First the police denied it was a problem. Then they minimised the problem. Now they want the law changed so they can do it all the time after it was exposed that they were doing it all the time. Aaron Smale looks at the shifting excuses of the police on conducting illegal surveillance of Maori children.
Mangere, circa 1973. Cops are roughing up a 12-year-old Māori boy on the side of the street. A car pulls up and stops. The driver, a young Māori woman, sits, watching. The car door is emblazoned with the signage of the Māori Affairs Department. Eventually the young woman has seen enough.
Aroha Henare still lives in Māngere. But that one incident of police harassing a Māori child was a common occurrence then and is hasn’t gone away in the last 50 years.
“The police were the problem. Oh, they were aggressive. They already went out on the road with a target. And they were probably briefed to do that. You know, en masse. I used to drive around in a Māori Affairs car and hassled the police myself. I'd see it. A boy being manhandled with a bicycle. And I stopped. I sat there and the Maori Affairs car had a label or government label on the door. The policeman came. He says, ‘What are you doing?' I said, 'I'm watching you.’”
She wasn’t the only one. In Māngere there were informal community watch groups, but they weren’t watching out for burglars. They were watching out for police. Whānau saw the police as a threat to their children.
“They would have knocked him around. They were man-handling him actually, by the collar, shaking him down. He was only about 12. The police didn't know how to handle bureaucrats, they know how to handle private citizens on the road, but not bureaucrats. So that was really quite powerful for another bureaucracy to get in the way.”
Fast forward 50 years and the police are still harassing Māori youth. And they still don’t like another bureaucracy getting in the way or telling them to back off.
The issue of police harassing Māori children blew up in public view again in 2020 after reporting by RNZ found incidents of Māori kids being photographed by police in Wairarapa.
Police initially denied it was a major problem, saying the Masterton incidents were isolated cases and it wasn’t racial profiling. That narrative fell apart when more cases were reported around the country and most of them were Māori children.
Eventually the issue was only pushed out of the headlines when an inquiry was announced by the Independent Police Conduct Authority (IPCA) and Privacy Commissioner.
The police minister at the time, Poto Williams, said she expected police to follow the law. "I have an absolute requirement of the police to be conducting these matters in a way that is absolutely consistent with the legislation.”
But her successor Chris Hipkins had a more flexible view of the law when the joint inquiry came out with a report this month, landing the story back in the headlines. The report was damning, saying police had taken and stored photographs in breach of not only domestic law around privacy and the rights of children, but they were also flouting international law.
The report found police on the frontline were woefully ignorant of the limits of their powers, but the storage of thousands of photos in a national database without legal justification showed there was something more than ignorance going on.
The IPCA and Privacy Commission Report found: “a widespread belief amongst officers that there was no difference between photographing adults or youths for intelligence-gathering or investigative purposes, with some officers telling us they did not believe that youth are afforded any extra rights or protection in these circumstances. This is clearly incorrect.
"Children and young people have special protections in the criminal justice system, set out in both the United Nations Convention on the Rights of the Child (UNCROC) and the Oranga Tamariki Act. Those protections recognise that the vulnerability of youth entitles them to special protection during any investigation into possible offending and prioritise the interests of youth to reduce the potential for offending and the impacts of a criminal record on their life outcomes."
The report also found that the police systems were basically out of control and children were being photographed who weren't part of any criminal investigation.
"Officers are routinely taking photographs when it is not lawful for them to do so," the report said.
"The lack of understanding of any boundaries on their rights as Police to photograph members of the public is particularly concerning. We found that Police do not have a policy covering the use of Police-issued mobile devices when collecting photographs, nor a comprehensive process for audit and deletion of those photographs. As a result, photographs were routinely indefinitely retained on officers' mobile devices, with the numbers of photos stored on an officer's device often being in the thousands. In addition to officer's mobile devices, there are multiple systems and locations where officers can store photographs.
"Officers interviewed described routinely moving or copying photographs from their mobile devices to one or more of the available systems and locations, with little guidance about where and how photographs can be stored, or how long Police may retain that information."
It wasn’t only that the police were sloppy either. There was a strong element of coercion – a child was threatened with arrest if he didn’t comply with having his photo taken.
The report found the data provided by the police was limited by the fact it couldn’t be audited. But what the report did find starkly contradicted what the police had been telling the public - the cases in the Wairarapa were not isolated and there was a disproportionate number of photos of Māori children in the police database.
- There were 88,553 intelligence notes entered by officers into the National Intelligence Application using the OnDuty app since January 2018.
