This seems awfully familiar...

Last year, we saw almost-Police Commissioner Jevon McSkimming convicted for possessing child sexual abuse material. The conviction was an accident, something which came up during an investigation of McSkimming's past history of alleged sexual abuse. McSkimming had worked hard to gaslight his colleagues and discredit his victim, with the result that the police as an institution (and a bunch of very senior police officers as individuals) dragged their feet and systematically looked the other way on complaints about him, protecting their own while persecuting his victim. But eventually, an audit of his computer system turned up his criminal activity, and he became impossible for them to protect.

But there's a sequel. Because around the time new Police Commissioner Richard Chambers was denouncing his former colleague, people were complaining about him. And the police and IPCA sat on it for six months, not bothering to actually investigate it until early June. And the only reason we know about it at all is because it was leaked to RNZ. Which sounds exactly like the sort of foot-dragging that happened with McSkimming. From the police's response, you'd get the impression that they would have kept the whole thing secret if they could.

This isn't good enough. The police need to retain public trust, and that means they must be seen to be trustworthy and to obey the law. If something calls the trustworthiness of the Police Commissioner into question, the public deserve to know about it. And if he's actually under investigation, he needs to stand down and let someone else do the job - because its pretty obvious that he can't. It's that simple. And if this is too hard for police - if they can't follow the basic norms of ethical behaviour we expect from other public officials - then they should fucking quit. Otherwise people will draw the natural conclusion: that they're a corrupt shitshow interested in protecting themselves over the public, and we're better off without them.

Deeply unethical

Yesterday, the Labour party announced its party list, parachuting senior police officer Superintendent Rakesh Naidoo in at 13th place to show how much they care about "law and order". Which immediately caused problems, because Naidoo apparently hadn't told his bosses until the last minute.

Labour leader Chris Hipkins claims this is all OK, because while they had been talking to Naidoo "over a couple of months", his selection "was done at the last minute deliberately" to enable him to stand. But that's not OK. We have a politically neutral public service, and to protect this, section 52 of the Electoral Act 1993 requires public servants seeking office to take leave. This is normally from nomination day, but where candidacy undermines the perception of political neutrality, it may be for longer. While the police are not public servants, these provisions explicitly apply to them. And Naidoo is a senior police manager, working on policy issues, and that's simply not something you can do while seeking political office.

On top of that, the Police Manual chapter on elections and political matters specifically requires police employees seeking public office to

advise their District Commander or Director at the earliest opportunity so that the potential impact on their role as a Police employee and any necessary plan of action can be discussed early.

An ethical person following the rules would have advised their managers when they were considering seeking office, to ensure that risks were managed and they had obviously obeyed the rules. Naidoo didn't do that. Instead, he and Labour seem to have contrived a process, with the latter deliberately manipulating its normal candidate selection procedures so he could pretend not to be running, so he could keep on collecting his salary (and, potentially, accessing police information) right up until the last minute.

This is deeply unethical behaviour which reflects badly on everyone involved. It doesn't meet the standard of ethics we expect from police or political parties. And given how low our expectations are of either, that's pretty damning.

More tyranny

The regime introduced a bunch of bills today: an Immigration (Enhanced Risk Management) Amendment Bill to introduce a "papers, please" regime for anyone MBIE (which also means the police) suspects they may be liable for deportation or in breach of their visa conditions; a Corrections (Management of Prisoners, and Prisoners’ Property) Amendment Bill to enable them to torture prisoners with solitary confinement more easily and stop them from writing books about it; a Fisheries Amendment Bill to make the Quota Management System a matter of ministerial fiat and introduce a secrecy regime for boat camera footage; and a Policing Amendment Bill, to allow the police to arbitrarily close public places and spy on people without warrants. There's a couple of themes across these bills. The first is overturning court decisions, including some that have affirmed quite significant protections for human rights. The second is replacing statutory protections with executive discretion, which means executive arbitrariness and corruption. And the third, linking the two, is tyranny. Because that's what we call an arbitrary executive which does not respect human rights: tyrants.

The Fisheries Bill secrecy clause deserves its own post, so I'm going to talk about the policing bill here. And it is awful.

One part of this is the creation of a new regime allowing any police officer to close access to any "accessible area" - meaning "an area of land that is accessible to the public, or a section of the public, by motor vehicle", and apparently including private property. So anywhere that is a road, or connected to a road. They're probably thinking of car-parks, but of course the definition also applies to your backyard, and even your house if you have an indoor garage. These closures can be done for a variety of reasons, some of which are good (for example, if there is a danger to the public, like a gas leak or incipient landslide, or a serious offence has been committed and there is a need to secure the crime scene). But most of it is of course aimed at one of the regime's perennial targets: boy-racers. So they can close roads to everyone if an "antisocial road use offence" is being committed or might be committed; if people are operating (or are expected to be) motor vehicles in an antisocial way; or if people are creating (or are expected to create) excessive noise with a motor vehicle, or if there is (or is imminent) "public disorder". If they close an area, its an infringement offence not to leave immediately.

