Land Transport (Random Oral Fluid Testing) Amendment Bill

I move, That the Land Transport (Random Oral Fluid Testing) Amendment Bill be now read a first time. I nominate the Justice Committee to consider the bill.

It is a privilege to rise and introduce this significant and timely bill to the House. A study by the Automobile Association published in June of this year showed that drug-impaired drivers are now involved in more fatal crashes on our roads than drink-drivers. This bill introduces random roadside drug-testing, and will provide the police with the power to test any driver, any rider, or any supervised licence holder at any time, and it fits neatly into Minister Genter’s ambitious target of zero road fatalities. The purpose of the bill is to ensure that motorists who take drugs and drive can be easily detected at the roadside and penalised accordingly. The law currently stipulates that it is a driver’s responsibility and duty to be mentally and physically fit when they drive a motor vehicle on public roads, and this includes not being impaired by alcohol or drugs.

This bill is about saving lives, saving family and friends from the grief of losing a loved one, preventing serious injuries, and preventing destroyed lives, and it forms part of the solution in how our society tackles the complacency of some who use drugs and then drives. The random drug-testing of drivers will be similar to our already existing random breath-testing for alcohol.

In 1969, the first alcohol breathalyser—imagine what that looked like—was introduced in New Zealand. In its first year of operation, 2,928 drivers were tested with this new gadget. Only 214 were deemed sober enough to drive. New Zealand had a serious drink-driving culture and it was not uncommon for our drivers to engage in this dangerous and high-risk behaviour. In 1978, the legal blood-alcohol limit was lowered and evidential breath-testing was introduced. In 1979, there was a substantial drop in the New Zealand road fatality statistic. Now, not all the road safety success can be attributed to random breath-testing for alcohol. But this new testing and road safety education, coupled with compulsory seatbelts for children, changed the New Zealand road safety record significantly. In 1996, New Zealand ran a very successful advertising campaign featuring the slogan “If you drink and drive, you’re a bloody idiot.” New Zealand’s road fatality for 1996 was 515, which was the lowest number in 32 years. Education and awareness are key elements in changing culture.

Over time, I think we can all agree, the impact on society of random roadside alcohol-testing, combined with the targeted education campaigns, has had a profound effect on the safety of our roads. The aim of this drug-driving bill is to have a similar outcome: to save lives. My hope is that by engaging the community in a highly visible drug-driving campaign reinforced by this new deterrent of a random roadside drug-test, similar to our alcohol testing, people will think before getting behind the wheel. It is time for us to work together towards changing a culture of indifference by those that use drugs and then drive.

The incidence of drug-driving in New Zealand is startling. The recent study by the Automobile Association in June found 79 drivers who were involved in fatal crashes last year tested positive for drugs, compared to 70—70—who were above the legal alcohol limit. So this is the first time that drugs have overtaken alcohol in this statistic. In 2013, the number of drug-impaired drivers involved in fatal crashes was just 14—14—compared with the 53 that were intoxicated with alcohol. The numbers of the drug-impaired drivers involved in fatal crashes has steadily increased since 2013. In 2015, it was reported that 47 percent of people who are casual users of drugs drive. So almost half of casual users of drugs drive. A survey of the effect of drugs on driver behaviour undertaken by the New Zealand Drug Foundation in 2009 found that two-thirds of cannabis users, nearly half of methamphetamine users, and a quarter of Ecstasy users reported driving under the influence.

But these statistics are not a complete surprise. The issue has been bubbling away in our communities for years, and all sides of the House have previously acknowledged it as a problem. It is time now to take action and to instigate change. Our police need access to stronger and more visible drug-driving enforcement measures. We need to change the drug culture as we did with drink-driving all those years ago.

Currently, if police have reasonable cause—and they must have reasonable cause—to suspect a driver of being impaired by drugs, they can ask the person to complete a behavioural test such as walking heel to toe in a straight line and turning and standing on one leg. I’m not joking—that is the test. Finally, failing that test—that non-scientific, archaic test—the driver must then complete a blood test.

This bill will allow a trained police officer to stop and drug test any driver who’s driving a motor vehicle, motorbike, truck, or bus, without first needing to determine reasonable cause to suspect that the driver had used drugs. The bill allows for the testing of the presence of three types of drugs in oral fluid. The three drugs named in the bill are THC, methylene dioxy-methyl amphetamine—Ecstasy—and methamphetamine. These drugs impact the skill and judgment required for safe driving.