- Of these, 49,816 intelligence notes had a photograph attached. 6513 of the entries (12 percent) that had photographs were linked to 10,851 individuals aged under 18 years.
- 53 percent of those 10,851 individuals aged under 18 had a recorded ethnicity of Māori. Ten percent were Pasifika.
The report pointed out that “only a very small percentage of photographs Police take of individuals in public places actually end up in the OnDuty database.” The fact that the number of children involved outnumbered the related photos suggest that photos were often being taken of more than one child at once.
When the report came out the police suddenly changed their position again, attacking the findings and recommendations of the report. Both the Police Commissioner and the Police Association changed from a defensive stance to attack, saying they couldn’t do their jobs and the law needed to be changed to accommodate something they’d originally played down.
Police Association president Chris Cahill went on Morning Report to complain, throwing out issues that were unrelated to the central issue the report had investigated – the illegal taking and storing of photographs of children.
Cahill only once mentioned the word children, but was keen to talk about gangs: “Police do need to tidy up what they're storing, how they're storing it and whether they should be keeping it. But that doesn't mean you can't take photographs for intelligence purposes. Are you saying that it's not appropriate to photograph groups of gang members gathering?”
Cahill brought gangs into a conversation about photographing children, who have specific legal protections. The report from the IPCA/Privacy Commission didn’t say police can’t take photographs for intelligence purposes. It did say that police had breached the law in the way they were taking and storing photographs of children.
Espiner pulled Cahill up on his interpretation, so Cahill had another go on the gang angle.
Cahill: “It doesn't say you can do it for intelligence purposes, it has to be linked to an actual investigation, actual crime. And that's not the reality of how police have to operate. They have to get ahead of that crime with intelligence. So for gang members of the obvious one, you need to know who gang members were largely.”
“Getting ahead of crime” was Cahill’s justification for ignoring this basic principle. Being a member of a gang is not actually a crime, but again, he brought gangs into a discussion about the police breaking the law in taking and storing photographs of children, predominantly Māori children. The report found police were in the wrong, but Cahill says they are in the right.
He continued in this vein: “Well, when they're out at night, late at night around shopping centres and suspicious circumstances, Māori are overrepresented in that group. Because unfortunately, that is the reality for policing. When you've got a group of youths that are hanging around shopping centres that are ram-raided an hour later, you're going to be suspicious that they're up to no good. We do need to understand whether that is actually fair and equitable or whether we are jumping to conclusions far too much. But that doesn't mean you shouldn't be able to take photographs in general. This report goes well beyond just saying police have photographs on the street at night. It's about adults. It's about people that have actually committed crime. So it's much wider than that concern.”
He didn’t explain when exactly and why the circumstances become suspicious – is it after a ram-raid or is it just because they're brown kids hanging out at a shopping mall? Are they still suspects if they aren’t any ram raids that week? Are their photos stored on the off-chance that there might be a ram-raid one year from now? Two years from now?
The IPCA/Privacy Commission report found there were no coherent systems in place for the handling of photos in a lawful manner or in a way that showed any consistency.
The report stated that: “Police policy should provide that photographs of potential suspects for investigative purposes may be taken only if there is a reasonable possibility, based on more than mere conjecture, that the suspect could be relevant to a specific investigation that is currently underway.”
So the IPCA and Privacy Commissioner were not saying police could not take photos, they were saying that the photos should relate to specific investigations of specific crimes.
Again, Cahill: “I think stopping children in the street and taking the photographs is not appropriate. But when you've caught a young child doing a burglary, taking the photograph, so that you know who they are in the future. It makes perfect sense. And I don't believe that shouldn't be allowed. And look, the big one for us, though, is the fingerprints. Voluntary fingerprints are a game changer in solving crime and preventing crime.”
The legal framework the IPCA and Privacy Commissioner were considering gives protection to children because they are children and are vulnerable to coercion by adults, particularly adults in authority.
When Espiner pointed out to Cahill the photographs that were taken and stored were disproportionately of Māori, Cahill replied that 40 percent of the prison population were Maori. It was not clear if by that he was suggesting half these children would end up jail anyway? However his figure is wrong. It’s not 40 percent. Over 50 percent of the male prison population is Maori, for women it’s higher. Those figures are well known and are the subject of much debate because they are consistently disproportionate.
A report from Corrections in 2007, that was at least partially based on police data, found the whole criminal justice system was racially biased at every stage and Māori were being picked up by police younger. The report was comparing data for the same types of crimes.
