Land Transport (Speed Limits Validation and Other Matters) Bill

Thank you, Mr Chairperson, and can I thank you for your ruling in respect of calls, which I think is important because, with the Land Transport (Speed Limits Validation and Other Matters) Bill being rushed as it is, it is important that members have the time to get their heads around it and ask the questions that need to be asked of the Minister of Transport. Having heard Denis O’Rourke’s contribution, I actually agree with him about the description in the purpose clause. I encourage the Minister, who I know is a very competent lawyer, to consider the amendment that I have proposed, which actually endorses Denis O’Rourke’s point, so that rather than saying “remove any doubt about the validity of speed limits”, we simply say “it validates speed limits”, because that is the proper description of what it does. It avoids, as Denis O’Rourke said, the weasel words, and I think we should call it what it is. It makes clear that there is absolutely no doubt that it is validating them, so I would ask the Minister in the chair, the Hon Simon Bridges, to consider that. It does not change the effect of clause 3(a); it just validates it. It validates the speed limits. If there are some speed limits that do not need validating, well, we have not done anything wrong, and if that was a valid complaint of the clause that would be a valid complaint about removing any doubt about the validity of them, because they are valid anyway. So I would encourage him to adopt that clause.

The other question I have in respect of Part 1 is about the drafting of clause 5(b). Clause 5, “Meaning of specified bylaw”, states: “In this Act, ‘specified by-law’— … (b) does not include a bylaw that was so made or purportedly made by a road controlling authority under any other Act …”. Given the way we use “this Act”, which is a reference to this legislation, in clause 5(a)(i), and then in clause 5(a)(ii) we list a series of Acts—the “Government Roading Powers Act 1989, the Local Government Act 1974, the Local Government Act 2002, the Land Transport Act 1998, and the Speed Limit Rule 2003”—I presume that we are saying that when paragraph (b) says “any other Act”, it means any Act other than those listed in clause 5(a)(ii). I presume that is what it is intended to mean. I just want to check that that is the case. It might seem like a silly question and it might be a silly question, but I just want that to be clarified.

Now that we are talking about all parts as one, I want to talk a little bit about clauses 8 and 9, because I think these are important reasons that make it easier for Parliament to agree that we should be passing legislation of retrospective effect. As I read those clauses—and the Minister can correct me if I have got this wrong—it effectively says that if an enforcement action has been taken before the commencement of the Act, it is not to be treated as invalid because at the time the enforcement action was taken, the by-law may have been invalid. Making it retrospective effectively means that the enforcement action is validated as well. But then we say in clause 9 of the bill, which is an important exception to that general rule, that “This Act does not limit any proceedings that expressly challenge the validity of an enforcement action on any of the grounds specified in subsection (2)”—which is subclause (2) of clause 9 of this bill.

My understanding of that, Minister, is that what we are effectively saying is that if someone was already defending a traffic infringement notice or some other charge—it could be a criminal charge for reckless driving or something—on the basis of the invalidity of the speed restriction that they had already noticed, then that defence can stand, so we are not retrospectively imposing a sanction in respect of offences or infringements where the accused person has picked up that there is an invalidity and is standing on their rights to say: “No, this is invalid. I’m not guilty.” We are not changing that person’s circumstance, but if it has not previously been picked up, we are not letting them take advantage of the technical invalidity of the speeding notice. I would like confirmation on those matters, please.

I am happy to take a short call on this bill. I agree with my colleagues that in a general sense, we support the legislation, despite the fact that most of us in this Chamber will feel that it is undesirable to be supporting retrospective legislation. Notwithstanding our reluctance about it, the reality is, based on the information that is available to us, that we cannot be irresponsible and that we have to move forward in terms of passing this piece of legislation.

I then want to congratulate and acknowledge Kāpiti Coast District Council for coming forward on this, because I think that if it were not for its courage in stepping forward and identifying that maybe a mistake had been made, we would not have been made aware of this. I then want to say to the Minister of Transport, given the fact that this is another concern of many of us in this Chamber—the fact that in urgent legislation we sort of sidetrack the ability of the select committee to call on members of the public to have an input into legislation—by and large, all of us agree that that unique process that we have involving the select committee enables good quality legislation to be passed. Therefore, I hope the Minister does not mind, because I think it is important that we spend a bit of time looking through the departmental disclosure statement as well as the regulatory impact statement.

