Land Transport (Drug Driving) Amendment Bill

Good morning members. The committee is resumed on the Land Transport (Drug Driving) Amendment Bill, the Taxation (Annual Rates for 2024–25 Emergency Response, and Remedial Matters) Bill, the Sentencing (Reform) Amendment Bill, and the Customer and Product Data Bill.

When we suspended last night, we were considering the Land Transport (Drug Driving) Amendment Bill and had begun the debate on Part 1. Once again, the question is that Part 1 stand part.

Kia orana, Mr Chair, good morning. It’s a pleasure to take the first call of the morning. Last night, where we ended up was, as you say, sir, in Part 1. There were a number of questions that we’d posed to the Minister in the chair and there were some responses there that certainly on this side of the committee we intend to delve into a little deeper. It’s worth noting that obviously the position of Labour has been in support of this bill up through its second reading, and there are a few issues that we’ve identified previously in the second reading speech that we do want to address in this committee stage, and there are a couple of Amendment Papers at this stage that I’m aware of, in my name, to address some of those concerns.

This is an issue that Labour in Government was very, very passionate about. Yes, it’s accepted that there were some issues about being able to effectively roll that out, the interpretation section of Part 1, where some of the questions that were touched on last night identified some of the changes that sought to roll that out. I asked the question of the Minister in the chair at the time about whether it was appropriate that the Minister of Police was the appropriate person. I have a question for the current Minister in the chair in that, further on, there is a requirement for, certainly, the Minister of Transport and the Minister of Science to be consulted—whether it’s appropriate for there to be reference in Part 1 to those two executive members who hold those two particular warrants for those portfolios. Whilst the Minister is defined as the Minister of Police—I certainly concede that that perhaps is the most appropriate person to make the decision. However, what’s contained in the legislation, in the bill, is reference to two other Ministers. When we get on to Part 2, there’ll be a conversation about whether that should be added to or not—but when we’re looking at Part 1, whether that definition is appropriate.

One of the things that the Minister has yet to respond to is the concerns that the Attorney-General has raised in her report to the House, noting that the step that the Attorney-General took was a fairly unusual one—unusual in that it is not often something that is engaged where it comes to the House. Certainly, the Attorney-General does have that overriding responsibility to examine all bills and to ensure that they are consistent in this respect with the New Zealand Bill of Rights Act. Now, there was a lot of conversation and questions put to the Minister last night around that issue. I think, from memory, there was a response, but it didn’t really delve into the specific concerns that had been raised. It may be that the Minister is relying on moving through to those parts beyond Part 1 to explore those opportunities, but, none the less, it has been an issue that has been raised by at least a couple, if not more, members.

I do have a question around the response that the Minister gave last night—that I have to say was quite surprising—and that was around the operational matters for the police. This is something that the select committee did grapple with a wee bit, and I note Mr Foster there, who chairs the committee, will be aware that one of the—

Dan Bidois: A fine chair.

TANGI UTIKERE: He is a fine chair, actually; I certainly accept that. One of the issues that the committee did grapple with was the tension between the operational requirements of the police and the roll-out of these devices. Certainly my firm view is that this legislation should not be driven by procurement processes. This needs to be at a high-level set: what is it we’re seeking to achieve? It is a reduction of deaths, fatalities, and injuries on the roads. We certainly accept that; we’re 110 percent behind that.

What came as somewhat of a surprise from the Minister’s response last night was that the police Minister can consider relevant operational matters. Now, on a day-to-day basis—yeah, OK, you can consider those, but we’re talking about relying on a piece of legislation that is seeking to deliver change in the reduction of fatalities and serious injuries due to drug driving. That did come as a surprise because, throughout the select committee stage, that was mentioned—I accept that—but it wasn’t seen as, nor was it accepted by the committee as, the driving force or factor behind the decision.

I’m interested in those two responses from the Minister around the Attorney-General, but also the operational requirements of the police in relation to this.

Thank you, Mr Chair. Following on from last night’s discussion and what the Minister laid out for the committee of the whole House, which is an important part of this legislative process, because the two major parties are in agreement on this: we need to see this legislation through and we have been working very collaboratively in committee to make it a piece of legislation we can all support.

This committee stage represents something that is really necessary in this phase, and we have an amendment on the Table in the name of the Hon Chris Bishop where we are trying to, basically, do the same work—to make sure that it works. I asked the Minister a series of questions about how the Amendment Paper affected Part 1, and the response was around a new provision to allow an oral screening test to be paid for at the election of a person who was having, say, a second test. That was when the answers around the Minister having regard to operational requirements came out for the House, and so we need to really test, for the benefit of everyone here, what that means, because it was something which was really key to the cross-partisan support: understanding both the need, practically, to allow Police to run a procurement process that was as flexible as possible, because we need them to be able to deliver these services.