The report stated in its conclusion: “Analysis of data from apprehension through prosecution to conviction and finally sentencing confirms that Māori are more likely to be apprehended and more severely punished than non-Māori. Much of this difference is explicable for reasons that relate to disadvantage rather than ethnicity – but at key stages there is evidence of a degree of over-representation that relates to ethnicity.”
“Analysis of apprehensions statistics and consideration of the processes leading to apprehension and arrest suggests that apprehension statistics do not directly reflect actual offending behaviour of Māori in the community. Instead there is evidence of a higher probability of Māori offenders being subject to criminal apprehension, and at a younger age.”
So a wide ranging report in the criminal justice system 15 years ago that included policing found there was evidence of racial bias in policing and the IPCA/Privacy Commission implicitly found the same.
“I'm not for a minute saying everything police are doing now is right,” Cahill said.
But he repeatedly said police were justified in acting unlawfully.
“What I'm saying is this report goes too far and breaks that balance.”
What “balance” Cahill is referring to is unclear. The evidence shows policing of Māori is unbalanced, or to use another word, biased. Or some would use a stronger word, racist.
Police Minister Chris Hipkins certainly seemed confused when he spoke to the Police Association. He wasn’t as unequivocal as his predecessor when it came to police abiding by the law. Instead he appeared to side with the police who didn’t like the findings and wanted the law changed.
Both Cahill and Hipkins' comments blurred the distinction between legitimate investigations into specific crimes by specific suspects, youth or otherwise, and just gathering photographs and fingerprints of thousands of Māori children on the off-chance that one of them might turn out to be a criminal down the track.
Hipkins would not be interviewed for this story, so his reported comments to the Police Association have been compared to the findings and recommendations of the report.
Hipkins said of the report's recommendations: “I think it will certainly slow down the identification of an increasing number of youth offenders.”
But the children being photographed were not accused of a crime. The law says authorities don’t get to photograph thousands of kids who are innocent in order to catch a few that might be up to no good.
Hipkins said much of this data was given voluntarily. “In many cases, in fact, they are consenting and their parents are consenting. And so you know, the issue here is, what real harm has been caused by this?”
It wasn't clear what contact Hipkins or his advisers had had with parents who have taken their children to be voluntarily photographed and fingerprinted by police even though they haven’t committed a crime. Children approached by police in uniform cannot be said to be giving consent.
In media reports children and their parents talked of the stress and humiliation of being photographed without understanding why.
Hipkins also ignored the fact the law – including international law that New Zealand has signed up to – is designed to protect children from coercion where there is an imbalance of power. Which there clearly is between a police officer in a uniform and a child.
“I understand the privacy principles in question here. But actually, there's a countervailing interest as well,” he said.
"One way or the other, I think change is likely to be required in that area so I'm just waiting to get the policy advice back on that, but I do agree that voluntary finger-printing, for example, particularly where parental consent is - in fact some parents are encouraging it - ruling that out I think would be short-sighted."
The suggestion of changing the law to make it easier for police to do what they have been doing illegally will run into some problems. The major one is, how to get the UN to change the Convention on the Rights of the Child that New Zealand is a signatory to and which the IPCA/Privacy Commission’s report refers to?
Article 16 of the Convention states: “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation; The child has the right to the protection of the law against such interference or attacks.”
Hipkins' comments essentially aligned himself with the police position that these Māori children might commit crimes so they should be under surveillance.
This kicked off a predictable backlash and Hipkins went to ground. Despite requests from Newsroom for an interview, he declined. A spokesman gave a one line response saying the minister would be seeking advice from police, the same police found to have breached the law in the first place and are now lobbying for a change in the law to allow them to continue.
Auckland University criminologist Dr Juan Tauri is keen to take Hipkins up on his idea of children being photographed voluntarily by police, but says it should be applied equitably – Tauri suggests that all children should be required to turn up at their local police station to have their photograph taken for police intelligence files.
“What we should do is just have a law that instructs all 12-year-olds once they turn 12 they're going to wander down to the local police station to be processed. Everyone. That will take bias out of the equation. Now, of course, to most New Zealanders that's a ridiculous proposition. And no, we're not advocating for it.
"But the reality is if you make the law like that, then a whole bunch of wealthy Pakeha realise their kids might get done, then you will find there'll be a massive backlash. It's a ridiculous proposition. But if everyone gets processed then the cops have all the intel they want. Then the shit would hit the fan and Mike Hosking would be on the f***ing radio screaming.”
Tauri was pleasantly surprised by the report, suggesting that if the Privacy Commissioner wasn’t involved it might have been more bland in its findings. But he was not impressed by the response from Hipkins that suggested he was going to reward the police for breaking the law by changing the law.