The regime will be looking at this and thinking "anti boy-racer law". But the public disorder and noise clauses also make it an anti-protest law, because the police have a history of regarding public protest as inherently disorderly, and noise (say, from a vehicle-mounted PA system leading a protest march) which upsets those in power as "excessive". Naturally, there's no protection against this - no Terrorism Suppression Act-style clause saying "for the avoidance of doubt, protests, strikes, lockouts, and industrial action are not 'disorderly', and their noise is not 'excessive'". The drafting is so shoddy they haven't even excluded dwelling-places or marae from the definition of "accessible area". And given the regime's anti-protest noises, this should be regarded as deliberate until proven otherwise.

That all stinks, but its not the worst of it. The other part of the bill "reaffirms" the rules about the police collecting intelligence and recording people in public places. I put "reaffirms" in quotes because it does nothing of the sort. The courts and the Privacy Commissioner, in a long series of judgements (Tamiefuna v R, but also Hamed v R), have said what the law is, and that the police have been systematically breaking it. The regime's response is to dramatically broaden the law, and legalise the police's unlawful behaviour.

The new amendments start with a list of "purposes for which Police may collect information", which is a good start. It then says that the police can record anything they can see or hear in or from a public place, or anything they can see or hear on private property if they are lawfully there. No warrants required. To see how much of an intrusion this is, we have only to look at the police's illegal photographing and databasing of young Māori, or the Supreme Court's ruling in Hamed v R, which found that the police could not just covertly film and record people on private (but generally publicly accessible) property under "implied licence" without a warrant. That ruling led to a temporary law change, which was later incorporated into the Search and Surveillance Act 2012, which set limits on the police's ability to spy from public places without a warrant. The amendment bill would void that long established law.

If this passes, the police will be able to park outside your house with a camera and spy on you in your yard or through your windows, and record anything visible (to what wavelength?) or audible (with how much amplification?), without needing any type of warrant. They won't even need to be physically present, because the "by any means" allows remote cameras and microphones. Or they can use a drone, with thermal cameras and high-gain directional microphones and just spy on you 24/7, without any warrant, oversight, or reporting. Those are unquestionably "searches" in terms of the BORA (clearly being interference with a reasonable expectation of privacy) - but they'll be lawful. And of course they can hassle people on the street, photograph them, database them, and record their conversations without any suspicion of a crime.

This is obviously very convenient for police. But it is not the sort of thing done in a free and democratic society. We need to stop it. We need to topple the tyrants at the election.

The same old problem

Another day, another IPCA report finding unlawful use of force by the police. This time, its a police officer who saw a woman give him a thumbs-down signal while driving, chased her nearly a kilometre to her home, violently assaulted her and tore her clothing under the pretext of "arresting" her, tried to break in, and pepper-sprayed her in the face when she surrendered. The IPCA found that none of that was legal - none of it. The purported "traffic stop" in response to the gesture was completely unjustified:

In our assessment, Officer A stopped her because he was annoyed by her gesturing to him in what was no doubt a rude and disparaging way. Therefore, in our view, the stop was unlawful.

...which means there was no basis for an arrest, and so no basis for use of force, so all if that was unlawful too.

This happened three years ago. In the interim, the victim pleaded guilty to failing to stop when signalled to do so, refusing to give an officer her details, and resisting arrest. The IPCA concludes that as the stop and arrest was unlawful, the conviction is unsafe, and recommends that the police use an available legal mechanism to ask for a rehearing of the sentence, then offer no evidence. Which is a way of letting them back away gracefully, without a formal judicial finding of wrongdoing on their part. But naturally, the police are having none of it. The Blue Gang always stands by their man - whether they're a child pornographer, a rapist, an evidence-planter, or just a petty bully in uniform.

And then the police wonder why the public don't trust them. This is why. Naked abuse of power shielded by official corruption. No accountability. A commitment to being unreformable. Its enough to make you think that abolition is the way forward. Certainly, we should be stripping powers and functions from them, and giving them to other agencies, without inherently abusive coercive powers, to reduce the harm police cause. To point out the obvious, the police can't do abusive bullying traffic stops under a pretence of legality if its absolutely not their job.

Meanwhile, the police simply saying "no" to the IPCA's recommendations makes it clear that we have a problem with accountability. The most obvious solution is to let the IPCA do directly what the police refuse to do, whether it is making applications for convictions to be set aside, or bringing employment proceedings or even prosecutions against police officers. The police won't hold themselves accountable, so someone else will have to do it for them.

End this outrageous prosecution

When the IPCA report into the Jevon McSkimming saga was released, we were all outraged to learn the depths of the police's depravity and the lengths they would go to to cover for one of their own. Not only had they systematically covered for abusive creep and child sex-abuse fan McSkimming, hiding the facts from the Public Service Commission and ignoring investigation guidelines to bury and railroad an investigation into allegations against him - they had also prosecuted his victim. And worse, they're still doing it:

Police are continuing with a prosecution against the woman who accused former Deputy Commissioner Jevon McSkimming of sexual offending in relation to charges of harassing another police officer and his wife.

A damning report released last month by the Independent Police Conduct Authority found serious misconduct at the highest levels, including former Commissioner Andrew Coster, over how police responded to the allegations.

The woman was charged in May last year with causing harm by posting digital communication in relation to over 300 emails she allegedly sent to McSkimming's work email address between December 2023 and April 2024.

The charge against the woman was withdrawn in the Wellington District Court in September because McSkimming did not wish to give evidence. But the woman remains before the court on two charges of causing harm by posting a digital communication in relation to another police officer and his wife.

