6. Standards and Codes of Conduct in Relation to Personal Behaviour

6.10 The code of conduct for non-sworn members came into force in 1994. The current general instruction C301 provides that all non-sworn staff will be issued with the code, and C302 provides that they are to be familiar with its contents.(659) In this respect the disciplinary process for non-sworn staff is similar to that applying to public servants under the State Sector Act 1988.

6.11 An update of the code of conduct for non-sworn members was prepared in 2002. Implementation of this update is pending implementation of the conjoint code of conduct for sworn members.(660) This, in turn, was treated as dependent upon the passage of the now withdrawn Police Amendment Bill (No 2).

CORPORATE EXPRESSIONS OF STANDARDS OF PERSONAL BEHAVIOUR

Police competency framework and core values

6.14 The New Zealand Police Competency Framework is a document that sets out the knowledge, skills, behaviours, attributes, and characteristics that are required of all police staff. The competency framework has been developed by the Human Resources section in the Office of the Commissioner, with input from staff across the organisation. The framework was first issued in July 2003. The purpose of the framework is to provide the foundation for future human resource work in the areas of staff selection, training, assessment, performance management, and career planning.(661)

6.15 The framework includes

6.16 I was told that the framework is designed to state clearly the expectations that the organisation has of its staff and to provide a clear reference point describing the expectations of individual performance. It is intended to clearly define the standards of behaviour, and thus to provide “the basis for performance management conversations”.(662)

6.17 There are four core values defined as part of the police competency framework. These are described by the police as “the key things that this organisation says are important”.(663) The core values are as follows:

6.18 For each of these four values there is a description of the desirable and undesirable behaviours. For instance under the “Integrity” value, seven undesirable behaviours are listed:

6.19 Under “Professionalism” there are seven undesirable behaviours listed:

6.20 In my view, describing the behaviours under each of the values is good practice, and helps to make it clear what the expected standards of behaviour are. However, it will be important that the core values are in due course aligned with the proposed code of conduct for sworn police staff.

Expressions of values in corporate accountability documents

6.24 The Police Strategic Plan to 2006, which was referred to by the Commission at the time of drafting the report, also listed the seven values as set out above.

6.25 The People in Policing: A Five Year HR Strategy to 2006 lists six of the seven values included in the statement of intent and strategic plan. It excludes the second value (“Respect individual rights and freedoms.”).

6.26 The four core values in the police competency framework were taken from the seven listed values in the strategic plan and statement of intent. I was told by one of the police witnesses that he was unsure “Why our HR group chose those four without reference to the seven …”. In his view the seven stated values in the statement of intent “lack definition and examples of undesirable and desirable behaviours.”(668)

6.27 I was pleased to see that in the most recent New Zealand Police Statement of Intent 2006/2007 and Strategic Plan to 2010 the values listed in both these documents are now the same as the four core values in the police competency framework (namely Integrity, Professionalism, Respect, Commitment to Mâori and Treaty).

6.28 To be effective, organisational values must be consistent in all key documents. They need to be repeatedly communicated in clear, simple messages. They also need to be well defined at the behavioural level, with regular monitoring of how well they are understood and how well they are practised across the organisation.(669)

6.29 I also note that the draft Code of Conduct for Sworn Members of the New Zealand Police sets out 10 standards of conduct (see paragraph 6.240). Once again, it will be important to ensure that the values set out in the corporate accountability documents are fully aligned with the standards set out in the code of conduct.

SEXUAL HARASSMENT

6.32 I describe police policy on sexual harassment and how complaints are recorded in a national database; outline the patterns revealed by cases of sexual harassment in the Operation Loft files; discuss a particular case examined during the inquiry; and consider the improvement in police practices over time and areas for future improvement.

Sexual harassment policy and procedures

6.33 There is no code of conduct as such relating to sexual harassment. However, the current police policy on sexual harassment developed during the 1990s is a detailed policy with clear descriptions of the expected standards of conduct, the available options to deal with breaches, and the procedures to be followed. In these respects the policy has many of the elements of a code of conduct as contemplated by term of reference (4)(a).

Development of the policy

6.34 Several statutes provide the legislative basis for the development of the police policy on sexual harassment. In 1989 a description of sexual harassment in the context of the police organisation was inserted as section 89 of the Police Act 1958 by the Police Amendment Act 1989. Sexual harassment was included in the Police Act as a potential personal grievance in relation to sworn members of the police. In 2000 the Police Act was amended so that personal grievances by sworn members of the police were dealt with using Part 9 of the Employment Relations Act 2000. The relevant definition of sexual harassment for the personal grievance procedure is provided in section 108 of the Employment Relations Act.

6.35 The earliest document provided to the Commission specifically concerning a sexual harassment policy for the police is dated 19 March 1991. This was a commissioner’s circular issued to all region and district commanders and the commandant of the Royal New Zealand Police College. The circular outlined that, under the Human Rights Commission Act 1977 (now repealed), employers were legally liable for sexual harassment of employees. In the circular the Commissioner of Police expressed his views on sexual harassment in forceful terms: “I will not tolerate any such denigration of personnel within the police service. Neither will I tolerate any form of recrimination against a member who properly brings any such misconduct to notice.”(670)

6.36 Some of the EEO policies of the early 1990s, including the policy on sexual harassment, were developed incorporating Australian police policies and training. The process of drafting a new national sexual harassment policy for New Zealand Police began in 1994 and continued for 18 months. During that period the draft policy was repeatedly tested and redrafted to incorporate proposed improvements. I was told that there had been approximately 15 drafts of the policy.(671)

6.37 In December 1996, at the conclusion of the extensive process of drafting and consultation, the New Zealand Police Sexual Harassment Policy was ratified by the Police Executive Committee. The current policy has not been significantly altered since then apart from some minor alterations in 2001 to take into account the Employment Relations Act 2000.(672)

6.38 The Sexual Harassment Policy sets out the relevant legislation, and the roles and responsibilities of supervisors and managers; provides for district sexual harassment coordinators, sexual harassment contact officers, and sexual harassment mediators; sets out procedures for the resolution of sexual harassment complaints (including formal and informal processes); explains the associated principles of confidentiality and natural justice; and sets out reporting requirements.(673)

6.39 The policy is very clear about the seriousness of sexual harassment:

6.40 The police policy on sexual harassment contains a useful list of the criteria to use in deciding whether behaviour or language is sexual harassment:

6.41 The policy emphasises that it is the responsibility of all managers and supervisors to set appropriate standards of behaviour and to ensure that those standards are met. The policy states that managers and supervisors are responsible for dealing with any sexual harassment of which they become aware, and that failure to do so will be regarded as a failure to fulfil the responsibilities of their position. Managers and supervisors are advised to be familiar with the policy, and the procedures relating to dealing with sexual harassment complaints. They are advised that any complaint that is brought to their attention is to be dealt with appropriately, confidentially, and in accordance with the principles of natural justice.(677)

6.42 The New Zealand Police Sexual Harassment Policy is nationally mandated and consistent across the country. I believe this approach ensures the policy is effective.

Resolving sexual harassment complaints

6.43 In terms of resolving a sexual harassment complaint, the options available to a complainant under the policy may be by way of an informal or a formal process:

6.44 Complainants may use as many of the options available to them as necessary. However, they may not take a personal grievance and also take the matter to the Human Rights Commission (by virtue of section 79A of the Human Rights Act and section 112 of the Employment Relations Act). (679)

6.45 One of the options available for resolving a sexual harassment complaint is the use of mediation. At present the police train staff to conduct sexual harassment mediations. Mediators (who must already be trained sexual harassment contact officers) receive two days of mediation training at a Royal New Zealand Police College course.(680)

6.46 I consider that the success of mediation frequently depends on the mediator being highly skilled in mediation practices and having a degree of independence from the parties involved. I was told that if there were problems resolving a complaint within a particular district, the EEO Unit would usually recommend using skilled mediators (or contact officers or district coordinators as appropriate) from another district.(681

Processes for criminal offences

6.47 When the alleged behaviour could amount to a crime such as rape, sexual violation, assault with intent to commit sexual violation, or a serious assault, the complaint is required to be the subject of a criminal investigation. The complainant has no choice about this. Professional Standards section and the Police Complaints Authority (PCA) are then involved, in accordance with the Police Complaints Authority Act 1988, the Police Act, the Police Regulations, and the police general instructions.(682

6.48 Where the member is convicted of a criminal offence as a consequence of a sexual harassment complaint, he or she may be liable to internal disciplinary proceedings in addition to any sentence imposed by the court.(683)

6.49 If the behaviour could constitute a criminal offence but is at the lower end of the scale in terms of seriousness, the matter can still be dealt with as a sexual harassment matter under the Sexual Harassment Policy if the complainant so chooses.(684)

6.50 If the lower-level complaint is substantiated, internal disciplinary procedures can follow, as set out in the Police Regulations and the Police Act for sworn staff, or the code of conduct for non-sworn staff. The member may face dismissal, a reprimand, or an adverse report (which would be filed on the member’s personal file for a period of four years, as specified in the general instructions).(685)

Police records of sexual harassment complaints

6.51 Before 1995 there was no centralised register of sexual harassment complaints within New Zealand Police. The regional management structure was largely autonomous, and issues, incidents, and files relating to sexual harassment were often kept within the region and not brought to the attention of the national manager of human resources or the EEO unit.(686)

6.52 The implementation of the Sexual Harassment Policy is now monitored through the assessment of advice notices and incident notification forms. Since April 1995, details of all complaints have been recorded on the national sexual harassment database. The records are kept primarily for Government reporting purposes, not for tracking individuals. However, the records are also used for identifying district trends in complaints, such as an increase in complaints from a specific station.(687)

6.53 I was informed that there were 76 sexual harassment complaints recorded by New Zealand Police for the period from 1 July 1995 to 17 July 2001. (688) These included both formal and informal complaints. The outcomes reported for each of these complaints are shown in Table 6.1.