In my discussions with others across the House and across community groups, I’ve been pleased to find that there is strong support for this bill. Positive and constructive suggestions or changes to the bill have already been made to me, and I welcome these discussions—get them into the select committee process. Questions like: should the testing include a wider range of drugs? Is there better technology currently available? For example, I’m made aware of technology that allows sweat to be tested from the palm of one’s hand. Then the question is, if the drug is detected, is there a tolerance level that is appropriate or acceptable—similar to our allowable limits for alcohol. Should there be an allowable limit for drugs for driving? I hope that these questions, challenges, and opportunities for improvement will be explored in the select committee stage.

In many of our workplaces nowadays we test for drugs due to safety concerns—for example, when operating heavy machinery, forklifts, chainsaws, and processing equipment. We all understand and accept that notion that we need to keep people safe at work, free from drug-affected colleagues. But we don’t yet have an effective drug-testing regime to ensure we are all safer on our roads.

Of course, the introduction of random roadside drug-testing alone will not stop drug-driving. However, this bill, alongside—you would have noticed—recent and very good anti - drug-driving advertising campaigns, will increase awareness and send a strong message to the public that it is not OK to take drugs and drive. It is time that drug-drivers think twice before getting behind the wheel.

The intention of this bill is not to be an anti - drug use piece of legislation; it’s about road safety, education, and compelling those who use drugs to stay off the road. I believe in the strength of our legislative development process, and I’m certain that the final Land Transport (Random Oral Fluid Testing) Amendment Bill legislation that is passed will go a long way in combating drug-driving.

This bill will directly address the growing incidences of drug-driving - related accidents and fatalities. The current law and enforcement measures do not effectively deter drug users from driving while impaired. If drug users think twice and are deterred from driving by the fear of detection, we will save lives. Roadside drug-testing of drivers is justified in the interests of reducing fatalities and serious injuries on our roads. I thank all of those who have contributed and commented positively. I commend this bill to the House.

Thank you, Madam Deputy Speaker. Alastair Scott has identified a serious problem, but in the view of Labour members—and we’ll be making the case through this debate—his solution falls well short of the level that we would need to see in order to support this bill to select committee. There is no question that drug impairment on our roads is a serious threat to the life and limb of New Zealanders as they travel to and from work and around this country. But the random roadside drug-testing regime that Alastair Scott proposes with this bill we believe has a number of flaws that make it implausible and impractical.

The bill amends the Land Transport Act by introducing a regime for detecting drug-driving in relation to just three drugs: THC, MDMA—that’s Ecstasy—and methamphetamine, by allowing for random oral fluid testing by police officers. There is no question, let me repeat, that drug-driving is a serious problem that requires action, but we want to see an effective measure in response to that. We would support a change to legislation if it was required and if the technology exists and was reliable enough and proven to allow roadside testing in a timely, efficient, and reliable way. That technology does not currently exist.

This bill attempts to solve a problem with measures that we believe are inadequate. The tests are slow. They are expensive, at $45 a test. They identify only three types of drugs, and this is the critical point: they only detect the presence of the drug; they have nothing to say about impairment. I want to come to the advice from the Attorney-General about that, because that is the major flaw in Alastair Scott’s bill, where it falls short.

I want to point out that the Hon Stuart Nash and the Hon Julie Anne Genter, the police Minister and associate transport Minister with responsibility for safety, are working on this issue. They have work under way. We are confident, on this side of the House, that they will come up with something that is comprehensive and effective, unlike this bill.

Alastair Scott reports in his comments that about a third of road deaths involve someone with drugs in their system, often mixed with alcohol. But he doesn’t elaborate on whether that person caused the incident or whether they were adversely affected by drugs at the time. This is a case of policy-based evidence-making. We prefer to do that in reverse and base our policy and our legislation on actual evidence. We do take drug harm very seriously in the Labour Party. We are committed to comprehensively responding to the Law Commission’s report on controlling and regulating drugs, a review of the Misuse of Drugs Act, and we are committed to replacing the current Misuse of Drugs Act. Support for this bill is not some kind of litmus test for serious commitment to drug reform.