At this stage, this looks like nothing less than a revenge prosecution. Fundamentally, Mrs Z's "crime" is to forcefully demand the justice the police should have given her in the first place, the justice police denied her for years because they were covering up for their Special Boy. Prosecuting her for that is immoral and unacceptable, and seems calculated to punish her for daring to stand up to police and deter allegations against police officers in future. Its just another part of the McSkimming cover-up, another example of the institutional corruption in the police force, the way they put protecting their own ahead of justice and enforcing the law.

This prosecution is not in the public interest. It further undermines public trust in police and damages their social licence. It is purely an act of official revenge. It should be dropped, and McSkimming's victim compensated for by police for her mistreatment.

Nothing has changed II

The IPCA report into the (non)-investigation into Jevon McSkimming found that it was undermined by senior members of the police executive working to protect McSkimming's career prospects. Then-Commissioner Andrew Coster apparently wanted McSkimming to succeed him as Commissioner, and so wanted everything swept under the rug.

...which immediately made me think of a past IPCA report from 2021. The report found a toxic culture and pervasive culture of bullying within the police, including:

intolerance of questioning or dissent; favouritism and protectionism; marginalisation and ostracism; abuse and intimidatory conduct; sexist and racist behaviour; inappropriate office culture, and lack of empathy and caring.

[...]

"Given the reported intolerance of diversity of thought and the existence of cliques based on loyalty, it is not surprising to find that almost all interviewees complained that [appointment] processes are biased and unfair.

"More generally, we were told by many people that in particular workplaces, including Police National Headquarters, everyone knew who was going to be appointed to the majority of positions before they were ever advertised, and there was no point in applying for a position unless you had already been 'shoulder-tapped' for it.

"Senior positions are believed to go to favoured people, regardless of actual or potential skills in leading and managing people.

...which is exactly what was going on here. Coster wanted his mate McSkimming for the job, and was willing to overlook anything including allegations of sexual assault to get him there.

And what happens if you try and change this, or if you're not part of the in-group? This. The boy's club protects its own, and tries to drive out anyone who is not one of them.

The IPCA talks more in the McSkimming report about the problems of police culture, of groupthink and cliques and loyalty, the "Them and Us" mentality, and the resulting tolerance for unethical behaviour. It thinks that things have changed since 2007. it is clear from its more recent reports that they have not. The police culture is still utterly toxic. It is still clique-based and stresses internal loyalty over professionalism and adherence to the law. And that is completely unacceptable.

Nothing has changed

In 2004 the government was forced to launch the Commission of Inquiry into Police Conduct after allegations of rape and sexual assault by high-ranking police officers. The inquiry found that police systematically disbelieved victims and covered for their own. It recommended significant changes to the Independent Police Conduct authority and police integrity system, and a decade-long monitoring program to ensure the changes stuck.

Twenty years later, and we learn that once again a high-ranking police officer has been accused of sexual assault and corruption. And the IPCA found that the police's response was not just to disbelieve the victim, but to prosecute her, while systematically covering for their own in order to protect their chances of promotion. The cover-up was enabled by those at the very top of the police: then-Commissioner Andrew Coster, two Deputy Commissioners and an Assistant Commissioner, as well as by numerous underlings. It only fell apart because the perpetrator - who Coster clearly wanted to succeed him as Commissioner - had his computer searched, resulting in a sudden prosecution and conviction for knowing possession of child pornography. A bunch of senior police officers have already quit, the IPCA has recommended beginning employment proceedings against others, and former Commissioner Coster seems likely to lose his cushy retirement job as the regime's "social investment" czar. The IPCA has also recommended significant changes to the police integrity system, including independent review of police employment and prosecution decisions, and the regime seems to be taking this seriously.

All of which is good. But is it enough? Because it is clear from all of this that despite the Bazeley inquiry, nothing has changed. The police are still a deeply corrupt institution, which covers up serious criminal offending by its own, allows them to act with impunity, and even tries to promote them into senior roles. It's still a boy's club, it's still rotten, even after the past changes and a decade of monitoring. And the worry is that no matter what changes are made, the police will make the right noises, pretend to go along with it, and then go right back to their business as usual of raping and abusing and lying and covering up. Behaving exactly like the gangs they pretend to be fighting. And its hard to see how the organisation can retain any public confidence whatsoever after this.

As other people have said, when the tree is producing this many bad apples, you don't just throw them away one by one. You cut off the whole branch - or cut down the tree, tear up the roots, and start again from scratch. And maybe we need to do that with the police.

A murderous policy

When the police relaxed pursuit policy in 2023, allowing them to go back to chasing people like mad dogs regardless of the supposed offence committed or the risk to the public, they were warned that people would die as a result. Two years on, the numbers are in, and the warnings were correct:

The research, which has yet to be peer reviewed, showed while the raw crash numbers didn’t show an obvious drop, once underlying trends were factored in, the 2020 policy was linked to about 19 fewer crashes a month than would otherwise have occurred.

[...]

The result of that 2023 policy U-turn? “A large, immediate increase in crashes” of roughly 74 a month, based on modelling.

“The finding is stark,” the study concludes: “The reversal of the restrictive policy did not simply return the situation to the previous status quo; it was associated with a far greater number of crashes than had existed prior to 2020.”

