Land Transport (Drug Driving) Amendment Bill

Members, we now come to Part 3. Part 3 is the debate on clauses 26 to 31, “Amendments to Parts 7, 9, 11, and 15 and Schedule 1”. The question is that Part 3 stand part.

Thank you, Madam Chair. I’ll just quickly go back one sec—well, it was a few seconds now. There was some consternation on the other side of the Chamber around some of the answers to whether or not there would be maximums put in place for the number of tests you can take. I was referring to the fact that you would never put a specific maximum in terms of attempts at tests or anything like that. Of course, under new section 71C(4), in clause 18, a person may be required to undergo only one further oral fluid test under this section, only if the first or second screening test fails to produce a result.

What we don’t want is to get into a situation where some sort of technical administrative failure such as dropping a test on the ground would be seen to count as a failed test. I don’t think anyone would see that as being a sensible approach to this regime, in the same way that if you were taking an oral breath test, if the particular device fell on the ground, that wouldn’t be counted as the first test, I’m sure. Hopefully, we can clear that one up.

Now, Part 3—I just had a recap of the part and it’s a very, very straightforward part, only a couple of pages, and it does some very, very succinct simple things. It inserts new section 94A into the Act, and that’s through clause 27, which is the substantive clause. This is the provision that requires an enforcement officer to forbid a person to drive a motor vehicle for 12 hours in certain circumstances, and now this will also include where a driver has tested positive in both roadside screening tests or where the driver fails or refuses to undergo the oral fluid screening process.

The Amendment Paper in the name of Minister Bishop adds a further ground which will require mandatory prohibition from driving where the person fails or refuses to provide an oral fluid sample without delay for laboratory testing. That’s where a sufficient sample has not been obtained from a screening test, and that harks back to some of our conversations last night around the adequacy of certain individuals’ ability to produce oral fluid samples.

Part 3 also inserts a new regulation-making power, which will be of interest to any members of the Regulations Review Committee, to prescribe the procedure for taking, handling, retaining, transferring, or disposing of an oral fluid sample. Now, these procedures will be influenced by the screening devices and laboratory services that police will use and procure under the new regime. They will be developed after the procurement process takes place and so therefore it is appropriate for those to be issued under regulation.

Finally, Part 3 inserts new Part 9 into “Skedule 1”, or Schedule 1, of the Act, depending on which part of the country you come from. This requires the Minister of Transport to appoint a reviewer to review amendments made by this bill and may also consider any amendments made by the earlier Land Transport (Drug Driving) Amendment Act 2022, passed under the previous Government. The review, which will be tabled in the House for us to consider, must be completed within five years of the commencement of this bill.

It’s important to keep the regime under regular review, given that it is a relatively complex regime. It’s new to us in New Zealand. It’s taken a while for us to get to this stage, so it’s important that we get through, get it in place, keep New Zealanders safe on our road, and provide some certainty about procurement and deployment of oral fluid screening devices. The review provides this House an opportunity to see how things are going, where the tweaks need to be made, and addresses a lot of the concerns raised by some members in the Chamber today.

Hopefully, a very, very straightforward part—hopefully, well understood by all members who have read the bill—and I am looking forward to getting through to Part 4 next, which is a very interesting part indeed.

Tēnā koe, Madam Chair. Thank you very much to the Minister for that explanation. I have two issues that I’d like to speak to and I might not be able to in one call on Part 3.

The first one is to do with people being able to be banned from driving for 12 hours simply if the results of their two oral fluid screening tests are positive. Previously, Ministers in the chair have made the point that a driver won’t receive an infringement unless the laboratory sample confirms that the level is beyond the threshold. However, I don’t believe there is sufficient time, so this part means that whether or not the laboratory analysis of the oral fluid later confirms the tests were correct, they’ll be mandatorily removed from driving for 12 hours. That was one of the issues that the Attorney-General raised, and said that they didn’t think it was deemed justified for the seizure. It’s also holding people up if they’re unable to travel to some place they need to travel to by driving during that 12-hour period.

