Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Bill

I’m pleased to take the first call in the Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Bill, a bill that I, at least, have supported with some reservations. We have had quite a bit of a discussion this week around freedom of expression in another bill and I think also, from a values base, that the question of freedom to choose how one lives one’s life has also underpinned the very cautious support for this bill. Because what we have in this bill is the State going in, effectively, to the private property and the private affairs of families to say how they should live. That is a quite large step to take.

There is, I believe, an important question of family sovereignty when it comes to the choices they make, even when those choices are bad ones. But on balance, and given the very important goal that we have of setting the country up for smoke-free 2025 and also the fact that this is a piece of legislation designed to prevent harm to children, on balance, I and the National Party caucus have supported it so far.

We had excellent submissions, actually, including from some fabulous young people into the select committee—that was articulated in the second reading. I want to draw on that as we go into some of the questions and the proposed amendments, including the first one in my name, which was an amendment to Part 1A, because Part 1A does the most extraordinary thing.

The bill says that it will be unlawful to smoke in a car with a person under the age of 18, and then inexplicably it says that if the car is stationary and used as a dwelling, it’s OK. That is the most extraordinary piece of double-think that I have ever seen in a piece of legislation. If, having crossed into the realm of the decision that this is a place the State should be, then be there properly. If the State wants to genuinely protect children from the harmful effects of tobacco because the enclosed space is so small, then do it properly. And yet we have this extraordinary paragraph: paragraph (b) in section 20D(2), in Part 1A, where the person may smoke in a motor vehicle if the motor vehicle is stationary on a road and in use as a dwelling.

I’m aware the Minister has Supplementary Order Paper 452 to amend that particular part of the legislation, but I don’t think it’s good enough. I don’t think that particular paragraph should be there. My tabled amendment simply does away with this ridiculous inconsistency with the stated purpose of this bill.

Now, the Health Committee also had quite a discussion about the other exception—or at least the National members of the committee did—in paragraph 20D(2)(a) of Part 1A, set out in clause 9, which is where, if the person themselves under the age of 18 is in the car and they are smoking, then that should be OK. I think, on balance, that this does highlight an inconsistency in the message the State is sending about the responsibility of people under the age of 18 not to smoke, and I’m not comfortable with that but, nevertheless, I don’t think it’s as large and egregious a breach of the goals of this bill to actually remove it.

Now, also in Part 1, we have the question of vaping or, in fact, we don’t have the question of vaping, because vaping actually isn’t mentioned in here. This is an amendment to the Smoke-free Environments Act. Of course, as we know, vaping is not included in the Smoke-free Environments Act. There was a strong call from the committee to include it.

The reason officials said that that wouldn’t be the case is because the vaping legislation was coming soon. Well, it is coming soon. We will be considering that matter later in the not too distant future, but I think the inconsistency—I won’t take too long finishing this opening remark. The lack of energy around the smoke-free environments—because we ran the very real possibility that the bill would be passed into law without the vaping legislation actually being in place—was of great concern to submitters. It remains a concern to me. Thankfully, I think the time frame that the Government does want to pursue will mean that there won’t be this unusual loophole where it’s not OK to smoke but it’s OK to vape. We will get there in the end, but I think there was a significant concern amongst submitters about the absence of that from Part 1. With those opening remarks, I look forward to the debate proceeding.

Thank you, Madam Chair. The primary purpose of this bill is to protect our children, our tamariki, from the harmful effects of second-hand smoke. Too many of especially our tamariki and Pacific young children are exposed to second-hand smoke in the vehicles that they usually travel in when adults are smoking.

Part 1 of this bill actually will amend the Smoke-free Environments Act 1990 to prohibit smoking in stationary and moving motor vehicles for children under the age of 18. Supplementary Order Paper (SOP) 481, that the Hon Michael Woodhouse has just tabled in the committee, to amend section 20D(2)(b), set out in clause 9, is basically saying that a person may smoke in a motor vehicle if that person is the only occupant of the motor vehicle and if that person is under the age of 18.

I have actually tabled SOP 452, because when we listened to the submissions that came through, it was very clear that a lot of our submitters actually said that we should look at this and, you know, we should actually address it. Our Government has listened to the submitters. What the SOP that I’ve tabled will do is it will address new section 20D(2)(b), which currently exempts all vehicles that are stationary on a road and used as a dwelling from the prohibition on smoking while children are present.