“They'll actually end up getting rewarded with the powers that they've actually breached. What's the comeback? A couple of weeks of embarrassing headlines in the newspaper, which I don't undervalue, and then that's it? They rarely ever get held to account.
“When they breach and exceed their powers their first response is, ‘Oh, we should have those powers anyway.’ This is serious. What does this mean for our rights, our rights to privacy, our young people just simply being able to walk around while brown.
“They're taking away the assumption of innocence, the right to freedom of movement, especially the rights of a young people because they don't have the legal ability to give consent, all those kinds of things.”
“They should not have the power to stop us and go, ‘where are you going? what's your name? I'll take your photo’. No, f**k off.
“Am I going to get arrested now for saying no? Are they going to legislate to give police that power?”
Tauri believes the top brass in police knew this was happening and knew it was wrong, which is why they’re getting so defensive after being caught out.
“Ninety percent of us are probably ignorant of their rights. Which is why they were picking on young rangatahi, bullying them and stuff like that. I don't believe that the police didn't know.”
What Tauri found particularly stunning was how quickly Hipkins capitulated to police demands.
“Cahill comes out with that shit and next minute, Hipkins is saying the same thing. They don't need that power just because they want the power. They say it's impeding investigations. No it's not because you're stopping and photographing young people who haven't committed any offence. It's not impeding you from doing your job because you shouldn't even be f**king with these kids.”
Tauri says he saw the same thing from the police in the 2000s when he was working for Te Puni Kokiri and received complaints from staff in South Auckland about police harassing their kids.
“There are precedents for this bullshit. The cops in Counties Manukau tried this crap back in the mid 2000s when I was at TPK. They were stopping brown kids going to and from school and everything to check them for truanting. And even if they weren't, they were processing them. They had like a mobile van and they were processing them. Some of the parents worked at the TPK office and they complained and it came down to me. So I had TPK's lawyers do a legal briefing and found breaches of the CYP Act everywhere and it got stopped.”
Even members of the police were noticing an increasing trend of bulk gathering of information for no specific purpose around this time.
Chris Graveson was the head of youth aid in the police when he retired in 2012 and says it became almost a requirement to gather increasing amounts of data, which he was uncomfortable with.
“It became almost like a key performance indicator that you had to get so many voluntary finger prints. Once you start introducing numbers, the quality of the work you do diminishes.”
“And I thought this is just bad. But that's what they did.”
Graveson believes the argument has been muddied by not distinguishing between legitimate retention of information for specific criminal investigations of individual suspects and simply gathering photographs and other information in bulk because of some unspecified usefulness that is labeled intelligence.
“I think issues of retention of information for serious child and youth offenders - the burglars and the ones taking the cars and all that - I think that certainly needs to be improved so police can lawfully retain that information.
“But what they're actually advocating for at the present time just doesn't withstand scrutiny.”
It has already failed scrutiny in the courts. Graveson points to a case in 2008 where a decision in a Youth Court ruled voluntary fingerprints and photographs were inadmissible as evidence. The taking of these fingerprints and photos from a 13-year-old supposedly voluntarily was compliant with the police policy at that time, but legally the police didn’t have any solid grounds for appeal because the policy was unlawful.
“He (the 13-year-old) was what I would have considered to be a child at very high risk of offending, and this was proven to be the case. It was my view at the time and confirmed by legal section that police had no grounds for appeal. The judgment did not surprise the experienced Youth Aid supervisors.”
Graveson was alarmed by the numbers of photographs the IPCA/Privacy Commission report found that police had stored, particularly as those on the database were only a small percentage of the photos taken. He wonders what happens to the rest.
“If they are taking photos like this and retaining them I agree with the IPCA that it must be consistent with the Policing Act. I can understand the odd photo may be needed for a short time, for example, stopping a suspect, but taking photos to keep on file cannot be justified."
Children's Commissioner Judge Frances Eivers said the IPCA/Privacy Commission's report needed to be taken seriously and the law should not be rewritten to weaken protections for children.
"I was relieved and reassured in January when the New Zealand Police put in place clear restrictions on how and when young people are photographed. There is no question in my mind that the practice prior to that was illegal under both New Zealand and international law. I would be extremely concerned if there was now any move to now back away from our obligations or to rewrite the law."
"The IPCA and the Deputy Privacy Commissioner have a depth of experience and expertise that cannot and should not be dismissed out of hand. Every one of us should be outraged that this had been happening at all. Ask yourself how you would feel if this had been your child or your nephew randomly photographed walking down the street?"