I’m wondering if the Minister can just help us understand. One of the changes being brought in by this amendment legislation is the laboratory analysis to confirm the accuracy of the oral fluid screening device, but that is only going to apply to the infringement; it’s not going to be the case that that is needed to ban someone from driving for 12 hours. I’m just wondering if the Minister can speak to the issues raised by the Attorney-General around that. Has the Minister considered other alternatives, because there still are issues with the accuracy of the tests, as has been raised by the Ministers in the chair, the Attorney-General, and many submitters during the select committee period? What remedy is there for someone who does fail two oral fluid screening tests but then that is not confirmed by the laboratory analysis and they were prevented from driving for 12 hours? Is there any remedy they can seek for the State having taken away their ability to move freely with a motor vehicle at that time?

Since I do still have two minutes in this call, I’ll just raise the question about new Part 9. Part 9, which was inserted, was actually due to an amendment that I proposed when the previous legislation passed, and there was quite a lot of detail specifying what must be considered in the review. What new Part 9 seems to be doing is removing a bunch of that detail. There’s very little direction given to the Minister and the reviewer about what should be covered by the review.

I’m wondering why that change has been made, because, surely, previously, Parliament had considered that the bits that are being deleted, like “The review … must … consider the following matters: (a) the impact of the amendments: (b) the reliability of oral fluid screening tests, laboratory analysis of oral fluid samples, and blood tests in assessing a person’s impairment: (c) whether appropriate thresholds and impairment levels have been set”—you know, there’s a whole range of factors that were specified under the Act, and now that seems to be being removed, and so all that’s specified is that there is a review that may consider amendments and must report no later than five years, and that the Minister must respond to it. There’s no specifying what factors need to be considered in that review.

I don’t understand the purpose of this change. Why wouldn’t it be appropriate for it to be specified in legislation what should be considered, given that, as the Minister in the chair has himself said, we don’t yet know what the impact of this legislation will be and if it will achieve the intended outcome of reducing deaths and serious injuries, if it will achieve deterrence of impaired driving? It’s entirely possible that it won’t, that it can’t be rolled out at scale, and that impaired driving with other substances that aren’t able to be tested for on oral fluid devices will increase as a result of having oral fluid screening for only certain substances. There’s a whole lot of other issues that have been raised about whether these could have a disproportionate impact on Māori and Pasifika people.

I think it’s really important, and the Minister himself has said this review is very important to Parliament’s and the people of New Zealand’s confidence in this regime, so why have all these considerations been deleted by this part of the bill?

Thank you, Madam Chair. Just to give members some confidence that we will try and address all of the questions that are relevant and pertinent, I just want to very quickly address a question from Tangi Utikere in the previous part. With the consideration of the Chair, I think it’s important to try and address those questions where we can.

If a person is required to provide a blood sample because they’re unable to provide sufficient oral fluid, are they required to pay a fee? Section 67 of the Act will provide that the person is liable to pay the fee. This maintains the status quo in the Act—which already exists and, of course, which was passed by the previous Government—where a person would have a blood test if they couldn’t undertake a roadside test. In practice, police only apply this to recover the fee if the driver is convicted of a criminal offence as part of court-ordered costs on sentencing. Hopefully, that provides some assurances to the member.

Secondly, I will just briefly touch on Ms Genter’s questions. Again, we raised the issue of the Attorney-General’s report and the New Zealand Bill of Rights Act, and I would hope that we wouldn’t need to traverse our position on why we think the limits placed on people’s freedoms are justifiably limited by the particular importance of the purpose of the bill. I can rehash them again for the committee if they’d like to hear them again.

💬 Ryan Hamilton: No, it’s OK.

OK, I’m hearing “No” from one side—

💬 Tangi Utikere: Go on then!

—and “Yes” from the other, but I think it’s just generally important that we recognise that this is a really important piece of legislation. We are trying to prevent drug-drivers from—

💬 Hon Julie Anne Genter: There’s no evidence.

—causing havoc and chaos on our roads. The member says there’s no evidence for that. Well, Governments often do a lot of things when they try and make positive change, and sometimes those things work and sometimes those things don’t work.

💬 Hon Peeni Henare: The Minister’s opening up a larger debate.

