The Policing (Cost Recovery) Amendment Bill raises an interesting public law question about the use of “skeleton bills” that empower the Executive to make substantial policy changes through delegated legislation – thus escaping comprehensive public or Parliamentary scrutiny.

The Bill was opposed not only by all of the organisations that made a submission to Parliament’s Law and Order Committee but also by other government departments.

The select committee recently tabled its report on the Bill in Parliament. It appeared to have made little substantive changes.

What does the Bill propose?

In this case, the Bill contains proposals for the Minister of Police to be empowered to recommend regulations enabling the cost recovery of a “demand service”. A demand service is proposed to be one that:

• constitutes policing;
• is provided only on the request of an individual or organisation; and
• is provided to the individual or organisation requesting it and is of direct benefit to that individual or organisation (even though provision of the service may also be of indirect benefit to the public as a whole).

It specifically excludes the response of the Police to calls for service relating to potential offending, the conduct of criminal investigations, and the prosecution of criminal offences (Clause 4, new s 79B(2)).

The Minister’s power is tempered only by a requirement for the Minister to consult and to be satisfied that any fee or charge is consistent with the following criteria:

Justifiability

The fee or charge recovers no more than the actual and reasonable costs (including both direct and indirect costs) of the service to which the fee or charge relates;

Equity

The fee or charge for a particular service, or a particular class of services, should generally – and to the extent practicable – be obtained from the users of the service at a level that matches their use of the service.

Efficiency

Costs should generally be allocated and recovered in order to ensure that maximum benefits are delivered at minimum cost.

Transparency

The manner in which costs relate to the nature and duration of the service should be clear (Clause 4, new s 79C).

Despite this, the Bill specifically includes police vetting services as a demand service (Clause 4, new s 79B(3)).

Is there support for these proposals?

In short, little support. The reasons for this are significant and varied; for example:

• concern was expressed that introducing a charge for police vetting services is inconsistent with the Government’s vulnerable children policy reforms and will actually discourage organisations from proactively seeking a police vet where it is not already a legal requirement – ie, kids are likely to be more at risk;
• transferring rather than saving costs – the policy was seen as simply transferring costs from Police to charitable organisations and other public services or workers (such as teachers) due to a Vote Police Budget shortfall of around $90 million over the past few years – ie, the Government was not investing to keep up with demand;
• challenge to the savings made – there is no evidence of real savings and the figures presented by the Police were inconsistent with recent figures provided by the New Zealand Teachers Council and the Ministry of Education – this includes relatively recent changes to technology, which have had cost savings through a more automated service;
• concern about the privatisation of a public service; and
• privacy rights are impinged – charging for personal information held by a government department would be an exception to the requirements for government departments under the Privacy Act 1993.

All of the opposition parties on the select committee have written minority reports opposing the Bill based on the arguments raised in submissions and the lack of transparency from Government officials about either other services that may become subject to Police vetting in future or any proposed criteria that will be used by the Commissioner of Police when granting an exemption.

What does the future hold?

One legal concern identified by submitters is that by explicitly stating in the Bill that police vetting is a demand service that may be subject to a cost recovery charge significantly broadens the nature of the cost-recovery regime and the corresponding scope of the Minister’s regulation-making powers.

In support of this contention, many submitters pointed out that the Police vetting service falls within three of the key functions for Police listed in s 9 of the Policing Act 2008; namely, maintaining public safety, crime prevention, and community support and reassurance. So if Police vetting is deemed to have “a direct benefit to a particular person or organisation” even though it meets three of the police’s key statutory functions, then what other services will fall within scope?

The original policy proposal suggested that cost recovery charges also apply to Police presence at commercial events (like concerts or rugby games) and additional border control services offered at airports. Cost recovery for these specific services was dropped following the last consultation round. However, as a skeleton Bill with a general empowerment clause, it would remain open for a future Minister to put any of these services, or other services, on the table for cost recovery in future if this became law.

The principled debate for the cost recovery regime is happening now. There will be limited opportunity through future regulations. It is up to our MPs to continue challenging those assumptions about the need for such a broad power, the unintended consequences, and whether this is really what the public wants.

Eva Hartshorn-Sanders is a public lawyer and the national women’s officer at the Post Primary Teachers Association. She is currently sitting at the bargaining table with the PPTA team negotiating the new collective agreement for secondary school teachers, sits as an advisory board member on the State Sector Retirement Savings Scheme Advisory Board, is a Board member of the New Horizons for Women Trust, and is the Justice and Law Reform Convenor for the National Council of Women. Prior to PPTA, Eva worked in private practice, the House of Lords in the United Kingdom Parliament for the Leader of the Opposition, and the New Zealand government.