The rationale for this exemption is that people have a right to smoke in their own homes, whether they are temporary, like motorhomes or caravans, or permanent. Our Government has listened to those concerns, which is why we are tabling this SOP to narrow the gamut of the bill. The SOP will exempt vehicles such as caravans, motorhomes, that are designed to be used as dwellings when they are stationary or on a road and being used as a dwelling.

The prohibition on smoking in all vehicles such as cars and utes will be retained, but caravans or motorhomes that are used on a road would still need to comply with the smoking prohibition if and when children are in those vehicles. I believe that this SOP strikes the right balance. It retains the bill’s focus on protecting our tamariki, our children, from second-hand smoke while at the same time not infringing on the rights of people to smoke in their own homes. These caravans and motorhomes are used as homes by our people.

In terms of Part 2 of the bill, it amends the Summary Proceedings Act 1957—

CHAIRPERSON (Hon Ruth Dyson): We’re on Part 1—we’re on Part 1.

Sorry. That would be my contribution for now, and I look forward to contributions from the committee.

Thank you, Madam Chair. I rise to speak to the Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Bill. This is a bill that, as our health spokesperson, the Hon Michael Woodhouse, has said, doesn’t go far enough. It doesn’t include vaping.

With respect to Minister Jenny Salesa, who has just resumed her seat, the Supplementary Order Paper (SOP) tabled in her name does not go far enough. It narrows it somewhat by exempting caravans, motorhomes. While the intention of the SOP is to narrow the focus, it is still ridiculous to allow smoking in cars where young people might be if they are used as a dwelling. It is the kind of virtue signalling that has made a nonsense of a bill that really ought to be making a heavyweight contribution to New Zealand’s goal of being smoke-free by 2025, something that in the past, the Labour Party—and certainly the Māori Party when it was here—championed under Dame Tariana Turia.

So we need to be sensible if we’re going to attain the goals. Unfortunately, this SOP stops short of good sense, because people will still be able to smoke in vehicles where there are children, if they are parked on the side of the road. So while there may be some exemption around homes, I think the underlying dogma that people should—while not desirable that they live in cars, but if they do, then they are still able to smoke in those cars if it is stationary, with children in the car.

I have a deep failure to understand why an individual who needs to smoke a cigarette can’t just get out of the vehicle for the duration of smoking a cigarette. I was conferring with my learned colleague Ian McKelvie about how long it takes to smoke a cigarette. We’re a little hazy on that one, but it’s a couple of minutes. It’s not going to be a game-changer. If somebody is that addicted that they have to have their cigarette—fine, get out of the vehicle. Do not leave those toxins and that smoke in the car.

So while the SOP in the name of the Minister goes a certain way to tweak new section 20D(2)(b), set out in clause 9, it doesn’t go far enough in our view, so we won’t be supporting it. However, we will support the far more sensible SOP in the name of the Hon Michael Woodhouse, which is that a person may smoke in a motor vehicle if the person is the only occupant of that motor vehicle, and is under the age of 18 years.

So it is an effort to, I don’t know, kind of improve a bill that needs more. But on the other hand, we are trying to be positive and constructive on this side of the Chamber, so that is an SOP that we will support, because it does go some way to amending a fairly, you know, fundamental flaw in this bill. I have been in the select committee and I have spoken on this bill several times. I think that, as the Hon Michael Woodhouse has pointed out, some of the submitters, including young people, who are at the heart of this legislation, came to us with very moving and intelligent and articulate testimony that we must do all we can as legislators to stop the smoking in cars.

The vaping issue, which we will come to later under extended hours in this Chamber—slightly concerning that it wasn’t better organised and did not come in at a time to help inform this Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Bill, but it seems to have been scrambled together. So it will be up for debate in the Chamber later this morning. But it’s part of the overall package of incoherence of this Government, where it makes piecemeal adjustments, takes legislation that we had prepared, for example, in the case of the Hon Nicky Wagner who had an excellent bill formerly and has tried to put it before the House on a number of occasions. It’s been turned down for the most base sort of political reasoning and it is now almost replicated and coming back, lo and behold, as a Government bill when the Hon Nicky Wagner had put all the hard work and effort into it.