When you’ve got Ministers in the House at question time saying the Police are going to be rolling things out, these are things that people should expect to happen. There should be as much operational ability to be able to procure the right kinds of tests, and in as timely a fashion as possible to be able to do that, when people expect that this is coming. On the other hand, in the committee room, there were legitimate concerns around what was being reasonably proposed here for the procurement. No one in the committee thought that we would be procuring tests that would get someone on the side of the road for an hour—no one in the committee thought it would ever be reasonable to pull someone over for a longer time than that, or to do a more invasive test than the ones we saw used there—for a sample of saliva or a swab. That is also relevant, because that is what the Attorney-General thought when she considered the weighing-up exercise that is required and what is a reasonable curtailment of people’s rights and what is not.

When the Minister in the chair, the Hon James Meager, told us that the Minister of Police would have regard to operational requirements when making a decision, we want to know what those operational requirements would be, and whether that, in fact, is the way that we will formulate the exercise of public power that the Minister is making there when he is the decision maker in this case. That’s not necessarily what the Attorney-General considered.

Last night, we had a really useful back and forth with the Hon James Meager about the reasonable balance of rights and the right kind of public policy reason for limiting rights—but not about actually what was being reasonably curtailed. That’s the question here, because if you have one oral test and then you introduce another oral test, and then you have a blood test, that is what’s being reasonably curtailed. Our questions are about, actually, well, if that’s the stepping out of the process and that’s what’s being amended here, then we need to know what is the likely time there. That is also something that the Attorney-General didn’t consider in the New Zealand Bill of Rights Act reporting that was brought to this House. We just want to step ourselves through and make it clear on the record what a reasonable time expectation is if we have this step which is being introduced by the Amendment Paper. We want to understand the step that is being introduced by the Amendment Paper, and that’s why we’ve been asking questions about the balancing exercise.

As well, Mr Chair, you will know that Opposition members will have more questions about the New Zealand Bill of Rights Act at a later part of this bill, and that it is not directly relevant to Part 1. What we are raising here is the reasonableness and the time expectation of what is being curtailed by the Amendment Paper that relates to Part 1. We have not had an opportunity to consider the Amendment Paper at committee, and so we just really want the Minister to walk us through how long we’re expecting this to take, because you’ll notice, if you do read through the Attorney-General’s report, that it is very practical. This isn’t a document which is high level. This isn’t some sort of arcane rights-balancing exercise; it’s very easy to read. What we’re saying here is it’s reasonable to pull someone over for a breathalyser test at the moment. We say that’s fine. We say that’s a reasonable search and a reasonable detainment on the side of the road, but—[Bell rung] Mr Chair, just to finish this—

CHAIRPERSON (Greg O’Connor): You can finish but I’m just aware that the Amendment Paper—I know it relates to Part 2; I’ll need good context around Part 1, which you are doing, but, just, you’ll need to continue strongly to do that.

ARENA WILLIAMS: Understood, Mr Chair. Just to finish this point, the amendment that I’m asking about is the step to allow a person to elect to have an oral fluid sample sent to the lab at their own cost. We want to know whether that adds to the Attorney-General’s analysis and whether that was something new that the Attorney-General did not consider. We haven’t stepped through with the Minister what that process looks like, so we’re quite keen to have that stepped out. That’s why I asked the Minister as a first question—it sounded like a patsy—to walk us through the amendment. And it really is: you know, we believe in this, we want it to work, let’s all understand the Part 1 amendments in the Amendment Paper and whether they align with what the Attorney-General was considering when she gave us her rights’ analysis.

Thank you, Mr Chair. This is my first opportunity to take a call on this question, and I can say with confidence that we do support safer roads and we support an evidence-based way of getting there. The Land Transport (Drug Driving) Amendment Bill seeks to amend the Land Transport Act 1998 by changing the testing threshold from an oral fluid containing evidence of use to an oral fluid that indicates use of qualifying drugs.

My question, really, starts with: what is the evidence base we are using to see whether this is an effective way of ensuring safer roads? We’ve heard from the New Zealand Drug Foundation submission that there’s a proposed oral fluid screening regime—does not penalise driving while impaired by drugs. Instead, it penalises prior ingestion of certain qualifying substances, the majority of which are prescription medicines. My question to the Minister is: how are we going to avoid penalisation of those who have ingested prescription medicines? Particularly—I appreciate that the Minister we have in the chair at the moment lives rurally—because we know rural dwellers do tend to be high users of prescription drugs as well as other drugs. How are we going to tell the difference? How are we going to be able to choose between those prescription drugs and other drugs? That’s my first question here.

