Land Transport Amendment Bill

I thank members for the strong interest in this debate at this time of night. It seems that some of the members involved in this debate, though, have no clue in the wide world how the current licensing system works for taxi and bus drivers. If, under the legislation we pass this evening, a bus or taxi driver is approved to apply again, that does not make that particular applicant automatically a driver. The first thing that any bus or taxi driver, who has what is called a P endorsement—that addition to his or her licence—has to pass is what is called a fit and proper person test. The Director of Land Transport is the person who is responsible for ensuring that the people entering the industry are rightfully in the industry.

There are people who have a criminal history from a previous time, and that is what this debate has been about. It has been about how Parliament, in the best efforts we can make, can try to tidy up the industry for the future. As part of a much larger piece of legislation, Parliament and the select committee inadvertently allowed a problem to go forward. When that problem was first identified to me late last year, I simply said: “Hang on, there is a mess here; how do we fix it?”. I got officials in, the Minister of Transport and I both asked for a report on the issue, and in the middle of December we got a report that said, yes, there was definitely an issue.

The reason that it was raised with me was that people were starting to get letters from Land Transport New Zealand saying they would need to take some legal advice because they were among the people affected by that legislation. Those people were all sexual offenders, but as we have since heard, in the media and elsewhere and in this House, some of those sexual offenders had no victim in that the partner in the sexual activity had been, usually, a girlfriend who was slightly younger, and below the age of 16 years. In some cases, that couple, 40 years later, are happily married, and have been in the bus industry or taxi industry for 30 or 40 years, and in some cases they are the owner and the wife of the owner, or the joint owners, of a bus or taxi company.

💬 Dr Wayne Mapp: Yes, we support them. It’s not a problem.

The Opposition member Dr Wayne Mapp says, yes, National supports them—no problem. But I tell Dr Mapp that the problem is that this is about justice. It is not about some arcane sort of numbers thing; it is about justice for individuals, and about having an industry that is safe for the customers of that industry. [Interruption] I say to members, if they are prepared to listen, that many members rang me after this issue got publicity, and when I got officials in late in December—one of the officials here will be able to tell me the date, but I think it was around the 20th or 21st of December—we looked at ways of trying to fix it. I suggested all sorts of ways to try to fix the issue for those considered worthy of remaining in the taxi or bus industries, and we found that, in the words of one of the officials, the legislation passed by Parliament last year was more watertight than a snapper. The end result was that the only way to fix it was by legislation. Having got that advice, I immediately wrote to the Prime Minister to say we had a problem and would need to fix it. The Minister of the day who put that legislation before the House, the select committee, and Parliament did not for a moment, I think, believe we would be in the position we are now in. What has happened—

💬 David Bennett: Oh, that’s not so.

No, I can assure the member that members of the select committee whom I talked to over the January period said to me that this was unexpected.

We do not have a situation where whatever we do in the House tonight automatically sees those people become taxi or bus drivers; once they have applied to the Director of Land Transport they have to go through a process, and the very first consideration is the safety of the public. Nobody gets his or her P endorsement without that being the first consideration.

Whether the penalty was a fine, a prison sentence, time in borstal, or licence suspension because the under-age sex had occurred in the back of a car is a factor that seems to have been missed out of this argument. The National Party, apparently, supports an incompetent axe murderer who currently is in the industry, but who had a massive prison sentence for grievous bodily harm, attempted murder, or something else, remaining in the industry without censure, but says that a young man who, when he was aged 17 and his girlfriend was 15½, had a bit of a rush of blood to the head, got caught having under-age sex, and was penalised, should not be in the industry. A National member brought one case to me, asking for help. That particular person had had 1 month in prison. National members are saying that a failed axe murderer who is currently in the industry should be allowed to carry on, but a person who, with his consenting girlfriend, had under-age sex and wound up being convicted and sentenced to 1 month in prison should not be allowed to be in the industry.