It was a bill that should have been passed a long time ago with the political will of this House, but it wasn’t, because of Labour and the Greens and the dogma they bring to this one and their fundamental failure to acknowledge that anybody but themselves has an idea around what would make good legislation.

So a lot of time’s been wasted, not only in this House but also in the lives of young people who have been adversely impacted for years longer than they needed to be in terms of smoking in vehicles because this slack, incoherent, incompetent Government couldn’t get their act together to support the Hon Nicky Wagner’s bill and has not listened to good sense in the select committee. I hope that the House will support the Hon Michael Woodhouse’s Supplementary Order Paper. Thank you.

Following on from that and, indeed, addressing a couple of the comments Minister Salesa made in response to both of the Supplementary Order Papers (SOPs) that are in consideration for the committee on Part 1A, I want to first touch on the comment that the Minister said that this bill is measured because it doesn’t go as far into the private affairs of families as, for example, a ban on smoking in houses would. Well, I just want to respond to that by reflecting on both a phone conversation and a media interview that the Children’s Commissioner did when this bill was introduced.

Mr Becroft contacted me to ask me and my caucus to support this bill, and we had a long conversation about the interference into the private affairs by the State because of this bill. I made the comment to him that I thought that the next step would be—in my view a significant step too far—the imposition by the State into the family home, into the house. I said that that was just a step far too far for me, and he said, “Well, Mr Woodhouse, if I am asked by the media, I will say that that’s what the Government should be doing next.” Well, actually, he didn’t wait to be asked. In the very first interview he gave about that, he made it very clear that it was his view that that’s where the State should be going.

Now, I have a huge admiration for the advocacy that Andrew Becroft does for our tamariki, but I have to respectfully and strongly disagree that that is an appropriate next step by the Government into the private affairs of family. I really am uncomfortable with where we’re going here. But as I say, if we are going to do it, at least let’s do it right.

I note the Minister’s comments in defence of, and the support for, her SOP 452, which actually says, “Well, if we change the definition of a vehicle to one that is manufactured for use as an occasional or permanent dwelling, then the exception is OK.” Well, I’m sorry, we’re taking the eye off the ball here. I think there are two issues here. I mean, I live in Dunedin and my playground is central Otago, and like other places like the Coromandel—

💬 Dan Bidois: North Shore.

Well, not quite the North Shore. I don’t think freedom camping is quite the issue on the North Shore, because that’s where I was going. I see a plethora of vehicles around Lake Dunstan all summer that masquerade as vehicles for use as occasional or permanent dwellings. In order to get around these freedom camping rules, what people do is they put those stickers on the back of those vehicles to say, “It has ablutions” or something—some kind of loose reference to the vehicle being used as an occasional or permanent dwelling, and that is a nonsense for most of the time.

The big white Kia campervans—we all know they’re campervans and what they are. But people living in vehicles—under this Government the numbers have gone up—are using these things as an occasional or, in terrible cases, permanent dwelling. Who is to say? Who is the arbiter of whether a vehicle is actually manufactured for that purpose? That is its practical use by freedom campers, by our increasing numbers of homeless, and the Government, effectively, admits defeat on that issue by saying, “Well, they’re going to use a vehicle as a home; let’s let them smoke in that home.” It’s ridiculous. It’s absolutely dancing on the head of a definitional pin which nobody is able to police.

So I say to the Minister and the Government: if the Government is going to take this step, at least take this step properly and consistently, because they have also said this is a policy, a law, that will be most effective in the prevention rather than the prosecution—and I’ll come to that in a later intervention. But if it is truly going to be most effective in the prevention, be consistent and holistic in preventing smoking in vehicles with children under the age of 18. It’s the only sensible thing to do. It’s what the select committee was told by submitters was the only sensible thing to do, and people are scratching their heads at this odd exception. My SOP will clarify that and remove any doubt about what this bill is intended to do.

Thank you very much, Madam Chair. It’s a pleasure to take a call in this committee of the whole House on the Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Bill. I would like to start by signalling that I think no one in this House disagrees about the risk you put children at by smoking in a car with children with you—not only the physical impact, but I’d also highlight the psychological impact. When you talk to people who had the unfortunate experience of growing up and inhaling the second-hand smoke of either their parents or another adult in the front seats, that psychological harm can stay with people for a very long time.