6.54 In the first year of recording details of sexual harassment complaints (July 1995–June 1996) the police database documented only four complaints filed. In the three successive years numbers were higher (17 to 22 complaints a year), but thereafter the numbers declined again.(689) In her evidence to me, former New Zealand Police Senior Advisor EEO, Ms Alison Gracey, acknowledged that an increase or decrease in the reporting of sexual harassment complaints could be explained both positively and negatively:

6.57 The files show a clear progression in terms of how sexual harassment was viewed within the police and what response it elicited.

Sexual harassment complaints in the 1980s

6.58 In the early years of the period under review, women experienced considerable problems in having sexual harassment complaints upheld. A case in the early 1980s in which a police officer was alleged to have touched a woman’s bottom and breasts and followed her around the workplace was investigated in two parts. It does not appear that the totality of the conduct was ever considered. Instead, the alleged indecency element of her complaint was classified as a criminal offence and was cleared as inconclusive. The second part of the complaint did not, in the district commander’s view, amount to a disciplinary breach and was classed as “trivial”.(693)

6.59 Various other issues emerged from the 1980s cases that I reviewed. One file recorded that the officer had a “bad attitude to women”, which was apparently tolerated for some time, with colleagues unwilling to complain. In the event a complaint from a civilian eventually led to disciplinary charges being laid. (694) This case was a good example of how more rigorous supervision of inappropriate behaviour could have prevented more serious incidents.

6.60 In another 1980s case the Deputy Commissioner of Police, in a letter to a district commander, said that the fact that the complainants had allowed time to pass before making the allegations “must seriously weaken the complaint”.(695) Such a complaint would be better handled today. In their submissions on the subject the police told me,

6.63 In another example that demonstrated how senior police officers viewed sexual harassment complaints in the 1990s, Assistant Police Commissioner Wilson in a letter to the personnel officer wrote,

6.64 The commitment of the police to recognising and acting to prevent instances of sexual harassment occurring was similarly reflected in a letter from an assistant commissioner after the 1996 investigation of a sexual harassment complaint:

Persisting negative behaviour

6.65 Despite the increased determination by senior police to stamp out sexual harassment, there were still unsatisfactory attitudes demonstrated within the organisation.

6.66 In 1997 a woman police officer complained of sexual harassment and detailed a number of instances, one of which was the hanging of commercial posters of a woman modelling a sports bra and a lingerie poster in the gym; these were taken down when she complained, and then rehung anonymously. The police report described the reaction of another policewoman at the station: “[She] could not understand what [complainant policewoman’s] problem was in respect of the commercial posters of a woman modelling a sports bra. They did not concern her at all.”(700) During the investigation, the police welfare officer said that he had been told by other women leaving the station that a contributing factor to their leaving had been “attitudes of some staff to women and working with them”.(701) He could not be more specific because he had been told in confidence.

6.67 In 2002 an entire team made a formal complaint of sexual harassment against their supervising officer.(703) During the course of the investigation it was established that he had been displaying sexually inappropriate behaviour since 1994 and his reputation was well known. An officer who had worked with the alleged offender for a number of years was interviewed during the investigation. He had told the interviewer that it was a well known fact that the alleged offender “had a huge reputation for being a ladies man and for being responsible for acts of sexual harassment”.(704) The officer went on to say,

Submitter J’s allegation of sexual harassment

6.68 As mentioned earlier I held private hearings into the police investigation of 10 individual complaints in total. I discussed nine of these investigations (concerning Submitters A–I) in Chapter 3. I will discuss the tenth, a sexual harassment complaint from the 1990s, in this section of the report.

6.69 Submitter J had a number of complaints with the police. Only one of those was within my terms of reference; that related to the handling of her complaint of sexual harassment. The family of Submitter J presented this matter on her behalf because she had since died.

6.70 In 1994, Submitter J, a probationary police officer, made a complaint that she was sexually harassed by her sergeant. She was given the option of following the formal complaint process or resolving the complaint informally. She selected the informal process and expressed a strong desire not to have to work with the subject of the complaint again.

6.71 The police told me that the informal resolution process used in 1994 appears to have been a draft or interim policy, though it was a reasonably comprehensive document that provided a range of options for complainants. They said that the policy that guided the police was very similar to the draft published later that year.(710) They produced a copy of that for me. According to the policy the informal process involved a discussion of the issues; a clear statement by the complainant and/or the mediator to the harasser on the impact the behaviour has had; and appropriate action as determined and agreed upon by the parties in full resolution of the matter. The role of the person handling the mediation was to mediate between the parties to effect a resolution of the complaint. If the alleged harasser did not admit to the allegation, the matter could not be informally resolved and should be referred back to the complainant for a decision on the future direction of the complaint. The complainant could then either pursue a formal investigation or decide not to pursue it.(711) This ensured that the complainant kept control of the process.

6.72 I have two concerns with the police actions in respect of compliance with the policy.

6.73 My first concern is that the policy states that the role of the person handling the mediation is “to mediate between the parties to effect a resolution of the complaint”. In this case I could find no evidence of any real mediation attempts. When the subject of the complaint was interviewed by the sexual harassment officer, the subject was advised that he would be “transferred as soon as expedient to other duties off section”. The subject responded that that was “a bit onesided” and that he was “being used for some goal that [Submitter J] has”. (712) Submitter J wrote later that she had wanted the subject to be transferred to another station and she was unhappy with the final decision to transfer him to another section in the same station.

6.74 The informal resolution process was supposed to result in “Appropriate action as determined and agreed upon by the parties in full resolution of the matter”. The material presented to me did not suggest to me that either party was satisfied with the outcome even if at the time they appeared, to some at least, to accept the situation.

6.75 My second concern was that the policy said, “If the alleged harasser does not admit to the allegation or behaviour, the matter cannot be informally resolved and should be referred back to the complainant for a decision on the future direction of the complaint.” This seems to be a logical step where the subject does not admit the allegation.

6.76 At the interview dealing with Submitter J’s complaint, the subject denied the allegation.

6.77 The police submitted that transferring the subject of the complaint was preferable to placing the submitter in the position of “having to choose between dropping her complaint and pursuing the formal process she had been adamant she wished to avoid”.(713) I can see some sense in this approach in an appropriate case. However, it is clear that in this case it in fact led to other difficulties for Submitter J, which were obviously not within the thinking of the police when they made this decision.

6.78 Regardless of the subject’s denial, it was decided at an early stage to transfer him to another section in the same station. He said that he was angry and upset about the complaint. I read evidence in the files that there were times when the subject would ignore the submitter when their paths crossed for example in the muster room. I also read a constable’s account that the subject had been “spreading it around the [place name] station that [Submitter J] had made it up – that it was all a complete fabrication”. Further, I read that Submitter J commented to a fellow officer that she wished she had never made the complaint and she was treated “as if she was worse than the person she complained against for complaining”.

6.79 I could see no evidence in the files of any substantive follow-up to monitor Submitter J’s satisfaction with the resolution. The police told me that the replacement sergeant was selected because she was an appropriately sensitive person with full knowledge of the complaint and was available to keep an eye on Submitter J’s wellbeing. She remained as supervisor until Submitter J left the station later in the year.(714) However, I read that this sergeant was relieving a sergeant at another station for the first four to six weeks so would not have seen the submitter or been aware of the submitter’s situation in the station for something in the region of half the three-month period she was “monitoring”.

6.80 A further concern I have with this case is the differing accounts of the submitter’s indicated preference for resolution and also the different accounts of the actual resolution.

6.81 Submitter J met with two members of the sexual harassment committee to discuss what action to take. She indicated that she preferred the informal resolution process and that she would like the subject of the complaint to be transferred. The unsigned minutes of that meeting reflect that the transfer was to be to other duties. In preparing for her employment mediation (which did not occur until two years after this incident), Submitter J, however, wrote that she understood the transfer was to be to another station. She felt let down when he was transferred only to a different section within the same station. She still had to see this officer at the change of shifts. She wrote, “This was the sort of situation I had wanted desperately to avoid. Another sergeant (x2) that had let me down.” She expressed dissatisfaction to her family and to some police colleagues.