So what are the problems with this bill? Well, the first is that the oral tests that are currently being marketed that would be used to administer the test under Alastair Scott’s bill are both expensive and unreliable. False positives are very likely to undermine the credibility of the regime and undermine the public confidence in the way that the police are required to—

💬 Hon Dr Nick Smith: Send it to select committee.

—administer this regime. I’ve already said, Dr Smith, we believe this bill falls well short of the quality that would be expected if we were going to send it off to select committee and spend a significant amount of taxpayer public resources in giving scrutiny to this bill. It just doesn’t get over the line.

The other critical thing is that the roadside saliva-testing devices can take between three and five minutes to produce a result. I ask the members in the House tonight to imagine a random testing regime—the equivalent of a booze bus—on some busy highway stopping people and subjecting them, with no prior reasonable cause to believe that they are impaired, to a test that takes three to five minutes, when members know that currently with alcohol testing it is a few seconds. The test literally takes a few seconds, and people are on their way again. I ask Alastair Scott to consider how New Zealanders will feel when they are randomly stopped on the highway—they’re going about their business, and they are made to stop for five minutes or when there’s no prior cause, no reason to believe that they are impaired in any way, and then they are stacked up on the side of the road—dozens and dozens of people—waiting for their results to come through. I don’t think he’s thought that through at all. Maybe the member, when he makes his return contribution, will tell us, on an average day on a highway New Zealand, how many people are likely to actually be under the influence of drugs on the highway.

💬 Alastair Scott: That’s your reason not to do it?

What I’m saying, Mr Scott, is that you might say there are large numbers of people who are involved in accidents who turn out to be drug impaired, but the actual percentage of people who are on the highway who would be picked up by a random testing regime is actually likely to be very low. For all I know, it could easily be 1 percent or 2 percent. So that member is happy to subject those people to an expensive, time-consuming, and unreliable random testing regime—it’s completely impractical. I just don’t think the member has thought this through.

I want to draw the House’s attention to the comments made by the Attorney-General in his New Zealand Bill of Rights Act advice. He points to clause 12 in the bill, which introduces a power for an enforcement officer to require a driver to undergo a compulsory oral fluid test. The Attorney-General, basically, subjects Alastair Scott’s bill to three tests. The first is consistency with section 21 of the Bill of Rights Act, “the right to be secure against unreasonable search [and] seizure”, and in the view of the Attorney-General, the bill’s policy statement “does not address how effective the current drug driving detection regime is, or whether random oral fluid testing will in fact introduce a more effective regime.” Well, that’s worrying, for a start.

He goes on to say, “there are inadequate procedural safeguards to ensure [that these] powers are exercised in a reasonable manner … Without statutory safeguards or any other guidelines, the oral fluid test provided for by the bill does not appear fit for this evidential purpose.” For those reasons, the Attorney-General considers that “the requirement to undergo one or more compulsory random oral fluid tests … is inconsistent with s 21 of the Bill of Rights Act.”, which provides for the right to be secure against unreasonable search and seizure.

He then goes on to look at the provision in the Bill of Rights Act which provides for the right to not be arbitrarily detained and, again, says that “an enforcement officer may use this power [under Alastair Scott’s bill] without … any cause to suspect that a person has consumed a specified drug. Once detained, I understand”—he says—“the test could take up to five minutes if undertaken at the roadside or significantly longer if the person is required to accompany the officer to another place to undergo the test.” The Attorney-General concludes that the bill is disproportionate and “may lead to a warrantless arrest if [the] person fails to comply.” So it fails on section 22 of the Bill of Rights Act.

It also fails on section 25(c) of the Bill of Rights Act, “the right to be presumed innocent until [proven] guilty”. So without adequate procedural safeguards and any requirement for due cause, the Attorney-General considers that “the process of conducting the oral fluid test constitutes both an unreasonable search and seizure and an arbitrary detention.” So the Attorney-General’s concerns, based on the Bill of Rights Act, perfectly mirror the practical concerns about this test. It’s a random testing regime based on a technology that is unreliable, expensive, and time-consuming, completely disproportionate to the possible gain to be achieved through the random testing regime.

In our view, this bill falls well short of the standard that we would expect for a bill that we would support to go to select committee. Thank you.

