Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill

Labour is supporting this Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill of Scott Simpson’s to the Transport and Industrial Relations Committee. We are supporting it with a number of reservations. I want to make three points in the 5 minutes that I have tonight.

The first is that the Attorney-General has raised a number of concerns about the bill. Labour’s view is that unless we feel at the select committee that these concerns have been addressed satisfactorily, we will not be supporting the bill’s further progress. The Attorney-General has ruled that the bill is inconsistent with the New Zealand Bill of Rights Act, as it erodes the right to be presumed innocent. I want to quote the Attorney-General, who says: “the provisions of the Bill are too broad and are not in proportion to the objective. I have no evidence that the number of motorists who now escape responsibility for offending, but would be captured by the proposed amendment, is significant.” Well, that is a pretty serious objection. I would note that Scott Simpson, I think, has been quoted as saying that he does not know how many people would be captured by the closing of this loophole. In fact, I think he has speculated that it might be a handful of people. We would question whether, in fact, this is a good use of the House’s time to bring a bill like this to the House without that basic groundwork having been done, and without some data upon which to base the premise that this bill relies on.

The Attorney-General also found that the wording “for any reason” would mean that circumstances such as a health professional not being available, for example, to administer the blood test at the time would be a suitable reason, and that does not seem to be the intention of the bill. So that is our first point: the Attorney-General has raised some serious issues, both drafting issues and about the data upon which the premise of this bill is based in terms of the number of people who, supposedly, are evading the law. Those things need to be addressed.

I should probably have pointed out, for the benefit of people listening or watching who were not here for the first couple of speeches on the bill, that what this bill aims to do is to tackle the issue of people who are physically unable to give a blood test once they have been stopped for drink-driving who take a breath test and then nominate—as they are able to do under the law—to have a blood test. I think the law allows 10 minutes for the person to make that decision. Once that person nominates that they will have a blood test, the evidence of the breathalyser is inadmissible at that point. The problem that the member Scott Simpson is trying to solve with this bill is that there are some people—we do not know how many, but there are some—who, for whatever reason, are physically unable to give a blood sample. They are somehow gaming the system—this is the suggestion—by opting for a blood test, thereby making the breathalyser result inadmissible, but they are unable then to deliver a blood sample. That is the bill in a nutshell.

As I have said, the Attorney-General has some problems with that, and raised the possibility—I think, in fact, Mike Noon from the Automobile Association raised the possibility—that the police, for example, could say that they do not have medical staff present, and therefore that would render the evidence of the breathalyser inadmissible and the person would get off. So those are some concerns about it.

The other thing that has to be said in this debate is that there is irony in the fact that a National member would bring to the House this bill, which would close a loophole affecting—how many, we do not know—possibly a handful of people, when this National-led Government has consistently refused to raise the blood-alcohol limit from 0.08 to 0.05—

💬 Michael Woodhouse: That is called a lowering.

—lowering the limit; thank you to that member—in the face of overwhelming international evidence that 0.05 is the gold standard. That change alone would save up to 30 lives a year, but this Government will not do it, because of the optics, apparently. Thank you.

I seek leave of the House to rise for the dinner break early.

Leave is sought for that purpose. Is there any objection? There is no objection.

Sitting suspended from 5.59 p.m. to 7.30 p.m.

Tēnā koe, Mr Speaker. Tēnā koutou e te Whare. I would like to start speaking on the first reading of the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill. I would like to begin by acknowledging the member Scott Simpson for introducing a bill with the very worthy aim of reducing drink-driving. I think we can all agree that this is an incredibly worthy objective. The Green Party would like nothing more than to see a reduction in the amount of dangerous drink-driving that does occur already in New Zealand.

However, having considered this bill as it has been introduced, I do think that it falls well short of the mark. It will do very little to reduce drink-driving, if anything at all. There are multiple ways that we could approach the problem of drink-driving. I think that it is a serious problem that the Green Party would like to see addressed, and we would be very happy to support members on the National side of the House, or any members in the House, or the Government, to this end of reducing drink-driving.

I think that the most obvious legislative change that the Government could make to reduce drink-driving would be to lower the legal limit for all drivers. I suppose I have a huge question in my mind: why is that sort of initiative not being taken? If this Government was actually serious about reducing drink-driving, surely it would be willing to take a step that so many other countries around the world have already taken: to reduce the blood-alcohol concentration legal limit from 0.08 to 0.05. All the evidence shows it would make a dramatic difference in increasing safety on our roads, and increasing the safety and well-being of New Zealanders—whether they be in cars or not—if they are in the land transport environment in New Zealand. So it is with some regret that I note that this bill will actually do nothing at all to reduce the drink-driving that occurs in New Zealand.

Another very effective policy that the National Party, or members in the National Party, could take to reduce drink-driving and reduce onerous regulations, which I believe they are opposed to, would be to remove the requirements in district plans that currently force bars and pubs to provide massive off-street car-parks. On the one hand we have this policy, a public policy, that says “One shall not drink and then drive. One shall not drive under the influence of alcohol.”, yet on the other hand patrons of bars and of pubs cannot avoid spending the money for the large off-street car-parks that district councils are forcing bars and pubs to put in through their onerous district council regulations. I know personally that I have spoken with a lawyer whose client had a prominent, well-patronised bar in downtown Christchurch—this was prior to the earthquake—and that bar, because of the requirements in the Christchurch district plan, was required to put in 100 car-parks. That is 100 car-parks that they were forced to put in. It was a third of their overhead, so we are talking about a pretty substantial cost imposed on developers, which results in nothing if not people being more likely to drink and drive. It just seems to me that this is an easy policy win. It is a low-cost way of giving councils the signal that it is actually up to developers whether or not they are going to provide off-street car-parks. But particularly in the case of bars and pubs, I believe it would be extremely important for them not to be forced to provide off-street car-parks.

The question for the House is whether we really want to legislate to address what was only one problem in maybe one or two cases ever. That is what this bill does. It is for that reason that the Green Party will not be supporting this bill at the first reading. We simply do not believe that it passes the test of being necessary or being sufficient to address the problem of drink-driving in New Zealand. We are particularly concerned at the proposed wording in subsection (5), inserted by clause 4, which is very, very broad and very vague. What this says is that it is going to change the rules around the admissibility of breath tests for any reason at all, even though supposedly, purportedly, the bill is being introduced specifically for the case of when a blood specimen is not able—

💬 Mr DEPUTY SPEAKER: Order! Time has expired.

I am very, very pleased to talk in strong support of this Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill. The principal reason is that I wrote it. As members know, only one bill can go into the ballot, and I do hope that my Financial Assistance for Live Organ Donors Bill does eventually get pulled out. In the meantime I pass this bill on to my very good friend and colleague Mr Simpson, who had the great good fortune to have this bill pulled from the ballot. I congratulate him on that good luck, but also on the very careful consideration in the process of bringing this to the House for its first reading. I congratulate him on the excellent work that he has done.

This bill actually had its genesis in a conversation I had with a senior constable in Dunedin who just happened to be my brother. It is actually quite advantageous coming from a very large family: one gets lots of policy advice on matters like aviation, defence, law and order, resource management, law, education, health, and so on. This was one of those conversations where he described an incident that had occurred to him in Dunedin, not dissimilar to the case that is described in Police v Childs, described by Scott Simpson in his contribution. Having pulled over a person suspected of drink-driving, an evidential breath test was taken where the fellow blew somewhere in the region of 660—clearly over the limit by that measure. He elected blood, but the blood was unable to be taken, because he was an intravenous drug user and his veins were not of sufficient quality to draw the necessary blood. Suspecting that the driver was also under the influence of illegal substances—interestingly enough, an impairment test was introduced under the drug-driving laws passed by this Government in 2009, when I was a member of the Transport and Industrial Relations Committee. Being the new member on that committee I actually undertook the first impairment test, which was onerous. Nevertheless, this fellow—

💬 Charles Chauvel: Did you pass?

I passed, yes, having been completely sober at 10.30 in the morning, which is the case, I reassure the House, usually. But, in fact, this fellow also passed, and therefore the doors were closed to any form of prosecution under the Land Transport Act as it exists right now. The judge addressed this issue, and, in fact, the police, I think, were quite optimistic in their attempts to charge this fellow with both refusing to permit a blood specimen or, in the alternative, driving with excess breath alcohol. Clearly, the latter is not allowed under this bill, and that is what the bill intends to remedy. But he certainly permitted them to have a go, and, in fact, he challenged them to have a go at getting blood out of this person’s veins. I want to quote the judgment; in fact, I think this quotes the counsel for the defence in the Childs case, where he said in his submission that “Had Parliament considered it appropriate to allow the prosecution to rely on the evidential breath test despite an election for blood taking place, it would have provided for such an occurrence, and that the appropriate place to review circumstances such as the inability to collect a blood sample despite compliance with procedure is Parliament.” That was in July 2012. Well, Parliament, through this member’s bill, had already addressed it, and this bill was in the ballot.

I want to come on to the question of the Attorney-General’s opinion in respect of whether or not this bill actually breaches the New Zealand Bill of Rights Act. I would respectfully suggest that the person writing the opinion on behalf of the Attorney-General is somewhat confused when he or she is describing that the effect of the bill “would therefore be that the results of some positive evidential breath tests, that would not otherwise be admissible in evidence, would then become admissible.” I think they are confusing the word “admissible” with the word “admitted”. The evidence is admissible, and, indeed, if blood is not elected, would be valid evidence before a judge. However, the law prevents it from being admitted into evidence, and I think that is a subtle but significant difference.

The other part of the opinion of the Attorney-General is that the presumption of innocence does not apply in this case, and I would again respectfully challenge that. The defendant, with whatever evidence is presented before the judge or jury, is presumed innocent in just the same way that, had blood not been elected, the breath evidence would be admissible, and the presumption of innocence would prevail. However, I do accept that this is an issue for the select committee to deal with when it comes before it, and I hope that it does. I am sure the Transport and Industrial Relations Committee under David Bennett will look at the issue very, very closely. I strongly support this bill.

I think the previous speaker, Michael Woodhouse, made a proper concession just now that this bill, the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill, does need careful discussion at the Transport and Industrial Relations Committee. I hope, given that the two larger parties at least are supporting the bill to that stage, that it will get that careful scrutiny and discussion. I see that the chair of the select committee is here and is listening to the debate, so I think the House can have that confident expectation.

The bill, in the name of Scott Simpson—and I congratulate him on his good fortune in having it drawn from the ballot—aims to cure what I think he concedes is a very small number of cases where unusual events conspire to prevent a blood specimen being taken, and the example that I think has been used in a number of the speeches to date is the one where there was a person who was addicted to drugs and had compromised veins. The current situation is this. A breath result cannot be used as evidence once a blood test has been elected by the person who has been stopped at the side of the road, or at a checkpoint or what have you, for that purpose. The bill would provide that breath tests can be used if a blood specimen was not able to be taken from the defendant, and the words of the bill are “for any reason”.

I think the concern that I would want to put on the record is the breadth of the expression “for any reason”. I think people can see that it is a useful thing to try to plug a loophole, but I think that what we do need to do is make sure that we do not, as in the old clichéd proverb, use a sledgehammer to crack a nut. What I would not want to see by passing the legislation, if that is the ultimate fate of the bill, is the legitimising of a failure by the police to take effective action to ensure that there was a blood taker available in circumstances where the legislation would set out that expectation. The problem that I have, just on my reading of the bill, is the breadth of the expression “for any reason”. It is very wide. It would include there being no blood taker on the roster that night. I know, and I know that other members in the House know, that police go to a heck of a lot of trouble at the moment to make sure that they can comply with the law. They do go to great lengths with their rosters to make sure that there is somebody who can take blood if that is the election that the driver on the scene makes.

Let us remember that these safeguards exist for good reason. The breath test is generally pretty reliable, but we know that there are cases where that has not proved to be the case. We should also remember that random stopping is an innovation in our law. It is an exception—and it was a controversial exception at the time it was introduced—to the principle that there ought to be reasonable cause for a seizure or search. We have seen the benefit of this innovation, because we have seen the road toll come down. So we all support it. But we want to make sure that the safeguards remain. We want to make sure that what we do not do is inadvertently give the police, who are pressured always for resources, some opportunity to cut corners by, for example, saying: “Well, we don’t need to have a taker of blood on the roster, because we’ve got this marvellous exception that Scott Simpson has given us, and it means that for any reason we can ignore that requirement.”

I just wanted to make that contribution in my speech. I think the policy of this bill makes a lot of sense, but we do not want to invalidate the entire regime that Parliament has carefully put in place over a number of years—breath test then blood test, but the blood test as a proper back-up in the case that it is needed—to protect liberty and to ensure that people going about their lawful business are not subject to penalties. So in order to support this legislation further, past the select committee, the Labour Party would need to see, at the very least, that matter considered and resolved appropriately.

I thank members for the many considered contributions to the debate from both the Labour and National sides of the House. First of all, I would like to commend the proponent of the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill, Mr Scott Simpson. As a member from the Waikato region as well, I know Scott and he is a very, very loyal constituent member who has done a great job for his people, advocating for them time and time again and delivering results for his electorate. I think they are very lucky to have such a high-calibre member, and I think his exceptional degree of dedication and devotion to his electorate will shine through in future elections. So that is very, very good. I also commend Mike Woodhouse, our whip, who did a great job in putting this idea forward in an earlier stage, but—

💬 Hon Simon Bridges: What about Phil Heatley?

Oh, I do not know about Phil Heatley, actually. But Mr Simon Bridges? Yes, that Minister is going to help us through this process. He is an excellent Minister, as well.

I think it is pretty obvious what the bill is trying to do, and members of the House have talked about it. I know that Phil might need it said again so that he can grasp it, but it is not that hard. There are some issues around how it will actually be done. That is the case with members’ bills. Often we put a bill forward, and the process of getting official advice and of letting members discuss the content of the bill through the parliamentary process in this House and through the select committee process is vital to make changes and get the bill right. I would like to thank the Labour Opposition for supporting this bill going forward so that we can go through that process and we can have a look at it.

💬 Darien Fenton: Unlike that side. They don’t support our bills.

I see Darien Fenton over there. She is one of those very strong and very effective Labour members of the Transport and Industrial Relations Committee, along with Phil Twyford and Andrew Little. We look forward to their working constructively, as they normally do in the committee. It is a very good select committee, actually. We have very cordial relations in the committee. We have efficient and timely meetings, and we deal with issues of great importance.

💬 Brendan Horan: What about the rail submissions? The Gisborne to Napier line?

Now we are getting New Zealand First. Those members always have to cause trouble. They cannot sit quietly in a debate like this. I guess there is a conspiracy theory about this bill, according to the New Zealand First mantra of politics. So what is the problem with it?

💬 Brendan Horan: It’s actually the first sensible bill we’ve heard from that side for quite some time.

It is the first sensible bill. Are they voting for it? That is going to be the question. That will be the issue. Whether they can vote Yes will be another question.

I do want to congratulate members of the committee on the way they work together, and I think they will undertake to work in that way on this bill. Scott Simpson is actually a member of the committee, and a very fine member as well. I think he is going to have a lot of questions tomorrow at the committee meeting. I think his important role—

💬 Kris Faafoi: He better read the bill, then.

—yes—on the committee as the proponent of the bill means he will take an active interest in how it passes through the political and legislative process.

I guess that, in the sense that we have always wanted to see the safest and strongest roading system that we can have, it is important that we make these changes where and if necessary to look after public safety. The No. 1 thing that members of this House are entrusted to do in regard to these kinds of bills is to make sure we look after our young people and our drivers and take the approach of trying to do the best we can so that we do not have issues where people try to game the system or take advantage of it, and so that there is a fair and equitable system out there that applies for all. Those are the words that New Zealand First members should listen to—“fair and equitable”. They are words that your leader holds dear, but to you as a party I say that we look forward to you supporting this bill, because it is fair and equitable. Thank you.

Is the member calling?

💬 Denis O’Rourke: I am calling, Mr Speaker.

I did not hear you.

That was probably because of the noise coming from the other side of the room. Anyway, I would like to say this in response to what I have just heard. In fact, yes, New Zealand First does support the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill. We think it is a common-sense approach and, yes, we do think it is fair and equitable. It is fair to say that. We do think, in particular, that there is a defect in the Act as it is at present, where a positive evidential breath test is not admissible simply because the suspect person has elected a blood test but is in circumstances where no blood test is possible. That is a defect. It is a hole in the legislation and it does need to be fixed.

New Zealand First is very much in support of all practical means to make sure that such loopholes are closed and that people who are, in fact, guilty of drink-driving are caught. Provided that that is done with due process of law, then we think we should be as tight as possible in making sure that all such people are, in fact, prosecuted, and prosecuted successfully. It is just not good enough that somebody should be able to elect to take a blood test knowing, in fact, that a blood test is unlikely to be possible, and then to be in a position where their breath test is not admissible.

I would have to say, though, that I do not think that the drafting of this particular bill is very good at all. In fact, the provision—

💬 Brendan Horan: Grammatically incorrect.

Well, that is true. My friend Mr Horan has said that it is grammatically incorrect, and it is poor grammar. It says in clause 4(2): “After section 77(4), insert: ‘(5) Subsection (3)(b) does not apply if a blood specimen was not able to be taken from the defendant for any reason.’ ” What kind of grammar is “was not able to be taken”? I do not know who wrote this, but they need to go back to school and learn some grammar. But, more particularly, we need good drafting of this bill. The bill should be amended so as to read, for example: “Subsection (3)(b) does not apply if it was not possible or practicable for a blood specimen to be taken …”. That is what I presume it means, and if that is what it is intended to mean, that is actually what it should say, not these poorly drafted words that we see before us.

When we see members’ bills coming forward in this way, people should at least take the trouble to draft them properly, so that not only is the English correct but also it actually says what it is intended to say. I think that the word “possible” or the word “practicable” is what is intended, so we want this to be amended. We want to see that it covers only situations where it is actually not possible to get a blood test or where it is not practicable to do so. So we would expect to see this amended accordingly.

Another thing that it should do is this. The last few words are “taken from the defendant for any reason.” That is not good enough, either. That is also poor drafting, because what we do not really mean is “any reason.”, and what we should do is tighten that a little bit as well. I think it should say, for example, “unavoidable reason.”, or words to that effect.

New Zealand First, if it going to continue to support this bill in the future, would like to see that it is properly drafted and amended accordingly. But I would like to go on and say this: drink-driving remains one of New Zealand’s most serious safety issues, and I do not think we are doing nearly as much in this country as we should about it. This is a very small measure. It is worthwhile, but we would expect of the Government that it takes a lot more action on controlling drink-driving.

The new amendments to the alcohol bill will take us a little bit further in respect of that, but we also need to take further actions in respect of who may drive a car. Driving a car is a privilege and there must be further restrictions on doing it, especially in relation to people who are affected not just by alcohol but also by any situation in which their driving ability is impaired.

So we would like to see much more comprehensive legislation than we see here. In particular, we need to address much more the behaviour of people who drink excessively. We need to be tougher with the penalties—much tougher than we are now—and we need to widen the scope of offences that already exist.

It gives me a huge pleasure to speak in favour of the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill. May I congratulate the initiator of this bill, Scott Simpson, the member for Coromandel. This is, indeed, a—

💬 Hon Simon Bridges: It was Woodhouse who drafted it.

Well, maybe it was. So there is another Government member to congratulate on this very good bill. I am also pleased to be standing to the right of the chairman of the Transport and Industrial Relations Committee, David Bennett. I know that he will very ably ensure that the bill goes through the select committee very expeditiously.

But I want to just go back in history a bit of time to when I was a young medico and the days even—believe it or not—before accurate breath testing. On the North Shore there was a very infamous doctor. What we used to do when the drivers were brought in was have them firstly undergo the “walk along the line straight” test. They were then asked a few questions, and if they failed both, they would have the choice either to have their blood taken for testing or to be put into the cell. The very infamous doctor was infamous because he was not good at getting blood. I vividly remember going in when I was a locum for him one day, and this guy had anticipated and said that he would go for the cell, thanks. But he was very relieved to see me and said: “Look, I feel a little bit embarrassed now that I’ve opted for a night in the cell. If I’d known you were on—you are pretty slick at taking blood—I would have opted for the blood test, and it would have saved me the night.” However, the relevance is this: today we do have pretty accurate breath testing. Of course, if someone opts against having an evidential blood test as well, then I think it is quite right and proper that the breath test is, indeed, taken.

There is the issue of those who have bad veins, and it is quite true that some number do have bad veins, whether they are those who take drugs all the time or, perhaps, someone on dialysis therapy. I can think of Joeli Vidiri, the great rugby player, who, sadly, is on dialysis treatment and has just about no vein in his body for a blood test other than the jugular. Quite clearly it would be inappropriate to take a blood test if that was relevant in that case.

So we see here a bill that is elegant in its simplicity and absolutely relevant in terms of the mechanism for the remedy to forgoing the blood test when someone opts not to have it. I can say that I am delighted to support it. I hope, indeed, that New Zealand First members, who sounded as though they were wavering a little bit a moment or two ago when I—

💬 Brendan Horan: No, there was never a waver.

They are not wavering? That is good. There is definitely support coming from New Zealand First, and Mr Horan can guarantee that his party will be supporting it. I am very glad to hear that. This is an excellent bill. Scott Simpson is to be congratulated. I certainly commend it to the House.

It is a great pleasure to be concluding this first reading debate on my Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill. As various speakers in the debate have indicated, this is not a bill that is going to have an impact on a particularly large number of people, but the people it will have an impact on are currently able to literally evade the provisions made by this House in the principal Act regarding drink-driving, and they are literally able to get off scot-free.

I want to thank members for their considered debate, for their contributions to the debate so far. I am very much looking forward to participating in the select committee process, under the capable and very able chairmanship of David Bennett. I know that once we get it to the Transport and Industrial Relations Committee we will address some of the issues that have been raised in the debate so far. I was particularly pleased, early on in this exercise, to receive from Mike Noon of the Automobile Association support in principle from that organisation. It too understands that there has been a very significant attitudinal change towards drink-driving in this nation over the last generation or so, since Dr Hutchison was practising medicine as a young intern some years ago—

💬 Dr Paul Hutchison: Just a few years ago.

—just a couple of years ago—and things have changed a little bit. Society’s attitude towards those who drive while under the influence has changed significantly, and for even a small number of people to be able to evade the intention of this House in bringing them to remedy for the consequences of their poor social behaviour—and, indeed, their illegal driving—I think is a matter that needs addressing.

I want to spend just a minute referring, for the sake of those members who did not hear it in the original speech, to the judgment relating to the case of Police v Childs heard in the Rotorua District Court just this year—in fact, in July of this year. Judge MacKenzie examined all the current case law and had to dismiss the case against Childs. He had blown a screening test—that is the one where you have got the little electronic device, where you have to give your name and address—and he proved positive on that. He then blew an evidential breath test, and then was given the option of a blood test, which he was perfectly entitled to take under the existing law. However, Mr Childs was an intravenous drug user of some long number of years and his veins—he knew, I suspect—were utterly unable to be tapped for the required sample of blood. So after 40 minutes—40 minutes—of attempting to draw a significant and appropriate blood sample, the medical officer was not able to do so. When the case came before Judge MacKenzie he had to throw it out because the situation of the facts presented meant that Childs was statute-barred from being prosecuted, because no blood sample was available to him.

I think that is wrong, and even if it is for a small number of people each year, it is still wrong, and for this House not to address what was actually an oversight in the original legislation—in the original 1998 legislation—I think is something that we need to turn our attention to now. Thus the measure of the bill.

I want to thank the originator of the bill, my colleague the senior Government whip, Michael Woodhouse, who did indeed draft the original bill. I am sure I can vouch for his grammar and the accuracy thereof. He has a good education.

The Attorney-General’s report is something that is worth a small consideration because the report does sit on the Table of this House. But like other speakers on this side, I respectfully reject the position that the Attorney-General has taken on this matter. It will still be the case of the police, as in any criminal matter in our criminal jurisdiction, to prove the case beyond reasonable doubt. That is the measure of all criminal convictions in New Zealand, and nothing would change under my bill. The Automobile Association, in its support of the bill, has indicated that it too would like to consider narrowing the clause a wee bit, and that is a matter that will be rightly and properly addressed at the select committee. I am looking forward to participating in the process. I thank members for their consideration so far, and commend the bill to the House.