There were at least 11 fatal crashes associated with the new policy. Those crashes - and the associated deaths - were completely avoidable. But its clear that the police would rather behave like mad dogs, and endanger everyone, rather than simply doing the safe and sensible thing of arresting people later. Which says something about the relative values they put on our lives and their (Cartman voice) "authority".

Why fake breath tests are a problem for police

Last Friday we learned that over a hundred police officers were being investigated for faking over 30,000 non-evidential breath tests. Subsequent stories have revleaed that the faking was done in a similar manner to the massive breath-test fraud in Victoria, and likely for similar reasons: to meet productivity targets. But none of the staff have been suspended, and the police just don't seem that concerned that a huge number of their staff have been implicated in a nationwide pattern of fraud (meaning: they were likely sharing information about how to do this), or why it may have happened.

Which is typical of the police as an institution. But it is a problem, and the reason why ought to be obvious to everyone: because none of these officers can do their jobs effectively any more. They've shown they are liars. And having lied about something for trivial reasons - to apparently meet management targets - who's to say that they won't lie for more important reasons as well, such as securing convictions?

The fact that a police officer has done this automatically impacts their credibility in court, and taints every piece of evidence they have ever given or managed or collected. They can't give evidence in court, they can't manage a chain of custody, they can't even be allowed at a crime scene, because who's to say they didn't plant something now? (its not as if it hasn't happened before, after all...) Any competent defence lawyer will be asking whether anyone involved in a case has ever faked a breath test (or been investigated by police for doing so), and using that to undermine the police's case or build a case for appeal. If the police can't see this, they are stupid, arrogant morons.

Meanwhile, RNZ has talked to a couple of employment lawyers, who are shocked by the scale of deceit, and draw the obvious conclusion that there is a problem with management and culture. But they also talk about how the police may be reluctant to fire people for this as being fired for deceit in a position of public trust would mean they would never be able to work in such a position again. But that's what should happen! We certainly shouldn't keep untrustworthy people in such positions to avoid people recognising that they are untrustworthy! But at the end of the day, the police will protect their own, and management will protect themselves. Holding people accountable will mean answering serious questions about why this happened and the role of police management and culture in encouraging it. Besides, the police have a target to increase numbers by 500 officers. Sacking a hundred would blow a huge hole in that. So its easier for them if its all just swept under the carpet. And if that means turning a blind eye to a bunch of untrustworthy, corrupt cops, that's a price they're willing to make Aotearoa pay. The question is whether we let them...

Rotten to the core

There's not one, but two police corruption stories today. In the first, the police are refusing to say how many staff they are investigating over their internet use in the wake of Jevon McSkimming's prosecution for possessing objectionable material. In the second, over a hundred officers are being investigated for faking breath-test results, which from the timing was done in an effort to meet new Ministerial targets. Which is troubling for two reasons. Firstly, because the police received millions of dollars in incentive payments on the basis of those fraudulent tests (isn't there a name for that?) And second, because police who will lie to meet a breath test target will lie about other things as well - like who committed a crime, or whether they have a reasonable basis for that search. It calls their basic organisational honesty into question.

It is clear from this that the entire police force is rotten to the core. It needs a thorough cleanout, from the top down.

Legalising lawlessness

Back in 2021, RNZ exposed the systematic police practice of coercing "voluntary" photographs from young Māori on the street, leading to a joint IPCA / Privacy Commission report exposing illegality, systematic racism, and widespread ignorance among police officers of the limits on their behaviour, and a formal compliance notice to force them to stop and delete it all (something they still haven't done). This was followed earlier this year with the Supreme Court's ruling in Tamiefuna v R, which upheld the ruling of the Court of Appeal that the police photographing people in public places is a "search" in terms of the BORA (meaning any interference with a reasonable expectation of privacy), and was both unlawful and unreasonable. The police immediately started whining about how it would be impossible for them to do their jobs if they had to actually obey the law, and so predictably the regime ahs announced that they will legalise their lawless behaviour:

Police Minister Mark Mitchell said on Thursday police had been left uncertain about taking people's photos and recording their images in public places.

"Recent court decisions have created uncertainty around police's ability to record images in public places for lawful purposes," he said.

"The proposed amendments will reaffirm the prior common law position, making it clear that police can collect and use images in public spaces, and in places where police are lawfully present, for all lawful policing purposes.

"This includes intelligence gathering and crime prevention and other policing functions and associated activities."

They weren't "uncertain". It was crystal fucking clear that they could not, unless they had a warrant. As the Court of Appeal noted, "there is a reasonable expectation that a person’s photograph will not be deliberately taken and retained for identification purposes by police without a good law enforcement reason", and that seems entirely appropriate. But the police want to be able to spy on us without any restrictions whatsoever, and database us for life, in the absence of any criminal suspicion whatsoever. And that is the attitude of a fascist surveillance state, not the police force of a democratic state which respects privacy and human rights.

Oh, also, the police will be given more powers to "temporarily close areas in response to antisocial behaviour or public safety risks" - which means a blank cheque to shut down protests. So more anti-democratic moves from the regime.

The good news is that "[l]egislation will now be drafted, and the changes will go through a legislative process in due course." Hopefully that process will take as long as possible, so it can be shitcanned by the next government. The regime's cuts to the overworked justice portflio won't help here, and I'd hope that public servants who care about human rights will ensure that it is fully and thoroughly and repeatedly reviewed for BORA compliance. After all, we wouldn't want the regime to get another embarrassing declaration of inconsistency, would we?

