Land Transport (Drug Driving) Amendment Bill

We come first to the Land Transport (Drug Driving) Amendment Bill, and we begin with the debate on Part 1. Part 1 is the debate on clauses 4 to 6, “Amendments to Parts 1 and 2”. The question is that Part 1 stand part.

Point of order. I seek leave for all provisions to be taken as one question.

CHAIRPERSON (Barbara Kuriger): The question has been asked for this to be taken as one question. Is there any objection? There is objection.

Hon JAMES MEAGER: I am pleased to speak on the debate in Part 1 of the committee stage of the Land Transport (Drug-driving) Amendment Bill. I know members opposite were very, very keen to get up and head me off at the pass, but I’m very, very proud to be speaking in support of this bill, because this Government is committed to improving road safety by targeting the highest contributors to fatal road crashes. In recent years, an average of over 100 people were killed in crashes where a driver had consumed impairing, prescription, or illicit drugs. This represents around one in three road deaths and it is too high, too many, and something must be done.

This bill will introduce roadside oral fluid testing to better detect and deter drug-driving. It amends the Land Transport Act to fix the current issues with the oral fluid testing regime that prevented it from being implemented when it was passed under the previous regime. It moves to a roadside drug-screening regime with infringement notices issued following positive laboratory tests. This is a change from the current regime which attempted to implement a testing regime resulting in infringement notices issued at the roadside, despite device technology not being sufficiently advanced to meet the required evidential threshold. This Government identified that this was an issue and moved quickly to resolve it.

Part 1 sets out the preliminary provisions, including key definitions and consequential changes to the sections in the Land Transport Act that set out the responsibilities of drivers. These responsibilities include to not drive if the concentration level of a listed qualifying drug in their oral fluid equals or exceeds the concentration level in a notice issued by the Minister of Police. The Government is committed to bringing these new powers into force as soon as possible. We are targeting December 2025, once the necessary operational matters and regulations are in place. I note that there is an Amendment Paper in the name of the Hon Chris Bishop that, obviously, the Government is supporting and will help address some of the issues raised in the select committee stage. With that, I look forward to the contributions of the members in this debate.

Thank you, Madam Chair. It’s a pleasure to take the first call in this committee stage for this bill. As a member of the Transport and Infrastructure Committee and as Labour’s transport spokesperson, it was a pleasure to be part of this process. I want to acknowledge and thank the Associate Minister of Transport for those introductory remarks. He has touched on a number of factors that we’ll work our way through this evening and tomorrow. A lot of those, I think, will fall in part—sorry, Minister?

Hon James Meager: We’ll finish tonight, won’t we?

TANGI UTIKERE: Very, very hopeful, I would suggest, but I doubt it. There are a number of issues that I’ll particularly touch on in Part 2. The overriding consideration that the Minister hasn’t touched on in addressing this bill is that there are a number of concerns that have been addressed by the Attorney-General in her report to the House. I know that we’ll, obviously, be working our way through those, because some of them—well, there are two issues, but they need to none the less be addressed.

The Minister indicated in his introductory comments that the intention of the Government was for this to be operational in December of this year, and my first question to the Minister would be: what confidence does he have that that can actually be implemented, given the tension around the procurement of devices? I only ask that, Madam Chair, because he has raised it himself, even though that comes in a later part of the bill. The Minister none the less did raise it.

In terms of Part 1 specifically, the interesting thing there is the interpretation section. I think it’s fair to say that the select committee didn’t turn its mind to the interpretation section much, because there wasn’t much in there. One thing that does come to mind, however, is that when you look at the definition that’s provided for a “family of qualifying drugs” in clause 2, it identifies two examples there and gives a specific “for example”. My question to the Minister is: is he comfortable that the examples that are given there are such that they are purely an indicative list? Why is it that an example is given, as opposed to just leaving it to the fact that there is a list of drugs that have a similar chemical structure, instead of identifying them? In that case, is he comfortable that that carries it on? It might be that that is the case because that’s why the “for example” is given there.