For my benefit, it is noted that on 27 May the council advised the police, and I would be interested to know, blow by blow, what exactly happened. I am sort wondering whether, if this was an urgent situation and it was notified to the police at the end of May of this year, we could not have brought this forward, or is where we find ourselves now debating this, close to the end of July, simply because of the events that took place?

Secondly, I note also that although the bill in its second part validates related amendments, in the regulatory impact statement it makes reference to legislation going back to 1974, but yet in Part 2 the bill does not refer to validating the legislation that also gave rise to it. I quote from the regulatory impact statement on page 3, where it says: “Subsequently, by 2007 uncertainty had arisen concerning the extent to which territorial authorities could make use of the provisions of LGA02 to create speed limits. Recent research has revealed judicial decisions that cast doubt on the use of the Local Government Act 1974 provisions to set a speed limit.” I am not a lawyer, so I am simply asking: if the matter goes back to legislation from 1974, and Part 2, which validates related amendments and legislation, does not contain any reference to 1974, are we covering our t’s and i’s or not? That is simply the question I would like to ask.

As I said, because we are in urgency and because we are not going through the select committee process, which gives us the benefit of ensuring that we have the benefit of contributions from the wider community and from Local Government New Zealand as well, it would be nice for us to spend a bit of time trying to ensure that we are not coming back here in a month’s time or a year’s time, again going over and validating what we failed to validate this time around. So I am hopeful that the Minister is able to respond to those questions.

Just to follow on from those comments by Su’a William Sio, I want to raise a couple of questions and invite the Minister of Transport to give us an explanation based on the briefings that he has had on clauses 10 to 12 of the Land Transport (Speed Limits Validation and Other Matters) Bill.

The regulatory impact statement—the section on the underlying problem—makes quite interesting reading. It explains how the councils got into such confusion, really, about the powers. If I can briefly summarise those comments, what happened was that there was considerable confusion about the legislative framework for setting speed limits by by-law after there were significant legislative changes in 2004. Up to that point councils had had bylaw-making powers for setting speed limits, under the Local Government Act 1974 and also the Local Government Act 2002. Basically, confusion arose between those two powers and when legislation was drafted in 2004, it appears that there was some confusion and that the power of section 684 of the Local Government Act 1974 was, in fact, being relied upon by councils. In the legislation that resulted basically there was a conflict between the Local Government Act and the specific power limited to Ministers under the Land Transport Act.

I suppose my question for the Minister really is to ask him to set out for us—given that we have not had the benefit of a select committee process, the briefings from officials, and the opportunity to tease through this–some explanation about precisely how clauses 10 to 12 resolve any of these ambiguities. In particular, I would be keen to hear from the Minister about what we are advised that the bill achieves, which is that while clarifying the bylaw-making powers of the local territorial authorities it removes the requirement for the regular review—first, 5-yearly, and then 10-yearly—of those by-laws. That is the thing that was not complied with that has led to these by-laws, and all the offences and infringements and sanctions that flow from it too have been rendered technically invalid. So that is my question and I would appreciate some explanation.

I also want to ask some questions that I think would normally be asked in a select committee process but this will have to substitute. I want to particularly refer to clause 6(1), which seems to be drafted in a very broad manner. Clause 6(1) starts off saying: “Every specified bylaw is declared to have been lawfully made and to be and always have been valid despite any 1 or more of the following circumstances applying to it:”, and then it gives two such circumstances. The point I am making here is that the first few words—“Every specified bylaw is declared to have been lawfully made”—before the word “and” are very broad. What that actually does is to declare such by-laws to be valid not only for those reasons that are stated but even if there were other defects in the by-laws, and we do not know whether there are or not.

So I would like to draw that to the Minister of Transport’s attention and to ask him whether, in fact, the drafting is just a little bit too wide in the way that the words have been used in clause 6(1). I myself would like to think about that some more, but there will not be the time to do that. There is not a select committee process and so that cannot really be thrashed out so easily. But I think it is a valid point. If he is satisfied, then maybe I will be; maybe I will not. It seems to me not good wording, anyway.