6.82 One account (written about three years after the event) of the meeting to resolve the complaint was from a participant who recalled it being discussed that the subject of the complaint could not stay at the station because it was not fair when the submitter would still have to have some dealings with him. She went on to say that as far as she was aware the subject was moved immediately to another station (the subject was, in fact, transferred to another station some four months later for reasons unrelated to the sexual harassment). Another account (11 years later) was that the decision was that shown in the minutes: that the subject was to be transferred from one section to another in the same station. This person’s account went on to say that there was “no doubt that [Submitter J] would be comfortable with the decision; the only concern that she expressed to me was that she not have to work with [the subject] again, and [Submitter J] had herself raised the possibility of this being achieved by a change of Section”.(715)

6.83 Had the resolution of the complaint been evidenced in writing at the time and signed by all participants it would have been clear as to what was the correct account and prevented the later misunderstandings and unpleasantness. Even though it was an informal process, I believe that it would be advantageous to all concerned to have any resolution of sexual harassment complaints finalised in writing and signed by both parties.

6.84 I note that in the current Sexual Harassment Policy there is no requirement for a mediated resolution to be in writing. I recommend that the policy be amended to include this requirement to ensure clarity.

6.85 In summary, the police are to be commended for acting promptly in response to Submitter J’s complaint. However, the areas where the police failed to comply with the policy at the time meant that the submitter lost control of the process. It was determined from the outset that the subject of the complaint would be transferred to another section. Contrary to policy, when the subject denied the allegations, the submitter was not given the option of proceeding with a formal investigation or withdrawing the complaint. These facts, combined with the lack of a comprehensive monitoring of Submitter J, led to a stressful working environment for her. It is clear that, rightly or wrongly, she felt let down by her superiors and by the organisation as a whole.

6.86 This file showed how the police dealt with one particular complaint when the Sexual Harassment Policy was in its formative (and draft) stage. It reveals some important lessons, particularly the need to record decisions and outcomes in an unambiguous way. As I note below, I have seen some great improvements since this time.

Improvements over time

6.87 There is evidence that since the mid-1990s there has been significant change in the culture within New Zealand Police about attitudes towards sexual harassment.(716) Since the late 1990s, several cases have emerged that demonstrated that women within the police were beginning to have the courage to stand together to complain.(717) Several officers who were the subject of numerous sexual harassment complaints were ousted from the police.(718)

6.88 In reading the sexual harassment complaint files I was able to trace significant improvement that took place after the appointment of Ms Gracey as Senior Advisor EEO in 1994.(719) In her evidence to me Ms Gracey noted, “I believe that over time there was a far greater commitment by all staff to dealing with inappropriate behaviour at the time it arose.”(720) She described the changing attitudes she had observed:

6.89 Ms Gracey noted the effects of increasing awareness of the policy and confidence in its application:

6.90 Another long-serving police officer, Inspector John Mitchell, Policing Development Manager, Auckland City Police District, offered his view on change in police culture:

6.92 Inspector Mitchell told me that from 1995 to 2003 he was informally made aware of about eight complaints of sexual harassment, two of them quite serious although falling short of criminal behaviour. He said, however, that in none of these cases were the complainants prepared to make formal complaints or statements despite personal assurances from senior staff up to and including the district commander that they would receive total support. He explained that in two cases mediation was arranged with a favourable outcome, and three of the alleged offenders were spoken to and transfers arranged. In the other cases no formal action was taken at the insistence of the complainants.(724)

6.93 Professor David Bayley, an international expert on police culture and practices, suggested to me that merely looking at the number of complaints from staff about possible sexual harassment could be misleading. He said,

6.94 I agree with these comments by Professor Bayley. Based on my experience in management I believe that women sometimes do not want to create conflict in their work environment; and based on the police files I read, I could see the difficulties involved in policewomen speaking up about sexual harassment in the workplace. One policewoman summed it up well on a file from the late 1990s:

6.95 At this point I would reiterate that sexual harassment is not defined by gender. Indeed, evidence provided to the Commission indicated that men in the police force had complained of sexual harassment from women and from other men. (727) Nevertheless, it is the safety of women in the work environment that tends to be the focus of attention.

Current and future safety of women in the police workplace

6.97 The Hyman report, Women in the CIB, which was provided to me during the inquiry, outlined issues of concern by women police officers in the Wellington CIB. (728) This report was produced at the request of the New Zealand Police in response to concerns expressed by the National Women’s Consultative Committee.(730) The Police Executive Committee accepted the report as a working document in order to assist staff and managers in implementing the necessary changes.(731)

6.98 I note, however, that one of the officers appearing on behalf of the police told the Commission that the report reflected the views of people who were negative about the organisation and that it did not reflect her views.(732) Another witness for the police also commented that the study was not “fully balanced” in that some people who had been reported extensively had self-selected to be interviewed rather than being part of a representative sample.(733) Nevertheless, I consider that the Hyman report indicates a need for careful monitoring of the work environment for women police officers.

6.99 The police are to be commended for the way in which they have worked to ensure that their workplace is safer in terms of freedom from sexual harassment. It is essential that these gains be sustained over time. To ensure this, there should be continued monitoring of the Sexual Harassment Policy. I suggest that this monitoring take the form of an annual audit of the safety of women staff members (at least until such time as the numbers of men and women in the New Zealand Police force are in closer balance, as is recommended later in Chapter 7, recommendation R50).

ISSUES ABOUT THE ADEQUACY OF EFFECTIVENESS OF STANDARDS

Standards of sexual conduct towards members of the public

6.101 I am concerned that no policy or guidelines exist about sexually inappropriate conduct by police officers towards members of the public, including the forming of relationships between officers and people with whom they come into contact in the course of their work. This contrasts with the issue of sexual conduct towards colleagues in the police workplace (discussed in the preceding section), in respect of which there are comprehensive policies and procedures.

Personal vulnerability and power imbalance

6.102 By the very nature of their duties police officers deal with a wide range of people, including many who may be in a vulnerable state either because of their personal circumstances generally or as a result of having been recently affected by a crime or other trauma (such as a death in the family). Members of the public often have no choice but to place high levels of trust in police officers in these circumstances.

6.103 Moreover, police officers hold a position of authority in our society. They are given significant coercive powers for the benefit of the community, and thus there will always be a power differential in their dealings with members of the public.

6.104 As with others who have professional dealings with the public, members of the police must apply the highest standards of conduct and take extreme care to avoid taking personal advantage of any situation of vulnerability or power imbalance, such as those arising from an individual

6.105 Inappropriate sexual behaviour in a professional capacity such as the use of sexual banter, the making of sexual advances, or attempting to form a sexual relationship can bring the police into disrepute in any circumstance, but is especially inappropriate in relation to individuals in these types of situation.

Evidence of abuse of trust

6.106 The evidence I considered demonstrates that there have been instances when police officers have abused the trust placed in them by members of the public by engaging in these forms of behaviour.

Unwanted advances and sexual assaults

6.107 I saw some cases where police conduct resulted in allegations of sexual assault. For example, the complainant in a 1993 case had been stopped for a minor traffic offence. The officer initially denied the woman’s complaint of indecent assault, but eventually admitted the incident and resigned from the police. The police decided not to prosecute on the basis that the complainant did not want to give evidence in court.(735)

6.108 In a case from 1995, the complainant met the police officer when she called the police as a result of a domestic incident with her husband. The police officer later returned to her home, while on duty, and indecently assaulted her. The complainant did not want the matter dealt with in open court and as a result it was put before a disciplinary tribunal. The tribunal found the police officer guilty of the charges and he was subsequently dismissed from the police. The tribunal stated,

6.109 In this case the complainant said that the unwanted advances of the police officer led her to have her ex-husband come back into the home in order to provide her with some security:

6.110 Several cases involved women held in custody in police cells. In 2001 a police officer was convicted of indecent assault and sexual violation after he forced a woman who was being held in the cells and faced arrest for theft to perform a sexual act on him. The officer had told the woman that she would go to prison and lose custody of her son if she did not comply with his wishes.(738)

6.111 In 1984 there were two cases within a few days of each other regarding the same station and involving allegations of indecencies against two women who were being held in the cells.(739) Neither of these complaints was upheld because there was insufficient evidence to lay charges. However, the investigating officer in the first case offered an opinion on the veracity of the complaint:

6.112 In respect of the second complaint, the Deputy Commissioner of Police wrote to the district commander giving his assessment of the evidence:

Inappropriate consensual relationships

6.113 I also saw cases where apparently consensual sexual relationships were formed in circumstances that were clearly inappropriate. For example, when her husband was facing charges arising from a domestic dispute in 1996, Submitter E met with the diversion officer to discuss diversion. Subsequently she had a sexual relationship with him. After her complaint to the police that the officer had used his position to engage in sexual activity with her, an internal investigation was undertaken. Because the actions complained of were taken as consensual there was no opportunity for criminal charges to be laid. However, the police told me, “Had [police officer] not elected to retire, he would have undoubtedly faced serious internal disciplinary charges.”(742) The officer retired on medical grounds. (743) Counsel for the police submitted in this case, “Though [the relationship] was entirely consensual, the Police immediately recognised the inappropriate nature of the liaison …”. (744) An internal police report on the same case stated that the police officer had misused his position.(745)

6.114 In another case involving diversion from the mid-1990s, two complainants who were subject to the diversion process had sexual relations with a police officer. In a police report on the case, a detective inspector said that although both complainants alleged a sexual relationship with the police officer (“the genesis of which was the diversion process”), only the second complainant alleged that sexual intercourse was consented to because of the position of authority and control the officer had over her.(746) Although this case was dismissed, the detective inspector concluded that the central detail alleged against the police officer was in all probability true and that the officer was being untruthful in denying his alleged sexual relationship with both complainants.(747)