My other question is: there was a lot of conversation around who was going to approve the screening devices, and whilst the definition that’s there for “oral fluid screening device” is one that is approved by the Minister of Police—whether the Associate Minister of Transport is comfortable that that is actually the appropriate Minister. I know there are subsequent clauses further on in the bill that touch on what that Minister of Police needs to do in terms of consultation with other Ministers, but my question for the Minister is whether the definition of the “Minister of Police” in the interpretation section is appropriate. It might be that there is no suggestion that it’s not going to be the Minister of Police there—but whether that’s listed there is appropriate. Perhaps I’ll leave it with those few questions. I’ve certainly got a few more.

Thank you, Madam Chair. A pleasure to be able to take a call in this committee of the whole House stage. This was a very well debated bill at select committee, so the questions from us will be quite targeted about those things that still remain as a concern. You will be aware that the committee managed to find cross-partisan consensus on many of these issues. Labour does support an approach that’s been broadly outlined by the Associate Minister of Transport.

There were some particular concerns around the way that we stop people and how that will be reasonable, but also just provisions that help us all to maintain the public’s confidence and trust in the system when they’re being brought to the roadside by police officers. Everyone needs to buy into that for it to work. There have been several jurisdictions around the world where things have gone wrong and where parliaments have needed to come back and revisit those provisions that they have put in place in the last 10 years. We want to make sure we get this right and we get this right, now.

I want to ask the Minister a question. Amendment Paper 256, in the name of Chris Bishop, is something new, since we were able to traverse the many rights implications. It’s also new since the Attorney-General gave her opinion on the way that rights were being limited in this case. I’d like the Minister to step the committee through the provisions in the Amendment Paper that apply to Part 1, please.

I rise to take a first call on this first part, seeing as how the Associate Minister of Transport isn’t standing to respond to questions that have been put forward thus far. I want to broadly start with raising the concerns that were raised by many submitters, and then a series of questions to the Minister.

At the Transport and Infrastructure Committee, we heard from a range of expert submitters who made the case that there is simply not enough evidence to correlate impairment with oral fluid levels and with blood levels. The Minister opened up his statements this evening by saying that this was a key part of the Government’s road safety strategy. I wanted to ask—because we didn’t hear any evidence at the select committee—does the Minister have any evidence about the estimated reduction in deaths and serious injuries that will be achieved through oral fluid testing, firstly? If not—and I do understand that there are some pretty large claims being made about the improvements to road safety that can be achieved through compulsory oral fluid testing—rather than just relying on numbers of deaths and serious injuries or fatal crashes where people may have tested positive for a qualifying substance, I think it would be useful to understand how many fatal crashes would have been prevented by oral fluid testing, where we would have any reason to believe that they would have been prevented by having mandatory oral fluid testing.

Obviously, it’s not going to prevent every single instance of impaired driving or driving under the influence of a qualifying substance, but also, when the Government uses those broad numbers about how many fatal crashes had drivers who had had some sort of potentially impairing substance, the reality is—and we heard this at the select committee—oral fluid testing devices are likely to be able to test for only one or two substances. Even if it’s the one or two or three most common substances, it’s not going to capture all of the substances that fatal crashes have drivers testing positive for. Will it be possible that drivers will know which substances the oral fluid tests will be testing for—at the time they’re in operation? That’s a whole lot of questions related to the overall objective of the bill, and then we’ll get into more detail on the specifics of each part further in this debate.

Thank you, Madam Chair. Thank you, members, for the questions. I’ll start with Tangi Utikere. I liked the question where he asked, “Who will approve screening devices?” Asked and answered: Minister of Police. He meant to ask whether I’m comfortable that the Minister of Police’s definition in the Act is the right one. Yes, I’m very comfortable with that. The Minister of Police is also defined and already in the Land Transport Act as well.