I think we’ve got a second question which comes from the Attorney-General’s concern about overhauling the New Zealand Bill of Rights Act, because this proposal is conducting screening tests in a very discriminatory manner. Why not use a less discriminatory manner such as the existing approach for universal screening at drink-driving checkpoints, which doesn’t target specific groups, doesn’t have an over-reliance on ethnicity—what we anticipate this bill could well do, as we know there are biases in the way we address things. My second question is really about how we’re going to ensure that this is not discriminatory, how we might apply it in a more universal manner such as the universal screening at drink-driving checkpoints.

Just to return to the first question, if we understand that the screening regime doesn’t penalise while impaired by drugs but does penalise any prior ingestion of qualifying substances, which include prescription medicines, how on earth are we going to make sure that we only get those who are impaired, and impaired by illegal substances? How on earth are we going to ensure that this is justified for all of those people who for one reason or another have to take prescription drugs, but are safe and are able to drive? How is this bill going to ensure that we are not simply acting in a way that is irresponsible for our communities and, particularly, for our rural communities, where we know that there are so many people who have been injured, who need care, and who are ingesting prescription drugs?

Two questions for the Minister; I would really appreciate an answer, if we could, and I can follow up later. Thank you.

I just will note that the actual methodology of stopping is mostly in Part 2 of this, as well. Members, I would ask, in considering your questions, it’s a relatively narrow part, so if we can keep it to that.

Thank you, Mr Chair. I do want to focus on the question that I asked last night that we still haven’t received the response from the Associate Minister of Transport on. This is to do with the definition for the “family of qualifying drugs”, as we see in clause 4 in Part 1, amending section 2.

Just a reminder to the Minister, going back to the question I had yesterday, that in the principal Act, Schedule 5 of Part 1, we do see the threshold for existing high-risk drugs and in terms of the amount that is considered a high risk. What we are not seeing is the fact that the definition here for qualifying drugs also includes other ones with a similar chemical structure, and it specifically names benzodiazepine and amphetamine as having some of the similar chemical structures.

Now, I mentioned before, as the Minister would be aware, that for a chemical compound to be considered to be a benzodiazepine, all it requires is to have a benzene ring as well as the diazepine ring. In these cases, it considers and covers other particular drugs, for example, that are not part of the list, such as bromazepam and other forms of anxiolytic. I’m just curious that there is nothing in this bill, nor is there an amendment, that suggests that other forms of drugs that are not currently listed under Schedule 5 of Part 1 of the principal Act do not actually have a corresponding amount or threshold in terms of what is considered high-risk.

If we are looking at specific drugs that are not part of that list but do have a similar chemical compound or similar chemical structure, like what I just said with bromazepam, what is the safe amount for those? An example to give is that there are other ADHD-treating drugs such as those that are CNS stimulants—central nervous system stimulants—that do contain or do have similar structures as amphetamine. With those also, what is the safety threshold for those as well? Again, it is not part of this bill or including this amendment.

The last question I have in terms of the definition for “family of qualifying drugs” is in section 2, which talks about qualifying drugs that have a similar effect, including pharmacological effects, on the user. Now, pharmacological effects on the user vary from user to user, because of the fact that the whole point of pharmacology is the way that the drug interacts with the human body, and human bodies interact differently depending on your own body make-up and genetics and all of those variables. Would the test be able to pick up on the nuance or specifically just pick up on the amount of drug that’s present in the system? And if we’re looking at something that has a pharmacological effect on the user, who and how is it determined what those pharmacological effects are going to be when a person is being pulled over?

Just around the context of the qualifying drugs, which seems to expand beyond the scope of the principal Act, and how that would look in practice—if the Minister wouldn’t mind answering those questions, that would be wonderful.

Thank you, Mr Chair, for allowing me to take my first call on the Land Transport (Drug Driving) Amendment Bill during the committee of the whole House stage. I am pleased to see that a fellow Dunedinite is the Minister who is answering questions through this part.

Now, for this section, I would like to ask questions to test my understanding about the legislative intent of this bill. Obviously, I’m willing to take guidance from the chair as to whether these questions properly belong in this part of the bill. My question is around the legislative intent of it. I’ve read through the speeches during the first reading and second reading. In the first reading debate, it was the Hon Matt Doocey who said, during his speech, that part of the legislative intent was to keep New Zealanders safe on the roads. He alluded to the 65 lives that are being lost. During the second reading speech, the Hon Chris Bishop alluded to drug deterrence as one of the legislative intents of this bill.