Custodes se ipsos non custodient

We give our police significant powers in order to (supposedly) protect the public. But these powers are meant to come with oversight to prevent abuse, either from the judiciary (when issuing warrants), or from parliament and the public (due to annual reporting on their use).

Now capitalism has given them the ability to sidestep that oversight through contracts with private surveillance companies like Auror. And there's significant evidence that police are abusing that capability, and violating their own restrictions on their use. So are the police actually checking? Of course not!

The police say they have not been looking into deliberate misuse of vehicle-spotting cameras by officers despite reports suggesting there had been some, perhaps even tracking, that broke the rules.

Police use of privately-owned automatic number plate recognition (ANPR) systems jumped almost 50 percent in the year to mid-2024, to over 500,000 times.

Over 8000 officers can access the two systems, which when they enter a number plate can return up to 60 days of footage of the vehicle caught on ANPR cameras.

Newly released internal reports showed "significant" use by staff indicating they were putting the same number plate in again and again.

"This may circumvent the platform's normal controls for the use of ANPR in a tracking context," Police's chief assurance officer Mike Webb warned a camera technology assurance committee meeting last November.

Its almost as if they're deliberately looking the other way, to allow circumvention and abuse by their own.

Its a perfect example of why we need greater controls on private surveillance, and the ability of government agencies to access it. Because the police being able to track people in real time and uncover every aspect of your personal life is a very different thing from an advertiser doing it. The latter can only try and sell you shit; the former can assault, arrest, imprison, or even kill you. The best move would be to outlaw such invasive private surveillance, but if we are not going to do that, we should absolutely forbid its use by state agencies without a warrant, a criminalise the "leaking" of data to them. As the above shows, our watchmen aren't going to watch themselves. So its time we did it for them.

Chipping away at National's gang-patch ban II

The regime passed its racist gang-patch ban a year ago, with great fanfare. and since then, the police have used it with great enthusiasm, ignoring domestic violence and retail crime in favour of attacking funerals and kicking in doors to seize banned clothing, assert their dominance, and humiliate gang-members. Except the humiliation may be on them: a district court judge has ordered a seized patch to be returned (depaywalled):

Ultimately, the judge opted to give the vest back.

“Mr Leef made it very clear to the court when he pleaded guilty that he placed such value in his patch that there is no way that it would leave his house again.”

The judge noted the Gangs Act had only recently come into force on November 21. Leef would have been aware of it, but was unlikely aware that it could result in him permanently losing his patch.

There was no information in the summary of facts to suggest any member of the public was caused fear, intimidation or disruption.

“Mr Leef clearly places considerable personal value in his patch. It signifies, for him, a sense of belonging and family that he does not find in the community.

“While Mr Leef has previous convictions, he has not committed a serious offence since the 1990s. His offending more recently has been irregular and at the minor end of the scale.”

Which makes sense. The government told us that the purpose of the gang-patch ban was to prevent intimidation in public places. That's not inconsistent with returning forfeited items where there was no intimidation in the offence and where such intimidation seems unlikely in future. And in fact a rights-consistent interpretation of the law seems to demand it.

(The police were also forced to return two other items which they had seized, but not laid charges over - because only items charged for are forfeited. Which invites the question of how often this has happened, and how many times they have used one charge to cover the theft of multiple items...)

I expect the police and government to go apeshit about this, but its the law they passed, and they have to live with it. If they don't like it, they can of course amend it to require destruction without trial, on the say-so of a police officer, but I think the courts would take a very dim view of that too. You'd think the ACT Party might have a few things to say about it as well, being supposedly the party of property rights and the rule of law...

(There's another similar case from Palmerston North, with the added spice of excessive force, but I haven't seen any news on how that one has turned out yet).

"A review"

When the government passes legislation trampling on civil liberties it loves to insert - and crow about - "safeguards" which will supposedly prevent abuse. For example, when it passed the Gangs Act 2024, which enables the government to designate a group as a "gang", banning its insignia and enabling all sorts of additional search and harassment powers and other fuckery - the select committee responded to concerns that protest groups would be designated by inserting a clause stating that civil disobedience for the purpose of political activism did not qualify. They also responded to concerns that groups would be designated forever by inserting a clause requiring the list to be regularly reviewed:

To ensure that the list is regularly reviewed, we also recommend inserting clause 30(3A) and (3B). These would require the Minister to review the Schedule before making a recommendation to amend it, and every 5 years if no amendments were made.

The government accepted these changes, with Justice Minister Paul Goldsmith saying in the bill's second reading debate:

To ensure that the list remains up to date, the police will review the entire list each time an addition or removal is considered, and every five years if no changes are made.

The clauses were discussed in the bill's committee stage, where it was taken to mean that the minister must check that every gang on the list still meets the criteria, and remove any that do not.

So how much of a safeguard is this really? Earlier this year police minister Mark Mitchell designated two additional gangs. I was curious to see whether he had complied with his legal obligation to review the entire schedule, so I asked for the review. His response:

There is no standalone document specifically titled or formatted as my review of Schedule 2. The review was undertaken as part of the broader policy development process that informed the introduction of the Gangs Act 2024 and the subsequent Gangs (Identified Gangs) Order 2024. As such, there is no discrete document in scope of your request.