The member asked whether we have confidence that the provisions can be enacted in time for Christmas. Yes, we have the utmost confidence in the Police to deliver on this; although, we have, if you note, in the amendment to the commencement clause, the commencement clause is going to be amended to April, I believe, or sooner, depending on regulations. The intent is to try to get this implemented by December, but the bill, if you look in the commencement clause—I know we’re skipping into the commencement clause, but we might as well get this covered off now. If it has not come into force by 1 April 2026, it comes into force then. And the Act comes into force when set by Order in Council. That’s how that one works. But, yes, we’re fully focused on implementing and working hard to meet the December 2025 timeline.

The member also asked whether we are comfortable with the indicative examples in the definition of “family of … drugs”. Yes, they are illustrative examples to illustrate the nature of the different types of drugs in the families of drugs anticipated.

Arena Williams asked if we could step the committee through the amendments in Part 1. Absolutely; there are only two. The first is to insert a definition of “elective oral fluid sample”, which means “a sample of oral fluid taken from a person under section 71DC(2)”. The second change is a change in the “oral fluid sample” definition, from section 71DA(1A). That’s struck out and is replaced by 71DE(2).

I actually think that is all in Part 1. Let me just double check that for the member. No, in clause 6, we are striking out 71D and 71DA and replacing it with 71DE. Then, in clause 6(2), we are striking out 71D and 71DA and replacing it with 71DE.

I thank the Associate Minister of Transport for his answer there. The Transport and Infrastructure Committee spent quite a lot of time with how the testing regime would work for people who might for some reason not be able to meet the requirements of the first oral test, and what the committee was really concerned about wasn’t the people who were trying to somehow evade it or get around it or take a long time because they were being uncooperative. We were thinking, here, about the mum on her way home from school with the kids in the car, who might be trying her very best to comply with police instructions but might not be able to produce the amount of oral fluid.

I’m sorry, I’m going to be talking about oral fluid here and the amount of it required, because the committee sat around the room and all got to do one of these tests, and Andy Foster was one of the people who—you know, it is not unusual—could not produce the right amount of oral fluid. He was chatting a bit, as you might if you are on the roadside with some people in the car with you, interacting with the police. My point here is: if we’ve got this group of people—perhaps it’s one in eight people, like the people who were sitting around the committee room; we don’t know how many people it is; it’s quite a few people—and so at the second stage of the test, it then requires a blood test, or at least the original framing of this testing regime does. You might think, well, that’s reasonable; you need a way of making sure that people aren’t somehow gaming the system by trying to avoid it.

What I’m really asking the Minister is: is this creating a second step of a second oral fluid test? There are policy reasons for doing that, reasons we would be broadly supportive of and like to hear about. There are also policy reasons why you would not do that, as the committee also heard about from the experts. We would like to be very clear what’s being created there.

This does lead to some broader questions, which I will pose to the Minister a little bit later, which do relate to Part 1. They’re about what the Attorney-General set out for the Transport and Infrastructure Committee when she was giving her view on whether this was an unreasonable search and seizure. The number of times that you might be required to do a test goes to the amount of time that Police might be asking Parliament to authorise them to keep someone on the roadside to detain them and the degree of invasiveness of the search. One breathalyser test, as is required now for alcohol testing—and we think that’s reasonable; we suggest no change to that—is quite different from even the oral test that someone has to do where they have to produce an amount of oral fluid; I’m sorry. That amount is, for some people, quite hard to produce in the time frame, and so we will have people who are then either required to have another oral fluid sample or are then required to take what is a pretty invasive search, and the invasive search, here, is the blood test, and that is also something that might not be administered on the roadside; that might be administered elsewhere.