"We can only hope cooler heads will prevail, but for now, my team and I will be keeping a close eye on what happens in this space."
Surveillance and colonisation
The police photographing of Maori children en masse continues a long history of police surveillance of Maori communities as a means of state control and containment. It also points to emerging trends of bulk data gathering and digital surveillance that falls heavily of minority communities globally. Colonial states have always used surveillance to control indigenous populations and prevent them from challenging the actions of the state.
Dr Tahu Kukutai of Waikato University says colonisation is deeply entwined with surveillance and capitalism.
“There's a long legacy of Maori being surveilled by the police for nefarious purposes, not just the police, it's the state. The police are the pointy end of the state. It actually sits within a broader global context of surveillance, capitalism, and data colonialism. Big tech basically exploits data for large scale societal behavioural modification. It has massive impacts not only individuals, but also on groups. Governments have been largely not wanted to, or not been able to really disrupt that business model, which is all around surveillance capitalism. Capitalism is at the heart of colonialism. It's about extraction and domination.”
Kukutai says the response from Hipkins is at odds with the way the New Zealand government likes to portray itself overseas.
“The New Zealand government has grand ambitions to be a world leader in the trusted and ethical use of data. They've said that in a number of ways, in a number of forums internationally and domestically. New Zealand fancies itself as wanting to be a world leader in this space.
“But then you get the Police Minister and the police association responding to a very comprehensive, very considered report that was produced by the Office of the Privacy Commissioner and IPCA, saying, ‘well, actually, that's wrong and that's going to prevent us from doing our work.’
“The whole move is meant to be towards more ethical, transparent, accountable use of technologies, and Hipkins is basically moving in the opposite direction. And this disproportionately impacts a population that has the least trust, and for good reason.”
Those reasons are intergenerational and have both deep roots in history but run right up to the present. Māori Historian Dr Danny Keenan says he found it ‘disheartening’ the prospect of police powers being extended to permit the unrestrained photographing of Māori children.
Dr Keenan has written books on New Zealand’s Land Wars, the Urewera ‘terrorism’ raids and Te Whiti O Rongomai’s resistance against Crown encroachment and invasion at Parihaka. He says that for generations the state has used coercive force against Māori that included harassment and violence against children.
“During the land wars, Imperial and settler armies constantly attacked pā and papa kāinga without restraint, exacting a terrible toll on our communities.”
“More recently, the police ‘terrorism’ attack on Rūatoki included children being taken off a bus by armed police, and locked up for hours.”
“Unfortunately, our history reveals a deep-seated unwillingness by the police to refrain from coercion aimed at our most vulnerable. In our case, it’s our communities, our families and, not least, our children.”
The Crown also has a long history of changing the law, testing its limits or simply ignoring it to suit its purposes when dealing with Maori. The Suppression of Rebellion Act criminalised Maori for defending their property and their right to enjoy it. The Tuhoe raids were premised on police using new terrorism legislation but the police were found by the IPCA to have acted unlawfully in several respects. Children were taken off a school bus, had guns pointed at them and were photographed.
Pauline Reweti is a long-time resident of Otara and also a member of the Maori Women’s Welfare League that was set up to respond to some of the challenges facing Maori who moved to the cities. She says harassment of Māori and Pasifika children by police is so common as to be almost banal.
“One of the things that the cops do is they pick up the young people if they are just walking down the street. So back in the day in the 70s I remember some friends they used to be harassed by police. So what they did was they learned at Hillary College that if they walked late at night, make sure you've got a Pakeha friend walking with you. Because if you’ve got one of them, you won't get harassed. But the cops still do that today. They harass people.”
“They've been doing those things to kids for a long time. They've been doing it to families.”
For the Pākeha public this kind of ongoing police harassment of Māori children is practically invisible and not a problem. But for Māori whānau, whether in poor neighbourhoods or living in up-market middle class suburbs, it is commonplace to have stories of unwelcome and unjustified attention from the police.
But Māori kids soon wise up to the fact that the reason they are being stopped is because they are brown, which builds an inherent distrust and hostility. For many this hostility is learned from their parents and grandparents who went through the state welfare system. In evidence to the Royal Commission survivors will mention, almost as an aside, that police were putting them in welfare institutions or taking them back when they ran away to escape sexual predators. This has created a feedback loop that is amplified in each generation.
Aroha Henare says the police harassment of Māori kids she regularly witnessed in the 1970s is no different to what the police are doing now.
“I think that it’s very sinister. I think it needs to be stepped on. And the Prime Minister is doing nothing about it.”