That is illogical nonsense. That is precisely why I have put up a Supplementary Order Paper to sort this thing out. I hope members will agree to that Supplementary Order Paper, and I hope they will also consider Mr Anderton’s Supplementary Order Paper positively. It is important to look at what those Supplementary Order Papers do. The future application is important, because why should we allow certain people in an industry now, and say we will have a different standard for such people in the future? If we go ahead with the legislation as it currently sits, someone in the industry right now who had a significant prison term, but who is approved to drive because he or she has proven in his or her subsequent life to be a fit person, will be allowed to continue in the industry, but in the future a person with a prison sentence, no matter how small, will not be allowed into the industry, no matter what the crime was.

That is the position of the National Party. It is not logical in any way, shape, or form. I ask the National Party, especially the members who have brought cases to me—some of whom will not know what penalty was incurred by the person they have asked me to intervene on behalf of—to consider seriously what they are doing. They should put their party politics to one side and look at justice.

Mr Chairperson—

💬 Hon Clayton Cosgrove: This will be below the belt!

No, it will not be, really. But, since the member said that, I would like to mention that I would rather be out building a jail on time and on budget. However, we will get away from that. It was a pleasure to debate the bill with my colleagues in the Transport and Industrial Relations Committee. It was good fun, and maybe the issue should have been left there for us to sort out. It was plain to me that the select committee was trying to get a good result for the drivers of the vehicles and for the travelling public who are in their care.

In speaking to clause 4 of the bill, I am happy to say that the select committee was generally agreed on the provisions of that clause. It was hard to get a final cut-off point for the reinstatement of people who have lost their P endorsement. The select committee was keen to get a good result. Clause 4 has to give the existing people who lost their P endorsement the understanding that they are being dealt with in a fair way. The select committee agreed that those people can reapply for their licences in certain circumstances. We all agreed with that.

I will quickly mention a person in my area—and everybody has a case like this—who had an indiscretion with a girl a few months younger than himself. He was 16 and she was 15. It was a minor offence 38 years ago. He has been driving taxis, and now those same people have three children. Some people, if they have not served time in jail, should have a chance to continue to serve the public—as some have done blamelessly for years.

Just to speak generally for a moment, the difference between National and Labour on what has been put forward is that National would like to have an earlier cut-off point than Labour’s. National says that after any jail sentence, one is history. The bill allows anybody with a 12-month jail sentence or less to reapply for his or her licence. I think that is too lenient. I think we have to be tough, but we also have to be fair.

For the future, National says that new licence holders, as from 16 January, should be treated firmly. We say applicants with any convictions as listed on Supplementary Order Paper 17 in the name of David Bennett need not bother to apply for a licence. They are history; they will not get a licence. We need to protect the public. Our view is quite simple: if one does the time one does not get a licence. That is not a new thing in law. For example, if one has a jail sentence for dealing in drugs, one does not go overseas. That is very similar to this situation. Conviction and going to jail for drug offences set the rules on a person’s future travel. National says that doing the crime and doing the time should set the rules for driving a public vehicle. Someone like that should not drive a public vehicle, full stop.

National seeks to change this clause to make sure that if future licence applicants have done jail time, they will not drive public vehicles.

I want to take a call and speak to the Supplementary Order Paper in the name of the Hon Harry Duynhoven. United Future is delighted that the Minister has brought this Supplementary Order Paper to the House, and also congratulates the Minister on circulating with the Supplementary Order Paper the actual details of individuals who would be affected. The Supplementary Order Paper, of course, changes the bill as reported back by the Transport and Industrial Relations Committee to allow those who have committed offences under section 134 or 135 of the Crimes Act 1961—what we call the carnal knowledge sections—and who did go to jail, but who were in jail for less than 12 months, to reapply to have their P endorsement reinstated.

