Land Transport (Speed Limits Validation and Other Matters) Bill

Having said that we support this bill being passed under urgency, I think it is important that we have an assurance from the Minister of Transport that the detail of every clause has been thoroughly checked by him and that the Minister is assuring the House that there are no more errors or ambiguities being created by this legislation, which is being fixed under urgency.

The reason I think it is proper that we seek that assurance from the Minister is that the Minister is asking the House to pass this under urgency without the normal protections that flow from a longer process. The protections that flow from a longer process are that persons who are in society who are interested in these matters get the chance to pore over the legislation and, with the time to properly consider it, reflect on whether it is clear and whether mistakes are being made.

In this sort of legislation we would expect that the Automobile Association and various membership parts of the Automobile Association throughout the country would be poring over it. We would expect that the medical groups that are interested in accident safety would be looking at it. We would expect that someone in the Accident Compensation Corporation would perhaps be looking at it and checking it. We would expect that someone who practised law in these areas, or who was already looking at defending a charge that had been brought in respect of these speed limits, and thought that it was invalid would no doubt come along—or they might come along—and point out to the select committee why this was being done in an improper way or why this was being done in an improper way that was not correct in detail.

So for those reasons—because those normal checks and balances are not there, because the select committee does not have the time to read through the legislation properly, and because political parties do not have the time to hear from concerned constituents and concerned members—it is all the more important that we can rely upon an assurance from the Minister that the Minister is satisfied that every clause in this bill is proper, that every clause in this bill is necessary for the stated purpose in the legislation, and that no further powers are being conferred by this legislation than are necessary to cure this defect in the speed limits, which should have been put through a renewal process after 5 years but have not been. I might leave this particular contribution at that and let the Minister respond to that.

With regard to Part 1, I would like to address clause 3, the purpose of the bill. The bill says that the purposes are threefold. First of all they are to “remove any doubt about the validity of speed limits set by road controlling authorities”, and so on, but the truth is that there has not ever really been any doubt about this. The real situation is that the law, as it was stated in the legislation, was quite certain, especially with regard to the review provisions, which seem to be one of the main reasons for this bill.

The law was quite clear: the review had to take place, and in some cases it did not take place. Where is the doubt about that? There is not. So the purpose in clause 3(a) really is not quite true. The fact is that there was no doubt about that; it is just that some agencies—some councils—did not do as they should have done. Unfortunately, as I said in my earlier speech today, the result of that was a default to the 100-kilometre-an-hour speed limit, which was bad law and it should never have been drafted in that way, but it was. These things are not a matter of doubt, and the purpose clause should not say so, so I object to that in the first place.

In clause 3(b) it refers to: “protect enforcement action taken under those bylaws;”. What that really means—and I disagree with Mr David Parker about this, too—is that there has been a muck-up and the law that was in force was actually unenforceable, and now we want to make new laws that are enforceable. So, actually, it was not a case of a genuine mistake; it is a case of just plain ineptitude. The fact is that the old law did not do what was required of it, and people did not follow the procedures under it, and now the Government wishes to rectify that situation by actually making new law out of bad old law. So this situation is not actually in the way that Mr Parker stated it, I believe. When it says that the purpose is to protect enforcement action, that is really not very true either. The truth is that it is to rectify a cock-up, and it cannot say it in those words, but there would be words available to say it in a more decorous way.

Thirdly, it says in clause 3(c) that its purpose is to “provide clear authority for the setting of speed limits by road controlling authorities in the future.” What it should have said is to provide new authority, because that is what is actually what was always required and that is what this bill does, but it does it, unfortunately, in a way that has a retrospective effect. I agreed with Dr Russel Norman when he said that we should never adopt retrospective legislation, especially where it relates to criminal sanctions. That is the worst possible kind of retrospective legislation. People who have already paid fines that they were not liable to pay should actually have those fines refunded, and so on. But I understand that it would be very difficult and impracticable to undo all that, so that is why New Zealand First is, in fact, supporting the bill.

But we should be more honest—this is the point I am making about the purpose clause, clause 3—instead of using these weasel words. So I actually object to the whole drafting of clause 3. We should simply call a spade a spade and do what we have to do but tell the truth about it, and that is not what the purpose clause does in this case. It is, in fact, new legislation, and it should not be dressed up as some kind of save-the-world move by the Government. It is actually a cock-up by the Government—and probably the previous one as well—and new legislation has been needed to redress the situation. It is not pretty; it is not good. It does have to be done, but let us tell the truth about it. This clause does not, and I object to it.