I think we’ve seen significant examples of that over the past six years where a number of things haven’t worked. We are trying to do something which we think will work. If we can remove people who are testing positive for drugs in their system from the road, either temporarily or in some cases for a significant period of time, we think that will lead to fewer deaths and less carnage on the road.

I received some advice late last night while I was the Minister in the chair that we have pretty much free rein to do whatever we like, but I won’t be taking up that advice for fear of expanding the debate too far beyond the very narrow scope of the part that we have already outlined here this morning.

Thank you, Madam Chair. Thank you to the Minister, James Meager, for those comments, because part of the committee stage is to also respond to matters that the Minister has raised as they are pertinent to the bill. Now, he touched on the fact that this is a Government and this is a bill that is seeking to make sure that what works, works well, basically, which is exactly why Labour, whilst in Government, introduced legislation to address this issue. We can talk about the practicalities of how that’s rolled out and how that might be reviewed, and that’s pertinent to the new Part 9 that is to be inserted into Schedule 1, which I’ll touch on in a moment.

I want to thank the Minister for his response to the question around blood-sample testing. It’s unfortunate that we can’t kind of delve into that as that may have had an impact as to how other parties may have voted on the previous part, but I do sort of cite that there is a little bit of a disconnect in the Minister’s response under the existing regime when it comes to blood-alcohol testing, which relies on a conviction for cost recovery or non - cost recovery. This is not about criminal convictions; this is about infringements and it’s about demerit points. They are two different things.

There is a provision in the bill that does lead itself down a criminal conviction pathway, but for the overwhelming majority of people for whom this will have an impact, they will not end up with a criminal conviction, unless that is changed—and that is a question for the Minister. Is that a new position, where criminal convictions will now come into the fray? Whilst there is a requirement for people to have to pay for a blood sample to be tested, his response there was that, actually, the cost being recovered, or not, can be sought through criminal proceedings. I know that the Minister has a legal background in this particular framework. Anyway, I will leave that there and I will move on to Part 3.

💬 Hon James Meager: Let’s not embellish too much.

Sorry?

💬 Hon James Meager: I said let’s not embellish my legal career too much.

I’ll leave it for others to form their views on that. In terms of Part 3, this does provide for the 12-hour period.

Now, we certainly are not opposed to having a prohibition on driving for a period of time. Can the Minister sort of provide some reassurance that the 12 hours is based on something, and is it that it’s actually consistent with other mechanisms for forbidding someone to drive a vehicle? Of course, there are others that have a much longer length of time. If someone is pulled over and they don’t have a driver’s licence, then they’re forbidden to drive until they get one, and in many circumstances, that is not 12 hours. If the Minister could just provide what the basis for the 12-hour period is, that would be quite helpful.

We see a lot of this phrase “without delay”. There’s a new proposal that’s in Minister Chris Bishop’s Amendment Paper 256, and it’s new section 94A(1)(ca) in clause 27, which says, “fails or refuses to provide an oral fluid sample without delay”. Now, how is that defined, because a delay to me, I’m sure, will be a delay to—well, someone else’s delay is different. We talk of Kāinga Ora houses being delayed in my electorate, and that definition, perhaps, is different from others. My question is: what does that mean? Is it context-dependent? Is it related to a time frame—although I sense that the Government is not keen on having time frames when it comes to particular hours or minutes, or those sorts of things.

I want to pick up on the new Part 9 that is to be inserted in Schedule 1, because, I have to say, I agree with the Hon Julie Anne Genter, and I was surprised to learn that what had been proposed is a bit of a change. I know that that’s what has come through in the select committee process, but there were a number of concerns that were raised by submitters. I look at one that’s proposed to be deleted under what was the old clause 29(3)(e), and that’s “whether the amendments have had a disproportionate impact on Māori and Pasifika people:”. Now, these were specific concerns that were raised through the select committee stage and that element of bias, which has also been raised in the debate already, and so my question is why is it that the Government is seeking to, basically, not have some level of specificity around some of the concerns that have been raised.

