Land Transport (Drug Driving) Amendment Bill

Members, we now turn to the Land Transport (Drug Driving) Amendment Bill. Part 1 of this debate is the debate on clauses 3 to 40 and Schedules 1 and 2, amendments to Land Transport Act 1998. The question is that Part 1 stand part.

I’m very pleased to take a brief call on Part 1 of this important piece of legislation. As members of the committee will know, it’s a piece of legislation that has been cooking away for some time. It deals with a very significant issue in our land transport system which is the increasing problem of people who consume substances—which may be licit or illicit—whose driving is affected by that and who potentially can cause significant amounts of damage and pain. The estimates are that potentially up to 100 fatalities in recent years, per year, have been caused by people who have these substances within their systems.

I want to acknowledge the previous Associate Minister of Transport, the Hon Julie Anne Genter, who, in earnest, began work on this piece of legislation in the previous term and advanced the bill significantly. There are very challenging issues to work through in this piece of legislation, a number of which are captured in Part 1 of the bill. But the process that the Government worked through in the previous term, I think, has stood us in good stead to have a piece of legislation that can be both effective in terms of reducing the harms that can be caused by drug-driving but also does balance some of the complex rights issues and technical issues that have to be worked through in order to have a fair and robust piece of legislation.

The core technical issue to overcome is the fact that the blood tests that we are used to in the drunk-driving regime, which give a high degree of precision, cannot be easily transferred to oral testing, in terms of the degree of accuracy and a direct comparison. The Government took the wise step, I think, last term in dealing with this issue of setting up an expert panel which was led by technical experts across toxicology, pharmacology—people who know this area and how it works better than anyone in New Zealand. And it’s that panel who have recommended both the infringement limits and the criminal limits that are set out in this legislation.

We’ve carefully designed a legislative regime around that, that ensures that there is fairness built into the system. People who are asked to be tested by a police officer will initially be asked to conduct an oral fluid test. If that results in a positive outcome, a second test will be undertaken, and it will only be if the two tests both return a positive result that an infringement offence will have been committed and a ticket issued. And that’s an important point to make: that, at that point, it’s only an infringement offence. A criminal offence can only occur if a subsequent blood test is undertaken and that a higher limit that is set out in the legislation is reached through that blood testing process.

There are a range of complex issues that sit around this in terms of how the legislation describes the powers, how it deals with the limits. I’m sure that we’ll have a good discussion about that across the course of this committee stage debate. I do want to thank members, actually, from around the House, and also the select committee, who, I think, have engaged in this issue well. These are complex issues but they’re important issues and, if we get this right, we will save lives. So I look forward to the rest of the debate in the committee that occurs this evening.

E te Māngai, tēnā koe. Tēnā koutou e te Whare. It’s a pleasure to rise on behalf of the Hon Julie Anne Genter and on behalf of the Green Party of Aotearoa New Zealand to contribute to this Land Transport (Drug Driving) Amendment Bill.

As members of the committee will have heard from the former Associate Minister of Transport and the Green’s transport spokesperson, the Hon Julie Anne Genter, there is a lot to weigh up when we come to building new infrastructure for how we go about ensuring that we have harm reduction, particularly pertaining to harm reduction on our roads. We fundamentally agree that driving impaired by drugs is a serious hazard to safety on our roads, and we agree with the objective of the bill, which, of course, is to try and deter people from driving while impaired. But we remain concerned with a key issue as raised by submitters, particularly during that select committee phase that the Minister referred to, that there is currently a lack of evidence that the approach may result in a reduction in impaired driving. There are also concerns that persist that it is difficult to establish a relationship between a given level of a drug in oral fluid or in blood with a specific level of impairment and that this could harm any intended deterrent effect. There are also substantial concerns, as floated in the Transport and Infrastructure Committee, that this regime could disproportionately and harmfully affect Māori and Pasifika.

Now, coming to this with my sensible drug-law reform hat on as well, we all know—and I’ve wasted a lot of this—well, I’ve tried to contribute constructively in this House—the fact that a lot of drug policy is made against evidence and on the basis of moral panic. The thing with this law is that it is currently being made in a bit of a vacuum of evidence. Of course, importantly, all of us in this House seem to agree on the very basis that we want to prevent people from driving under the influence. The problem remains that there is a difference between a substance registering in somebody’s system and whether that person is in fact intoxicated or impaired. It’s nowhere near as straightforward as the science that we have well established with, for example, alcohol.