I want to refer immediately to the table of people—we do not have their names—who are on that list. The first one is described as individual A. Individual A was convicted in 1964 at the age of 24 years and went to jail for 1 month. Now, I am one of the people in Parliament, like Bob Clarkson, who was alive and well in 1964. Indeed, 1964 was the year that I became a father for the first time. I can tell members that in those days Truth used to write up carnal knowledge convictions in lurid detail. The whole country used to queue up at the local dairy to read about them. It was quite a big deal in those days.

So here we are now talking about a person who is 65 years of age. Members should think about this. He was 24 in 1964; we are now in 2006, so he is at least 65 years of age. This person who has led a blameless life for the last 41 years and who has a P endorsement has had his licence removed. I agree with Minister Harry Duynhoven when he says that that is a completely unjust and unfair outcome. I do not want to go into the details of that, because I think that if Tau Henare were really honest about this he would probably say: “There but for the grace of God go I.”, and I think we should get really real about that.

Let me take individual H on the same list. Individual H went to jail for 3 months in 1983. He was aged 40. Therefore he is now aged 62. He has also just lost his livelihood. Now let me ask the Committee this—I know that it is late at night, but really some of the so-called humour going across this Chamber is quite disappointing, because we are actually talking about real individuals here, and we are talking about a matter of justice. Some members of the Committee might say: “Does it really matter, Gordon, if two men, one aged 62 and one aged 65, lose their licence for the rest of their life?”. I say, yes, it does. If there was even one, I would be prepared to be here any night of the week at 9 o’clock to say: “Let’s give these people justice.” Those people will not be able to find alternative employment at 62 or 65 years of age. That is their sole means of livelihood. They are working; they should be allowed to continue working. Parliament got it wrong. [Interruption]

The CHAIRPERSON (H V Ross Robertson): Order!

It put the bill through last time—[Interruption]

The CHAIRPERSON (H V Ross Robertson): I am sorry to interrupt the member. I ask new members to look at Speaker’s ruling 57/3 on interjections. I think they might learn something.

I therefore express my deep disappointment. I am quite shocked that tonight the National Party intends to vote against this bill. I had hoped that we would acknowledge that Parliament got it wrong, and got it wrong badly—that the legislation is unjust and unfair to the people concerned. As I said, if it affects only one person, it is still worth rectifying the injustice. National members are basically voting “No” tonight, which means they are prepared to accept that situation. That is the only interpretation that the people of New Zealand will be able to put on their actions, and National members should bear that in mind. I join my voice to that of Harry Duynhoven. I had genuinely expected tonight that this Parliament would have unanimity around this issue. I am disappointed that that is not the case, and I ask National members to think again.

I follow on from a point made by my colleague earlier in respect of the application of sections 134 and 135 of the Crimes Act and how that relates to women. For years we did bad things by women and women complainants in respect of sexual matters. We did a lot of those things while investigating complaints, or while women were trying to make complaints, in respect of section 134(1) of that Act. Some pretty archaic stuff goes on within the Crimes Act and remains there today. An example of that is section 134(7), which reads: “No person shall be prosecuted for any offence against this section, except under paragraph (a) …”—which is indecent assault—“unless the prosecution is commenced within 12 months from the time when the offence was committed.”

I will just use the example that Gordon Copeland used. He talked about an offender who was 24 years of age, and who was convicted of having sex with a girl who was at least 9 years younger than him. She could have been as young as 12 or 13—who knows? What we do not know is the nature of the relationship between the man and the girl, or when the sexual offending started. When we look at men who offend against young girls like that, we see they often do something known as grooming. In other words, they set out to entice young girls because they have a preference for prepubescent girls—girls of that age. It seems very strange to me that Mr Copeland, a member of United Future, would so strongly defend somebody who, even though the offence was as long ago as that, had sex with a girl so much younger than himself.