I know it’s been a very challenging day for the Government, but that speech from the Minister of Transport was another example of a Government that has already lost its way. That’s the guy who’s been up and down the country for months trying to sell himself as the great saviour for road safety in New Zealand. He’s literally moved billions of dollars of funding within the transport sector and sold it all as a big road safety campaign on behalf of the Government, but when it comes to the opportunity for them to stand up in this House and actually vote for something to do with road safety—[Minister Twyford leaves Chamber] goodbye, Phil—they’re found wanting. They’re opposed to it. They don’t like the idea of people and the police having the ability to detect when people are taking drugs. They don’t like the idea of the police being able to enforce drug laws on the road. They should seriously be looking at themselves and how they’re voting here tonight.

I actually think Stuart Nash should be taking a call, because Stuart Nash was quite wise on this issue only a couple of years ago. In Opposition a couple of years ago, Stuart Nash was a champion for roadside oral testing. He was a champion for doing the right thing. He now has an opportunity to vote for it. Back in 2016, Stuart Nash was in the media—up in lights. He was called a huge supporter of random oral roadside testing. He even said that if technology exists to allow for this type of roadside testing in a timely, efficient, and reliable way, we should be looking at it. Well, here’s the opportunity, Labour Party. It’s time to look at it. It should be sent to a select committee so it can be looked at.

Now, Phil Twyford has some issues. He has some concerns. That’s fine; that happens with just about every piece of legislation. What’s the solution to it? Send it to a select committee to look at. If they were on this side of the House, and they had a member’s bill on an issue, they would be up on their hind legs whining and whinging, hoping that it would go to a select committee, pleading for it to go to a select committee so it could be looked at, but go over there into Government, they completely change their tune.

This isn’t unusual from this Government though. The very first piece of transport legislation that ended up in the House just after the election was a carryover of a maritime piece of legislation that we had. The Government picked up our law and they were progressing it, but they made one change to it: they removed from that Maritime Transport Amendment Bill—this was Julie Anne Genter as the Minister in charge of it—the ability for random drug tests to be undertaken. They sent a message back then that, in the maritime industry, in that part of transport, they didn’t care if people were in charge of ships and they were drugged up. They took that random testing out of the bill.

Now we get into an even more serious issue where, potentially, police would have the opportunity to detect people on the road who are drugged up and not able to drive a car safely. When the Parliament can give police the power to be able to test for that, they don’t want to support it.

This is a very simple bill. It’s not hard. It’s very clear. The bill, in the change in new section 11B, set out in clause 5, says, “A person must not drive or attempt to drive a motor vehicle while that person’s oral fluid contains evidence of the use of a specified drug.” What are those specified drugs: MDMA—Ecstasy; methamphetamine—we know what that is; THC—cannabis. The Labour Party, in voting against this today, is, effectively, saying to New Zealanders that they are happy with people driving on our roads with those drugs in their system. They’re saying to the police too, they don’t trust them to be able to carry out properly roadside oral fluid testing.

In fact, the arguments the Minister made tonight were the very same arguments that people would have been making against breath-alcohol testing decades ago. If Phil Twyford was in charge of laws back in the time when breath-alcohol testing was coming in, he probably could have made those same arguments. I’m sure they were made in this Parliament. I’m sure people up and down the country said, “Oh, we don’t want this to happen. We don’t think it’s necessary.” Well, that change in legislation has saved hundreds if not thousands of lives in the decades since it was passed. Here’s an opportunity to do the same when it comes to drug testing.

In the last year, more fatal crashes involved people with drugs in their system than involved people with alcohol in their system. That tells us that this is an issue, and the police—if they go and talk to their local constabulary—will tell them that this is an issue police care about and New Zealanders care about. Here’s an opportunity for the Parliament to do the right thing. Alastair Scott’s put forward a proposal that even Stuart Nash supports. We support this. We support the police to do a good job, and I just wish the Labour Party would fulfil their rhetoric around transport safety and actually vote for this bill.

I call the Hon Lees-Galloway.

Iain Lees-Galloway. Thank you, Madam Deputy Speaker.

💬 DEPUTY SPEAKER: Sorry. Ha, ha!