6.115 In other files the complainant was particularly vulnerable because of his or her youth or disability, or because of difficult personal circumstances. The case of Submitter B (discussed at paragraphs 3.130–3.135 and 3.191–3.198) involved a young woman who in 1982 was placed in the home of a police officer, who subsequently had a sexual relationship with her over a period of some years. The young woman complained of sexual abuse and sexual assault which began when she was a teenager living in the police officer’s house in his care. The officer was investigated but never faced disciplinary charges in relation to the sexual relationship he had with her. The police now accept that the complainant’s complaints were handled inadequately at the time, the police having failed to pursue internal charges arising from the complaints of ongoing abuse and having failed to give closer consideration to criminal charges arising from the allegations of indecent assault before the complainant turned 16. The police also accept that it was unfortunate that no proper consideration was given to bringing charges when it became clear that the police officer had lied about the sexual relationship. The police have said that the police officer’s conduct in the 1980s should have resulted in his facing serious charges before the disciplinary tribunal.(748)

6.116 A file from 1991 involved a 14-year-old male. The young complainant met the police officer concerned when he laid a complaint of indecent assault against another man (who was charged and convicted). The police officer established a close friendship with the boy, which subsequently led to incidents of indecent assault, for which the officer was arrested and charged. The alleged offender committed suicide before the matter went to court; however, the Police Complaints Authority subsequently upheld the complaint.(749)

6.117 In another file from the early 1990s, a young woman with an estimated mental age of 12 was assigned through a service organisation to do voluntary work for the Ministry of Transport, before the merger of the ministry’s Traffic Safety Service with New Zealand Police. The officer in charge commenced a sexual relationship with the woman, which continued after the merger. The woman subsequently laid a complaint, saying that although she verbally consented to having sex, she did not feel that she could say no. The officer eventually admitted to having oral sex with the woman, but argued that he had not contravened any law or standard of conduct. Although no disciplinary charges were brought, the officer was strongly reprimanded for his unacceptable and exploitative conduct.(750)

6.118 The apparently consensual nature of a relationship does not mask its inappropriate nature if it arises from a power imbalance or one party’s vulnerability. Three cases show how this became clear when an allegation of sexual assault was made at a later stage.

6.119 In a complaint arising from the mid-1980s, an officer investigating a road fatality entered into a sexual relationship with the wife of the deceased after supporting her through the trauma and its aftermath. This relationship developed into one allegedly involving group sex. The complainant subsequently made allegations of sexual offending but there was insufficient evidence to establish the complainant’s lack of consent and/or the lack of the police officer’s reasonable belief in her consent. Nevertheless, there seems little doubt that, assuming the allegations are true, this police officer abused his position of trust and took advantage of the complainant’s vulnerability.(751)

6.120 In 1984 a schoolgirl who wanted to be a police officer had arranged through her school that for work experience she would go out on patrol with two police officers. She did this three or four times. She said that one weekend one of the officers called and asked her to a house to go out on patrol. Once at the house he had sexual intercourse with her while a second officer allegedly watched. Afterwards she said that she blamed herself for going to the address in the first place, and that she was discouraged from speaking about what had happened because, as she understood what was said, it would be embarrassing for her and her family. When she did eventually complain in 2004 she had difficulty recalling the detail because she had tried to block it out, and said that she could not remember how she ended up in the bedroom, but felt as if the officer took advantage of the situation. She said she did not mean for it to happen, but she was not forced. The officer admitted the sexual intercourse occurred and said it was purely consensual. There was not enough evidence of the complainant’s lack of consent to prosecute the officers.(752)

6.121 Submitter D (whose case is discussed at paragraphs 3.88, 3.143–3.149, and 3.199–3.201) was going through a bitter custody dispute with her children’s father in 1993 when she became involved with a police officer who worked on an aspect of her case. In 1995 Submitter D made a complaint of rape by the police officer. After an investigation by the police, and on the basis of legal advice, it was determined that a conviction was unlikely, and as a result no criminal charge was laid. Disciplinary proceedings were then commenced but the officer retired on medical grounds before the disciplinary charges were heard.(753) The police commented that he would most certainly have been dismissed had he not disengaged.(754)

Effects of such conduct

6.122 I found these cases, and others like them, very disturbing. I saw evidence of the devastating effect on the people involved from the officers’ conduct. For instance, Submitter E said,

6.123 The police unreservedly accepted that any breach of the professional trust the community places in the police is wholly unacceptable. However, they submitted that lapses are generally the result of bad judgment or an arrogant conviction that the officer could “get away with” the conduct in question, rather than any lack of awareness of the behaviour the police expect.(759)

6.124 I consider that two forms of response are needed to the types of cases summarised above. The first is the need for the police to clearly specify the types of actions or behaviour that a member of the public could reasonably interpret as sexually inappropriate or unprofessional. I was very surprised to find that none of the 42 listed offences set out in regulation 9 of the Police Regulations explicitly addresses the misuse of an officer’s position of power to have sexual relations, particularly with vulnerable people with whom they come into contact in the course of their work. Nor is there any reference to this aspect of misconduct in the draft code of conduct for sworn members.

6.125 The trust that members of the public place in the police is well placed in the majority of instances. I also acknowledge the police submission that said,

6.126 Secondly, there is the question of whether it is ever appropriate for a police officer to become involved in a sexual relationship with a member of the public with whom the officer has come into contact in the course of his or her work, even if this follows an initially professional form of contact. I believe there is also a need for clear direction on this issue. The problems associated with such relationships are not limited to the police. It is well known that vulnerable people can be susceptible to sexual advances from those they trust to help them through a difficult period in their lives, and that when a relationship develops the participants can have differing perceptions about the extent to which it is consensual. To my knowledge, a number of professions now have rules and guidelines about the formation of relationships with clients where power differentials exist (for example, those of health professionals, lawyers, and social workers).(762)

6.127 I outlined my concerns about this issue on several occasions during the hearings, and as my inquiry progressed, I was informed that Police Commissioner Robinson had decided that there should be in future a direction to all officers regarding sexual relations with certain people they encountered in the course of their duties. Before his retirement Police Commissioner Robinson directed that the necessary policy work be undertaken to enable future police commissioners to direct that certain personal associations be prohibited, consistent with similar restrictions that apply to other areas, for example the medical profession.(763)

6.128 Police Commissioner Robinson explained that he had in mind “a direction that will ensure that Police members do not engage in personal relationships with vulnerable members of the community, especially where the nature of the association results in a power differential, or might give rise to a suggestion that the other party has been the victim of exploitation”.(764)

6.129 Police Commissioner Robinson’s approach was supported by Professor Bayley. He commented on the issues associated with power differentials in the particular context of sexual abuse:

6.130 Professor Bayley suggested that there need to be very clear guidelines in place about sexual relationships between people in positions of authority and those with whom they come into contact in the course of their work.(766)

6.131 In developing their policy and directive, the police should draw upon relevant examples of sexual ethics guidelines in professions such as health and social work. One of the key questions is whether the approach to be adopted should be one of “zero tolerance” of relationships with any member of the public with whom a police officer has come into contact in the course of his or her duties. I noted that in the case involving Submitter D, the police disciplinary tribunal contemplated that the formation of relationships does not always amount to “disgraceful conduct” in the context of the current disciplinary system:

6.132 This contrasts with the evidence given by Professor Bayley, who believed that there should be a rule: “… those in positions of authority should not be permitted to have sexual relations with any person over whom they are in a position of authority and where there is a power differential.”(768) I favour this approach, and note that a “zero tolerance” approach is evident in guidance issued by other organisations to address the same sorts of power imbalance situations as those which exist for the police. For example, the guidance that the Medical Council of New Zealand has given to doctors about sexual boundaries in the doctor–patient relationship identifies the following rationales for its “zero-tolerance” position on doctors who breach sexual boundaries:

6.133 The Police Association expressed reservations about Police Commissioner Robinson’s initiative (see paragraph 6.127). The association cautioned against a prescriptive approach to defining inappropriate sexual relationships, although it agreed that there are some very clear-cut situations, for instance relationships with witnesses or complainants.(770) The association told me that, in its view, the best method of ensuring that inappropriate relationships do not occur is through supervision, and that there are already disciplinary provisions in place to deal with situations where individuals failed to heed the advice of their superiors.(771)

6.134 I cannot agree that a matter as serious as this can be left solely to the oversight and discretion of supervisors. Of course any policy to prevent police officers from engaging in sexual relationships with people with whom they come into contact in their professional capacity should encourage officers to talk to their supervisors if they have any concerns about a developing relationship. Therefore supervisors would inevitably play a key part in applying and enforcing any policy. However, I believe that a direction is clearly needed to prescribe the boundaries of acceptable conduct.

6.135 I note in this respect that instructors at the Royal New Zealand Police College are already subject to guidelines that provide specific directions in relation to sexual conduct within the college. In particular the guidelines say that instructors are expected to maintain their professional role by not engaging in any sexual contact with recruits. (“This includes situations where the contact is initiated by the recruit.”)(772)

6.136 I agree with the approach taken to give direction to police instructors to avoid sexual relationships with recruits given that there is a clear power differential in this situation. Any breaches of this direction should continue to be treated seriously.