Pre-1985 we find, as I alluded to earlier, that as a society we took sex crimes very, very lightly. Let us go back in time—perhaps to the time when my friend Bob Clarkson or when Peter Brown were young and could buy an ice cream for a penny. At about the same time Mr Brown could have been deported to Australia if he stole a loaf of bread. Maybe 30 or 40 years ago if someone had stolen an overcoat, he or she would go to jail. That would not happen today. People can do burglaries or commit all sorts of what we consider to be serious crimes, and not go to jail. The complete reverse of that has happened in respect of sex crimes, because the further we go back the more lightly those crimes were treated. The penalties for sex crimes have now become significantly more serious than they were.

Let us look, for instance, at section 134(2) of the Crimes Act in relation to indecent assault. A point that I made at the beginning of this debate was that the offence of indecent assault included things that are now treated as a rape offence. A person could now go to jail for 20 years for what would have been charged as an indecent assault in those days. Somebody who was convicted of indecent assault in 1983 or 1984 might well have gone to jail for 6 months. Today if he or she was charged with the same offence, or the equivalent offence for doing the same act, he or she would go to jail for 6 or 8 years, no problem at all.

I take the point the Minister made earlier that such a person would not automatically get a P-class licence, but that the application would go for consideration before the director. The problem with that is: how do we know what information the director will have available to him or her? We know that in some cases, for instance, the offences go back 40 years - plus. What information will be available on them? Mr Copeland, in relation to the incident he quoted, could not tell us how the relationship with the girl started. Was the man involved with her as a teacher or babysitter? How did that relationship start? We do not know. All we know is that the man has not been convicted since then. Does that mean he has not offended again, or that he has not been caught? Who knows? The point is that we just do not know. Are we prepared to take that risk with members of the public who ride in the back of taxis, or who happen to be the last passenger on a bus? I can tell members that those people are vulnerable people. They are in a position to be picked up and taken away by a taxi driver, and it seems ludicrous to me to take that risk.

The point was made that a person who had committed an offence of kidnapping could still reapply for a licence. That seems strange to me.

I think the Minister for Transport Safety summed it up quite clearly in his introduction to this clause by saying it is all about justice. I think that is the essence of it, and that is where I disagree with Tau Henare’s approach. He asked why we needed to worry about these 160 people—I do not know whether I have the number exactly right—and said that we should worry about young women, etc. If we approach matters from a question of justice, we worry about everyone and want everyone to have a fair go. This is not about 160 drivers versus women or girls, as Mr Henare put it, but is a question of our getting it right for everyone.

We have to trust the Director of Land Transport in this matter. Chester Borrows asked how we know that the director has enough information. It is the same in any proceeding—in this proceeding, or in a court, or wherever. We have to trust the judge and the jury to work out whether they have enough information to reach their decision. If the director looks into the history of a person, if not a lot of information comes forward, and if no one is willing to put up his or her hand in favour of the person who wants an exception made so that he or she can get a P licence, than that person does not get the licence. So I do not think there is a problem.

Chester Borrows says that some people would have committed things over the years but they were not discovered, the police did not catch them, and they were not brought before the court and convicted. I do not think we can operate through life thinking that people might be bad but we have just not discovered it. We have to have a bit more confidence in human beings to do good and improve themselves. If a person is the subject of—and the director would place a lot of weight on this—a whole lot of good reports from all sorts of members of the community, then that person might get a good result. The director can work out what sort of person he or she is.

I was appreciative of Gordon Copeland’s speech in that he considered what the measure would mean to the people concerned. He said that people aged up to or around 60 might not have any other job to go to, and that it could be quite critical for their future for them to keep their present job in the bus or taxi industry. I hope he supports Jim Anderton’s amendment to this clause in that respect. It applies to people whatever offence they committed. It might be difficult for people to get another job at the age Mr Copeland referred to, and the director, under Jim Anderton’s amendment, would look closely at each person whose offence came under that range of offences. I think that is the way to go.