I have a first name. Thank you. That was an interesting call from the member Jami-Lee Ross. When one picks up the Land Transport (Random Oral Fluid Testing) Amendment Bill off the Table, the member whose name this bill is in is interesting. I understand that the bill was actually drawn from the ballot in the name of the member Jami-Lee Ross and he subsequently transferred it to Alastair Scott, perhaps in an effort to give Mr Scott something to do—I don’t know. I predict that this bill will fail, in the same way I predict that Mr Scott is likely to fail at the next election, as well. Anyway, I thank Mr Ross for contributing to the debate, as he appears to be the author of this piece of legislation.

I would make a second observation, and that is that if this was a simple matter to address, I am quite certain that the previous Government would have addressed it in its nine long years in Government. Everybody knows that the National Party is more conservative on these issues, and had it the opportunity to legislate to introduce a comprehensive and effective form of roadside oral testing—or any other form of testing, for that matter—for people driving under the influence of the drugs listed in this legislation, it would have done so. It would have. I have that much faith. I don’t have a huge amount of faith in the National Party, but I have sufficient faith to believe that had there been a regime that could stand up to scrutiny, that could be introduced by this Parliament or by a Government, the National Party in Government would have done so. They didn’t.

💬 Kieran McAnulty: Why?

Because there is no such regime, and the technology has not sufficiently changed over the last 10 months for this Parliament to confidently introduce such a regime. And I know that the member in charge of this bill, whether it be Jami-Lee Ross or whether it be Alastair Scott, knows that, and that the National Party is simply attempting to play politics with this matter.

Now, members will know—members who have been in this House for as long as I have will know—that I am a progressive on drug law matters. I do not believe that prohibition works. It doesn’t work for alcohol, and it doesn’t work for a range of other drugs. But members will also know this: that I have no truck with anybody who drives under the influence of a mind-altering substance. I introduced a member’s bill to reduce the drink-driving limit. Shortly after that, the National Government introduced a bill to do the same thing; that’s a good thing. This Parliament legislated to reduce the alcohol limit for driving, and that was a good thing. Likewise, I have no time for anyone who knowingly drives under the influence of cannabis, MDMA, methamphetamine, or any other drug, for that matter. If we had a simple solution for testing for those things, I would support that, and this Government would support that. But at the moment there is no test which stands up to any scrutiny, and I know that the member in charge of this bill knows that.

This is not a matter that ought to be dealt with piecemeal through a member’s bill. This is a matter that this Government takes seriously. Now, let’s look at the situation that this Government inherited: a rising death toll on the road. For decades, the road toll was falling. Under the previous Government, the road toll began to rise again. That is a sad indictment of that Government’s approach to road safety, and it is something that this Government is absolutely committed to reversing. I know that Stuart Nash and Julie Anne Genter take the road death toll seriously, and they’re doing everything in their power to reverse the detrimental trend that developed under that previous Government. So we oppose this bill, but we oppose it because we believe in evidence-based policy, and we believe in reducing the road toll—

The member’s time has expired.

Thank you, Madam Deputy Speaker. It’s a pleasure to rise on behalf of New Zealand First to speak on the Land Transport (Random Oral Fluid Testing) Amendment Bill. We will not be supporting this bill. There is a very good number of reasons for this, and I will use the next 4½ minutes to lecture the National Party on just how wrong they are and how self-righteous they are sitting there. I don’t want to repeat the entire speech of the previous member that just sat down, Iain Lees-Galloway, but they had nine years—nine years—to put any sort of legislation in to curb not only the drug-driving issues. We understand that it is an issue—it is an issue—but also the drink-driving fatality crashes in this country.

Now, that member who was the author of this bill, or who’s looking after this bill at this stage and presented it to the House, Alastair Scott, quoted some figures, and what he failed to mention was that those figures started from 2013, and they went up and up and up and up—both for drug-driving and drink-driving. So why now? Why has that member—and I’m sure that he’ll use his last five-minute call to explain exactly why the National Party didn’t do anything when they were in Government.