So, he didn't need to do a review because he'd passed the law (including a list of gangs, 11 of which were outdated and removed by the select committee) just a few months earlier (unfortunately, that's not what the law actually says). Instead, the Minister pointed me at the police's advice and the relevant cabinet papers on the matter - which are interesting reading. The police's advice makes no mention of the need to review the schedule, and does not consider any gang other than those targeted for designation. As for the cabinet paper, it includes this:

I have reviewed the list of identified gangs in Schedule 2 as required under section 32(5) of the Act before making a recommendation to update the list.

Given the (lack of) documentary record, I leave it for readers to judge whether Mitchell was being honest with his cabinet colleagues, or fulfilled his legal obligations under the Act.

Meanwhile, this shows the contempt the government - and the public servants who support them - have for safeguards for our civil liberties. And it shows why it is a fool's bargain to trust them.

This is what the IPCA's anti-protest laws mean

Back in February, the "Independent" Police Conduct Authority issued a radical, out-of-the-blue proposal to ban protests. The core of their proposal was a requirement for protesters to notify police well in advance of any protest action, and to obey whatever conditions police subsequently set or directions they made, with failure to do so being an arrestable offence. The latter proposal has since been adopted as a Member's Bill by a National MP, so its very much the regime's agenda as well.

The IPCA's proposal was based in part on draconian Australian anti-protest laws. And there's a perfect example of what they mean in practice, with the possible blinding of a protestor by police in Sydney:

A former Greens candidate has been injured after allegedly resisting police arrest while picketing a business in Sydney’s west, with friends and family warned she may lose sight in her right eye.

The protest, which attracted between 50 and 60 people, sought to stop pedestrian access to a business that was accused by protesters of “supplying electroplating and surface coating services for a variety of applications including aerospace and defence technology” to Israel.

[...]

According to police, officers issued a move-on direction to the protesters at about 5.30am on Friday.

The force alleged the protest was “unauthorised”, as those involved had not given advanced notice nor submitted a form that protected them from being charged under anti-protest laws.

The key thing to realise here is that police may use "reasonable force" to effect an arrest. So creating an offence of "disobeying police" or "refusing to tell police your plans" is effectively a licence for police to beat people at will, an invitation to the sort of violent and brutal policing exemplified above. Or to the sort of violent and brutal policing we see in America, where police respond to protests with barrages of tear gas, rubber bullets, and baton charges, because apparently that's an appropriate response to people yelling and waving banners in the streets.

This sort of policing is profoundly incompatible with democracy. It is not the sort of policing we want to see here. And if the IPCA wants it, then they are no longer fit for purpose, and should be dissolved.

Chipping away at National's gang-patch ban

National's racist gang-patch was clearly intended to humiliate gangs and allow them to be punished for being seen in public, and police have taken on that mission with enthusiasm, attacking funerals and kicking in doors to seize banned clothing (meanwhile, they've also abandoned domestic violence and mental health callouts, in a clear preference for violent, aggressive policing over core work). But while the government loves this, the courts might not. A local story in the Manawatu Standard last week about two gang members seeking the return of their seized patches shows the judiciary is showing some reluctance, especially where police have been unnecessarily aggressive in their seizure:

Nepia Wall, a member of the Black Power, had a sweatshirt seized by armed police at his family home, one that was given to him by his brother who had died.

Mongrel Mob member Raneira Tamaki was also asking the court to return his “side patches” that had been passed down generations, including from his own deceased brother.

Judge Lance Rowe said the Gangs Act 2024 made it an offence to wear gang insignia in public, but it was unclear whether the item could be returned to an offender or their whānau if it was proven to be of sentimental value.

[..]

[Wall] was not involved in any gang activity at the time, but it prompted armed police to go to his family home to seize the item, something which the judge said was concerning.

The judge is asking the police to explain why they thought guns were necessary for a seizure from someone not involved in gang activity, and signalling that excessive force will be relevant (because searches and seizures must be reasonable, and this seems... not to be). But the real red rag to National's racists is that the judge has said they will need to consider tikanga, mana, and whanaungatanga in their decision. To which we could also add te Tiriti, since an heirloom passed down for generations is a taonga, continued ownership of which is guaranteed by article two, and which should not be seized without a significant public policy reason. These are all part of the law of Aotearoa, and are clearly relevant here.

National will be spitting over this. But while they clearly intended that all patches would be seized and destroyed in order to humiliate their victims, the actual law gives courts discretion over their ultimate disposition. And return doesn't seem contrary to the purpose of the Act, which is explicitly about prohibiting public display, not about prohibiting private ownership. Where offending is low-level, the item in question is a taonga, and police have clearly been abusive in their seizure, then return does not seem at all unwarranted - if only to encourage the police to behave better in future.

We won't see a decision until June or July, but it looks like it will be interesting, and potentially litigated further up the chain. And while a positive ruling won't unravel the gang-patch ban, it will poke a few holes in it, and absolutely infuriate the government and the police.