I rise to propose the amendments to clause 4 that are in the name of the Hon Jim Anderton on Supplementary Order Paper 14. In doing so I want to thank the parties that supported the amendments to clause 3 on that Supplementary Order Paper. I invite further support for the amendments to clause 4, so that we can complete that course of action.

I want to remind members that the reasons these amendments need their support is that they do put public safety as a paramount issue to be addressed. They also invite and ensure a real approach of consistency—not a consistency that is made up of treating people differently, depending on when they choose to enter this industry. That is not a consistent approach; it is inconsistent. For a party that proposes one law for all, it is quite surprising that it is coming from those quarters.

These amendments also ensure workability. It is very workable legislation, given these amendments. They make it practical. They also ensure that the reputation and the trust of the industry is maintained and enhanced. They also answer the question of how long and for what reasons does society continue to punish people who have already been dealt with by our justice system. Yes, it is the issue of double jeopardy that people have raised time and time again in this debate.

Some of the issues that have been raised in this debate about the amendments draw our attention to the role of the Director of Land Transport under the amendments. I assure members that under these amendments the Director of Land Transport must be satisfied that allowing those individuals to hold passenger endorsements would not be contrary to the public interest and would not pose an undue risk to public safety and security. Many members on the other side of the Chamber have asked the question as to who would know the level of detail, and how we would know the exact nature of the offence. That is the very point of relying on our justice system and the sentences handed down by that system. That is where those details are known. That is where those details are borne out. But those issues and those details have been fully canvassed before a judge or jury in handing down sentencing. That is one of the very reasons why these amendments make so much sense.

It is also the details that would become known to the director. So all the details, about which we can only make summations at this point and in this forum, would be fully canvassed in making that decision.

I have been to quite a number of horse auctions in my life, and I have watched the parliamentary debating chamber start to resemble them at points during this debate. We have seen members opposite try to hold an auction as to how far we can go, and try to gain some support for their amendments. Certainly, there is a place for auctioneering but I never thought I would see it on the floor of the debating chamber. Auctioneering is done at a horse auction; it did not work here today.

In closing, I would like to invite the parties that supported the clause 3 amendments on Supplementary Order Paper 14 to complete that course of action. I propose the amendments to clause 4 on Supplementary Order Paper 14.

I will take just a short call. We have heard a lot of talk from the Minister for Transport Safety about justice. If he is talking about justice, what about the justice that was the intent of the 2005 legislation? Parliament passed an Act in 2005 on the basis of providing justice for people undertaking a career as a driver, and also providing justice for those who would be passengers in their vehicles. To come here and talk about justice in terms of what is being doing now is quite a different concept. The real justice is in providing an avenue for passengers and drivers to be protected, as in the 2005 legislation.

The reality of what is being done today is that it is a numbers game. If those cases had not come up in December to January, you would not be doing what you are doing now. That legislation would have been there and it would have been fine. It is a numbers game. You have had some cases come before you, and public opinion is dead against them, so you have to do something about them. National members are not saying there is any problem with that; we are saying you should be honest. You have a problem, so let us deal with it, but keep the justice that you set up in 2005. That is the reality of what we are dealing with, and that is where the consistency argument comes in. It is not a matter of consistency between new and existing drivers; it is a matter of consistency of policy between what you put forward in 2005 and what you are putting forward now. You have changed your policy because of public opinion concerning a few cases over the Christmas holidays. The best way of doing that—

💬 Peter Brown: I raise a point of order, Mr Chairperson. I realise you have been engrossed in other matters but the honourable member is saying “you did this” and “you did that”.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member. I tell the honourable member David Bennett that when he uses the word “you” he is referring to the Chair. It is convention that that does not happen.

Consistency needs to be looked at in relation to the intent of the 2005 Act—not consistency between existing and new drivers. People talk about the justice system as the means of recoil, but the justice system is quite different from the legislative process. We pass legislation; the justice system interprets that legislation. In this case the justice system does not have the ability to interpret. There is strict legislation there, and we need to put new legislation in place that achieves that.

