Policing Act - identifying particulars

Add another tick, the Police are on the brink of getting their own law about how they are governed rubber stamped by parliament. There are so many problems with it - starting at the top:

12 Appointment of Commissioner
(1) The Governor­General may, on the recommendation of the Prime Minister, appoint a fit and proper person as the Commissioner of Police for a term not exceeding 5 years.
[...]
13 Appointment of Deputy Commissioners
(1) The Governor­General may, on the recommendation of the Prime Minister, appoint 1 or more fit and proper people as Deputy Commissioners of Police for a term not exceeding 5 years.

The PM appoints the Police Commissioner and the deputy Commissioners - is this "independence"? The PM will most likely only elevate a deputy, therefore they would have to do as they are told to get appointed to the Commissioner's job. A Deputy Commissioner (or Assistant Commissioner) looking for a promotion within the gift of the PM is hardly likely to prosecute the PM, over say, art forgery, or election over-spending, or speeding.

The Police are not structured to be independent under this Bill. The Commissioner does not report to a board. The Commissioner is the board. In other jurisdictions the Commissioner must report to a board which includes elected representatives, judges and appointees - that is the mechanism that modern democracies use to ensure transparency, accountability and responsiveness... but not in NZ. Here they report directly to the Minister. Well - that's not quite accurate either now - the Bill emphasises the role of the Prime Minister:

Minister means the Minister of the Crown who, under the authority of a warrant or with the authority of the Prime Minister, is responsible for the administration of this Act

This is a continuation of a concentration of security powers in the hands of the Prime Minister being explicitly put in to legislation. This means the institutions are less independent.

The Police Minister's second reading was unconvincing:

When I first introduced the Bill in February this year, I noted it contains the most far-reaching legislative proposals on policing to come before the House in half a century.
[...]
First, the Bill provides an important acknowledgement that trust and confidence in Police hinges on policing being conducted in a principled way.
[...]
I do want to briefly highlight clauses 32 to 34 of the Bill, which update powers relating to the identification of suspected offenders who have been lawfully detained by police.

For instance, clause 33 will allow frontline police to obtain a suspected offender’s identifying details without the need for the person to be physically arrested, facilitating use of summons and other notices to commence proceedings. This improvement should reduce the opportunity for people to provide false identities; and, in turn, prevent precious time and resources being wasted in the justice system while the law catches up with offenders.

Oh it's all about efficiency is it? It's all about the Police expanding their ability to trawl for information is what it's about. It is also potential tool for harrassment.

s.32 Identifying particulars of person in custody
(1) The purpose of this section is to enable the Police to obtain information that may be used now or in the future by the Police for any lawful purpose.
(2) For the purpose of this section, a constable may take the identifying particulars of a person who is in the lawful custody of the Police if that person is detained for committing an offence and is
(a) at a Police station; or
(b) at any other place being used for Police purposes.
(3) A constable
(a) must take the persons identifying particulars in a manner that is reasonable in the circumstances; and
(b) may only use reasonable force that may be necessary to secure the persons identifying particulars.
(4) A person who, after being cautioned, fails to comply with a direction of a constable exercising his or her powers under this section
(a) commits an offence; and
(b) is liable to imprisonment for a term not exceeding 6 months, to a fine not exceeding $5,000, or to both.
(5) In this section and section 33, identifying particulars means, in relation to a person, any or all of the following:
(a) the persons biographical details (for example, the persons name, address, and date of birth):
(b) the persons photograph or visual image:
(c) impressions of the persons fingerprints, palm­prints, or footprints
place includes any land, building, premises, or vehicle.

