Supplementary advice to the Transport and Industrial Relations Committee

Supplementary advice to the Transport and Industrial Relations Committee Land Transport Amendment Bill 1. In the course of preparing the revision-tracked version of Land Transport Amendment Bill (the Bill), advisers have identified the need for several changes that were not signalled or fully addressed by the departmental report on the Bill. 2. The changes are summarised in the table below. Issue Change Reason Alcohol interlock sentences for concurrent offences Resentencing of offenders to an alcohol interlock sentence if an exception no longer applies Assessment centres under section 65 of the Land Transport Act 1998 Distance exception from mandatory alcohol interlock sentence Consistency or otherwise of fleeing drivers provisions with the New Zealand Bill of Rights Act 1990 Penalties for breaches of mass limits for bridges Clarifying that in situations where the court is sentencing an offender concurrently for an alcohol offence that qualifies for a mandatory interlock sentence and an offence that qualifies for a mandatory disqualification, the court would only have discretion about whether to impose an additional disqualification for the non-alcohol offence in cases where the alcohol and non-alcohol offences arise from the same incident. Allowing a person who received an exception from an alcohol interlock sentence to later seek to have the court cancel their alternative sentence and impose an alcohol interlock sentence, if their circumstances have changed and the exception no longer applies. Amending the definition of an assessment centre to include individuals as well as establishments. Increasing the distance limit specified in the exception from a mandatory alcohol interlock sentence from 30 kilometres to 70 kilometres. An existing power to seize is to be relied on (section 96(1AB)), with new draft amendments to sections 96(6) and (6AA) and 102. Implementing the policy that Cabinet agreed by amending the Heavy Vehicle Regulations and the Land Transport (Offences and Penalties) Regulations rather than the Land Transport Act 1998. To mitigate the possibility of inequitable outcomes between offenders. To improve road safety by allowing as many qualifying offenders as possible to use alcohol interlocks. For the avoidance of doubt. To balance the desire to have as many qualifying offenders as possible using alcohol interlocks, with the practical constraints on their ability to comply with an alcohol interlock sentence. To address the Attorney- General s advice regarding inconsistency with the Bill of Rights Act. For consistency with the other penalties for breaches of section 43 of the Land Transport Act. 1

Alcohol interlock sentences for concurrent offences 3. The Bill gives direction about the interrelationship of alcohol offending that qualifies for a mandatory alcohol interlock sentence with other offending for which a mandatory disqualification applies. This includes a situation in which an offender is being sentenced concurrently for a qualifying alcohol offence and a non-alcohol offence. 4. Non-alcohol offences that incur mandatory disqualifications include driving while disqualified, dangerous or reckless driving, drug driving, illegal street racing, and failing to stop after an accident. 5. As introduced, the Bill provided that for concurrent alcohol and non-alcohol offences, a court would have discretion to decide whether to: 5.1. impose the disqualification for the other offence that would have to be served before alcohol interlock sentence begins, or 5.2. allow the other disqualification to be subsumed within the alcohol interlock sentence. 6. While there are road safety benefits in getting offenders on to their alcohol interlock sentence as soon as possible, this objective has to be balanced against the severity of the other offence. Giving the courts discretion in these circumstances would enable this balancing. In cases of offences involving injury or death, however, the courts would have no discretion they would have to impose a mandatory disqualification for the injury/death offence that would have to be served before the offender could start their alcohol interlock sentence. 7. We remain comfortable with the court s discretion for concurrent offences arising from the same incident. However, there are concerns about the discretion applying to offences arising from a separate incident or series of events that just happens to be considered by the court on the same day. 8. If an offender was sentenced the previous week for a non-alcohol offence, they would have to serve a mandatory disqualification from that offence first. If, however, their defence counsel could organise that the previous non-alcohol offence be considered by the court on the same day as an alcohol offence arising from a separate incident, they may be able to convince the court not to impose a separate disqualification for the non-alcohol offence. If successful, the offender would only need serve a 28-day disqualification before starting their alcohol interlock sentence. 9. Due to the possibility of inequitable outcomes, we recommend that when a court is considering concurrent offences on the same day, its discretion should be restricted to offences arising from the same incident, unless the offences involve injury or death. 2

