Land Transport Amendment Bill

Hon HARRY DUYNHOVEN (Minister for Transport Safety) Link to this

I move, That the Land Transport Amendment Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Transport and Industrial Relations Committee for its consideration and that the committee report back by 10 March 2006 and that the committee have the authority to meet outside normal sitting hours except during oral questions.

In the recent changes to the Land Transport Act, passed unanimously by the House last year, passenger service drivers, such as bus drivers and taxi-drivers, with specified criminal convictions were prohibited from continuing to hold a passenger endorsement. Some of those drivers had been convicted decades ago of offences that most people would today consider do not merit the loss of their employment, as, in some cases, they had had minimal penalty at the time. This bill will allow those drivers to apply to have their passenger endorsements reinstated.

It also expands the criteria that the Director of Land Transport is required to consider when deciding whether to reinstate a passenger endorsement, so that those criteria include the sentence imposed for the applicant’s last conviction for a specified serious offence; the general safety criteria set out in the Land Transport Act; any other matters that the director considers relevant, including but not limited to submissions by any affected party; the length of time since the person’s last conviction for a specified serious offence; any other convictions the person has; and the likelihood that the person would, if granted a passenger endorsement, be a threat to public safety or security. This will allow drivers with convictions for offences at the minor end of the scale to re-enter the passenger service industry where this is not against the public interest. The bill will also allow the possibility of new applications for passenger endorsements from individuals with such convictions.

The Land Transport Amendment Act of 2005 was passed without dissent in this House last June, and it disqualified a small number of passenger endorsement holders with certain criminal convictions from holding a passenger endorsement. The Government has since become aware that some of these individuals have convictions that, despite being in the category of offences punishable by 7 or more years’ imprisonment, are for acts that occurred in many cases several years or even decades ago. Often the offence at that time attracted a small non-custodial penalty or a very short custodial sentence, and in some drivers’ cases a conviction and discharge with no sentence at all. By today’s standards society might not consider some of those offences to be of a serious nature; for example, consensual sex with a 15-year-old when the offender was 16. While there is a reinstatement avenue in the 2005 amendments to the Act, it precludes those with convictions for sex offences or with any convictions for imprisonable offences in the past 10 years, no matter what the circumstances of those convictions were.

The law in this case has a simple objective, which it achieves: to improve public safety by making sure that potentially dangerous people are not driving in a passenger service. However, it has become clear that the mechanism, although dealing with most cases adequately, is too blunt. Of the 38,000-plus P endorsement holders in the country, some individuals are adversely affected in terms of their employment for no appreciable safety gain. What has become evident in recent weeks is that some individuals, although they have a qualifying conviction, did not have a severe sentence imposed for their offence and are unlikely to pose any risk to their passengers. Indeed, some have been active in the industry for decades, in some cases up to 40 years, without any reoffending of any sort whatsoever. The law as it stands is stopping those people from working as a bus driver or a taxi-driver. The bill will recognise this and provide the opportunity for these people to apply for consideration to be reissued with their passenger endorsements.

I should point out that the bill does not automatically reissue passenger endorsements to the affected individuals. The reinstatement option in the bill is tightly prescribed. The legislation does not create a general grandparenting right but requires that the director consider whether reinstating someone’s P endorsement is in the public interest, taking into account various criteria, including the sentence imposed to the offending, how long ago it occurred, any other offences committed, and whether reinstating would constitute a threat to public safety. It explicitly does not allow for all of the P endorsement holders to re-enter. This way, those with convictions for serious sexual or violent offences can be excluded. This will allow the travelling public to have greater confidence and security when using passenger services. The director cannot grant the reinstatement application unless completely satisfied that it is not contrary to the public interest, and that the person will not pose a threat to public safety or security.

In addition, there will be other individuals with similar convictions to those I have described, who may wish in the future to apply for a P endorsement but are now unable to do so under the Act. The bill will allow these people to ask that the director consider their cases also using the same criteria. However, the presumption that they may not hold a passenger endorsement will remain until the director has examined their case.

The intention of the 2005 amendments to improve the safety of the travelling public was correct. However, there were consequences that affected the livelihoods of some drivers, who most members of Parliament now see have been harshly treated in that the minor offences for which they often received only minimal penalties decades ago, now prevent them from working. Many members of Parliament have asked how we can fix this situation, and I would like to thank all the transport spokespeople from each party, and the other members of Parliament who have indicated their support and their concern with their phone calls to me. I might add that there have been many phone calls over the Christmas period. They want to get this right.