So how do we get to a position where everyone in the House agrees that second-hand smoke on young children in a car, physically and psychologically, is harmful, yet we are in a position where we’re trying to, for some reason, carve out a definition between whether the car is moving or is stationary. Because, in fact, it’s actually irrelevant; that harm is still there. So I would like to hear from the Minister a bit more about why now we have a change of heart, so to speak. Because it’s very well for the Minister to say, “Well, we listened to submitters.” Well, if we had listened to submitters, we would not be in a position now needing the Government to put forward a Supplementary Order Paper (SOP). If we’d listened to submitters, then this carve-out would have been agreed at the select committee stage.

So I want to know what has changed since the select committee stage, where we were under the understanding that there would be no change to hear, and that is why the bill presents itself in the committee of the whole House at this stage. Because I would imagine that, in fact, the reason why the Minister has been dragged kicking and screaming to bring this SOP to this Chamber is because she’s been shown up by the Hon Michael Woodhouse and his SOP. In fact, if you were to go out and talk to the average New Zealander and say that the Government’s passing a bill to say that you can’t smoke in a car with kids unless you’re living in it, they’d scratch their heads and say, “What’s going on here?”

Not only that, but we got to the select committee stage and heard a lot of submissions from some very credible submitters, and still the Government had shown no interest in changing it. What we’ve now got is we’re playing catch up, and what I find really confusing is that you’ve got a Government that’s shown no interest—and the Government members on that select committee showed no interest when we were hearing from submitters—in changing this part, and now, because of our health spokesperson, quite rightly, reflecting on what submitters told us and what the public is telling us, and putting forward an SOP, well, all of a sudden, the Minister has decided that we’ve listened to submitters. Well, I don’t think we did, but we are in this position.

I had actually asked for some clarification around SOP 452, because we are, in clause 9, replacing subsection (3) of section 20E with new subsection (3), paragraph (b), which says, “stationary on a road and in use as a dwelling.” With that line there, are we not just going to end up with what the bill is actually saying now? So it won’t change anything.

Yes, I can understand why in paragraph (a) it talks about a vehicle that’s been “manufactured for use as an occasional or permanent dwelling;”, which is that argument about a motorhome. We understand that. But by putting in paragraph (b), does that just not return us back to the status quo? That’s why, actually, for a Minister who’s got an army of officials, I think she’s been shown up today by an Opposition spokesperson who’s probably writing his own SOPs and has actually got it right.

I’d like to address the comments from both the Hon Michael Woodhouse—about his Supplementary Order Paper (SOP) 481—as well as the member Matt Doocey. The Government SOP has been tabled for a while. As far as I am advised, however, SOP 481 was tabled, I think, just last night. In terms of why is it that we’re introducing this Government SOP, it is because there are people who are living in motorhomes and caravans, and the Hon Michael Woodhouse alluded to this in his comments. We do not want to get to a place where we are going into people’s homes and saying “Thou shalt not smoke in your own home.”

If I can actually reflect back to the changes in Aotearoa New Zealand in terms of social norms that happened when we introduced the smoke-free ruling that areas like bars, workplaces, and restaurants would be smoke-free, that is, essentially, what we say will happen here, as well. It is not about the issuing of the infringement notices and it is not about the police actually stopping people if there are children in the cars where they are smoking. It is about all of us in Aotearoa New Zealand behaving in a different way. What we saw with smoke-free areas in terms of workplaces when it was introduced was that it didn’t happen overnight, but all of us actually then changed the way we acted. This is also what we believe will happen with this particular bill.

We can look at other jurisdictions—say, for instance, the UK and lots of states in Canada, as well as Australia, and if you have a look at the UK, when they introduced smoke-free cars in the UK, over a period of 18 months, there were only two infringement notices where folks were taken to court. When you look at our own history here in Aotearoa New Zealand, over a period of 15 years there has been only a handful of cases where infringement notices have resulted in people being taken to court because they hadn’t actually adhered to workplaces being smoke-free.

