Proposed changes to the Policing Act 2008 to give Police tools to prevent, disrupt and address crime and other harms

This material relates to two proposals which amend the Policing Act 2008.

Key to sections of the Official Information Act 1982 under which information has been withheld

Certain information in the documents has been withheld under one or more of the following sections of the Official Information Act 1982:

• 9(2)(f)(iv) – where the withholding of the information is necessary to maintain the constitutional conventions for the time being which protect the confidentiality of advice tendered by Ministers of the Crown and officials.
• 9(2)(h) – where the withholding of the information is necessary to maintain legal professional privilege.
• 9(2)(g)(i) – where the withholding of the information is necessary to maintain the effective conduct of public affairs through the free and frank expression of opinions by or between or to Ministers of the Crown or members of an organisation or officers and employees of any public service agency or organisation in the course of their duty.
• 9(2)(a) – where the withholding of the information is necessary to protect the privacy of natural persons, including that of deceased natural persons.

Proposal One: Reaffirming Police’s longstanding ability to record images and sounds in public places, and collect personal information for lawful purposes, including intelligence

The ability to collect and use information is essential to supporting Police’s delivery of a broad range of policing functions and services to support the vision for New Zealand to be the safest country, where people can go about their daily life without fear of harm or victimisation.

The Policing Act 2008 forms the foundation that enables Police to deliver policing functions, which include, keeping the peace, maintaining public safety, and crime prevention.

Police depends on information from the communities we serve to support our policing activities. Information that is collected for general purposes also supports Police’s roles in social support and cohesion and enables Police to contribute to a broad range of interventions, including responses to family harm, mental health, care and protection, youth offending, homelessness, anti-social behaviour, and to deliver reassurance policing.

General intelligence, or information about the policing environment which helps prioritisation, decision-making and informs investigations, underpins many of Police’s functions. Sometimes, at the point in time that information is collected, the value of the information to a particular function or investigation may be unknown. For example, information may be collected in circumstances where an officer suspects that property within a vehicle may have been stolen, but they are not yet aware of a specific offence that this may be linked to at that point in time.

Recent court decisions have created uncertainty about Police’s lawful authority to record images and sounds in public places and private places Police is lawfully allowed, and to use this information for a wide range of policing purposes, including for general intelligence.

Police has always operated on the understanding that we, like anyone else, could lawfully record images and sounds in public places, and in private places where Police is lawfully allowed, and could use this information to support our broad policing functions and duties.

Recently, this lawful authority has been challenged by the courts and regulators. This has created uncertainty for Police about our ability to record information in a number of circumstances where we have always understood it was lawful to do so. These circumstances have created a change in the environment which has restricted what has for decades been an accepted ‘common law’ position regarding Police staff’s ability to gather information.

Police is now facing significant restrictions in our ability to undertake routine data collection to support our broad policing functions, leaving Police with less rights than the general public.

Police’s operating environment is constantly evolving and this constraint on Police’s ability to collect, use, and retain personal information from public places and private places Police is lawfully allowed, is impacting on our ability to deliver our services to keep our communities safe from harm. The resulting changes mean Police is now constrained in its ability, for example, to take routine photographs that have previously been taken to collate information on gang members and their associates, to record unknown people who were associating with known offenders, or to record changes in the appearance of known offenders.

This change in the operating environment has left Police with less ability than members of the public to record images in public places.

Changes to the Policing Act will reaffirm Police has clear lawful authority to collect information for the purposes of delivering broad policing functions and duties.

The Government is seeking to address these uncertainties, through changes to the Policing Act. These are intended to confirm that Police may collect information for general intelligence purposes as part of exercising its lawful functions and purposes, and that the recording of images is lawful in public and other private places that Police may lawfully be (for example when undertaking a search of a property under a search warrant issued by a court).

Police is committed to ensuring that there are adequate safeguards around how we manage personal information.

The proposed law change seeks to strike a balance between law enforcement and the maintenance of public safety, and individual privacy rights. Police is focused on ensuring that there are good internal controls to create oversight and monitoring of our practice to ensure we are effectively managing the treatment of personal information and meeting our privacy obligations. Police will continue to look for opportunities to enhance these.