I find it really unusual that a couple of parties that support, for instance, a bill proposing to criminalise parents for using reasonable discipline on their children are prepared to support this legislation, which can see people who have been convicted and imprisoned for periods of up to 12 months for sex crimes apply to have a P-class endorsement. The point I have tried to make a number of times tonight is this: most, if not all, of the offences committed by those applicants occurred prior to 1985. Before 1985, we never had such things as child abuse teams and sexual assault teams. We did not have the proliferation of Rape Crisis groups, either. It is amazing the amount of intelligence that those—[Interruption] The list member who lives in Wanganui is calling out. Earlier on this evening, we were pulled up for barracking whilst not sitting in our proper seats. We have managed to pull our heads in slightly since then. I suggest that rule be applied across the Chamber.

The point is that we do know that only one in 10 women victims of sex abuse report it. That means a lot of undisclosed abuse is out there. That is an accepted fact, and it has been reported on time and time again. We do know, too, that groups such as Rape Crisis receive, on a confidential basis, a lot of information about repeat offenders, especially about repeat rapists and repeat sex abusers. I accept that a person should not be held back for the sake of rumour or gossip, but the point is that people do not have to make a complaint when they are abused. They frequently choose not to, for various reasons, and they seek help from child abuse teams, sex abuse teams, and Rape Crisis centres. That means that the offenders can offend again and again, and they may never have a conviction. They might have had a conviction earlier on, when they were not as good at escaping it as they became later on, but they would not have been caught since then.

When, for instance, the director seeks information as to the suitability of an applicant for a bus-driver’s licence or a taxi driver’s licence, he or she sends out a list of all the applicants and it goes to the police station. It is pinned on the noticeboard in the watch-house, and the police ask what officers know about those applicants. The police may do some checks on the computer to see when an offender’s convictions were, but that is all. The police have to deal in proof. They cannot ring up and say that someone has been reported for abuse several times, but the complainant was not prepared to go to court. That information lies there latently.

If the police did oppose an application on that basis, what could and, obviously, would happen—it has happened in the incident the Minister cited earlier on—is that the applicant would go to the High Court. When an applicant is in front of the judge in the High Court, what does the judge do? He or she calls on the police to give evidence to back up the fact that they opposed the application being granted in the first place. There is no proof of an offence. The police cannot prove it occurred, because they are not prepared to put the complainant on the stand if he or she is not prepared to be re-victimised again. So the police lose, and the applicant gets the licence. If that is the sort of society that Government members want, that is over to them.

I will look at the issue of the bloke’s view. I made the point earlier about section 134 of the Crimes Act, which relates to children aged between 12 and 16, and section 135 of that Act, which relates to women over 16 years of age. The bloke’s view, which I have heard tonight and from Government members, is that the offender was convicted only for grabbing a boob, or for grabbing a crotch in a pub. It is all very well for a bloke to say that. What about the women? What do they have to say about that? Is it a big deal for them? I tell members that it is. Once a woman has been treated in that way, and that is the response she has had from the person she has reported it to, from the people in the hotel, or from the offender at the time, what happens? Nothing. Do members think the woman will go out again? Is that justice? Should she be expected to remain at home or stay out of her normal social circle, because she is afraid? [Interruption] You can rabbit on if you like.

The CHAIRPERSON (H V Ross Robertson): The member is bringing the Chair into debate.

I am sorry, Mr Chair. It was the passion of the moment.

💬 Hon Harry Duynhoven: How appropriate!

How appropriate! The point is that it is not for a group of men or a group of politicians who sit, on many occasions, a long way from the coalface to decide how a woman should respond to that or whether she has been victimised.

The question was put that the amendment set out on Supplementary Order Paper 14 in the name of the Hon Jim Anderton to omit paragraph (i) from section 29B(1)(b) in clause 4 be agreed to.