For that very reason, there are two Supplementary Order Papers in the Hon Julie Anne Genter’s name. The first is a sunset clause. That sunset clause will insert a new clause 2A to require that there is a repeal of the Act at a point of five years after the date on which the Act comes into force. The rationale behind this is to require that we are constantly looking at whether this law is fit for purpose, because it is a new area of law on the basis of evidence that is yet to come out in full concrete force. It also requires that that proactive step of repealing clause 2A, were it to be ineffectual, ultimately means that we do not continue to have laws that are ineffective or not quite meeting their purpose as stated on the books. If I may add, the Misuse of Drugs Act is a perfect indication of just how easy it is to leave flawed pieces of legislation in place.

I’d also just refer to the point as raised by the Minister around expert advisory groups. We’d love to hear more from the Minister on this in particular, because we do know, and we do have experience in drug law, how expert advisory groups can end up being self-referential or unnecessarily constrained in their ability to recommend harm reduction. So, for example—I believe it was in the early 2000s—there was an amendment to the Misuse of Drugs Act which established an expert advisory committee with the power to look at different substances and where they may sit in relation to harm from other illicit substances. In doing so, they were simply to decide where they sit on the illicit class register—and therefore what criminal penalties were to be ascribed to them—not necessarily what public health measures could be put in place in order to reduce that harm. So we’d appreciate that clarification from the Minister.

The second Supplementary Order Paper in the name of the Hon Julie Anne Genter relates to a review—an independent review, in fact—of the efficacy and how this legislation would be working. There are a number of specific considerations that have been requested to be included in that review, including the impact of the amendments; importantly, the reliability of oral fluid tests and blood tests in measuring a person’s impairment; whether appropriate thresholds and impairment levels have been set; and whether the amendments have been appropriately implemented by the New Zealand Police and by other relevant entities. Of course, this remains of fundamental importance when we’re talking about drug law, which is so often empowered by moral panic, but, of course, noting that there is shared consensus within this House of the need to seriously arrest and address this issue on our roads. There is also a call for whether the amendments have had a disproportionate impact on Māori and Pasifika; the extent to which, if it can be assessed, the number of people driving while impaired by drugs has changed since the amendment came to force—which, of course we would hope, if it were effective, it will have—also whether further amendments should be considered; whether any of the amendments should be repealed; or if there are any other matters that the Minister considers to be relevant for that independent reviewer. That review would be required to be completed and presented to the House within 12 months of commencing.

As far as the Greens are concerned, these are really, really important amendments to ensure that we have a law that is fit for purpose, especially as we are developing new criminal offences and new tests for which the evidence—as displayed at the select committee and by experts both domestically and internationally—is still out. We have an opportunity to develop a law which is fit for purpose and which can be world leading, but we can only do that if we remain open-minded to the evidence as it develops and we continue to update the law so that it remains as effective as possible and doesn’t just sit on the statute book as a hallmark of something that we wanted to do but aren’t necessarily quite achieving.

That is the Greens’ position, and we are hoping to hear some points from the Minister on that expert advisory committee or panel, but we are also hoping to implore other members across this Chamber to continue to review and to think about how we can make sure that what is noted in this legislation that will be put on the statute book continues to be updated as the evidence continues to unfold, because that is the only way that we can make effective law in this area.

Madam Chair, thank you, and thank you, Minister, for bringing this bill to the committee tonight so that we can explore some of the merits and also identify some opportunities to improve it, because the ACT Party supports the intent of this legislation. It’s important that people operating motor vehicles and heavy equipment on the nation’s roads are not impaired and that their driving is not affected by either illicit substances, illegal drugs, alcohol, or medication that they may have been prescribed and which might clearly say “Don’t drive.” When your doctor gives you this medication, it might say it on a big sticker on the side of the packet you get from the pharmacy. But some people either ignore those warnings or don’t realise the danger that they’re putting themselves and other road users in.

So it’s important that there is a mechanism where people who are using the road know that they can be tested and assessed. When it comes to pharmaceutical prescription medicine, there is evidence that people do become addicted and/or choose to abuse pharmaceutical-prescribed medication. When we’re thinking about the purpose of the bill where we would want to know are people impaired, well, for substances that have been through an approval process—a Medsafe or an Australian Therapeutic Goods Administration assessment or a United States Food and Drug Administration assessment—you could be pretty confident that when somebody takes a pharmaceutical product that causes impairment there would be quite a bit of information about that. We would know, say, the level of a drug, what it does to somebody physically, because it’s been tested in a laboratory. It’s been tried and tested and tried and tested. And there will be reports, stacks of reports that tell people who want to make decisions about impairment and whether you take your medication, whether you’re safe to operate a digger, whether it’s safe to drive a truck on the road or a private car on the road; there’d be plenty of information about that.