We get into these sort of compounding issues of whether it is reasonable for Parliament to set aside a special set of powers for police to conduct what are increasingly more invasive searches, with increasingly onerous powers of detention. What I’m trying to understand here is: is the amendment intended to deal with that? Can we stretch through the policy issues of how we’re going to deal with that? This is coming from a Labour Party that supports this regime and wants to make it as effective as possible and as reasonable as possible so that people do comply with it.

Thank you, Madam Chair. I’ll just indicate to members that I am getting some advice on the specific numbers requested by Ms Genter, but just on the point from Arena Williams around the section 7 report and the issue of unreasonable search and seizure, we think it is a justifiable limit on the right to be free from unreasonable—

Arena Williams: What is—

Hon JAMES MEAGER: Well, if the member would like me to continue the sentence, I can finish off. We think it is a justified limit on the right to be free from unreasonable search and seizure, because the policy purpose of the bill is to prevent road incidents and road deaths in New Zealand. We think this is not an unreasonable step to take in order to prevent that kind of behaviour. Therefore, we think the steps taken to require people to provide oral fluid—and I know we don’t want to talk too much, at length, about oral fluid from any particular individual in the House, but that is part of the system that’s going to be in place. We think that’s not an unfair expectation of those who may well be putting others at risk through their own behaviour. That’s to address the first point.

On the second point, around whether it creates a second oral fluid test, I’ll get some advice from officials and come back to the member very shortly.

Thank you, Madam Chair. I’m not a common appearance at these committee stages so bear with me, Madam Chair, as I muddle my way through this.

As a member of the Transport and Infrastructure Committee that oversaw this bill going through the select committee stage, I did have some issues that I would like to test with the Associate Minister of Transport. One of the things that the select committee has been asked to do, in examining this bill, was take on advice from officials that there wasn’t an ability to provide specific examples of oral fluid screening devices for the purposes set out in this bill, which is to introduce new criteria for approving oral fluid screening devices that better reflect the limitations. Minister, there is an attempt here to introduce a new scheme of oral fluid screening tests that will come along with other impositions, as we heard, on civil liberties for New Zealanders who are going about their lawful business.

I would just like to understand from you, Minister: what do you think should be going into these calculations on approving an oral fluid screening test based on time frames? I’ve had a look through the bill and I couldn’t see anything regarding time limits for these new devices, so I’d be interested to hear your thoughts on that, Minister.

Thank you, Madam Chair. I’ll address Mr Luxton’s question in one second, but just to address Arena Williams’ question from a couple of contributions ago, the question was around whether this is creating a second step in the process. The bill requires an officer to collect an oral fluid sample to send for laboratory analysis. Amendment Paper 257 before the committee of the whole House provides for an opt-in regime where a person can elect to provide a further sample where any sample already obtained is not sufficient for that person to seek a private analysis. In the instance where on the spot they were unable to produce the required level of oral fluid, they are able to elect to provide a further sample.

Thank you, Madam Chair. I have a question for the Associate Minister of Transport, and it’s starting with clause 4(2) around the “family of qualifying drugs”. I would like to come back to the conversation around the New Zealand Bill of Rights Act (BORA), because, again, I’m sure that the Minister is very conscious as well that this is one of the few bills which has a specific section 7 report, in which case that has incredibly high thresholds, so I think it does warrant for us to come back in terms of some of the potential BORA violations that we do see here and some of the concerns around that, which I’ll discuss in a bit.

To start with, I would like to ask the Minister about the definition for the “family of qualifying drugs”, assuming that “qualifying drugs” has the same definition as in the principal Act. What is different here is that he talks about sharing a substantially similar chemical structure—for example, with benzodiazepine. I’m sure the Minister is aware that with all benzodiazepines, it is a chemical compound that includes both a benzene ring and a diazepine ring as part of this chemical structure. I think what I wanted to check with the Minister is in Schedule 5, Part 1 of the principal Act. It does list a number of benzodiazepines as a part of that already. Are we anticipating—first question—additional chemical structures that are similar to benzodiazepine that aren’t listed in Schedule 5, Part 1, of the principal Act? If so, what are we looking at?