Recommended approach

6.137 There is a need for standards and policies dealing with conduct of a sexual nature by police officers in relation to those members of the public with whom they come into contact in the course of their work. The standards and policies should

6.139 In doing this work the police should seek advice from someone outside the police with expertise in professional ethics.

Misuse of email and Internet by police

6.141 On 21 April 2005 Police Commissioner Robinson announced that an audit of the police email system had revealed that several hundred staff had been misusing the system by sending, receiving, and storing inappropriate and potentially obscene images.(773) In his media release on how New Zealand Police intended to examine and amend its organisational culture, the police commissioner said that he welcomed the Government’s announcement that it was extending the term of the Commission:

6.142 As part of the Attorney-General’s announcement (also on 21 April 2005) that the mandate of the Commission of Inquiry into Police Conduct had been changed, he outlined how the Commission would “have regard to a separate examination of police culture led by the Police Commissioner”. He said the inquiry would provide a source of external advice and reference to the Commissioner of Police on his parallel investigations “into behaviour by a number of police staff which is not consistent with police expectations and may in some cases be criminal”.(775)

6.143 The Government requested that Police Commissioner Robinson keep me informed of the action he was taking, and proposed to take, in connection with his review of police culture so that I might take that into account in shaping my recommendations.(776)

Computer use policies, procedures, and monitoring

6.144 Subsequently I sought information from the police about their policies and procedures related to the use of email by police, and also on the technical infrastructure the police use to assist them with the control of objectionable material. I received a comprehensive set of material from the police in response to my queries. I also received briefings from Police Commissioner Robinson on police progress on the investigations into the misuse of email. I reviewed the material supplied by the police and I retained an independent information technology (IT) adviser, Optimation NZ Ltd’s Principal Consultant, Mr Jim Shaw, to review the material provided to me by the police. Mr Shaw’s response was also made available to the parties.

6.145 The expert advice confirmed my assessment of the police approach. I was told that the technical infrastructure being used to monitor use of and block objectionable material was generally consistent with industry best practice. In particular,

6.146 However, the effectiveness of any technical solution depends not only on its initial design and implementation, but also on its ongoing monitoring and management, and I believe this is where improvements could be made to avoid inappropriate email and Internet use in New Zealand Police.

6.147 For instance, I was informed that the police Information and Technology Group did not provide regular reports on staff Internet usage, but did so in response to specific requests. In my experience, for an organisation the size of New Zealand Police this is not best practice. I agree with the advice received that regular reports on Internet usage should be provided to management as a routine matter. Such reports should cover staff with the highest World Wide Web (www) and related usage, and sites associated with that usage. These reports enable managers to see at a glance where possibly anomalous usage occurs and allow for early intervention and verification if required. Regular reports can provide an early awareness of potential issues and prevent more serious situations developing.

6.148 In the context of the police such information could also form part of the early warning system discussed later in this chapter. Where police officers are required to access sites that may appear to be unsuitable (for instance, if they are working on an investigation into child pornography), then prior approval could be obtained.

6.149 It is also considered best practice to have staff sign a document to confirm that they have read and understood the acceptable use policies. Staff should also sign to acknowledge reading and accepting changes to policies. This is not something currently being done within New Zealand Police. I was told, “The use of Ten-One to notify policy updates … does not guarantee that all staff read and understand the updates.”(778)

6.150 I concur with Mr Shaw’s view that to be fully effective these policies and procedures, and any changes to them, must be disseminated through channels that ensure 100 percent coverage of all staff, and must be supported by training where necessary. For instance, information of acceptable use policies should be a component of induction and training for all new employees. Staff should be able to access these policies in their entirety at any time. Staff should also be regularly reminded about the key points in them, for instance, through the use of pop-up messages during the log-in process.(779)

6.151 It is also essential that all police staff understand that appropriate use policies are mandated and supported from the highest levels of management. I was provided with a “fax alert” from the acting Commissioner of Police that presented a strong senior management view to reinforce messages about appropriate computer use.(780) However, I was concerned that this communication also left some room for individual discretion by its use of the phrase, “While accepting that individual standards may vary in terms of what constitutes offensive material …”. I agree with Mr Shaw’s advice that more careful wording be used in future to avoid any implication that individual discretion may be appropriate in this context and to ensure that the full impact of the communication is achieved.

6.152 The New Zealand Police Association supports having a clear policy as to how email and Internet breaches are to be regarded. However, it does not support any process that is rigidly applied. In its view a “one size fits all” approach does not give sufficient opportunity to consider the circumstances of individual offending. Although I accept that police management should give consideration to all the relevant circumstances, when it comes to taking some sort of disciplinary action, this should not preclude it taking a very definite line on what constitutes acceptable and unacceptable use of email and the Internet.

Police investigations of misuse of information technology

6.153 As mentioned earlier in my report, Police Commissioner Robinson provided me with regular updates on his investigations into the inappropriate images on the police computer system. He told me that 351 sworn and non-sworn staff were found to have sent inappropriate images on more than one occasion, to have stored more than 10 inappropriate images, or to have stored one or more moving images. (Images were categorised as inappropriate if they were sexually explicit and/or might be objectionable for the purposes of the Films, Videos, and Publications Classification Act 1993.(781))

6.154 Police Commissioner Robinson told me that, in cases where the images were potentially objectionable under the Act, criminal inquiries were commenced. Thirteen images were submitted to the Chief Censor for classification; 12 of those images, held by 28 people, were classified as objectionable. The police commissioner sought advice from the Crown Law Office as to whether these matters should be resolved in the criminal jurisdiction, or using the disciplinary provisions of the Police Act and Police Regulations. Crown Law advice was that these matters should be dealt with under the disciplinary provisions.(782)

6.155 In respect of the remaining 323 police members who were identified as storing or sending inappropriate images on the police computer system, 320 were offered, and took advantage of, an alternative resolution process. That process required attendance at a programme run by an Auckland Internet safety group called NetSafe. The remaining three staff members were to be subject to the normal disciplinary processes.(783)

ACTIONS IF STANDARDS AND CODES ARE NOT MET

6.157 Clearly there is also the ability to charge officers with a criminal offence, if appropriate.

Performance management

6.158 Performance issues are currently managed within the police performance appraisal system. I was told that the appraisal process involves an assessment of an employee’s performance against the competency framework, in addition to an assessment of their performance against the functional requirements of their position. The appraisal process is designed to consider not only the results produced by a particular employee, but also how those results have been achieved. The achievements are assessed against the competencies and values set out in the framework.(784)

6.159 I was told that at the moment an underperforming police officer cannot be dismissed for poor performance alone and that police management is forced to “work around” the officer’s inadequacies, or to try to fit the underperformance into a regulatory framework that is not designed to address this kind of issue. The new regime, which was to have been introduced after the enactment of the now withdrawn Police Amendment Bill (No 2), would have drawn a distinction between matters that could properly be described as issues of discipline, and matters that go to issues of performance.(785)

6.160 As discussed in Chapter 5, I was told by the police that, in practice, they rely heavily on the Police Association to help them “manage” unsuitable employees out of the police. The association and police management cooperate to persuade non-performing officers to explore other career options. This approach relies on non-performing officers appreciating that policing is not for them. If non-performing officers cling stubbornly to their jobs there is little the police management can do.(786) The police have long recognised the difficulties that the present regime poses as a performance management system.(787) I was very concerned to learn of the reliance on the police union for its assistance with arranging the departure of unsuitable members from the police. In my view this should be the role of the employer.

6.161 The Police Association told me that it believes the police have excellent performance management policies and processes in place for the management of underperforming sworn members. However, in the association’s view, in the vast majority of cases the police do not have the commitment to the process that is required to achieve the desired results. This is because performance management requires a significant commitment from the supervisor or manager to follow through the process required and this process requires consistent feedback to the employee about the level of performance required, where the employee is not meeting that level.(788) Mr David McKirdy, New Zealand Police Association Field Officer, told me,

6.162 In my view being able to deal effectively with poor performance is critical if the police are able to ensure that sexual misconduct cases by police officers are kept to a minimum. I observed from some of the files I read that police supervisors and managers have endeavoured to document performance issues in relation to sexual misconduct. I saw a variety of examples of performance improvement plans and appraisals on the files I read and it appeared that the performance management processes had improved in recent years.

6.163 For example, the performance appraisal documentation I saw on a 1995 file was particularly extensive and lacked the clarity of later examples. It also reflected the difficulty in securing the police officer’s agreement to the appraisal or to the proposed performance improvement plan.(790) By contrast, a performance improvement plan written in 2004 (in conjunction with an adverse report) contained a copy of the core values referred to earlier in this chapter and noted in relation to the core values, “These are the specific areas where you need to ensure all future behaviour more closely reflects that described in the overall definition.”(791) The plan had been written at the completion of a disciplinary investigation into the police officer’s behaviour, in particular, his having “had a sexual encounter in a public place while under the influence of alcohol in a small rural town where [he was] known at the time to be an off-duty member of the New Zealand Police.”(792) Although I see it as a positive step that reference is being made to the core values in a document such as this, my concern is whether the importance of the values is adequately communicated through this process and whether the performance improvement plan is regularly followed up and monitored by the officer’s supervisor.