Resentencing of offenders to an alcohol interlock sentence if an exception no longer applies 10. The Bill allows a court to subsequently cancel a mandatory alcohol interlock sentence and impose alternative penalties if it is satisfied that a person s personal circumstances have changed significantly. 11. The revision-tracked version of the Bill also provides for the opposite scenario, where a person who qualified for an exception from the alcohol interlock sentence could later seek to have the court cancel their alternative sentence and impose an alcohol interlock sentence. This would apply if their personal circumstances had changed so the exception no longer applied. 12. At the time of sentencing, a person could, for example, have been excepted from an alcohol interlock sentence because of a medical condition such as a jaw fracture. Once the fracture has healed, the person would be able to operate an interlock device. Other examples could be a person moving into an area where there was an alcohol service centre available, or they subsequently obtained the use of a vehicle to which an interlock device could be fitted. 13. The onus would be on the person to return to court if they wished to do so and seek to have the alternative sentence cancelled and replaced with an alcohol interlock sentence. 14. We do not anticipate any significant issues with this proposal. It is unlikely to be used widely due to the costs of returning to court to ask it to impose the alcohol interlock sentence. However, it may assist those people who, due to a change in their personal circumstances, would be able to comply with an alcohol interlock sentence. From a road safety perspective, it is desirable that alcohol offenders use interlocks. 3

Assessment centres under section 65 of the Land Transport Act 1998 15. Repeat drink and drug-driving offenders who are sentenced under the provisions of section 65 of the Land Transport Act 1998 (the Act) are disqualified indefinitely and ordered to attend an approved alcohol/drug assessment centre. Removal of the indefinite disqualification is at the discretion of the New Zealand Transport Agency (NZTA) on the proviso that a satisfactory assessment report is received from the assessment centre. 16. Most section 65 offenders will be subject to the mandatory alcohol interlock sentence. They will still need a satisfactory assessment report from an approved assessment centre in order to complete the requirements of the alcohol interlock sentence. 17. Under the Act, the Chief Executive of the Ministry of Health approves assessment centres for section 65 assessments. The Ministry of Health is currently revising its guidelines for section 65 assessments so that they reflect current best clinical practice. 18. A question has been raised as to whether the definition of an assessment centre is broad enough to include individual practitioners (alcohol and drug counsellors) working in private practice, as the definition currently refers only to establishments. The Ministry of Health has not been approving any new assessment centres while this issue remains unresolved. 19. For the avoidance of doubt, we propose amending the definition of an assessment centre in the Act to include individuals as well as establishments. This does not have any policy implications, as it would formalise current practice concerning the types of facilities and individuals that the Ministry of Health considers appropriate to undertake assessments. 4

Distance exception from mandatory alcohol interlock sentence 20. As introduced, the Bill included an exception from the mandatory alcohol interlock sentence for an offender who lives in a place that will be not be serviced by an approved interlock provider and is more than 30 kilometres from the nearest alcohol interlock service centre, or on an island without an alcohol interlock service centre. 21. Some submitters believed the distance exception could create a loophole that would be easily exploited by offenders seeking to avoid the mandatory alcohol interlock sentence. Others noted the high rates of problem drinking and driving in rural areas where the 30 kilometre distance would most likely apply. 22. While generally not in favour of a distance exception, the interlock providers considered that if there was to be one, it should greater than 30 kilometres. One provider suggested 150 kilometres, which is the distance specified in some Australian states. In their oral submission, the other provider suggested a distance of 70 kilometres. 23. The departmental report on the Bill recommended removing the 30 kilometre distance and working with PCO to develop alternative wording for the exception. Following discussions with PCO and the NZTA, it is apparent that the Act needs to provide some direction to the courts as to how to apply the exception. 24. The proposed rewording specifies that the exception would apply if, over the expected term of the alcohol interlock sentence that would otherwise apply, the person will usually live in a non-serviced area and is not prepared to drive to a serviced area periodically. 25. The definition of a non-serviced area would be defined as area that is 70 kilometres or more from an approved provider s service centre; or on an island without an approved provider s service centre. 26. While the selection of a distance is somewhat arbitrary, we consider that 150 kilometres would be unreasonable in a New Zealand context. We recommend a compromise of 70 kilometres. The proposed rewording would also allow the courts to apply the alcohol interlock sentence even if the distance exception applies. This would apply when the offender had indicated, in their submission at the time of sentencing, that they would be willing to drive their vehicle more than 70 kilometres to the nearest interlock service centre. 27. To assist the courts, Police prosecutors, offenders and defence counsel to determine whether an offender may qualify for the distance exception, the Bill will require NZTA to identify non-serviced areas. 28. In its letter of appointment to the interlock providers, the NZTA will also require the interlock providers to advise it of any changes to the locations of their interlock service centres. 29. As more offenders enter the alcohol interlock programme, we expect that the number of interlock service centres to increase to meet the demand. If this occurs, the number of offenders who qualify for the distance exception will also diminish. 5