Meaning: There is no list of "identifying particulars" - just some examples. So the Police can make up biographical details that a suspect must answer. They say it must be taken "in a manner that is reasonable in the circumstances" but then say it's alright to use "reasonable force" to "to secure the persons identifying particulars". ! And if you don't want to answer their unlimited questions to determine what they consider to be the necessary details then you can be charged for that too. This is unacceptable. Whatever happened to: Name, Rank and Serial Number, or name, birth date and residential address. Something simple - but no, they list those as examples only and leave it wide open for other "biographical" details. They should be listed in the Bill - and that's that. They obviously contemplate something more than name address and birth date, and they ought to spell it out. If they want gang affiliation, or ethnicity, or family relationships then that must be listed and we can have the debate about what the Police agenda is. I suppose we should be thankful they didn't add DNA sample to the list. At the mmoment they are trying to sneak these things through because they know these MPs are half asleep - 3:30itis style 24/7.

s.33 Identifying particulars for summons

(1) The purpose of this section is to enable the Police to obtain information that may be used now or in the future by the Police for any lawful purpose.
(2) For the purpose of this section, a constable who has good cause to suspect a person of committing an offence and who intends to bring proceedings against the person in respect of that offence by way of summons, may detain that person at any place
(a) in order to take the persons identifying particulars; and
(b) only for the period necessary to take the persons identifying particulars...

So if someone is going to be charged for a minor offence they get their details so they can serve them at a later date with the summons seems to be the point. Sounds alright, but a Police officer on a fishing expedition could steer a Japanese 'whale research vessel' through that hole.

s.34 Storage, etc, of identifying particulars on Police information recording system
The identifying particulars of a person that are obtained under section 32 or 33
(a) may be entered, recorded, and stored on a Police information recording system; but
(b) any photographs or visual images of a person and any impressions of a persons fingerprints, palm­prints, or footprints that are obtained under section 32 or 33 must, as soon as practicable, be destroyed
(i) after a decision is made not to bring proceedings against the person in respect of the offence for which the particulars were taken:
(ii) after the completion of proceedings against the person in respect of the offence for which the particulars were taken, unless
(A) the person is convicted; or
(B) the person is discharged under section 106 of the Sentencing Act 2002; or
(C) an alternative resolution is imposed where the person admits to an offence (for example, diversion).

Hey, safeguards it looks like. Well, not really. Details will be kept if a person is convicted - which seems reasonable - or discharged or if they plead guilty - which is marginal. But the slight of hand we weren't supposed to notice was that it says the pictures and prints have to be destroyed - but not the vague and open "biographical details" that Police will be able to collect. All that information is in their system and protected it would seem by this Bill. It doesn't matter if the summons never arrived, if charges were never brought - your "biographical details" will remain on the system... like a criminal.

And then you look at how each of these sections are prefaced - about what the purpose is: "enable the Police to obtain information that may be used now or in the future by the Police". So it has a general application - it doesn't say, for example, "enable the Police to establish information about offenders in order to prosecute them", no, no these sections act to enlarge the scope beyond that remit. This is important if - or when - the Police get challenged in court thay can wave this law around and a judge would have to agree the legislation is relatively clear (including on parts on which it is silent) and the tenor of the law is unmistakeable.

I warned back in October last year where this was all going. It's all coming to pass:

Hide, Rodney: Terrorism Suppression Amendment Bill — Second Reading:
We have the situation where the Prime Minister, on his or her own bat, can declare someone or some group to be terrorists. The assets of that person or group are frozen, and that is it.

Office of the Minister of Police (Chair Cabinet Policy Committee) POLICE ACT REVIEW:
The specific proposals in Paper 5 seek to: [...] enable police to identify lawfully detained people in places other than at an actual/deemed "police station", and for identity information to be obtained from suspected offenders in certain pre-arrest situations. Better enable the lawful use of assumed identities in covert policing activities...

Hon Annette King 11/09/2007:
The Government plans to set up an Organised Crime Agency (OCA) within New Zealand Police [...] Attorney-General Dr Michael Cullen, who has ministerial responsibility for the Serious Fraud Office (SFO), said the SFO will be disestablished and its important functions will be carried out by the new OCA. Justice Minister Mark Burton said the new organisation was designed to provide police with improved tools to target organised crime.