Unfortunately, New Zealand First will still have to vote for it because to fail to do so would be wrong, given the whole circumstances of the case. But I just wish that we were more careful about the way that some of this legislation was drafted in those respects. I will have some more, similar comments to make when we come to Part 2.

I just want to deal—hopefully very briefly—with the points made regarding, of course, the phrase in clause 3 “remove any doubt”. I understand the points that are being made—in one sense, you could say quite strongly and persuasively—by the member for New Zealand First, Denis O’Rourke. I think that if experience, and certainly legal experience, in interpretation teaches us anything—and I am not in any way casting aspersions on the member—it is that there is a requirement and say so for a certain amount of humility in these matters, because laws made by Parliaments do have mistakes. I think that in a situation like this, where there is one—albeit a most important piece of legislation, but other ones following that therefore add some complexity—we need to deal in the realm of best legal arguments and most persuasive legal arguments. There will always be doubts, and, indeed, good lawyers in this traffic law area can create them, believe you me. But we felt, on the basis of robust, pored-over legal positioning on this matter, which we took very seriously indeed, that the Government—and I am grateful—and I think Parliament needed to act to ensure public certainty. That speaks to the retrospective nature of this bill, which I will come to, but also to public safety in this area.

The crux of the issue is—I think as both David Parker and Denis O’Rourke have made clear in this Committee—the 2002 Local Government Act. Then, post that, there really is a cascade of laws that effectively sets up a by-law regime for councils. At one level, and this is where I go some way with Denis O’Rourke, the responsibility on councils had some clarity. Ultimately they were to pass by-laws for their speed limits and they were to review them in a 5-year period—actually, they had a 2-year period of grace after that, and in Kāpiti Coast District Council’s case we certainly know that that did not happen. But I would say, as I have already said, that there is a need, I think, for a degree of humility in these issues. We are dealing with legal arguments. They can go other ways, but I do not think the Government or, indeed, this Parliament could leave it to hang on that when we had a body of clear views that said we would be putting public certainty and, certainly, public safety retrospectively and prospectively into jeopardy.

I just want to deal briefly with the retrospective aspect of this legislation. I was not here for Russel Norman’s speech, but I gather from other members’ contributions that he had some concern about retrospective legislation. I think we can all say, whether we are legally trained or not, that it is quite clear that retrospective legislation, all things being equal, is undesirable. Indeed, it can be a breach of the New Zealand Bill of Rights Act, and we need to take those sorts of issues very seriously indeed.

There are times, though, when retrospective legislation is necessary and where this Parliament rightly reserves the right to pass such laws, and I think here we are not dealing with just one but with a number of reasons that make it very clear that retrospective legislation is, on balance, and having considered all of the alternatives, the right thing to do. First and foremost is public safety, and there is no question that we cannot have a position where there is some doubt—we have used the words “any doubt” in clause 3—that someone today can, on Kāpiti coast, go at a much faster rate than the speed limit we thought was the case. That would be unsafe. It would be putting lives at risk and it would be the wrong thing for us to do, and that is a strong reason to be retrospective here—to clear that up for the past and for the future.

I think that the other reason is also very clear in this. This is not a matter where anyone has acted in bad faith. This is a matter where, very clearly—again, if we take the Kāpiti Coast District Council—the signs meant that the police and the public of that area all thought the speed limits were a certain way. Everyone thought the law was that. Not only that, but I would say most reasonable people throughout New Zealand thought that that is what the laws and the speed limits should be. So it is what they thought they were and it is what they thought they should be, and that is what right-thinking people would think in that regard. So we are—and this is a clear area where retrospective legislation is appropriate—going back and fixing technically what might otherwise be not correct and unsafe, but in a position of good faith.

I seek leave to have Part 1 and Part 2 taken as one question.

The CHAIRPERSON (Hon Trevor Mallard): All parts?

All parts.

The CHAIRPERSON (Hon Trevor Mallard): All parts, including clauses 1 and 2?

Yes.

The member is seeking leave for the Committee stage of this bill to be taken as one debate but for the votes to be taken individually.

I raise a point of order, Mr Chairperson. I just want to clarify what that means in respect of members’ ability to take calls.

I have given some thought to this, and it would be my intention that we would start our count again. People will not be retrospectively disadvantaged, and that would mean that members could have up to four calls if they so wish on the Committee stage. Is there any objection to this process? The Committee is agreed, so we are now in Committee on all parts and the initial clauses of the bill.

Part 1 Preliminary provisions (continued), Part 2, and clauses 1 and 2