Consistency or otherwise of fleeing drivers provisions with the Bill of Rights Act 30. As introduced, the Bill sets out Police discretionary powers to seize and impound a motor vehicle for 28 days. This includes cases where the Police suspect, on reasonable grounds, that: 30.1. the owner or person in lawful possession, or hirer of a motor vehicle knows the identity of the driver that has failed to stop for Police; and 30.2. that person has failed or refused to provide information, or has provided false or misleading information, in response to a Police request for this information. 31. In his report under section 7 of the New Zealand Bill of Rights Act 1990 (section 7 report), the Attorney-General concluded that this creates an inconsistency with the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise (section 21 of the New Zealand Bill of Rights Act). 32. To address the inconsistency, an existing power to seize is to be relied on, with new draft amendments to sections 96(6) and (6AA) and 102. Specifically, the revisiontracked version of the Bill: 32.1. relies on the existing power available to Police to impound a vehicle if they believe on reasonable grounds that it has been used in a fleeing driver incident (section 96(1AB)) 32.2. deletes new section 96(1AB). The new power to seize was to be based on Police s suspecting on reasonable grounds that the vehicle owner knows the identity of the driver who failed to stop (new section 96(1AB)(b) of the Bill as introduced) 32.3. inserts a new provision in section 96 that in certain circumstances the vehicle may be returned to the owner within the 28 day impoundment period on the provision of information (such as is available) that leads to the identification and apprehension of the driver 32.4. inserts new section 102(1)(ga) to allow for appeal against impoundment of a vehicle if the owner was not the person driving the vehicle in the fleeing driver incident and did not know, and could not be reasonably expected to know, the identity of the driver, or has provided the information to the Police. 33. This means that if Police attend the registered owner s address, and enquiries are made about the driver s identity where the owner is not suspected of being the driver, and he/she gives apparently truthful information requested at that time, then the vehicle will not normally be impounded (because the impoundment is discretionary). 34. However, the vehicle may still be impounded for forensic purposes and there may be rare instances where despite cooperation and supply of relevant and truthful information by a vehicle owner (not thought to have been the driver) impoundment of the vehicle should take place. For example, where Police believe that the driver is the vehicle owner s son who intimidates or threatens his elderly parent into providing access to the vehicle, the Police may still exercise their power to impound the vehicle to prevent further offending by the driver. 6

35. If the vehicle owner is thought by Police to be likely to have been the driver, then Police will exercise their existing power in section 96(1AB) to impound the vehicle. 36. The Attorney-General has considered the changes to the Bill, and is comfortable that they address the inconsistency with section 21 of the Bill of Rights Act. 7

Penalties for breaches of mass limits for bridges 37. Part 2 of the Bill includes amendments to regulation 11 of the Heavy Motor Vehicle Regulations 1974 (protection of bridges), along with related amendments to the Land Transport (Offences and Penalties) Regulations 1999. 38. These amendments address a Cabinet decision that breaches of mass limits set for specific bridges should be subject to the same scale of penalties as other overloading offences. 39. The Heavy Motor Vehicle Regulations provide that road controlling authorities may fix mass limits for all heavy vehicles using a specific bridge, when engineering advice identifies that the bridge is likely to fail if used by vehicles operating at higher mass. 40. Until recently, bridge limits were enforced by Police in the same way as general overloading offences. This is on the basis that a bridge limit effectively limits the maximum allowable mass of any vehicle when it is using the bridge concerned. However, a recent District Court decision found that breaching a bridge limit was not clearly specified as an overloading offence in the Offences and Penalties Regulations. This means that the maximum available penalty is much lower than for overloading offences that are breaches of the Vehicle Dimensions and Mass Rule (which include both breaches of general mass limits for vehicles and mass limits set by road controlling authorities for specified vehicles using defined routes). 41. The initial proposal was to address this anomaly through amendments to sections 16 and 43 of the Act (similar to the amendments relating to breaches of manufacturers gross vehicle mass). Further analysis, however, indicates that the issue is best addressed by amending both the Heavy Vehicle Regulations and the Land Transport (Offences and Penalties) Regulations so as to: 41.1. prohibit breaches of mass limits for bridges; and 41.2. specify that such breaches are overloading offences in terms of the Act. 42. The change will mean that the penalties for breaches of mass limits for bridges are located in the same place as other breaches of section 43, and are of the same scale. 8