The second point I want to make relates to clause 6(1)(b). It refers to “the bylaw was made or amended using a process that did not comply with—(i) the enactment …” and so on. In subparagraph (ii) it refers to “any other applicable enactment:”. I am a little bit unsure, as I think it was David Parker or Phil Twyford—I am not sure; it was one of the two of them—pointed to those words as well and asked the same question. Is that appropriate and necessary in this bill; if it is, how far does it really go? So I am worried about that provision as well. I draw that to the Minister’s attention too.

The next point I want to make relates to clause 6(1)(c). I just want to point out here that it says: “as far as the bylaw was made or purportedly made under the Local Government Act 1974 … the by-law—(i) was not reviewed by the relevant local authority … and (ii) has been revoked by the operation of section 160A …”. The point I want to make here is a general one. It is simply that this is a case of councils and other road-controlling authorities actually not following the law. It is unfortunate that when people do that we say: “That’s OK. We’ll just validate it for you.” That actually is a very bad precedent to set. Again I will admit that there does not seem to be any other way around it, but I do not think that this situation should pass without comment in the Committee. It is not a good situation where local government and other road-controlling authorities can get away with simply not doing what they are required to do and then come cap in hand to the Government of the day to say: “Oh, fix this up for us. We have cocked up.” It is not good enough. It is not good enough by a long shot.

The last point I want to make actually is a positive one, you will be glad to hear, Mr Chairman, and it relates to clause 9, “Savings for certain legal proceedings”. It says that the “Act does not limit any proceedings that expressly challenge the validity of an enforcement action on any of the grounds …” such as those that we have already spoken about, before the date on which this bill was introduced. That is very important. I do not know whether there are in fact any such proceedings before the courts, but if there were, it is very important that that provision be there. Not to do so would completely compromise the credibility of our legal system, so I am very glad to see that those savings are there, and I certainly approve of that.

But I would ask the Minister to think about some of the specific points I have been able to identify. I am sure that if we have the time to look at the bill in more detail, there might be other points as well. But at least those stand out fairly well for me, and I would appreciate an answer to them.

I feel like the junior drafting assistant of Denis O’Rourke. He is exactly right. Could I draw the Minister of Transport’s attention to the wording of clause 6(1) and clause 6(2). Denis O’Rourke has just said that he thinks that because of the insertion of the words in clause 6(1) “and to be and always have been valid”, that stands alone irrespective of the list. He may or may not be right in that, as to that being the effect of it, but he is right that it is unnecessarily confused drafting, because the same words appear in clause 6(2), which says that for the avoidance of doubt, every one of these designations “is declared to be and to always have been lawfully set or designated.” You do not need to say it twice.

This would be better drafted, as Denis O’Rourke suggested, if the words the first time they appear in subclause (1) were deleted so that it then read “every specified bylaw is declared to have been lawfully made despite any 1 or more of the following circumstances applying to it”. Then there is the list from paragraph (a) to paragraph (c), and then subclause (2) still takes effect and would say: “To avoid doubt, every speed limit set by a specified bylaw validated under subsection (1) and every designation of an urban traffic area is declared to be and to always have been lawfully set or designated.” The way to fix that is to just delete the words “and to be and always have been valid” from the first time they appear in subclause (1). It will still have the same effect, but it will not have the ambiguity that Denis O’Rourke referred to. I have put an amendment on the Table, Minister, and, again, you can consider that with your officials, but I think that Mr O’Rourke is right that you do not need to say it twice and that saying it twice makes it worse than if you say it just once.

I will talk for a little bit longer so that the Minister and the officials can have time to consider that before we actually move to the voting stage of the Committee stage in this rushed urgency process, because unless I do, I suspect that the Minister might use his votes, which outnumber the Labour Party and the New Zealand First votes, and he might try to push this through. Using the time that I have available to me, it is hard to read clauses 10, 11, and 12, or particularly clauses 11 and 12, without having the statute they amend in front of me. So I want to have it clarified by the Minister that the sections that are being amended are the mechanism by which we remove the obligation to have the 5-yearly reviews. So I would like the Minister to clarify which of the sections that we are amending and replacing with the words that are set out in clauses 11 and 12 of this bill—section 22AB(1)(d) or section 22AD(1)—is the one that specifies the 5-yearly reviews that are now being done away with.