6.164 Many of the behaviours that I saw on the files gave me indications of the quality of police officers’ performance and could be classed as poor performance rather than serious offending of the sort that might attract criminal investigation. To that extent it has been necessary for me to consider how the type of sexual behaviour that could be classed as non-performance or poor performance might best be dealt with as part of the performance management process, rather than invoking the full rigour of the police disciplinary tribunal process. In my view the performance management system needs to be able to effectively address this lower level undesirable behaviour to avoid it continuing to fester in the organisation or in an individual.

Disciplinary action

6.165 As discussed in Chapter 5, the police do not have access to standard employment law and the processes associated with it in order to deal effectively with misconduct, particularly at the lower level of seriousness. They have an outdated tribunal system that requires courage and tenacity by management to deal successfully with behaviour requiring discipline. I was told that an officer may be involved in a series of incidents early in his or her career that are not in themselves serious enough to warrant disciplinary charges, that supervising officers may need to wait for a serious episode to occur before they can take disciplinary action, and that the behaviour may continue and escalate in the meantime.(793)

6.166 My reading of the files confirmed this impression. It was clear that some officers who committed serious offences or serious misconduct had been engaging in low-level misconduct for years before the serious incident. Sometimes they went on to bring New Zealand Police into disrepute over a long period before they eventually did something serious enough to justify the police bringing a disciplinary charge before the tribunal. (794)

6.167 Counsel for the Police Association reminded me that the police have available to them a range of disciplinary penalties, including counselling, adverse report, reprimand, and dismissal. However, as discussed in Chapter 5, I do not believe this sufficiently takes into account the procedural formality and complexity involved in removing an offending staff member.

6.168 The ability of officers to disengage from the police on medical grounds has also been an obstacle to achieving disciplinary outcomes. I have already commented about the practice of allowing officers to disengage on medical grounds before the disciplinary process has taken its course (particularly those who joined the force before 1992 and were members of the Government Superannuation Fund, who had a financial incentive to disengage). (795)

6.169 My proposals for reforming the disciplinary system are discussed in detail in Chapter 5.

Repeat breaches of standards

6.171 However, one point of note arising from the files is that a small number of alleged offenders appeared in multiple files. They were often characterised by active sexual exploits of a kind that could be seen by the community as inappropriate behaviour for a member of the police to engage in. Such conduct could be reasonably well known because of boasting, lack of discretion, or the involvement of others in their behaviour, including group sexual activities. In their closing submission to me the police said that about 15 of the Operation Loft files(796) disclosed a police member whose systematic conduct would place him in this category of what they would describe as a “womaniser”.(797)

6.172 I saw an example of an officer who was the subject of allegations in one district (whether they were upheld or not) then transferred to a different district where he was subsequently the subject of fresh allegations. A similar pattern emerged from a few of the sexual harassment files, where disciplinary action uncovered incidents going back years and occurring in several locations.(798)

6.173 Inspector Mitchell told me that, although favourable outcomes were achieved in some cases after complaints were made, complainants in many cases were unwilling to make a formal complaint despite being given personal assurances from senior staff that they would receive protection should they do so. He told me of one case that stood out in his mind:

6.174 Although the above case eventually resulted in the officer’s dismissal via the disciplinary process, the police witnesses who appeared before me noted in their evidence that the existing disciplinary framework makes it difficult for them to properly manage individuals whose behaviour and performance is a concern.(800) The police face a high standard of proof in disciplinary proceedings, especially when the charge is a serious one where dismissal could be an option. Because of this, they can have great difficulty in taking appropriate action against an officer where there is insufficient evidence to succeed in a disciplinary charge but, nevertheless, a clear prima facie case of some lesser level of misconduct.

6.175 From my examination of the files, it is clear to me that the risk to both the public and New Zealand Police’s integrity arises from problem people rather than within particular geographical areas. Those instances in which individuals have been able to stay in the police force despite repeated allegations of misconduct with apparent substance appear to have been a result of both poor management practices and an inadequate disciplinary framework.(801) My view is that this risk needs careful management through

Police leadership and management development initiatives

6.177 In April 2004 the police appointed Ms Susan Christie as Human Resources Manager: Organisational and Employee Development; her brief was to “develop a framework for leadership and management development within the organisation … as a means of developing outstanding leadership and management capability in what is a changing environment.”(802) The framework is designed to assist New Zealand Police by equipping its members with the appropriate leadership and management skills and capabilities, to enable them to

6.178 A key principle for the police investing in leadership and management development is articulated as follows: “The core values will underpin and support professional and ethical Police practices; this will provide a common language and expectations of common and consistent leadership behaviours.”(804)

6.179 At November 2005, the leadership and management development framework was in the first year of a five-year cycle. The framework aims to assist the police to ensure that they have the required capability to achieve their strategic objectives, to identify how senior members can be supported by further development, and to identify and develop emerging leaders.(805)

6.180 Although I believe the aims of the police leadership and management development initiatives are laudable and consistent with good management practice in this area, I was concerned to note that in the first 18 months of the establishment of the organisational development manager’s position, no further resources were attached to the position. I understand that for the 2005/06 financial year, a small national budget was made available for leadership and management development that was to be used to resource the organisational development team as well as to supplement some of the training budgets, which are currently funded from district budgets.(806)

Ethics training

6.181 Before 2002 there was no national approach to ethics training. Instead, ethics training was developed and delivered at district level by a variety of different presenters.(807)

6.182 In 2002 the Royal New Zealand Police College commissioned the development of a national training package in ethics, entitled “Making Ethics Real”. The package is designed to be delivered to two separate and specific groups. One is to all police staff, who attend a two-and-a-half hour training session, and the other is to supervisors and managers, delivered in a four-hour session.(808)

6.183 The national ethics training package aims to help police officers develop three key qualities involved in ethical decision-making:

6.184 The training covers topics such as the subjective nature of what might constitute “ethical” behaviour in any given situation, and practical techniques for identifying ethical conduct in the range of difficult situations that staff are likely to confront in practice.(810)

6.185 To assist individuals in assessing their own behaviours the training package includes a decision-making checklist called the “SELF” test. This test suggests that individuals consider the following questions before making decisions:

6.186 At November 2005 the national ethics training package had been delivered to 400 supervisors in the Wellington, Central, and Eastern Police Districts, as well as to all training service staff based at the police college. The training package is delivered on a district-by-district basis.(811) I was told that it is for each district to determine whether the ethics training package is delivered and if so to whom, and that essentially it is a decision for the district commander and his or her management team as to whether a package will be mandated within the district. It is not mandatory for districts to participate in the new training package.(812)

6.187 I was told in November 2005 that it was likely that it would take 18 months from that time to get everybody trained, assuming that all districts took up the new package. District commanders can choose to deliver their own ethics training programmes if they prefer. It is possible that districts will choose to use their own trainers, or their own packages, rather than this one, but the expectation from Mr Phillip Weeks, the police manager responsible for the national package, after he gave a presentation to the Police Executive Committee in September 2005, was that district commanders were likely to favour using the new package.(813)

6.188 Superintendent Mark Lammas, District Commander, Central Police District, told me that he considers ethics training to be an important priority in terms of overall training. Such training, he said,

6.189 I think that the development of the ethics training package is an excellent initiative; however, I am concerned that it is not mandatory in all districts. I believe it should be mandatory for district commanders to implement the ethics training throughout their districts. In my view this training is as important as training in firearms and first aid, and like those mandatory courses, should be rolled out to all staff on a nationally consistent basis.

6.190 I also understand that there has not been any evaluation of the effectiveness of this training, and that none is planned. I suggest that this would be a useful exercise as part of the monitoring required to ensure consistency of values and expected behaviours throughout the organisation. I also suggest that the police consider regular refresher courses in ethics in order to ensure that the understanding of the issues and principles and values discussed in the training remains fresh in people’s minds, and as a way of evaluating the effectiveness of the initial training course.