IPCA hides behind secrecy

On Tuesday, the "Independent" Police Conduct Authority issued an extraordinary report, proposing a complete rewrite of protest law to enable the police to restrict public protests and ban them at a whim. While packaged with several complaints in an appendix, the focus of the "thematic review" was clearly the provision of policy advice - something arguably outside the IPCA's functions. It is normal for other agencies providing policy advice to provide supporting documentation - submissions, briefings, communications, policy documents, and so on - either proactively or via the Official Information Act, so that the public can see that it is well-founded, that all relevant stakeholders have been consulted, and that the policy process has not been captured by any one group.

The problem of course is that the IPCA is exempt from the OIA. Nevertheless, I asked them to provide this information to give the reassurance we deserve in a free and democratic society that they were doing their job properly. They refused, saying

To support our work, our Act contains secrecy provisions and our proceedings and any evidence given to us are privileged. We do not collect statistics about the affiliations of our complainants or submitters and we are not able to release any of the information you request.

Those secrecy provisions however do enable the authority to disclose "such matters as in the opinion of the Authority ought to be disclosed... in order to establish grounds for the Authority’s conclusions and recommendations". The authority's refusal to do so in this case can only lead to the conclusion that they do not believe we ought (or deserve) to know the full basis for their policy advice. That they should be able to recommend significant law changes, while keeping the evidentiary basis (and supporting submissions, briefings, arguments, and testing of their conclusions) completely secret. And that is simply unacceptable in a free and democratic society.

The IPCA's exemption from the OIA has long been noted as anomalous. Its secrecy provisions exist to ensure that complaints can be heard in confidence - an interest already protected by the OIA, and which is protected in other ways for other complaints bodies otherwise subject to the Act. But as long as it stuck to its functions - hearing complaints - that didn't matter so much. Now it is giving significant policy advice, it is a different story. Complaints bodies have a case for limited secrecy around that function. But the idea that government agencies can develop policy in total secrecy is simply monstrous, and incompatible with a free and democratic society. It is precisely the problem that the OIA was enacted to solve.

Rather than rewriting protest law, I think it is time we rewrote the Independent Police Conduct Authority Act 1988. That rewrite must include a complete reassessment of IPCA secrecy, a narrowing of it to protect only the legitimate complaint functions, and the inclusion of the IPCA under the OIA - enabling us to properly scrutinise its administrative and policy work, as well as abstract statistical data on its complaints and outcomes. This would give us much-needed transparency over the IPCA, enabling us to better hold them - and through them, the police - to account.

The alternative is that the IPCA continues to be above the law and effectively unaccountable. The implications for its legitimacy and social licence - and those of the police they supposedly oversee - are left as an exercise for the reader.

Police want to ban protests

The "Independent" Police Conduct Authority issued a radical report today, a Review of the policing of public protests in New Zealand, in which they propose a complete rewrite of protest law, to restrict public protests and enable the police to ban them at a whim. Protest organisers would be forced to notify police of their intention to hold a protest (and would be liable for police overtime if reality moved faster than the police's sclerotic bureaucracy); police could impose conditions about who could do (or say) what and where; violating those conditions would be a crime; and there would be new criminal offences for protesting against "critical infrastructure" and picketing private residences (the latter something the Supreme Court has found to be legal, and which the police are particularly sore about because the target of the protest in that case was an abusive cop). The proposals are a serious and direct threat to the right to protest in Aotearoa, and are explicitly based on laws from anti-democratic regimes such as the UK and Australia.

Its a huge overstepping of their powers by the IPCA, whose functions include hearing complaints and making recommendations on "apparent misconduct or neglect of duty by a Police employee, or any Police practice, policy, or procedure", but do not include "law reform" or "giving policy advice", and perhaps in recognition of that, the recommendations are framed as recommendations that the police propose these changes (so: the IPCA laundering their views through the police. But see later...) As the New Zealand Council for Civil Liberties' Thomas Beagle puts it, "Has the IPCA got confused into believing that the PC in their name is for Public Conduct rather than Police Conduct?"

Except its worse than that. Because when you dig into how the IPCA came to do this questionably legal "thematic review", they say:

the need to undertake this review was discussed and agreed with Police from an early stage, and some components of the review have been conducted jointly with Police.

...which invites the conclusion that the police are in fact laundering their policy preferences through the IPCA, which is collaborating with them to give these anti-democratic proposals an imprimatur of "independence". So, the police are laundering through the IPCA, who are laundering through the police, but its cops all the way down. And this shoddy deceit by a supposedly "independent" oversight body makes it crystal clear which side they are really on.

So who else did the IPCA consult in this review? The Ministry of Justice and Department of Internal Affairs, and "stakeholders", including "frontline officers" and "academic and policing experts" from New Zealand and "comparable jurisdictions including the United Kingdom, Northern Ireland and some Australian states". Given their anti-democratic record, the latter are the absolute last people I would ask about protest rights, and the fact that they were consulted suggests a predetermination to suppress protest. Meanwhile, note who is absent from that list: protestors and civil society groups. They've done a big report on how protest law isn't working (for who?), while failing to consult the major "users" (for want of a better word) of that law. And its hard to escape the conclusion that this affected the outcome significantly.

