dr Richard Hill, of Victoria University, says the combination of a rough colonial society and 19th-century politics meant early police ministers were particularly hands-on.

"The maturing of society in the early years of the 20th century allowed the minister and the commissioner to operate independently. By then there was a general consensus about how society should be policed and their relationship became one dictated by convention."

That did not stop the Government from weighing in at times of war or severe industrial unrest, but those times were rare and the independence of the police has remained largely intact. Today, the Commissioner is appointed by the Governor General, but can be removed if he or she loses the confidence of the Government.

The most contentious part of the bill is Clause 4, which repeals Part I of the Police Act and substitutes a new Part I to clarify the responsibilities and independence of the Commissioner and the ability of the Minister to issue directions on Government policy.

The new Part I states: "The Minister may give the Commissioner directions on matters of Government policy that relate to (a) the prevention of crime ... (b) the maintenance of public safety and public order ... (c) the delivery of police services ... and (d) general areas of law enforcement."

The Minister cannot direct the Commissioner on particular cases, and if there is a dispute over a direction then the Minister must table the direction in Parliament.

But Thompson says the legislation is ambiguous, and he illustrates the dilemma with a scenario. It is Waitangi Day. The Police Minister is at the treaty house with other dignitaries. Protesters swarm to the bottom bridge. The Commissioner makes the operational decision not to let them advance any further.

But can he be overruled by the Minister who, for political reasons, does not want to appear heavy-handed? What then if the protesters are allowed to run amok and Waitangi Day is marred by unprecedented violence?

"Just who would end up carrying the can for that?" asks Thompson.

National Party police spokesman Tony Ryall paints a different but equally contentious picture. "I think an officer who stops a Minister for drink-driving will think twice about prosecuting. That's what it will come down to."

He says despite Hawkins' promises, the fear of political influence will compromise the ability of the police to properly investigate politically sensitive incidents.

Hawkins rejects suggestions the changes will lead to more political interference . "That hasn't happened here for a number of years and it's not about to. I never, ever get involved in individual cases. That's the Commissioner's job."

Yet the bill's fiercest critic, the Police Association, fears the danger of political interference is more acute under this particular minister. The president of the association, Greg O'Connor, says the Minister appears to like involving himself in police business.

National MP Clem Simich, a former Minister of Police and a member of the select committee, puts it more bluntly: "It is important for the Commissioner and the Minister to have a close working relationship, but it's well known that George likes to play policeman and stick his nose in everything."

He points to Hawkins' record as Minister:

* Officers on the street believe the removal of cellphones from police last December was the result of one of Hawkins' cost-cutting brainwaves.

* In January, Hawkins criticised Police Commissioner Rob Robinson for not taking responsibility for key decisions and providing poor cost-cutting options.

* Shortly afterwards, police sources say a report on problems caused by cutting the budget for the investigation into the murder of Damian Povey at Kopu was presented to Hawkins in a glossed-over form, "so as not to offend him any further".

* A further rift between Hawkins and Robinson was exposed when they contradicted each other about whether police would search for the bodies of Ben Smart and Olivia Hope. The Minister was forced to withdraw his public promise of a further search.

* The Police Association believes Hawkins deliberately stripped the Commissioner of power by choosing to paint new general patrol cars blue and orange.

O'Connor says that although these skirmishes have all happened under the present legislation, the proposed changes could lead to more disagreements.

Police officers spoken to by the Weekend Herald see Hawkins as a controlling and overbearing Minister. Notable among them is Senior Constable John Gower, a Hamilton community constable, who spoke out about budget cuts. He soon found himself the subject of a patsy question asked in the House by Labour backbencher Clayton Cosgrove, who asked how many arrests the 39-year veteran had made in the past year. The reply from Hawkins: "None."

But Hawkins' treatment of Gower spawned a wave of support for the community constable, who has since been elected to the Hamilton City Council as the most popular candidate from his ward. He attributes his victory to the attack.

"Hawkins was trying to silence the police from speaking out and telling the public the truth," says Gower. "He wants to take control of the New Zealand Police and I was just something he could tack his flag to. Unfortunately, it completely backfired on him."

Hawkins dismisses criticisms of heavy-handedness. "That's very unusual, because the police I go and see up and down the country are welcoming and tell me they have a very different view. They say they have a Police Minister who goes to see them and listens to their concerns."

The critics of the new bill see other instruments for political control among the amendments - which include deciding how they will be paid.

Under the proposed changes, the Commissioner's salary will be set by the State Services Commissioner, like all other heads of Government departments. It is now set by the Higher Salaries Commission with no "at-risk" component.

Superintendent John Reilly, president of the Police Managers' Guild - which represents 140 senior police - says this change will have the Commissioner trying to justify his work to the SSC, a move the Ministry of Justice also opposes.

He also points to the haste with which the bill has been introduced, saying it was ridiculous for people to have only two weeks for submissions.

"When you are dealing with something so serious, why rush it through like this? Unless of course you are worried about it."

The compulsory arbitration process police staff enjoy in their wage negotiations with the Government will also change. Because the police oath means they are not allowed to strike, arbitration is seen as a vital protection.

O'Connor says proposed changes to the wage-bargaining process could mean a clause considering the Commissioner's ability to fund would become the overriding factor in any wage round - any money for a pay rise would have to come out of the existing budget.

"That's another layer of political control, as the ability to fund will be controlled by the police [budget] vote," he says.

The association hired constitutional law heavyweight Sir Geoffrey Palmer, who says the Government can ensure there is never money for an increase in wages by keeping the vote screwed down.

"This comes close to an abuse of legislative power in circumstances where those subject to the law have no right to strike."

O'Connor says the New Zealand police force is unique in the developed world, in having a single national body. Because of that, the dangers of political influence are greater, as control can be held in the hands of a few.

He points to Australia, where he says police corruption in Queensland during the 1980s holds sober lessons for politicians and police here. "What we saw there was an unhealthily close relationship between the Commissioner and the Minister that allowed corruption to flourish. No one wants to see that happen here."

Hawkins says he is sympathetic to the concerns raised by the association and the guild. Although he will not comment on changes to the bill before it goes back to Parliament, he says those concerns will be met.

Reilly says the proposed changes also signal another imminent battle: that over the "civilianisation" of the police hierarchy. He believes the appointment of non-sworn Deputy Commissioner Lyn Provost is an example of what could lie ahead.

But Hawkins says the use of civilians to help run the police is nothing new and their use in police management is to be encouraged where appropriate, such as in the fields of information technology or forensics.

He says there are no plans to replace the head of the police with a civilian, but "the issue's been in discussion for a long, long time and I think there will be a lot more talk about it".

Despite Hawkins' assurances, former Commissioner Thompson says the Incis debacle was bad, but the proposed changes amount to "a sledgehammer being used to crack a walnut".

"You don't go throwing out a constitutional convention because someone didn't make a commissioner accountable when they should have - this is all about control."

Mention the proposed amendments out on the streets and officers express concern about their pay negotiations.

Mention Minister Hawkins and some use terms like "madman" and express fears of ministerial interference.

But mostly, frontline police say they are simply too busy to worry about how their relationship with politicians might change. Says one young constable fresh out of police college who barely had time to talk, "When they start putting staff on the frontline with us instead of taking them away, then perhaps we can work out what this is all about."