It’s all good that there’s going to be a review. Perhaps the five years is actually going to be a little bit too long, and we’ll talk about that in terms of commencement when we get on to that, but the proposed review and terms of reference, if we can call it that, is very, very broad. There are none. It’s, basically, going to review everything. I’m interested and I’m wondering whether the Minister—[Time expired]

Thank you, Madam Chair. Well, let that be a lesson to me to try in good faith to answer questions, that have previously gone by, for fear of back-tracking on previous parts already considered. Point well taken by the member not to extend that gratitude in the future.

Now, I will answer the questions from Julie Anne Genter. Ms Genter asked a question about the matters being raised by the review; there’s no mandatory matters to consider. The bill as reported back by the select committee has simplified the statutory review provision. The statutory review can be wide ranging but does not prescribe certain matters to be considered. I think that’s a sensible approach so that future Governments aren’t restrained by statute in terms of what they can actually review in the Act, and we wouldn’t want to have to go back to amend the bill to add or remove things to be considered just so that we could then review the bill that we’re amending in order to undertake a review. It’s kind of a circular argument, but that’s the position there.

The second question from Ms Genter was: is there any remedy for persons who are stood down from driving from two oral fluid screening tests but this is not confirmed by the laboratory analysis? The 12-hour stand down from driving for a person who tests positive twice at the roadside is a road safety measure. This also addresses Mr Utikere’s question. It’s intended to address immediate risks of impairment from those drug-drivers who drive on our roads, cause accidents, and kill innocent New Zealanders. The requirement for two positive tests is intended to reduce the chance of a person being stood down based on two false positive tests. I think that is most of the questions that have been already raised.

Thank you, Madam Chair. First of all, I just want to remind the Minister that, despite the fact that we do sometimes go back to specific reports, we asked you to contextualise it in situ to the particular subsection that we are referring to. I think it is important that we do discuss and may go back to certain evidence like the regulatory impact statement when we’re referring to this bill. That’s just to remind the Minister that, just because the Minister responded in the same way, it does not mean that the question we ask is not of relevance or is repetitive.

Now, in light of that, my first question to the Minister is around clause 27(2), Part 3, and, broadly, with the replacement of section 94A(1). In the current legislation, as it stands, the only criteria for an enforcement officer to have to—because that’s what “must” means—forbid a person from driving is if the person has undergone two oral fluid screen tests and the results of both tests are positive. That is in the current legislation. However, what we have seen here, as part of this bill, is that the Government has added a whole list of one, two, three, four, five, six—six additional criteria where an enforcement officer is able to forbid a person from driving for 12 hours. Some just include, potentially, non-compliance. This is an incredible expansion of the scope of power of the enforcement officer.

I haven’t seen in any of the regulatory statements, etc., where it talks about the fact that that expansion of power for the enforcement officer has any benefit in terms of the policy intent of this bill, which is that we want to see fewer people on the street who are drug driving—which I get—but things that are not compliant are simply to fail or refuse to provide, because, like I said previously, from the perspective of privilege against self-incrimination, that’s incredibly serious as a ban from driving. I wanted to check with the Minister what the intent is behind expanding the scope of power to the enforcement officer by allowing them to also ban driving under another six additional purposes. That is my first question.

Also, in light of that, when we’re looking at section 94A(3) of the principal Act, it also means that we are seeing an enforcement officer, if one is applicable, is able to conduct arrest without warrant. That is even more severe in terms of the power that’s been granted to the enforcement officer. For someone to be non-compliant with wanting to provide a sample, is the Minister saying that they are able to be arrested without warrant? Because that is something else totally. That’s my first two-part question: what is the rationale behind the expansion of the scope of power, and does that mean that, if anyone fails this, they could also be arrested without warrant?

My second question is in relation to the Schedule, which is in relation to clause 31(2), Part 3. It is very important that we do have a review period. That is good to see. I am looking for, in terms of new Part 9 of Schedule 1, clause 29(5), “The reviewer must report to the Minister on the review no later than 5 years after the commencement”. However, my general understanding from the committee stage we have been discussing is that these tests won’t be available until the end of this year. Even though it is no later than five years after the commencement date, does that mean it is actually no later than four years after the test has been implemented? No real reason—that’s just a clarification from the Minister. Those are my three questions. Thank you.

