23 June 2010

Constables, local councils, and the constitution

It seems like the government is intent on passing the Policing (Involvement in Local Authority Elections) Amendment Bill through all stages under urgency. A shame really, as I was intending to make a submission opposing the Bill. 

The Bill looks like a technical one, removing a prohibition on police officers from standing for local authorities, in order that "all employees of the New Zealand Police are treated in the same way as other State servants". 

But that's the problem, they're not.  Part of their responsibilities, as constables, is to enforce bylaws passed by local authorities.  It's a basic violation of the constitutional principle of the separation of powers to have a person passing laws also enforcing them.

The Policing Act 2008 recognised this problem and included the current prohibition (a prohibition which basically replicates the prohibition at central government).  But now the restriction is being removed at a local level.

The Police's regulatory impact statement acknowledges the potential for some such "conflicts of interest" to arise, but suggests they will be addressed through "internal policies", amongst other things, clarifying that Police officers should not be involved in drafting or approving bylaws". 

That's not good enough, in my view.  This is a serious constitutional matter, with the potential to lead to the abuse of the coercive power of the state.

And it's not good enough that legislation which is constitutionally dubious to be rushed through under urgency, without the opportunity for public submissions and proper scrutiny.


Idiot/Savant said...

Reading the RIS, do the police not consider seperation of powers to be "a fundamental common law principle"?

Andrew Geddis said...


While I agree with you on the urgency point, I'd note that the Legislation Advisory Committee was somewhat split on the "separation of powers" point when this came before us. Whilst a majority agreed with you, I and some others thought that the matter could be handled by recusal from voting where there is any such conflict, and that the involvement of members of the police in local government would be a good thing for police-community relations.

Dean Knight said...


Helpful to know that. But I'm still not convinced - although I recognise addressing the mischief through more particular exclusions might be a possibility.

A few points:
(a) The debates in the House suggest it will be merely be a "conflict of interest" that the member will have to avoid. That's playing down the const'nal concern and equating it will finan interests.
(b) It will be left to "internal policies", and perhaps analogy to common law, to determine the legitimacy of participation in any law-making provision. That's uncertainty that worries me. At least, the circumstances in which they should step down should be identified (either specifically or through principles) in legislation.
(c) One of the problems might be where the law-making power starts and ends. Take, for example, boobs on bikes. Is it just the passing of the public places bylaw? Or the decision to refuse an exemption for Crow et al? There's an argument that the operation of the dispensing power under bylaws might need to be caught.
(d) What, if any, consequences will there be if the position is abused? Is it only an internal disciplinary matter? Or will it extend to vindicating the rights of citizens against who the abuse is applied?

(As an aside, do your LAC reports get made public at all?)

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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