Just by looking at the bill—apologies, I was not part of the Transport and Infrastructure Committee on this, so I did not have the time to scrutinise this bill very carefully—one of the things that is very specific in Schedule 5, Part 1, of the principal Act is the amount that is able to be detected in the system for drug-testing purposes. But, if the Minister has additional benzodiazepine-like chemicals that are not part of that, I can’t see, in this bill, the actual volume that is allowed to be able to pass a particular threshold. I guess the question is: what are the benzodiazepines that we are looking at that are not listed in Schedule 5 of Part 1?

I think the second question, which we’ve been talking about and other people have addressed as well in terms of some of the BORA implications—it comes down to what I see on page 19 of the regulatory impact statement, around the fact that there is a concern that was raised in there. I wanted to check with the Minister if this has been teased out as part of the new bill already on the potential consistent issue and legal challenge around the accuracy, because I think what we are seeing here in terms of the freedom from unreasonable search and seizure and the right not to be arbitrarily detained potentially would meet the threshold of limitation on a person’s right under section 5 of BORA.

I think the key focus here is around the reliability of the test. Does the Minister then have the confidence that the test is reliable enough that it meets the threshold for limitation under section 5 of BORA? If not, then is there any way for us to potentially look at this bill in a more BORA-consistent way?

I guess these are my two questions—three questions. The first question is: is the definition of “qualifying drug” the same as in the principal Act? Schedule 5 of Part 1 of the principal Act specifies a list of benzodiazepines that are already listed, but it mentions additional or similar chemical structure that may not be listed as a part of that. Is that the intention of this particular clause? If it is and there are other benzodiazepines that are considered, is there a limit that is being given in this bill or in the principal Act? Schedule 5 and Part 1 are very specific. In terms of the BORA implications, are the tests reliable or accurate enough to warrant the limitation on BORA under section 5?

Madam Chair, thank you. I’ll address Mr Luxton’s question—I have some advice here. The question was around the approval of screening devices: any thoughts on how the time frames to undertake the test is reflected in the legislation. I’m advised the bill requires the police Minister to consider the accuracy and the extent to which the positive screening threshold indicates recent drug use. While the time it takes a device to return a result is not a consideration, the Minister must take into account that it will be a relevant operational consideration for police. That may go some way to addressing that point.

I understand there’s probably not enough time left in the night to answer all the questions from members—I’m sure there’ll be some time in the morning when we get up after having some beauty sleep—but I want to address Mr Xu-Nan’s points around the New Zealand Bill of Rights Act (BORA). I’m not here to provide legal advice, but if I was to provide some guidance as to why we think it is a justified limit, there are a number of limbs to any BORA test.

The policy must have a sufficiently important purpose, and so I believe that the prevention of road deaths on New Zealand’s roads, especially given that we’ve heard that one in three are caused by this kind of impairment, is a sufficiently important purpose.

Is the mechanism being used relevant to the policy goal? Yes, we think it’s directly relevant; I think that test is clearly met. Is it no more than is reasonably necessary to produce that outcome, or not more than a minimal impairment? We think that requiring a small oral fluid sample to prove an absence of impairment or of drugs in the system—sorry, it’s not necessarily impairment—is about the minimal threshold you can go to, to try and reduce this kind of impact on our roads.

Overall, is the impact of the policy proportional to what we’re trying to achieve? We think that requiring some roadside drug testing is proportional to the overall policy outcome, which is to try and reduce the number of horrific road deaths caused by drivers who take it upon themselves to intoxicate themselves—take drugs—and drive on our roads.

Now, I’m sure there will be a number of questions in the short time we have available on this part, and I look forward to continuing those in the morning.

Members, the time has come for me to leave the Chair. The House is suspended until 9 a.m.

Debate interrupted.

Sitting suspended from 9.58 p.m. to 9 a.m. (Wednesday)