How? Well, the report starts with a summary of protest law, starting with the international and domestic human rights framework, including Article 21 (right of peaceful assembly) of the ICCPR and sections 14 (freedom of expression), 16 (freedom of peaceful assembly), and 17 (freedom of association) of the New Zealand Bill of Rights Act. The latter of course are subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". And this is where it gets weird, because the IPCA - which is led by a High Court Judge and whose members are a pair of former senior public servants with experience across the justice and police portfolios - pretends not to understand the law, with repeated statements that what constitutes a "justified limitation" is unclear:

there is no general legislative definition of what reasonable limitations might look like, nor how reasonable limitations might be applied in the protest context

There is of course 35 years of jurisprudence on both of these things, including a detailed framework for the assessment of justified limitations, and a pile of caselaw around protest rights. The IPCA even refers to that caselaw later in the report, but largely to pretend that the law is "uncertain" when it is not. Largely they seem to be whining that when stuff gets to court, police decisions are overturned. Which, again, is a clear sign of bias from the IPCA.

They keep hammering this idea that the law is "imprecise", quoting the UNHRC's General Comment No. 37 on Article 21 (Right of peaceful assembly) that protest laws be

sufficiently precise to allow members of society to decide how to regulate their conduct and may not confer unfettered or sweeping discretion on those charged with their enforcement.

And this is where their failure to consult protest groups really shows. Because if you asked kiwis what we are allowed to do, we would say it is perfectly clear: we are allowed to protest peacefully (and as GC37 notes, "Mere pushing and shoving or disruption of vehicular or pedestrian movement or daily activities do not amount to “violence”"). Protest groups who trespass or block roads are not doing it because they think it is legal - to the contrary, they know it is not, and they expect arrest, and maybe prosecution. And that's one of the many tactics of protest, and All In The Game.

Instead, the people who seem to have an unclear understanding of the law here are those charged with enforcing it. But rather than educating themselves, with better training and a nationally consistent approach, they would rather limit our rights, limit our democracy, gag us, essentially for their own convenience. And it is for their own convenience, as their complaints about the overtime costs of policing protests, or having to manage traffic for a march down Riccarton Road, or their question about whether "the availability of staff and the impact of their deployment on other Police operations... is relevant to an assessment of reasonable limitations on protest activity" show.

The police are basically demanding the very "unfettered or sweeping discretion" to shut down protest the UN HRC rules out, as well as financial penalties against those who do not cooperate in their oppression. We should not let them do it. All political parties should denounce this assault on our right to protest. And those that don't should be vigorously de-elected.

How is this legal?

Leo Molloy's recent "shoplifting" smear against former MP Golriz Ghahraman has finally drawn public attention to Auror and its database. And from what's been disclosed so far, it does not look good:

The massive privately-owned retail surveillance network which recorded the shopping incident involving former MP Golriz Ghahraman is able to be searched by police even when no complaint has been made, the company co-ordinating it has confirmed.

[...]

But Auror, which hosts the surveillance network covering 90% of New Zealand retailers, has confirmed information recorded by its retail clients is available to police.

“By using Auror, retailers choose to make this information available to law enforcement and also have the option to directly report to them via the software. Retailers determine what information they enter,” a spokesman said.

This has led people to ask the obvious question: how the fuck is this legal? And its a good one. Because while the purpose of collection and general idea of tracking information on shoplifters and disclosing it to police for the purpose of prosecution seems to comply with the information privacy principles, there are clear questions around the fairness and intrusiveness of the method of collection, not to mention disclosure. Because cameras which spy on you every time you go shopping, linked to facial recognition and ANPR to ID you, all of which spy on everyone regardless of guilt or innocence seems a bit over-the-top. And while disclosure for the purposes of investigation or prosecution is legal, disclosure for any other purpose is not. And where a retailer has decided not to prosecute, then that decision undermines the entire purpose of collection and retention, and renders any subsequent storage and disclosure illegal.

The Privacy Commissioner urgently needs to investigate Auror, to ensure that they are complying with the law. And if they are not, they need to be brought into compliance or shut down.

But its not just a problem for Auror - its also a problem for police. Because using Auror's database is very clearly a "search" in terms of the BORA: people have a reasonable expectation that they won't be spied on and databased when going about their daily business, even in public places. The fact that this spying is done by a third party is irrelevant - the moment the police access it, the BORA is engaged, and they need to meet a test of reasonableness. And permitting casual searches, without any reasonable causes, clearly violates the right to be free from unreasonable search and seizure. As the article points out, the police have already had this problem with Auror's ANPR database, and been forced to impose reasonable cause requirements on searching it as a result. They will need to do the same for the retail database. The problem is how to incentivise that. There's obvious scope for a BORA class action by everyone they've unreasonably searched, but the problem is getting them to admit doing so in the first place...

Rotten to the core

Just a few months ago, Deputy Commissioner Jevon McSkimming was one of the final two candidates for the position of police commissioner. Now, he's on leave and facing multiple investigations for unspecified wrongdoing:

The second-most powerful police officer in the country is on leave pending separate investigations, the Herald can reveal.

Deputy Commissioner Jevon McSkimming is being investigated by the Independent Police Conduct Authority, and the New Zealand Police.

The nature of the allegations against McSkimming cannot be reported.

And he's not the only one. Stuff reported back in October that a (now-former) senior police officer is being prosecuted for grooming a 12 year old girl. How "senior" he is is unclear, but it all adds to the impression that the police are rotten to the core, and that their senior leadership, the ones who are meant to set standards for everyone else, are criminals themselves (and particularly grotty ones at that). And it invites the question of how they possibly expect to have the trust and confidence of the public when this is the case.