But that’s where we run into the problem with this legislation. Because many of the drugs that this legislation proposes to test for are illegal, there is little or no information that enables lawmakers, people writing the regulations, those who are tasked with detecting people with drugs in their system on the road—the police. Very, very difficult, in the absence of any good data, to actually establish a testing regime that links a substance, an illegal substance somebody took—whether it be cannabis or methamphetamine or LSD or magic mushrooms, whatever that substance is—with impairment. Now, it may be some of those substances have no safe level. But there are actually therapeutic treatments being delivered in New Zealand at the University of Auckland’s medical school using psilocybin magic mushrooms and LSD to treat anxiety. It may well be that, in the future, drugs like that, which for so long were stigmatised and which were regarded as the tune in, drop out culture of the 1960s—it may well be that, in the future, those substances actually play an important therapeutic role. So the ACT Party and the Green Party have expressed a differing view about this legislation where we express reservations that the testing regime as it applies to illicit drugs in particular—there is no evidence base to link the level of a substance in somebody’s system with impairment. Does that actually mean it’s not safe for them to operate a motor vehicle, or a truck, or a digger, for example?

Now, we could overcome this lack of information by setting up experiments and getting people to take these substances and then say, “Drive in a simulator.” That’s called Grand Theft Auto. Or, potentially, send them around a racetrack. But because of New Zealand’s health and safety laws, I don’t think that anyone who owns a racetrack would be prepared to have people who are under the influence of illegal drugs operating on their racetrack. And because these drugs are still illegal, it would be next to impossible to establish a trial—a medical trial—that met ethical standards—

💬 Simeon Brown: I’m glad you’ve thought about it.

—that met ethical standards, Mr Brown, even though people are trialling these substances every day around New Zealand. I’m talking about a medical trial, a controlled trial that met ethical standards where doctors and scientists could test what is the safe level to take a substance that may one day well be therapeutic, like magic mushrooms or LSD, and then to operate a motor vehicle. The limit may well be zero. It may well be you can’t take any of that and then drive, but we don’t have any evidence.

That is why the ACT Party supports the amendment proposed by the Greens member the Hon Julie Anne Genter to include a review date in this legislation. After about three years of operation, when the police will have conducted what I understand will be thousands and thousands of roadside tests, they will have started to develop an evidence base from which to determine: are fewer people are driving under the influence and coming to harm or harming others? Are we detecting far more people than we thought above what’s called the “threshold levels”, and, if so, what else do we need to do to intervene peoples’ lives in a way that minimises the risk to themselves and others from consuming these substances and then driving their motor vehicles? That is why the ACT Party supports the amendment to include a review of the legislation and its operation performance after three years.

What the amendment asks for, and Minister, I know that there has been a lot of evidence provided by the Medical Association and others expressing their reservations about the operation of the Act, not the intent. The intent is to keep New Zealand, New Zealand drivers, and those who use the roads safe and to prevent harm from motor vehicle accidents. But even the Medical Association has pointed out that actually, the reliability of the oral fluid tests and blood tests to test a person’s impairment is not accurate enough and that where appropriate thresholds and levels have been set for different drugs—and whether the amendments proposed here have actually been appropriately implemented by the New Zealand Police and the testing authorities. Right now, while just about every medical laboratory in New Zealand is swamped with COVID tests, in a normal time those laboratories test for a wide range of substances—medical, all kinds of fluids—to see what people have been taking, what’s ailing them, and also, if they’ve been in an accident or an incident, what things they have taken that might have been a contributing factor to an accident or incident that caused harm.

It’s really important that we get this information and that it’s presented back to Parliament in a way that the elected members of this House of Representatives at that time, three years from now—they won’t all be the same people who are sitting here today, I can guarantee you that—have an opportunity to review the data and whether the legislation is working.

The ACT Party will support the amendment proposed by the Green Party. We share the Green Party differing view that, in fact, while the legislation is laudable in intent, there must be a check and a balance in terms of a review after three years so that we can actually find out where the legislation is working. Imagine that! Passing a law in New Zealand and then establishing a test and a time frame for whether the law that a Minister of the Government said would work—and then that Minister having to come back to Parliament and tell us honestly: did it work or did it not? No Minister should be afraid to say, “It didn’t work. We can tweak it.”, because that’s what New Zealanders expect of their Government, actually: to be flexible, to be agile, and to respond to facts and evidence. Minister, thank you.

Thank you, Madam Chair. I’m very happy to offer a contribution in response to comments from both of the previous two speakers, Chlöe Swarbrick and Simon Court.