I think that there have been some well-made points—at short notice, we accept—about having this bill go through the House under urgency. I think that we would all agree it is much better if these bills can, optimally, go through the select committee process and have serious consideration made over weeks, if not months. But we do know here as well, I think, that this does need to be urgent. We cannot have a situation where people, having thought that the speed limits in certain areas were always such, now think that they can lodge appeals and the like on the basis that it is OK to be driving that fast on those roads—to be going dangerously fast in many cases. And of course, prospectively, we need to ensure safety with the utmost urgency as well. I think that in this case the confidence and the safety points trump those other points.

Can I say that I also go some way with Denis O’Rourke on his point that the precedent here is that we should not be validating mistakes—leave them to it. Of course, we could in a sense, in theory, do that were it in some area where, I think, safety was not the case. But I think that in this situation, given the seriousness of what we are dealing with—speed limits on our roads, where 9½ or 10 out of 10 people travel—we do need to act in this way.

Can I just say briefly that I hope I have, effectively, got all of the points made by Messrs Parker and O’Rourke. The analysis of clauses 8 and 9—Mr Parker’s and, I think to some extent, Denis O’Rourke’s—is absolutely correct, so I accept what they are saying there. I think that on the point about the removal of any doubt and about the amendment that has been put forward by David Parker, I understand the point that they are making. I have been in discussion with officials. We maintain that we will be sticking with the words we have because we do think that they are a more accurate summation of what the position is, which is that we are not 100 percent certain that the by-law is invalid. That is what this is in relation to. That is correct—the purpose clause.

In our legal arguments, we believe that we are probably right, but we are, in a sense, being belt and braces, and the argument is that we want to be as accurate as we can for the courts of New Zealand, which, effectively, interpret these laws on these points. In a sense, part of me says: “Well, maybe we could do what the Hon David Parker is saying here.”, but I think that this is the position that I have come to in the time that we have got.

If we go through clauses 11 and 12, there were comments made about those. In broad terms, clause 11 is, as I understand from my reading of it, about putting this into land transport law, where it belongs, and about having it as a land transport issue and not some wider local government one. Clause 12 broadly preserves consultation provisions on by-laws, which I think we all agree is the right thing to do.

I accept some of what Denis O’Rourke and, to some extent, David Parker are saying on clause 6. I turn just quickly to that provision. I am trying to do justice to the points that they have made, because, as I say, I am conscious that this is a bill that will not have select committee consideration.

💬 Hon Member: You’ve got to have faith in this one.

Well, I am about to go through it. I do not accept the unduly broad point of Denis O’Rourke, in the sense that I think there are the provisos, the qualifying provisions of clause 6(1)(a), (b), and (c). I think there are other clauses as well. We have talked already, actually, about the saving of certain legal proceedings and what that is about. I think David Parker makes some very interesting points about the wording in clause 6(1)—“have been lawfully made and to be and always have been valid despite”—and it is possible that he is right. But I am not going to go with him, and I want to explain why. I think that in this bill we do need—

💬 Hon David Parker: Trust your legal instincts. Exercise your power as Minister.

Then we might be back here, Mr Parker, and that is not what I want. We can accept to some extent that some of this bill could be, with another month, more felicitously worded. Jane Austen could have been proud of it. But we have gone through it very carefully. We think that it does the job and provides the certainty and the safety that is required. We do not think that it has unintended consequences. I think that in terms of those phrases—and, actually, clause 6(2), which I think the member has raised—we are, necessarily I think, taking a belt and braces approach to this because I think we can all agree that we do not want to be back here. We do want to fix a position that has been created where by-laws have been created, they have not been reviewed, and on that basis have been revoked. We do want to make sure that the public of New Zealand has absolute certainty today and is absolutely safe and that the speed limits in the towns and cities that they live in are what they say on the signs.

I accept the good contributions made and the spirit in which they have been made, which is in good faith and, I think, with some learning, but I think that we want to take a belt and braces approach that passes this law and keeps New Zealand safe.

I thank the Minister for that contribution. There was one point that he did not address, and it was that I was seeking a detailed explanation of how clauses 10 to 12 of the bill deliver on the intent that is set out in the briefing notes that the Government has provided prior to these debates. It says that the proposed amendment is consistent with Cabinet decisions in 2007 and 2010 to consolidate traffic by-law powers in the Land Transport Act 1998, and although this would have the effect that they are no longer subject to the 2002 Act or the 2002 review provisions, other disciplines would apply.