Recruit training

6.191 I was told that police recruit training emphasises the need to maintain complete integrity as a police officer, and this is considered by the police to be the single most important feature of a recruit’s training. Personal ethics are emphasised in various ways. The key theme stressed throughout the training is that, in joining the police, recruits become part of an organisation with very high standards, and they are expected to uphold those values at all times.(815) I was told that this material has been part of the recruits’ training course since April 2002.(816)

6.192 The first section of the Recruit Induction Book contains the competency framework referred to earlier, and lists the police core values and core competencies, of which the first is integrity. The examples of desirable and undesirable behaviours for each core value are listed in the book.(817)

6.193 I was told that ethics training occupies a large part of the recruits’ first week and that it is stressed throughout the training that the police organisation derives a significant part of its credibility from the fact that it does not tolerate any improper conduct on the part of its members. I was also informed that part of this training confronts the risk that members’ natural loyalty to each other may spill over into a “code” by which they may turn a blind eye to, or even cover up, another’s wrongdoings. Recruits are told that every action they take has an impact upon the reputation of New Zealand Police as a whole, and that the public does not view members of the police as individuals, but rather as “the police” in general. It is stressed to recruits that they are “on show” 24 hours a day, and that they do not cease to be members of the police when they return home from their shifts; almost any action they take, whether in their private or professional lives, is open to scrutiny. Recruits are asked whether they would feel comfortable having to explain any particular action they have taken to the media, in court, to their parents, or to any other person whose opinion they value.(818)

6.194 A summary of the New Zealand Police Sexual Harassment Policy (discussed earlier in this chapter) is also included in the recruit’s induction material. During the first week of the recruits’ training the human resources manager and the welfare officer explain the sexual harassment complaints procedures, and emphasise what constitutes unacceptable conduct.(819)

6.195 Recruits also receive training on communication with victims of sexual assault. This section of the course is currently under review, but it stresses guidelines for dealing with victims, such as the need to listen carefully, to give victims the opportunity to vent their feelings, and to accept that they are telling the truth (unless there is clear evidence to the contrary). This area is covered to assist recruits in their awareness of sexual offending. However, it is stressed to the recruits that skills associated with handling sexual complaints are specialist skills, and that it will almost always be the job of Criminal Investigation Branch (CIB) to undertake the initial contact with sexual assault victims.(820)

6.196 The training given to recruits on the need to maintain appropriate standards of behaviour is a good starting point for new people joining the New Zealand Police. I was pleased to see it included a section on ethics, and also that it introduced recruits to the police core values.

Ethics committees

6.197 Some district commanders told me about initiatives to establish ethics committees in their districts. These are a relatively new initiative. I was told that although every district has an ethics committee, they all operate differently. Some police districts have very active ethics committees; others use their management team as their ethics committee, and have ethics as a standing item on their usual monthly management meeting.(821)

6.198 The purpose of the ethics committees, as described by Superintendent Grant Nicholls, District Commander, Eastern Police District, is to discuss matters of concern, or to discuss the issues and implications of a new policy. The committee deals with issues presented to them and interprets policy. The Eastern Police District committee also includes one external member, the Crown solicitor from the area.(822) Another district, however, is having difficulty establishing terms of reference for its ethics committee and has brought in outside help to build a framework for the committee.(823)

6.199 By comparison, Superintendent Mark Lammas, District Commander, Central Police District, has not established an ethics committee and has taken a different approach. He has a monthly management meeting at which a regular item on the agenda is discussion of an ethical dilemma. I was told that this discussion can be hypothetical or it can be based on an actual situation occurring in the district. The issue is debated and then each of the area commanders and other managers takes that issue back to their management teams for discussion. The managers also bring fresh issues back for discussion.(824)

6.200 Establishing these committees was not made mandatory by Police Commissioner Robinson, although I was told that he encouraged districts to set them up.(825) Superintendent O’Fee, leader of the Integrity Project, stated, “Our recommendation … to the Commissioner is there needs to be mandated processes that the Ethics Committees need to go through, not to the extent of making all the districts the same … but certainly to the extent of having parameters that they have to operate around.”(826)

6.201 I commend the move to establish these ethics committees and consider that they should be standardised across districts. At the moment there is no nationally agreed approach to defining the purpose, operation, or membership of the ethics committees. I suggest that having a national approach would enhance the credibility of the ethics committees within the police. A nationally mandated approach would also ensure that police practices and community standards and expectations do not diverge too widely.

6.202 The ethics committees should provide a good means to reinforce the messages contained in the ethics training. They are also a mechanism to raise and discuss difficult ethical issues facing the police in their day-to-day work. The understanding of issues around inappropriate sexual relationships would benefit from wide discussion. Such committees also provide a good opportunity for community input by having non-police members involved.

6.203 I consider it imperative for such committees to have external, non-police members in order to ensure they obtain a wide perspective on the ethical issues being discussed. External members should come from a representative cross section of people in the local community who are active in some area of the community, but not necessarily in the justice sector. For instance, representatives from the local school, business community, or retail sector may have a useful contribution. I was told by Superintendent O’Fee that involving members of the community in their ethics committees would certainly be feasible because all the districts have their community contacts, and that this is something they could do more work on before submitting their recommendations in relation to how ethics committees should operate nationally.(827)

Integrity Project

6.204 As noted elsewhere in my report, Commissioner Robinson had put a number of new initiatives in train as a result of the establishment of the Commission of Inquiry into Police Conduct. One of these was the Integrity Project in 2005. The purpose of this project was to review the police Professional Standards function, including the way that internal investigations are conducted and overseen, and the way that internal investigators are selected. The project was also to look at ways to encourage the reporting of corrupt or inappropriate behaviour.

National early warning system

6.206 Professor Bayley explained that the use of an early warning system is expanding around the world; American police forces have them, and soon all United Kingdom forces will have them (Northern Ireland is developing one). Although Professor Bayley had seen lists of 30–40 indicators for routine assessment, he suggested that careful choice of 10–15 indicators of potentially problematic behaviour could give a workable system. He commented that there was much evidence to show that 85–95 percent of the complaints of misbehaviour were caused by the actions of about 5 percent of the officers.(828)

6.207 Police managers need to be able to monitor and manage the performance of all staff, and take appropriate action. Ideally, a positive approach to managing staff, together with the ability and willingness to make sensible and timely interventions, will lead to more transparency and reinforce ethical behaviour. This provides an opportunity for the police to take a more strategic approach to complaints. It should also foster better relations between management and police members.

6.208 I noted in the report by Hon Sir David Tompkins QC on the Counties Manukau Police District that he made an attempt to analyse officers with a history of complaints. A list of staff in the Counties Manukau Police District with more than five complaints was prepared and analysed. The analysis was apparently inconclusive, other than showing that most of the complaints were for assault, attitude, and language. Sir David Tompkins said, “The limited nature of the data stored in the Professional Standards data base meant that a more detailed analysis could not be made.”(829)

6.209 The project manager for the Integrity Project, Superintendent O’Fee, told me that the project team would make a strong recommendation that an early warning system based on the recently developed “Wellington model” be implemented nationally. This system would involve identifying a range of behaviours that would be recorded on a central database. If there were three complaints received the supervisor would be notified; likewise, if an officer misses all mandatory training over several days (without good reason), this would be recorded. Managers could then access the information to identify, for instance, whether the member has a history of complaints, excessive force reports, or lack of attendance at mandated training.

6.210 I was told that currently all districts in New Zealand operate such systems; however, they are largely ad hoc, and when members transfer between districts the information is not always carried with them.(830) For instance Inspector Neil Banks, Manager, Professional Standards, Canterbury Police District, explained to me how different districts monitor complaint trends and members who attract complaints in various ways. The Canterbury District has a database that can generate information on individuals, groups, and areas as to the number and nature of complaints. This database also holds complaint information.(831) Inspector Banks told me that he could not think of any reason why a nationally mandated process acceptable to all the districts is not put in place.(832)

6.211 The development by districts of several alternative early warning systems for police officers who are not meeting certain standards illustrates how useful data can be collected and, if integrated and analysed, can have wider application. For instance, Mr Wayne Annan, New Zealand Police General Manager: Human Resources, described how police database information would in future be made more accessible:

6.212 When I asked Police Commissioner Robinson if the early intervention model proposed by the Integrity Project would be adopted as a national initiative he was unable to confirm that such a system would be nationally mandated. He explained to me,

6.213 In my view implementation of an early warning system is a key initiative and should be nationally mandated by the Commissioner of Police. I saw several examples where police officers inappropriately remained in the police force over a period of years despite clear indicators that there were concerns about their behaviour.(835) Some examples follow:

6.214 I also saw several cases involving sexual harassment that could have benefited from having an effective early warning system in place.(840) Three examples follow:

6.215 An early warning system would reduce the opportunity for such staff to remain in the police force. It would also reduce the possibility of poorly performing staff changing positions within the police, which was described by a Police Association witness as “dressing for export”.(844) Moreover, it would enable appropriate mentoring and training to be targeted to particular individuals.

6.216 To be effective I believe that an early warning system should be centrally organised and implemented on a consistent basis across the country. It must capture all the information currently held in the separate databases for performance appraisal, health and safety, professional standards (including complaints), and sexual harassment.(845) It should also cover other information that may indicate a problem with an officer, for example improper use of the Internet for private purposes while at work. Information on the database would need to be collected, held, and used in accordance with the Privacy Act 1993 and the requirements of employment law in respect of monitoring and surveillance of employee conduct. This ought to enable the information to be made available to managers and supervisors for performance management purposes, and to complaint investigators for use in investigations when appropriate.

6.217 A nationwide approach is particularly important in the context of this inquiry in order to ensure that early intervention occurs when information comes to light of inappropriate sexual behaviour and that information should be available notwithstanding an officer’s movements across districts. It is also important that the information available to managers, supervisors, and complaint investigators is both comprehensive and cumulative, giving a picture of the officer’s full record of service.

6.218 I was told that it costs $200,000 to put a new police officer into the force, and $500,000 to develop a detective.(846) This is a major investment for the taxpayer, and every effort should be made to look after this investment, ensuring that new recruits are being counselled at the first sign of behaviour that is not acceptable so that they reach their full potential and remain in the force.