During his introduction speech in this stage of the debate, the Hon James Meager—I’m not sure whether they’re honourable when they get inducted as Ministers or whether they have to be in Cabinet first; I am not sure what the rules are. I think he is an “Hon” at this stage. He mentioned deterrence, and he also mentioned fatal road crashes—

Tim Costley: Point of order. I’d just ask for some guidance from you. I’m not sure entirely where the line sits, but, in terms of hearing a member questioning the honour of one of our Ministers, I just wonder what your guidance would be, sir.

CHAIRPERSON (Greg O’Connor): That wasn’t what I heard. Just explain what you were—

FRANCISCO HERNANDEZ: I was wondering whether they become “Hon” when they become Ministers or whether they need to be promoted to Cabinet before they become “Hon”.

CHAIRPERSON (Greg O’Connor): That is what I heard. He is an “Hon”, I can assure you, having welcomed the Minister—[Interruption] He is “the Hon”—to clarify that.

FRANCISCO HERNANDEZ: Yes, thank you, Mr Chair. I would never question the honour of a former fellow Otago University Students’ Association exec member and a former Otago graduate no less.

The legislative intent seems to be, from these speeches, to reduce the death toll on the roads and to make the roads safer, and to deter and detect drug-driving. If, say, in five to 10 years, the incidences of drug-driving and safety incidents in New Zealand haven’t gone down, would this Government consider this legislation to have failed? The second part of the question is: has the Minister or their officials looked at what has happened in legislation that has occurred overseas since the introduction of drug-driving laws. Just for a little bit of context, for my sins I also worked for the Australian Greens in the New South Wales Parliament—

Andy Foster: You must have sinned very deeply.

FRANCISCO HERNANDEZ: —yeah!—as a legislative staffer there, and one of the issues we talked about then was roadside drug-testing. I had a look this morning at what has happened to hospitalisations since the expansion of the mobile drug-testing regimes. In 2014, there was something like 10,800 hospitalisations from crashes, and from my last check, in 2023, which was when there was the last full year of statistics, the statistics covered around a similar number. Despite the expansion of one of the quite comprehensive drug-testing regimes, it doesn’t seem to have made the situation in New South Wales much safer. This has come at quite a substantial cost as well. I think the figures were something like $10 million or $15 million per annum for the cost of expanding these services.

Again, the question is: what is the criteria for success for this Government, in terms of introducing this legislation? And, if the legislation is either not reducing the incidence of drug-driving or reducing these sorts of fatalities and crashes on the road, will it revisit the legislation in train?

Mr Hernandez, I’d say there are some broader policy issues there that go a little bit away from—but the Minister looks like he’s keen to answer.

Mr Chair, thank you. I’ll address that last question first, because we’re deep in the weeds here in some of the technicalities of the bill, but let’s stretch it out here.

This is not a good thing having people driving around under the influence of drugs. We’re intending to do something about this. I think it’s something the previous Government looked at doing. We’re intending to deliver on that, and there are some technicalities around that. We are working through that today. Of course, I’m sure successive Governments will look upon making this as effective as they can, but these are the measures that we are putting in place at this time. We intend to deliver on them.

Can I just cover some of the points that have been made, the more substantive ones. To Arena Williams’ point on how the amendments in Part 2 impact Part 1 of the bill, we will cover that in Part 2. They are substantially Part 2 of the bill, and we’re not there yet. To Mr Ukele—Ukirere—can I ask for a—

Tangi Utikere: The member for Palmerston North.

Hon MARK PATTERSON: The member for Palmerston North—

CHAIRPERSON (Greg O’Connor): Utikere.

Hon MARK PATTERSON: —Tangi, my coal-shovelling colleague from Palmerston North, around the requirements: should there be requirements for the Minister of Transport and Minister of science to have a more defined say? Those definitions are already in the Land Transport Act and covered off the technicalities that you were looking at there.

Also, on the question around having regard to operational requirements when approving screening devices and what is involved, the bill does require the police Minister to consider two factors when approving a screening device: accuracy and positive device thresholds that are indicative of recent drug use. Other issues, such as the time it takes for a device to return a result, are operational matters that Police will consider before making a recommendation to the police Minister to approve a particular screening device. We did hear, yesterday, a rather alarming example of Mr Foster not being able to provide a test in time. We could call this the “Foster clause”. As examples of that come through and the Police are operationalising these matters, they will be able to inform the police Minister and make recommendations. That is how that clause will work.

Just addressing and refuting, actually, Mr Willis’ comments around bias, I think the New Zealand Police force are an incredibly professional force. We have absolutely backed them on this side of the House, and I think insinuations that they’d somehow be biased when operationalising this legislation we would refute.

Thank you very much, Mr Chair. I did have some questions last night that we were waiting on for answers from the Minister in the Chair at the time—that was a different Minister. I’ll just reiterate those: they are about the specific number of fatal and serious injury crashes that they expect to be prevented by the oral fluid roadside drug-testing regime, and noting that a lot of times the Government refers to the number of drivers in fatal crashes who tested positive for some substance. However, these oral fluid tests, we heard in the Transport and Infrastructure Committee, will not test for all the substances, so they can only test for maybe five, but more likely they will only test for one or two. They won’t be preventing all of the fatal crashes that are involved with some level of substance being present.

The main issue I want to bring up and question in this part is under Subpart 2 of Part 1, clause 5(1). This is really the crux of the issue because, prior to this, the rules have been around responsibilities of drivers not to drive while impaired. And that is the key issue: not being impaired. Happily, when it comes to alcohol breath tests, there’s a really good correlation—there’s still some individual variation, but there’s very, very strong correlation between the blood levels of alcohol that the breath test picks up and impairment. But this subpart is saying that “Persons are not to drive or attempt to drive while blood contains evidence of” a qualifying drug or oral fluid indicates use of a qualifying drug. That’s quite different, because we heard substantial evidence, both with the original legislation that this is amending and this bill at select committee, about the difficulties in establishing impairment and about the possibility that some of the qualifying drugs can be present in blood and in oral fluid even when there’s no impairment.

I guess the question for the Minister and the Government is: how are we going to deal with this situation of the possibility that people can test positive? For example, we heard from the Drug Foundation that recent Australian research involving drivers who used either orally ingested or inhaled prescribed medicinal cannabis found no notable evidence of driving impairment, and this is despite drivers recording blood concentrations of THC which would be above the high-risk blood concentration level of three, up to six hours after taking that medication. This study suggests that medicinal cannabis, or medical cannabis, used as prescribed has a negligible impact on simulated driving performance, but despite no observable driving impairment, they will have detectable concentrations of THC in their oral fluid for a duration of up to six hours.

This is the crux of the issue when we bring in oral fluid tests: the research is not there to establish impairment. There’s a very good chance that people who are legally taking a prescribed medication can fail two oral fluid tests, then be banned from driving for 12 hours, and then have to potentially go through a lengthy process to ensure that they don’t have an infringement and demerit points. I mean, people can say they’ve been taking it as prescribed, but the issue is that if we are now saying that people need to not drive or attempt to drive while there’s any evidence of using a qualifying substance, how are people meant to know? Like, how will they know—if they’re legally taking prescription medication and they’re not impaired and they should be able to drive, but they’re not going to be able to drive because of this—

Dr Vanessa Weenink: And their prescription says, “Don’t drive within eight hours.”—then they don’t drive within eight hours; it’s really simple. If it’s prescribed medication you’re worried about, then prescriptions are clear.

Hon JULIE ANNE GENTER: Well, take a call—we’d love to hear from Government members there.

CHAIRPERSON (Greg O’Connor): I’d prefer if we can keep our conversations through the Chair, please.

Hon JULIE ANNE GENTER: If oral fluid testing is not accompanied by reliable impairment assessment—like when it comes to pain management and cannabis use, if they are not impaired, they’re not at risk at driving in a way that’s going to be dangerous but they’re still going to fail the oral fluid test and the blood test because they have to take the medication to be able to go on with their lives. We’ve heard that people take this medication to be able to live with chronic pain—[Time expired]

Thank you, Mr Chair. I’d just like to address this point. It’s similar to ones made by Mr Xu-Nan and Mr Willis earlier. Of course there is—and Ms Genter referred to it in her question—the defence for prescription drugs. There is a process to go through. Obviously, it’s a bit messy. There’s a grey area there, potentially, that you don’t know if you’re in or out of, but there is a process to go through.

As has been pointed out by some of the commentary coming from my right, on the boxes, on the prescriptions, you get advice. It’s no different to the alcohol situation where there is some discretion that you have to use. You can still have a beer or a glass of wine and drive and still be within the limit, and it’s the same scenario we’re talking about here. There is the defence of the prescription, which I am sure will be utilised for those people who may be inadvertently caught out by these rules.

Thank you, Mr Chair. Can I thank the Minister for his answers to some of those questions that I did put. In particular, I want to thank him for the clarity around police operational consideration, because that is quite different. His response is quite different to the response that was given—well, actually, it wasn’t a response. It was basically part of the contribution from the Minister James Meager, who was in the chair last night, who basically indicated that the Minister would be required to consider “relevant operational matters”.

What today’s Minister, Minister Patterson, has very helpfully clarified is that that is not the case, that the operational matters will be considered by the Police in terms of what they propose as suitable or not to the Minister of Police. I think it is important that that has been clarified, because members certainly on this side of the House were very surprised to hear that from the Minister last night, that suddenly there would be this change that is not reflected in the transport Minister’s Amendment Paper 256 that has been tabled. I do thank the Minister for the clarity.

There was a question that I wanted to pose to the Minister that was in direct response to an answer that he gave last night. I do seek your guidance—if you wish to curtail my question and say that it needs to be in another part, I’m happy to do that. I raise it now—

CHAIRPERSON (Greg O’Connor): It’s useful to relate it to the part that you’re actually pertaining to—

TANGI UTIKERE: This is about the implications as to when things would be rolled out, because last night the Minister indicated that there was “the utmost confidence” that this Government would be able to effectively roll this out, and he indicated that it would be operational basically in time for Christmas, December, of this year. He cited that there had been a change to the date and that it was April. Now, I note that that is in the title and commencement section, so I’ll park that for further contribution.

It does raise some concerns about some of the issues that were brought to the attention of the select committee when considering how things would be defined—and they are contained in Part 1—as to how that would be rolled out. I can refer specifically to the definitions that are proposed to be changed. In Amendment Paper 256, in Minister Bishop’s name, he identifies a number of definitions there. Now, if we look at the actual Part 1, that’s where the definitions and interpretation are contained in their entirety. My question to the Minister is how the level of comfort exists that those things that are defined can actually find their way to, I guess, roll out by December or in December—well, by the end of this year, basically.

CHAIRPERSON (Greg O’Connor): You have answered your own question. You are right. It does belong in the commencement.

TANGI UTIKERE: Yes, that’s right. And I did indicate that I would talk about that when we got to the commencement, so thank you, sir.

When the Minister has responded to my colleague Arena Williams’ question about “Well, we’ll get to that in Part 2”, the question really is that what Minister Bishop is proposing as a change to Part 1 is contained in clause 4(2). There are not many changes that Minister Bishop seeks to implement here or to suggest a change, but one is a new definition and the definition is that of an elective oral fluid sample.

This is new. This is something completely new. This is not something that actually was provided at select committee. What has led to this may have been provided through select committee in the report, but we are yet to hear an answer to why the Minister has sought to introduce a new term called “elective oral fluid sample”. Now, it might mean because the person seeks to have that oral fluid sample elected as of right, which does go to mitigate some of the concerns of the Attorney-General—but we still have not heard a response or an answer around why he has decided to implement or suggest that particular change.

The other three changes in the Minister’s Amendment Paper 256 are in relation to clause 19, inserting new section 71D(2) and referencing also new section 71DE. I would be interested to hear from the Minister, please: what is the explanation of those particular changes? Because they are new, they haven’t been sort of explained to this committee as to what they seek to do—it might just be that it is a change in reference; it might not. Why is the Minister seeking those amendments or the Government seeking those amendments?

Thank you, Mr Chair. It does surprise me that Government members are taking closure motions in a bill which is supported around the House but is intended to be the best piece of legislation it can possibly be, and we still have a Minister who hasn’t answered questions about what this amendment does. The questions we have been posing to the Minister today, and the Minister in the chair last night, are about how the amended sections 71D and 71DG then work with the consequential amendments which have been put in and whether the new process meets the kind of—

Hon Member: Repetition.

ARENA WILLIAMS: And the members say “repetition”. It wouldn’t be repetition if the Minister had just stepped us through what those new sections introduce, because, members, what we are faced with here is a bunch of really practical, ordinary considerations about how you should detain people on the side of the road.

These aren’t criminals. These are not people that the ACT Party or the National Party want to put in jail because they’ve been bad and they’ve taken naughty drugs. They’re you and me because we’ve been pulled over at a stop or at a random check—just like drunk-driving—which we accept is completely normal, and we’re asking the Minister to step us through. Do his changes introduce more time into the system? Do his changes introduce a more invasive search into the system? If you’ve got more time and you’ve got a more invasive search, then you’ve got a different kind of thing than what the Attorney-General—your Attorney-General, your Cabinet Minister—considered when she considered the rights-based analysis that she went through.

We have these processes for a reason, and the reason we have these processes is because Parliament can’t do whatever it likes to people. It certainly can’t do whatever it likes to people who come with completely clean hands at the side of the road when they’re driving their kids in the back. Government members seem to think that it is completely normal for the Government to legislate over the top of ordinary citizens’ rights—who have a right to privacy, a right to not be searched randomly, a right to get home on time with the kids in the back of the car.

Tim Costley: What’s your question?

ARENA WILLIAMS: We want the Minister to explain: has he introduced more time? Has he introduced a stricter sense of detention with these new amendments? They are to Part 1—their definitions are in Part 1. We haven’t had that answer. That is why we will continue to ask it until we have the right Minister who can answer it. We need to understand this, because it was key to the committee’s cross-partisan support that it was a reasonable amount of time, that it was a reasonable sort of detention. We want to make sure that what we are supporting here gives the police the right kind of powers that will stand up in court.

The other thing to take into account here is that we all want this to work; we don’t want tons of cases clogging up the court system about whether it was reasonable to even have this public exercise of decision making in the first place, that it was reasonable for police to procure a device that had a reasonable sort of time frame to it and required the right kind of pulling over on the side of the road. Because, actually, what we’ve got here—

CHAIRPERSON (Greg O’Connor): Ms Williams, I will say that the actual practicality of the test is in the next section, Part 2. You are spending an inordinate amount of time on the next section.

ARENA WILLIAMS: Let me ask the Minister, then, a simple question which I think will go to the heart of these changes to Part 2. Minister, do the changes to the definition of “second oral fluid testing”, and its subsequent amendments—which are to Part 1—change the inputs into the Attorney-General’s analysis of rights? Given that sections 71D and 71DG create new processes, did the Attorney-General make her rights-based analysis on a similar sort of time frame and a similar sort of detention?

Thank you, Mr Chair. I’m very grateful that the Minister did want to engage on the question of police bias previously, because I would particularly like the Minister to think about the August 2024 independent report Understanding Police Delivery, where it was reported that being Māori increased the likelihood of prosecution by 11 percent compared to New Zealand Europeans. Now, that was in August 2024. That was only last year—mid - last year—and these are findings that demonstrate inequities for Māori and other ethnic groups, and disabled people, in their interactions with the New Zealand Police.

Now, this is an independent report that the police themselves commissioned in March 2021—

CHAIRPERSON (Greg O’Connor): Mr Willis, the Minister did bring this up, but he did bring it up in response to you bringing it up, and it wasn’t as part of this section. As I indicated before, you are now into an area well outside what we’re talking about in Part 1. Now, I know that the Minister mentioned it a bit. He was speaking in response to, actually, yourself, so you had actually introduced it into the argument outside the realm of Part 1.

SCOTT WILLIS: Thank you, Mr Chair. Are you suggesting that I’ve been fishing for the Minister? I don’t believe that, and that’s not—I would never consider such a thing.

CHAIRPERSON (Greg O’Connor): Well, I know that your fishing skills are apt, so I would expect that you may have been optimistic in doing that. If we can go back to Part 1, please, Mr Willis.

SCOTT WILLIS: OK, OK. Look, I appreciate that, and I certainly would like a response to the suggestion that there isn’t bias, because what we do know is that there is a concern that by not having any universal screening such as happens in drink-driving situations, this will lead to that type of bias. My question, really, is about that screening ability in the bill. How on earth are we going to overcome—how can I put this another way—the lack of accuracy that might occur?

I’ll leave it there because I know my colleague has another question, but I would appreciate a response from the Minister, since it’s been part of our discussion to date, and it is an important point, nevertheless.

The honourable Minister—but the point is that we are now broadening out from Part 1, so be warned.

Thank you. I will address that last point first from Mr Willis. I’ve probably brought this upon myself by responding to his earlier allegation, because I thought it was very unfair on the New Zealand Police to make that allegation. I will point the member to the fact that this is an empirical test. You either pass or you don’t. It’s not something where bias can occur. The data is in the test, so ethnicity or gender has nothing to do with it.

CHAIRPERSON (Greg O’Connor): Don’t belabour that point, please, any more, Minister, because it will invite more.

Hon MARK PATTERSON: In response to Mr Utikere—hopefully that’s a bit of a better effort, Tangi, the very sensible member for Palmerston North—on why the definition of “elective oral fluid sample” was inserted. This is inserted to support the proposed changes in the Amendment Paper which provide for a person to provide an elective sample, if needed, for possible future independent testing. That is, of course, discussed further in Part 2.

To Arena Williams’ point on whether the Amendment Paper proposes a more invasive search, again, this is a Part 2 matter, but to get ahead of the play now, no. The Amendment Paper provides for an elective sample, if needed, to enable a person to seek independent analysis. It mitigates concerns in the bill reported back that it could require prolonged detention to attain a sample of oral fluids sufficient for both laboratory and independent analysis.

Thank you very much, Mr Chair. I’m still hoping that the Minister of Rural Communities, with assistance from the officials, can come back with some specific numbers on the estimated number of deaths and serious injuries that will be prevented by this policy. Also a further question to that: to what level would it have to be rolled out to achieve that reduction?

As we understand with alcohol breath testing, the deterrence aspect is the key rationale for it—it’s to stop people from driving under the influence of alcohol. That has to be done at a very large scale, and it can be done at a very large scale because alcohol breath testing doesn’t cost very much. It’s just a few cents, really, per test, compared to the oral fluid tests, which are several dollars per test at least, and the alcohol breath tests only take a short period of time—less than a minute—whereas we’ve seen lots of evidence that the oral fluid tests could be detaining people for well over 10 minutes.

I just want to refer to the Attorney-General’s section 7 report, which they found both unwarranted seizure on the basis of this bill as well as arbitrary detention, paragraph 62. “On balance, I consider that there is a real risk of arbitrary detention where an initial oral fluid screening test takes in excess of 15 minutes or where an individual is unable to provide a sufficient oral fluid sample and instead must provide a blood specimen.” And “the error rate of oral testing … could lead to prolonged detention of individuals on the basis of inaccurate [testing].” It says that “The bill provides inadequate safeguards in these situations.”

Can the Minister tell us if the amendments made at the Transport and Infrastructure Committee or the Amendment Paper that has been put forward for this committee stage addresses in any way—have we had any further feedback from the Attorney-General on whether it would provide a safeguard? I suspect the answer is no, but all of the Government’s rationale for the basis that this is warranted—people potentially losing their ability to drive for 12 hours—

CHAIRPERSON (Greg O’Connor): Ms Genter, you’re well into the policy. You actually answered this yourself: the broader policy issues. If you can relate it to what we are debating here now, which is the actual test.

Hon JULIE ANNE GENTER: Well, we’re back to Subpart 2—

CHAIRPERSON (Greg O’Connor): Also in the next part we’ll talk about the broader issues.

Hon JULIE ANNE GENTER: It’s Subpart 2, “Amendments to Part 2”, which is in Part 1 of this amendment bill—clause 5. Sorry, the Minister in the chair yesterday evening, the Associate Minister of Transport, did answer questions about this, but said that he believed it was justified on the basis that it would result in less harm on our roads. That’s why I come back to my question, which I’ve asked multiple times and no Minister in the chair has addressed my question, about the specific evidence that it actually will prevent harm. I think that should be answerable—that is a reasonable question to ask.

Just making the point that here we are changing the law to say that people cannot drive or attempt to drive, simply because of the presence of something. That’s quite a big difference from what it has previously been, and it means that people might lose their ability to drive; might be detained simply for taking their medication. The Drug Foundation said 19 out of 25 substances with legal blood thresholds under the amendment bill are prescription medications and that people can be—

Hon Member: What about the medical instructions they’re given?

Hon JULIE ANNE GENTER: Yeah, well they can be. For example, if the members want to read—well, (1) take a call; but (2) read the actual submissions in the evidence. It says they would not—so the New Zealand Transport Agency’s Medical aspects of fitness to drive: a guide for health practitioners states that “A[n individual] on an oral methadone treatment programme may continue to drive if [the individual is] stable on the programme and their methadone treatment is unlikely to affect their ability to drive safely.” They would not be considered impaired, despite blood and oral fluid levels potentially showing concentration of opioids that would be considered high for opioid-naïve individuals.

The issue is that these substances and their impact on people’s ability to drive is not the same as with alcohol, and you will, potentially, with this bill, be banning people from driving—which, in many parts of the country, they have no alternative—when they’re not impaired. Do we think this is a reasonable or a just thing to do? If people have oral fluid or blood levels of medicine that they are legally prescribed and they should be able to drive, they can still fail this oral fluid test, they can still be detained, they can still lose the ability to drive, and those members on the other side do not care. There’s no evidence that this is actually going to improve road safety or reduce deaths or serious injuries.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 256 be agreed to.

Amendments agreed to.

Part 1 as amended agreed to.

Part 2 Amendments to Part 6 (driving offences involving drink or drugs, and penalties and procedures)