I’d just like to read the purpose of the bill first. The purpose of the bill is “to introduce a more effective regime for detecting drug driving in relation to THC, MDMA, … methamphetamine, by allowing for random oral fluid testing by enforcement officers.” It’s most important to understand that no member in this House or any party in this House disagrees with that purpose. Every single person in this House does not agree, I would suggest, with anyone driving with any sort of impairment. That member, when he stood up and read his first speech said that this bill was about saving lives. If any Parliament was going to vote on any piece of legislation that was going to save lives, of course we would—just like that member would have in the previous nine years if his Government actually had come up with the programme that he’s saying will actually save lives. If it did, then why didn’t National do it?

I think it’s vitally important also to have a look at the attitudes and the advances, or lack thereof, of National and some of the facts that National had to deal with over the last nine years and some of the statements that they made. The report from the Minister of Transport, and there was a report around drug-driving, was originally given to the previous National Government who repeatedly declined to include saliva testing—repeatedly declined.

💬 Hon Maggie Barry: What’s this got to do with the bill?

Would that member want to ask that question again? What has this got to do with the bill? You mean what I’m talking about—drug saliva testing. You see that member doesn’t like it when it’s turned around on the National Party and the facts are laid bare. The facts are laid bare that that member and National didn’t do anything about it when they were in Government. Lack of funding from the National Government contributed to a reduction of more than 40 percent in roadside alcohol testing—

💬 DEPUTY SPEAKER: Yes, but I do think the member has a point. Would you discuss the bill. Would the member discuss the bill.

Well, Madam Deputy Speaker, I’m talking about the road toll. Now if that doesn’t have anything to do with this bill, I’m not sure what does.

💬 DEPUTY SPEAKER: Well, no—just talking about the road toll isn’t discussing the bill. If you relate it to the bill then that’s perfectly fine.

In 2013, Simon Bridges told reporters that accurate testing methods needed to be identified before random roadside drug testing could be introduced—2013. It was included in the Safer Journeys Action Plan—the two-year one. That means that it was ready to do in 2015 and there were no changes whatsoever from National.

There has been a massive increase—like that member has spoken about—in the drug-driving fatality accidents since 2015 from 14 to 79 in 2017. Why wasn’t anything done? Why wasn’t anything done?

💬 Alastair Scott: Let’s do it now.

That member says, “Why don’t we do it now?” The reason why we are not voting for this piece of legislation is because, although we agree with the purpose, it will not fulfil its expectations. It will not, and this Government is working hard to come up with those solutions that we will be bringing to this House. We agree with the intent. We agree with the purpose, but this bill will not achieve what it sets out to achieve. We will not be supporting it.

Before I call the next speaker, I do apologise. We haven’t got a motion on the floor, so the question is that the motion be agreed to.

Thank you, Madam Deputy Speaker. I rise to speak to the Land Transport (Random Oral Fluid Testing) Amendment Bill at its first reading and I congratulate the sponsoring member, Alastair Scott, for doing so much hard work in putting this bill together. I think it’s a very good piece of legislation and we unhesitatingly support it on this side of the House because we believe in getting things done. We don’t bellow and point and puff ourselves up like we’ve got something important to say—Mr Lees-Galloway and “Mr Whatever His Name Was” from New Zealand First who seemed to be perpetually angry tonight, but one can understand that. If one was in that party, you’d be perpetually angry. That’s their default position.

But this is a good piece of legislation. Why? Because it’s needed: 79 fatal crashes involved a driver with drugs in their system. These are issues that need to be addressed now, not in the never-never when Labour puts out its 150-something committee or extra group to examine it. Have some ideas of their own, get on with it.

💬 Hon Iain Lees-Galloway: Nine long years.

So get on with it, Lees-Galloway, instead of bellowing like a puffball from the other side.

Let’s have a look at what people who actually know what they’re doing say: the Automobile Association (AA); the Police Association; the Minister of Police, Stuart Nash on a good day, which happens every now and again; the Ministry of Transport; and the New Zealand Transport Agency all support this bill. Stuart Nash did say, “If technology exists to allow for this type of roadside testing in a timely, efficient, reliable way, we should be looking at it.” Maybe his colleagues should listen to him. The AA have called drug-driving a silent killer. This is an issue that’s been around for a long time. There have been a lot of logistical problems in getting it to the point where this legislation is taking it and it will take it to the point where it will prevent accidents. Ninety-five percent of AA members in the organisation surveys support introducing saliva-based drug-testing. It would seem that most people do, except Labour.

Debate interrupted.

The House adjourned at 10 p.m.