Development of a code of conduct for sworn members of police

6.221 Constabulary independence (a concept discussed in Chapter 3) is sometimes cited as a reason for differentiating between police officers and other State servants. I was interested in the implications of constabulary independence for the way misconduct by police officers is handled within the police. Dr Warren Young of the Law Commission explained to me that in its extreme form, the original doctrine held that a constable was “answerable to the law and the law alone”. In his view, this is no longer applicable to a modern police force that is located within a statutory framework and subject to many of the same accountabilities as other state agencies.(847) For instance, the Commissioner of Police is responsible to the Minister of Police for the administration and control, and financial management and performance, of the police (regulation 3 of the Police Regulations); New Zealand Police is treated as a department of State for the purposes of the Public Finance Act 1989; the Commissioner of Police is required to ensure that police officers discharge their duties to the Government and the public satisfactorily, efficiently, and effectively (police regulation 3); and individual police officers are required to obey general instructions and the lawful commands of a supervisor.(848) Dr Young explained that constabulary independence should not prevent accountability for police conduct:

6.223 The leader of the project relating to ethics and integrity in the New Zealand Police, Superintendent Grant O’Fee, also discussed the benefits of dealing with non-serious complaints outside the formal disciplinary system:

6.226 Professor Bayley described it as “wonderfully simple”. He explained, “In training you don’t bore the life out of people by going through volumes and volumes of regulation, but what you try to instil in them is a sense of value of what they’re supposed to do, and you then guide them when it comes to operations ….”(852)

6.227 I agree that Code of Ethics for the Police Service of Northern Ireland provides an excellent template for a code of conduct.

Other State sector codes of conduct in New Zealand

6.228 Section 57 of the State Sector Act provides for the State Services Commissioner to set minimum standards of integrity and conduct for employees in “the public service” and to apply those minimum standards by way of a code of conduct. Those standards currently find expression in New Zealand Public Service Code of Conduct, which describes the standards of conduct required of public servants. New Zealand Police is not part of the public service, which means that New Zealand Public Service Code of Conduct does not apply to either sworn or non-sworn police members.(853)

6.229 The introduction to the code of conduct explains why a code is necessary for the public service. Key reasons include the fact that the strength of any government system lies in the respect it earns and holds from its citizens. That respect comes from the confidence that people have in the integrity of Government and the services it provides: “Everyone employed in the State Services has a part to play in earning public respect for government and maintaining confidence in the institutions of government.”(854).

6.230 The code also explains how the public service has extensive influence over people’s lives:

6.231 The code describes the following three principles of conduct, which encompass the minimum standards of integrity and conduct expected of all public servants:

6.232 As this report was being finalised the State Services Commissioner published a draft of a new code of conduct for all agencies of the State services (including, but not limited to, the public service).(857) The draft code is built on the values of being fair, impartial, responsible, and trustworthy, recognising,

6.233 In Chapter 8 of this report I suggest that the State Services Commission would be well placed to provide advice and guidance to the police on several of its ongoing initiatives, including in respect of codes of conduct, and that involving it in this way would be consistent with the direction of the State Sector Act reform. (See also recommendation R59.)

Development of a code of conduct for sworn police staff

6.234 In December 2001 New Zealand Police and the Police Association signed a heads of agreement relating to the development of a code of conduct for sworn members of police. The agreement said,

6.235 In February 2002 a draft code of conduct for sworn members was prepared in anticipation of the changes to the Police Act 1958.(859)

6.236 In May 2002 Police Commissioner Robert Robinson issued a memorandum to staff explaining the code and seeking feedback on the draft. The commissioner’s memorandum said that the purpose of the code was to

6.237 The memorandum set out the ways that this would be achieved:

6.238 The memorandum explained the next steps in the processes, saying that feedback would be assessed and would inform the final product, which would then be issued as a draft for final comment. The memorandum also allowed for action in the event of legislative delay:

6.239 After a formal round of consultation in June and July 2002 various changes were proposed to the draft and some amendments made accordingly.(863)

Standards in the draft code of conduct

6.240 The draft code of 2002 set out 10 standards of conduct expected of all police officers at all times:

6.241 The draft code explained the wider context for police officers and their unique position in society. In particular it noted,

6.242 The document set out the immediate context for introducing a code of conduct, noting,

6.243 The draft code stated, at paragraph 11.2, that an officer’s behaviour would be classified according to whether it represented a performance issue, a misconduct issue, or an issue that may involve criminality:

6.244 Under the draft code, different categories of cases would have different investigation processes. For performance and minor misconduct matters, police districts would follow standard employment processes. If criminal issues were raised the member would be placed before the courts. For non-criminal serious misconduct, the draft code stated,

6.245 The process for dealing with cases in this category was outlined in the draft code. It included provision for a national disciplinary panel that “confirms apparent cases of serious misconduct, channels out possible criminality, and refers back any residue of less serious misconduct or performance”. (869)

6.246 Under this process, where dismissal is a possible penalty, the officer would have the ability to make representations to the decision-maker and an independent adviser.(870)

6.247 I was told by Mr Wayne Annan, New Zealand Police General Manager: Human Resources, that the draft code required updating in the light of developments that had occurred since it was first drafted in 2002, such as the development of the core values and the competency framework (discussed earlier), in order that “they mesh nicely”.(871)

Current status of the draft code of conduct

6.248 Promulgation of the code had been awaiting the passing of the Police Amendment Bill (No 2). This bill was withdrawn by the Minister of Police in March 2006.

6.249 The bill had sought to achieve two things: to strengthen police governance and accountability arrangements; and to improve police effectiveness in managing their human resources, in particular by offering more options in dealing with staff who perform poorly. (872)

6.250 Had the bill been enacted, a new section 16 of the Police Act would have enabled the Commissioner of Police to issue codes of conduct for all or any groups of members of the police(873), after consultation with service organisations and the State Services Commission. (874)

6.251 A new section 16A would have empowered the Commissioner of Police to deal with unsatisfactory performance or misconduct in accordance with the relevant code of conduct. A range of options was laid out in the bill, including dismissal. These options could have been used if the Commissioner of Police was satisfied that, in accordance with the code of conduct, a member was unsuited to continue in their present role, or as a member of the police.(875)

6.252 Notwithstanding the withdrawal of the Police Amendment Bill (No 2), the draft code of conduct now stands ready to be implemented, subject to any amendments necessary to take into account developments since 2002.(876)

Views on the need for a code of conduct

6.253 The Police Association told me that it fully supported the concept of a code of conduct for sworn staff when it was initially considered in 2001. The association was also actively involved in the preparation of the draft code in 2002. The association now believes, however, that before it can be implemented, the draft code will have to be reassessed in the light of any recommendations that the Commission of Inquiry into Police Conduct makes. The association also agrees that the recently developed integrity values need to be integrated into the draft code. (877)

6.254 The Police Association also believes the code of conduct should be brought into operation in conjunction with the existing disciplinary tribunal system. It considers that the tribunal system offers important protections for the individual employee that should be retained. I addressed this issue earlier in Chapter 5.

6.255 The police agreed that a code of conduct for sworn members is desirable but cautioned that, because a code of conduct is usually expressed in non-prescriptive terms, adoption of a code for sworn officers is unlikely to make any significant difference to the manner in which issues of sexual misconduct are both highlighted within the police and resolved.(878)

6.256 In August 2006 the police informed me that negotiations were under way with police service organisations about the development of a code of conduct as part of the collective employment agreement.(879)

6.257 In my view implementation of a code of conduct for sworn police is a critical requirement for the effective management of sexual misconduct. A code of conduct sets out the organisation’s standards and expectations. It can then be used as the basis for taking action if those standards are not met.

6.258 But I agree that a code of conduct does not stand on its own. It is only one of a number of measures, which have been discussed in this chapter, that are needed to provide consistent, clear, and accessible messages about acceptable standards of personal behaviour and sexual conduct. There also need to be simple human resource management processes to deal with poor performance and breaches of the code, which may or may not lead on to misconduct, and may or may not point towards a person’s suitability for remaining as a police officer.

Effect of introducing a code of conduct without legislative change

6.259 During the course of the Commission hearings the question was raised as to whether the code of conduct for sworn members could be introduced without the passing of legislation to amend the provisions in the Police Act concerning the disciplining of sworn members. In his evidence to me, Police Commissioner Robinson said,

6.260 My understanding is that Police Commissioner Robinson was correct in this summary of the situation; that is, as long as the Act and regulations remain in force any code of conduct for sworn members would have little practical impact.

6.261 However, as discussed in Chapter 5, it is also my understanding that interim changes could be made to the disciplinary process for sworn members, without the need to await changes to the Police Act, to enable the process to be made much simpler and, moreover, to give full effect to a code of conduct as the basis for managing all disciplinary and performance matters. This would require revocation of the relevant parts of the Police Regulations, but that could be achieved as a matter of Government decision (and action by the Executive Council) rather than having to wait for amending legislation to go through Parliament. In my view serious consideration should be given to this step being taken now, in advance of completion of the review of the Act and Regulations announced by the Minister of Police when she withdrew the Police Amendment (No 2) Bill in March 2006.

6.262 This is addressed by my recommendation in Chapter 5 concerning codes of conduct in the context of the police disciplinary system: