Summary Offences (Possession of High-power Laser Pointers) Amendment Bill

This is the first time I have spoken in this debate, and clause 4 is of course the weighty clause of the Summary Offences (Possession of High-power Laser Pointers) Amendment Bill. I hope the Committee will indulge me if for just a few seconds I pay tribute to the retiring member in charge of the bill, my very good friend Dr Cam Calder, who is a man who served as deputy chair when I was chair of the Justice and Electoral Committee and who was a very loyal and hard-working deputy chair. In recent times the roles have been reversed and I have had the pleasure of serving on the Education and Science Committee, which he has chaired admirably as it has dealt with some very important legislation. So I want to thank him for being such a collegial and congenial member of this Parliament, congratulate him on his achievement in bringing this bill to this point, and wish him all the very best in what I know will be a long and illustrious retirement. I have no doubt at all that he will reflect with great pride on his achievement in getting this bill through the House.

I would just like to put a few questions to the member on this particular clause of the bill, clause 4. As I said, it is the clause that deals with all the substantive issues that arise from this important bill. Let us not be under any doubt, despite the humour that has at times prevailed in this debate: this is a very serious matter. It is a matter that enjoys considerable support from our law enforcement agencies, from civil aviation authorities, from health authorities, and from others in the community, because the real risk to public safety from these particular weapons or lasers being in the wrong hands and misused is very, very serious indeed.

I would like to ask the member, and perhaps he might be good enough to jot down some of the questions that I raise to see whether he could answer them, why the change was made in the bill that he initially introduced as it has come back to the Committee from the term “hand-held lasers” to “high-power laser pointers”. As a layman I am sort of left wondering what the difference is, but in particular I am wondering whether there is some potential for legal ambiguity here, in that not everybody would necessarily need to hold a laser in their hand for it to be able to be used in a dangerous way. It might, for instance, be held in the mouth, or even between the toes.

💬 Sue Moroney: Where are the women of the National Party? Why aren’t they down here, taking this hit? They don’t want be involved in this, because it’s ugly.

So I would be interested to know whether that is going to be sufficiently watertight in order to stand up, should there be a need for this matter to go to court. Although the Opposition member Sue Moroney is in some way questioning the basis behind this, I would suggest that that is a very serious issue. One never wishes to have legislation that is ambiguous and therefore subject to some sort of judicial ambiguity, because that can be the reason that people who are otherwise as guilty as sin get off on a technicality in court. If the Opposition members think that that is not serious, they are misguided.

The other question I would like to put to the member in charge of the bill is whether it is to emphasise that possession is sufficiently worrying without having to demonstrate an intention to use, because, obviously, in criminal law, normally it is both actus reus and mens rea that are required. As I read new section 13B I am just wondering what the particular emphasis is on that issue. In an earlier contribution the member in charge of the bill made the point that these are not toys, and he was absolutely right in saying that. So my question would be—as one who has not sat on the select committee and who, therefore, has not had the opportunity to hear the submissions on the bill—what submissions were made on the specific issue of the definition by the police, by the Civil Aviation Authority, and by other submitters.

Could I also ask him what the motivation was of other submitters on this clause in the bill. Clearly, there are certain people for whom the danger of hand-held lasers being misused in aviation is very obvious. It is extraordinarily dangerous. There is also a danger of lasers being used, as one of my colleagues mentioned, during a rugby game. Potentially blinding somebody is obviously very, very serious, and for that reason we understand why both the police and health authorities would be concerned. But I wonder what the motivation of other submitters was and, indeed, what backgrounds and experience they brought to their submissions on the bill. It would help us all to understand what this particular clause is driving at, I think, if we understood what in particular it was that other submitters had in mind when they submitted on the bill. I was also interested, in view of the fact that the member drew our attention to the fact that this bill amends the Summary Offences Act—

I move, That the question be now put.

I have heard only one speech. [Interruption] I have heard only one.

Yes, there has been only one call, as I recall. The Summary Offences (Possession of High-power Laser Pointers) Amendment Bill—

💬 Hon Maryan Street: Oh, this is going to stretch your brain. This will stretch your brain, Mike. Come on, get into it. Come on, I’m looking forward to the argument.

I think what the member is suggesting there is that she would also like to take a call, and so I will be very, very interested to hear the member’s call. Clause 4—and I just want to pick up where Tim Macindoe, the previous speaker, left off because clause 4 is the meat of this bill. It shows us that new section 13B will be inserted after section 13A of the Summary Offences Act, right after “Possession of knives”.

There are distinct similarities between what this bill sets out to achieve and what the possession of a knife does, and the crux of it rests on having a reasonable excuse and why it is that someone would be in possession of that. So it is not so much—

💬 Hon Maryan Street: Struggling, struggling, Mr Sabin. Struggling.

She is good, is she not? It is not so much that—[Interruption] Well, that is right. It is not so much that just having possession would constitute an offence, but it is the context in which a person may then go on to use it. If we look at, say, possession of a knife, what we know is that the length of the knife has no bearing on whether or not the person is in unlawful possession of it.

One part of the clause we are dealing with was an area of contention, which the Transport and Industrial Relations Committee dealt with at some length, about the difference between a high-power laser, or a hand-held high-power laser, as the bill’s title has been amended to, and the possession of a—what was it, Dr Calder?

💬 Dr Cam Calder: There were a number of definitions I can touch upon in my answer.

That is right, you can touch upon that. What the committee determined was that the possession of a high-power laser was where that line should be drawn. Although there are a number of low-power lasers that can still project laser light, if you like, for a significant distance, the decision of the committee was that 1 milliwatt was the line that needed to be crossed. So when we look at the possession of a knife and the similarities of this section to that section, if someone is to be in possession of a knife for an unlawful purpose, the length of the knife has no bearing on whether or not that would constitute satisfying the ingredients of the offence. However, in this particular bill, when we are dealing with hand-held lasers, there is a distinct difference, and that difference is that it must be 1 milliwatt or higher.

Dr Calder will be able to inform interested members of the Committee, and I believe that Maryan Street in particular would be very interested to hear Dr Calder explain just how far some of these laser lights can project and the dangers they present—

💬 Chris Auchinvole: 1-1.

Sure. We have heard my colleague Chris Auchinvole here talk about rugby players. I do not know, but it was 60 miles. I know he trifled with us here and asked us how many kilometres that could be, and then gave us the answer that it was 60 miles, which of course trumped us all because we just were not expecting that to come out. But the reality is that if we look at 60 miles, it would be somewhere in the order of 100 kilometres?

💬 Chris Auchinvole: 100 kilometres.

Is it about that?

💬 Chris Auchinvole: Yeah, yeah.

That is a long way up in the air in terms of the ability for someone to sit near an airport and project a hand-held laser at an aircraft. When it hits the inside of the aircraft, it reflects. When it hits the windshield—if we can call it a windshield on an aircraft. I am not sure what it is called, but it certainly stops a lot of wind coming in, and you do not have to be an ex - police officer to know that. [Interruption] That is right—that is right; I am an ex - police officer. But one thing is for sure: it basically completely blinds the pilot or the driver or, in some cases, a sportsman on a rugby field. But if a high-power laser can reach up to 100 kilometres into the sky, that is a dangerous weapon when used in the wrong context. One thing is for sure: what this bill is ultimately dealing with is those who would take something that has a legitimate use and purpose and use it for an illicit purpose that is dangerous. If we look—

💬 Scott Simpson: Nefarious.

Nefarious—is that Latin? I am not sure. Sounds good; I will go with it.

💬 Dr Cam Calder: Furry edges?

Furry edges—absolutely. But the point is that in foreign lands we have seen these things actually being used in a war context, and one thing is for sure—

I will take a call. I have been asked questions by my colleagues about some of the thinking behind this. I want to commend the ex - police officer Mike Sabin, who has shared the benefit of his experience in law enforcement and who understands how dangerous these devices are. As we know, clause 4 is the meat of the Summary Offences (Possession of High-power Laser Pointers) Amendment Bill. There were no submissions on any other clause. All the submissions that we got were on clause 4, which is not surprising. This is the meat of the bill. We have heard that when I drafted this bill I modelled it on section 13A of the Summary Offences Act, which deals with the possession of knives. Section 13B in clause 4 is a new section. When clause 4 was initially drafted, it inserted new section 13B, which not only made it an offence for a person to have a hand-held laser in his or her possession without reasonable excuse but provided the police with the warrantless power to seize and detain that hand-held laser. In our debate in the Transport and Industrial Relations Committee, it was pointed out that it was not necessary to have that seizure provision, and the committee came to the conclusion that we should omit that seizure provision in section 13B(2) in clause 4 because it is not necessary, as seizure powers became available to the police under the Search and Surveillance Act in 2012.

We had a number of submissions, and I will put the eyes on a couple of them to give you a flavour. The Director of Public Health, Dr Darren Hunt, stated that the current definition of “hand-held laser” that I had originally drafted in the bill was too broad and would inadvertently capture many devices that actually posed minimal risk to public health or safety. So he made the point, which was picked up by the committee and I think echoed by some other submitters, that we should use the definition in the Health (High-power Laser Pointers) Regulations 2013 and the Customs Import Prohibition (High-power Laser Pointers) Order 2013, which we have touched upon previously in this debate. He felt—and the committee agreed—that adopting this definition would restrict the application of the bill to laser pointers with a power output greater than 1milliwatt. This, of course, reduces the broad scope of the bill, but the feeling of that submitter, the Director of Public Health, was that the risk posed by small lasers of 1 milliwatt or less was extremely low. The Royal Australian and New Zealand College of Ophthalmologists noted the same point—that generally the risks associated with using low-power lasers up to class 3, which is up to and including 1 milliwatt power output, are very low. That was expert advice from the people whom we respected and we, as a committee, took that on board.

In respect of new section 13B, inserted by clause 4, we altered it from possession of “hand-held lasers” to “high-power laser pointers” to make it clear what the definition was, and that what we were talking about was the same device as used in the health and customs input regulations. What we have in new section 13B(1) now is that “Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in any public place, without reasonable excuse, has any high-power laser pointer in his or her possession.” That was a significant change, but a particularly meaty, “beaty”, big, and bouncy change, because it made the scope of this bill directly on high-power laser pointers, which are the subject of those regulations and the order hitherto mentioned.

As you may recall, I have to acknowledge here the presence in the Chamber of the Hon Jo Goodhew, whose hard work, endeavour, and assiduous attention to detail meant that those regulations and orders came through. It has been a pleasure working with the Minister, and I think that together, with the regulations and orders that she has brought through, and when this bill, hopefully, gets through to its final reading and is enacted, we will have a much safer country because the availability of these devices will be severely restricted.

The hope that I had when I first drafted the bill was that, bearing in mind the position a policeman such as Mike Sabin—who we have heard in the Committee today has been a police officer, and Mark Mitchell, who himself has been in the thin blue line. Well, I thought that we should give the police the chance without a warrant to seize these things if they find a miscreant lurking with intent with one of these in their possession. We discussed this at the committee but, as I think I briefly alluded to before, we deleted that seizure position, because from the time of drafting the bill, the Search and Surveillance Act 2012 was brought into law, so that actual provision was superfluous. What we did keep, of course, was that on conviction of any person of an offence, under section 13B(1)—that is, being in a public place without reasonable excuse—then that court may order that the high-power laser pointer be forfeited to the Crown.

I will summarise briefly, if I may. What we have then is a change, as has been brought out by some of the previous speakers, in the definition in subsections 4(a) 4(b), 4(c), 4(d), and 4(e) in section 13B as inserted by clause 4. The definition is: “In this section, high-power laser pointer means a device that (a) in the Director-General of Health’s opinion, is of the kind commonly known as a laser pointer; and (b) is battery operated; and (c) is designed or intended to be operated while held in the hand; and (d) produces a coherent beam”—that was the word that Mr Sabin was looking for before—“of optical radiation of low divergence; and (e) has a power output of greater than 1 milliwatt.” That is the definition of the high-power laser pointers. That is clear to all concerned. The police are happy with that. We debated it at some length at the select committee. Indeed, as well as talking about the actual appropriate title and the commencement date, we did spend a significant amount of time on clause 4 of the bill, because we wanted to get it right. We wanted to make it simple to understand. We wanted to have coherence between the regulations and the order governing the importation and supply, and I think the committee achieved that.

I have to once again acknowledge the collegiality on the committee, with members of all sides of the House agreeing that this was a worthy bill. It will make New Zealand a safer place. It is a good bill and I am very pleased that it has got to this stage. My only regret is it appears that unless things change, I will not have a chance to speak on the third reading of this bill, which I believe is timetabled for after I have given my valedictory speech. But I know that I have got some excellent colleagues who will carry this bill through, hopefully, on Wednesday 23 July. It would be wonderful to see that bill enacted and subsequently get Royal asset and become law 28 days after receiving Royal assent. Thank you.

Clause 4 agreed to.

Bill to be reported without amendment presently.