Ensuring that there is robust guidance to govern Police practice is important, and we intend to publish our policies and guidance to ensure is public transparency.

The Independent Police Conduct Authority and the Office of the Privacy Commissioner will continue to play an important external accountability role, ensuring that Police meets its privacy and legal expectations. This means that individuals will still be able to make complaints should they have concerns about Police practice.

Proposal Two: Broadening temporary closure powers to enhance public safety

Police currently has powers in the Policing Act 2008 to temporarily close roads under certain circumstances. This includes, crime scenes, hazards, disorder incidents or situations where there is a danger to the public.

The Government is proposing to expand Police’s existing temporary road closure powers to include a broader range of areas that may be subject to closure. This includes forests, public parks, golf courses, and river catchments, but not private land. The recent critical incident and wider scene examination to identify further campsites in the Tom Phillips investigation is an example of why broader closure powers for areas are necessary.

The proposed legislative changes are also intended to provide Police with additional tools to effectively manage any public safety risks, and deter and respond to non-compliance with a temporary area closure. Frontline police are trained to maintain public safety and will apply these skills to ensure that these powers are used with discretion, and as a last resort.

As with the use of other police powers, they are subject to scrutiny from the courts and the Independent Police Conduct Authority.

Details of the proposed amendments to the Policing Act

Proposal One amends the Policing Act to make it clear that:

• Police may gather, obtain, receive, or record information that may be used now or in the future for any lawful purpose, including for intelligence purposes, as far as it supports a Policing function
• the information gathered, obtained, received, or recorded needs to have a possible or potential future use that contributes to Police functions
• none of the proposed changes would limit or affect Police’s intelligence gathering function at common law, noting that there is a presumption that all of the Privacy Act 2020 Information Privacy Principles (IPPs), including IPP1, continue to apply to amendments made to section 9 (Functions of Police)
• Police may record (only when such collection is for Police's lawful purposes, functions, and associated activities):
  • any image or sound in a public place for lawful purposes
  • anything Police can see and/or hear while lawfully in any private place or in or on a vehicle or other thing.
• continuous recording and other forms of capture of images and sounds by Police is allowed, when it is for lawful purposes, including purposes that may promote the safety and/or the integrity of police officers, or other policing functions or associated activities, including (but not constrained solely to) investigations, and that continuous ongoing recording or ongoing capture is not intended to be allowed for intelligence purposes only.

Proposal Two amends the Policing Act by:

• expanding the existing temporary road closure powers to include all public and private areas accessible to the public by vehicle (e.g. parks, river catchments, beaches, reserves, golf courses, and car parks) for all existing road closure scenarios
• establishing an offence for a person who, without reasonable excuse, fails to comply with a direction to leave, or not to enter, a closed area
• establishing a new power to stop vehicles and direct any vehicle and any person in or on the vehicle to leave an area that has been temporarily closed under the Policing Act
• establishing a new offence and a power to arrest without warrant for a person who:
  • fails to stop for Police as soon as practicable when required to do so by an enforcement officer, for the purpose of directing any person in or on a vehicle to leave a temporarily closed area; and
  • knows or ought reasonably to know that the person exercising the power is an enforcement officer.
• establishing a new power to obtain identifying particulars, for the purpose of issuing an infringement for a person who, without reasonable excuse, fails to comply with a direction to leave, or not to enter, a closed area
• establishing a new offence and a power to arrest without warrant, for a person failing to provide identifying particulars, for the purpose of issuing an infringement for a person who, without reasonable excuse, fails to comply with a direction to leave, or not to enter, a closed area
• establishing a new power to detain and move a person, using such force as may be reasonably necessary, where a person, without reasonable excuse, fails to leave or enters a temporarily closed area, for the purpose of:
  • removing that person from a closed area or preventing them from entering that area
  • issuing an infringement for failure to comply with a direction to leave or not enter a closed area.

Police remains dedicated to protecting New Zealand and the diverse communities we proudly serve. Police will continue working alongside communities to build trust and confidence, and support the safety and wellbeing of all New Zealanders.

Note for the 'Cabinet Minute: Amendments to the Policing Act 2008' PDF: this document states that this is legally privileged – that privilege no longer applies.