What we’re saying, and what we know from public surveys, is that over 90 percent of Aotearoa New Zealand believe that smoking in vehicles when our children are in those vehicles is not the right to do. We believe that this will happen here, as well, but we do not want to infringe on people’s rights when it is their own homes. So that is why we’re introducing SOP 452—to make a differentiation for folks that are living in vehicles that have been manufactured to be occasional or permanent dwelling places.

Thank you, Madam Chair. In respect of the rather unusual comment by Minister Jenny Salesa that implied, I think, that somehow my Supplementary Order Paper 481, because it was tabled only last night, had less force or effect, or was less worthy than hers, it was—

💬 Matt Doocey: It was signalled in the committee stage.

Exactly right, Mr Doocey. It was signalled very clearly in the select committee, it was signalled very clearly in the second reading, and it has been tabled well in advance for members to have a look at it. It’s really simple—delete a stupid clause—and there was a very good reason, I think, why we should, which I’ve articulated.

I want to go on to another matter that the Minister raised, and that is the role of the police in this. She said words to the effect that it’s not about police stopping cars and issuing infringement, but it’s about prevention. Well, that’s true, except the issue of prevention—and the example the Minister used was that, “Well, you know, we got our smoking rates down because of the public stigma around people smoking.” That’s why people smoke in cars—because they can’t smoke in bars and they get harassed when they smoke in the street. The car is actually one of the few places, or the few—up until this bill is passed—safe havens, where they don’t get seen as easily, or identified and stigmatised in the way they might in other parts of society.

The UK example was a very good one. The question isn’t whether there were lots of infringement notices issued, Minister. The question was actually whether it genuinely resulted in fewer people smoking in cars. I think it is a much, much longer-term issue to answer that question, because we know with the cellphone ban which was introduced when Steven Joyce was the Minister of Transport—so it must have been around 2010 or 2011—nine years later, there is still unacceptably high cellphone use while driving. The police periodically have a blitz, and one has to wonder whether, if we don’t have the same stigmatisation of smoking in cars that leads to a reduction in its incidence, the police will be asked to go on a smoking blitz. That, in my view, is an appalling use of police resources. We now know that when victimisation rates in this country are going up massively under this Government, when violent crime is going up, and when gang membership is going up, we’re going to worry about whether someone’s having a fag in the car.

The Government says, “Well, that’s not our intention.”, except in Part 1, there is the most extraordinary section that I have ever seen. It, basically, treats police like idiots. It’s in new section 20E in clause 9 and is entitled “Constable’s powers”, and it goes on to say that “(1) A constable who sees a person smoking in a motor vehicle that is on a road [blah-blah-blah should] (a) signal or request the driver of the motor vehicle to stop the vehicle as soon as practicable: (b) require the driver to remain stopped for as long as is reasonably necessary for the constable to make the inquiries and complete the exercise of powers under this section:”. It goes on. There are another two paragraphs here, Mr Mark Mitchell, that your former colleagues are going to be treated like complete idiots and like they somehow don’t know how to exercise a discretion—including the discretion to do nothing—because they’ve got better things to do.

Instead, they’ve got this cookbook, ABC “Here’s what you do if you see a person having a fag in a car.” It completely undermines the Government’s statements that this is not about prosecution when they put a whole page of what a constable should do in this situation.

💬 Hon Tim Macindoe: That should go in the regulations bonfire.

Absolutely. The first up into the bonfire, Mr Macindoe—a very good point.

I think the question of infringement is one that was answered in the select committee, around what we’re really trying to do here. We were told by officials that it’s not about infringement, but we were then told by officials that the bill can’t come into force for 18 months, because that’s how long it’s going to take New Zealand Police to adjust their IT systems to enable infringement notices that they’ll issue to be recorded.

I will speak more about the commencement date at the appropriate time, because I think it’s ludicrous that we’re going to pass a bill and go, “Nah, it’s OK. We’re not going to do anything about it for 18 months.” That really calls into question the Government’s commitment to Smokefree 2025.

The question was put that the amendments set out on Supplementary Order Paper 452 in the name of the Hon Jenny Salesa to clause 9 be agreed to.

The Hon Michael Woodhouse’s amendment to clause 9, set out on Supplementary Order Paper 481, is out of order as being inconsistent with a previous decision of the committee in relation to the Minister’s Supplementary Order Paper 452.

Part 1 as amended agreed to.

Part 2 agreed to.

Clauses 1 to 3