It is not clear, as a layperson, based on the information we have in front of us, how those final clauses in the bill deliver on that intent and, specifically, the review provisions that got us into this mess in the first place, where councils are required to review after the first 5 years and then subsequently every 10 years. I would appreciate an explanation from the Minister as to how the last three clauses—I think it is really talking about clause 11—actually achieve that.

Just following on from my colleague Phil Twyford, I seek that, too, because I have just had a look at sections 22AB(1) and 22AD(1) of the Land Transport Act 1998, which I have before me. These are the sections that are amended by clauses 11 and 12 of this bill. I thought until now that it was actually those amendments that removed this obligation to review by-laws every 5 years. That is why I, and other members in the Chamber, have been seeking clarification that that is indeed the effect of these clauses, because that is how we thought this was being done. But when I read sections 22AB(1)(d) and 22AD(1), neither of them impose the obligation to renew these by-laws every 5 years. So it is actually not those amendments that fix the problem in respect of the 5-yearly reviews of these by-laws that have not been conducted.

I suspect, then, that we actually have to look at clause 7 of the bill to find the clause that corrects, or changes for the future, the obligation to review these by-laws every 5 years for the speed limits to remain valid. I am still not clear enough for this to pass to the next stage. I am not clear enough in my understanding as to what provision it is in this bill that we are considering that fixes this 5-yearly review obligation for the future. I understand how we are validating the things that have not been properly reviewed in the past, but I thought we were being told, in the explanatory note and in the speeches we have heard from the Government so far, that we are clarifying the procedures for the future so that those 5-yearly reviews are not necessary. I have still not yet got my head around how it is that we are doing that.

If it is not clauses 11 and 12 that do that–and I do not think it is, from my reading of the existing legislation combined with these clauses 11 and 12—I am left with searching for what else it might be. Maybe it is clause 7 of this bill, which says: “(2) To avoid doubt, sections 158 to 160A of the Local Government Act 2002 do not apply to a bylaw to which subsection (1) applies.” Perhaps the Minister could clarify for me how in this legislation we are removing that 5-yearly obligation.

This takes me back. I feel like I am arguing in front of Judge Harding or some such judge at the Tauranga District Court. [Interruption] No, I was never that good, sadly, but I did win a few cases. Be that as it may, I think I can help. Clause 7 makes it clear that the Local Government Act does not apply and that this is under the Land Transport Act. Clause 11 deals with the position prospectively, and bylaw-making prospectively, and of course—well, not of course, but I can assure the member that the review provisions apply only under the Local Government Act, so that in clauses 7 to 11, where we are, effectively, making clear that everything is in the Land Transport Act, there are no review provisions prospectively.

I hope I have not run out of contributions. This might be my last one. If that is intended to be the effect prospectively, is it your intended effect? Just reading clause 7 of this bill it says: “(1) Every specified bylaw”—and specified by-laws are by-laws that have been made from 2004 until the date of this bill, effectively—then, to avoid doubt, those provisions of the Local Government Act do not apply to those by-laws. But what about any by-law that is produced in the future? Are we meaning that if the council passes a new by-law under its by-law - making authority, it might not be a specified by-law under clause 5 and, therefore, clause 7 will not apply to it? [Interruption] You hope I am wrong.

I know you are wrong. I do not want to go through a precise legal analysis. I am conscious that a court may one day read back this transcript and I do not want to be the bush lawyer that Clayton Cosgrove accuses me of being. But I assure the member that that is not our analysis.

The question was put that the following amendment in the name of the Hon David Parker to Part 1 be agreed to:

in clause 3(a), replace “remove any doubt about the validity of” with “validate”.

The question now is that Part 1 stand part. Those who are of that opinion will say Aye—

💬 Hon David Parker: I raise a point of order, Mr Chairperson. I also had an amendment to clause 6.

The CHAIRPERSON (Hon Trevor Mallard): Yes, but that is in Part 2.

Part 1 agreed to.

The question was put that the following amendment in the name of the Hon David Parker to Part 2 be agreed to:

in clause 6(1) delete “and to be and always have been valid”.