First, in response to some of the questions and concerns posed by Chlöe Swarbrick, I do wish to provide real confidence to the committee that this legislation has been developed very carefully, and it most certainly doesn’t arise out of a moral panic about this issue. I would just put to the attention of the committee a number of supporting facts that sit behind my saying that. The first is that the evidence is on the table that there is a real problem to be solved here. Now, moral panics classically are situations where there isn’t actually a real problem to be solved—they’re situations in which people in legislatures and communities whip themselves up into a lather about something they don’t like, but perhaps something that isn’t actually a problem. The evidence on the table is very clear in New Zealand, that we have a problem. We have a lot of people every year who die on our roads who have these substances in their system. And while at that unfortunate point it’s not always possible to draw a direct link between the consumption of that substance and the accident that has been caused, there is a very strong and reasonable supposition that in many of those cases there is a strong link. And that’s not to get into the serious injuries that are also caused.

The numbers are significant, and let me just take members of the committee through them. In 2020, 101 people who died on our roads—out of a toll of 320—had illicit substances in their systems. In 2019, it was 111 people out of 350 roads deaths. In 2018, it was 98 people out of 378 people. It is a large and growing proportion of our road fatalities in which people have these substances in their system. So I have no doubt, and I’m very comfortable saying to the committee, that this is a piece of legislation that is founded on a real policy problem that causes immense pain and suffering in our communities, and we need to solve it.

Now, that’s not to say that it’s simple. Both members who have spoken point to some of the complexities, and I referenced them in my opening comments, that while we would know that it’s not good for someone to be driving a vehicle with these substances in their system—most of us would not want ourselves or our children to get into a vehicle with a person who had these substances in their systems—the relationship that we can draw between certain levels and a level of confidence that impairment is occurring is a complex one. And because we’re dealing with a wide range of different substances, this piece of legislation is even more complex. It’s not like drink-driving where we’re effectively dealing with the effect of one substance—alcohol—on the human system and the responses and the reaction times that it has. We’re dealing with, under this legislation as it stands today, 25 different substances. Each of them affect the human body in a different way—the way in which impairment occurs, occurs differently if it’s a sedative, or an opioid, or methamphetamine, or a prescription drug. So we have to account for all of those.

Returning to my point—just to provide assurance to the committee in response to Ms Swarbrick’s concerns—this is the other area in which I would say I think she can have confidence that this isn’t a moral panic about the youth smoking weed: this is a piece of legislation which is inclusive of both illegal and legal substances. It is focused on the harm that is caused by substances if people use them before driving. It isn’t focusing on one particular substance or one particular demographic. The likelihood is that some of those substances will be more likely to be consumed by some demographics, and some of the other substances will be more likely to be consumed by others.

The final point in response to Ms Swarbrick’s concerns that I would just come back to is the one that I did mention, and this has been the role of the Expert Advisory Group. I just actually want to acknowledge them here. Dr Helen Poulsen, who is the chair of the Expert Advisory Group, Dr Sharon Kletchko, Andrew McGlashen, Professor Ian Shaw, and Associate Professor Malcolm Tingle. These are amongst New Zealand’s leading experts in pharmacology, toxicology, and the effects of these substances on people’s bodies. They went through an exhaustive process and produced three reports that have been published—they’re up on the Ministry of Transport’s website and I’d encourage members who are interested to look into these—and they did a number of the things that Mr Court said should be done. They looked through the scientific literature, they looked at thresholds and other jurisdictions where these regimes have often been operating for some period of time, and they looked at local data on the concentration of substances in people where there had been fatal crashes. So, effectively, they’ve compiled all of the different and credible pieces of evidence that are out there.

Then, in a very exhaustive way, for every single substance that is considered under this legislation, they have set limits which relate to, firstly, the infringement offences, which is a limit that is comparable with the recent use of the substance, and then limits for the criminal offence which are higher, which are limits where we have a high degree of confidence based on the expert opinion that there is a level of impairment in place. I really would request people that want to engage in this discussion, do have a read—between now and the next stage of the committee stage debate—of those reports. Because they are very thorough and I think they can give all members of the committee confidence that this has been a robust process.

The final point I’d like to make in response to both speakers relates to Supplementary Order Paper (SOP) 96, which is the SOP that seeks a change to the legislation to put a review in between three and four years after implementation. And the happy comment that I can offer is that the Government will be voting in favour of that SOP. I was approached by the Hon Julie Anne Genter about this proposal some time ago. We worked through the text of that SOP to a point of satisfaction. I’m pleased to see the ACT Party is now on board; that’s a very unique alliance of political parties. I don’t know if we’ve had such a vote with the three of us lined up on any issue in this term of Parliament, but I’m very happy to lend the Government’s support to that SOP. I think it’s a practical measure. This is important. I have confidence in this legislation, but I acknowledge that we’re moving into new territory, and that there are complex issues, complex intersections of rights here, and so I do think that a review of that nature, as is crafted and agreed in that SOP, is appropriate, and the Government will be very happy to support it.

Debate interrupted.