Very quickly, just to go back to Mr Utikere’s questions, he raised the question that he understands that the regime only results in infringement offences; when would a driver receive a criminal conviction? I’m advised that if a driver is required to provide a blood sample, this could result in a criminal offence if the drug concentration is at the high-risk level currently set out in the Act, as determined through the laboratory test. An oral fluid test will only result in an infringement offence, and this has not changed. Mr Utikere also raised the interesting point that if you’re pulled over and you don’t have a licence, you’re forbidden to drive until you get a licence. Well, the default status is you can’t drive on the roads without a licence in the first instance, so I’m not sure if that’s a comparable situation to draw on.

Then Mr Xu-Nan’s questions right now—raising points about arrest without warrant. I don’t think that’s particularly unusual. Police officers arrest people all the time without warrants, so I’m not quite sure where that one’s heading to. Also, Mr Xu-Nan raises a point about why we would extend this control over people who fail or refuse to provide oral fluid screening tests or refuse to accompany an officer. Well, that aligns with the current regime around drink-driving. It is to ensure that, in the absence of those positive tests, the assumption is that there could be some impairment. From a risk safety perspective, the prohibition against driving for 12 hours takes that low-risk approach to ensure that people who possibly are driving around our roads with drugs in their system, causing havoc, causing chaos, and killing innocent New Zealanders, aren’t able to do so. That’s the main thrust and point of the bill. That’s the main thrust and point of this part. I think it’s something that we’ve, hopefully, well and truly traversed.

💬 Hon Julie Anne Genter: Madam Chair.

The Hon Julie Anne Genter, is this a new point?

💬 Hon Julie Anne Genter: Yes.

CHAIRPERSON (Barbara Kuriger): It’s a small part, and I just want to say, despite what’s being said, I think we have a Minister who’s in the chair on behalf of another Minister on his first foray into this and I think he’s really actually made an effort to answer the questions as largely as possible. I don’t want to go back and repeat where we’ve already been.

Thank you, Madam Chair, and I commend the Minister in the chair for his ability to address all of the questions at least, and for his willingness to engage. It’s very encouraging. We’d love to see that from all Ministers in the chair.

Look, I just wanted to go a little bit further into Part 9 and the changes recommended by the select committee, which I did not agree with. The Greens put in a differing view on this. I do wonder if the Minister and the Government could consider going back to the original Part 9, because there was flexibility in that Part 9 to recommend through an Order in Council that some of the items are listed out in clause—sorry, I get confused on the subclause numbers—29(1A)(3).

The most important thing, I think, is that it was, really, laid out for good reason. That was because this is a new policy, it’s a new approach, and a lot of concerns were raised by submitters, both with the original legislation and in the amendment bill—that we make sure that the reviewer is totally independent of the New Zealand Police and the Ministry of Transport and that all of those different factors that are specified are included in the review unless the Minister had a good reason and could have, through Order in Council—the Governor-General could have said it shouldn’t consider one of these factors.

I think the real risk with the simplified requirements around the review is that a future Government could have a review that doesn’t consider any of these relevant factors. Then they’re complying with the law, but they’re not actually addressing the issue of ensuring that the data is there, that we’re addressing all of the different concerns that were raised by submitters and that are legitimate concerns. I personally think it’s a real mistake to simplify Part 9. Parliament will not be able to guarantee that a future Government will do a substantive and meaningful review.

That’s the whole point of the review. Why do a review if it’s not going to cover the specific factors that a previous Parliament thought should be considered and that submitters have raised? We just have no guarantee that this—and the whole point of the Government’s agenda with this legislation is to get a certain outcome. It’s not to have drug testing for the sake of it; it’s to result in a certain outcome which is reduced death and serious injury. We have no evidence from other jurisdictions that random roadside drug testing does reduce death and serious injury. We do have a lot of people raising issues around people being wrongly held up. We have the Attorney-General saying it’s not justified. I do think that having a really robust and thorough review specified in legislation is worthwhile, and that already the original Part 9 had plenty of flexibility for the Government to decide that a factor shouldn’t be considered by the review if there was good reason.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 3 set out on Amendment Paper 256 be agreed to.