This bill fixes a specific problem with the land transport legislation. It is a straightforward amendment, and I hope it will be able to be speedily dealt with by this House so that those affected can apply to the director and, if appropriate, return to work as soon as is possible. I invite the select committee to consider the above issues and consider any solutions. There may be other ways of achieving the same ends. I hope the select committee is able to quickly examine this issue and that agreement can be reached quickly on what measures are appropriate, so that those who we believe have been harshly treated can return to their normal lives quickly. I commend this bill to the House.

Hon MAURICE WILLIAMSON (National—Pakuranga) Link to this

I make it very clear to the House from the outset that the National Party will cooperate in trying to get this bill right. I also make it very clear to members of this House that I was a member of the Transport and Industrial Relations Committee that considered the original bill. The members of that committee worked very well together in trying to get the legislation right the first time, and they were aware of why there were problems. The moment we ever draw a line in the sand, there are always some people just on the other side of that line who can be affected, and, if we take them into account, there is a person on the other side of them, as well. I am sad to say that there may have to be a toughening up in terms of saying we are sorry that a handful of people may be caught by this, but the legislation needs to remain reasonably strong in order to achieve its ultimate goal.

What is the ultimate goal of the bill? The ultimate goal of the original legislation was to prevent unsuitable people from holding a passenger service licence. That is something I think every member of this House would want. We do not want young daughters, sisters, and so on going out at night and jumping in a cab in front of Bowen House, or wherever, knowing full well that the individual driving the cab has, in the past, been convicted of rape or murder.

My first concern about this amendment today is that it starts from the position of going too far, in that it allows anybody to apply for consideration. I hope the committee will tighten that up straight away to exclude those who are convicted of murder or rape. Then we get to the tough situations. This House knows full well that hard cases make bad law. If a young boy of 16 had sex with his 15-year-old girlfriend 40 years ago, and went on to marry and live a life of blameless excellence, like Steve Maharey has done, one might find it hard within oneself—as I do—to say that that man should be excluded from driving taxis. But if the offence he was charged with and convicted of was the same offence as that of a dirty old man of 48 who had sex with a young under-age girl behind the school bike sheds—because the offence does not take account of the age of the perpetrator when the charge sheet is done—one might say that the guy in the second case should not get through the gate.

The select committee had problems to tackle, and I swear to members of this House that when this bill is before the committee, those same blurry delineations will still exist. I reckon there will be 120 different views—actually, with the overhang, it will be 121 views—of exactly where the line should be drawn. The National Party thinks that maybe we should be reasonably conservative and quite strong on where we draw the line, at least for any new entrants who have any sexual convictions. Let us remember to whom the Act applies. I remind members of the House that the Act that came into effect on 16 January prohibits people who have been convicted of murder or sexual offences punishable by imprisonment for 7 years or more from holding a P endorsement. No offence punishable by 7 years’ imprisonment or more is trivial. I promise members, there is not one. Again, I think that specified serious violent offences should be included.

I am happy to talk right now to this House about the case I heard raised—I think it was Chester Borrows from Wanganui who raised it with me first—about a 16-year-old boy who had sex with his 15-year-old girlfriend who was only 3 weeks away from turning 16. Her father found out, and, in order to punish them, he involved the police. They charged the boy and he received a conviction, but the couple went on to marry and live a happy life ever after. He has been driving a cab. I do not want that person excluded. However, I am very, very nervous about creating a regime that also gives discretion to the director of what used to be the Land Transport Safety Authority. I can tell members that when I was a Minister, the one thing I would never have done was to give discretion on any of this stuff to the people who were running that outfit.

I am also worried about the ability to appeal to a court. This amendment allows a court appeal—a provision that the select committee had taken out of the bill. The select committee did not just make mistakes. I have heard a number of people say that us guys really cocked it up. No, I can tell members that Mark Gosche, the chairperson, did a fabulous job of trying to go over and over this issue. I know that Peter Brown thought we had probably gone too far, but the problem was that if we went to the point that Peter Brown would have liked us to, which a lot of people would advocate, we would also have allowed in some people who I, and I think most members of this House, would say were undesirable. Do we want Graham Capill to be able to drive a taxi when he gets out of prison? I tell members right now that I do not. So we have to be very, very clear about granting discretion in very limited ways.

I think the Minister should be a bit embarrassed about some of the poor writing of this bill. The second bullet point of the explanatory note states that this bill will: “expand the criteria that the Director is required to consider”, but the paragraph before the clause by clause analysis states that the bill tightens the criteria the director should take into account. If new members of Parliament think they can have a quick read of the explanatory note to see whether the amendment bill tightens or expands the criteria, they will be absolutely flummoxed. What are the criteria? The explanatory note states: “The Bill also tightens the criteria that the Director is required to consider when deciding whether to reinstate or issue a P endorsement to someone with a specified conviction to include—the period of time elapsed …”. But is there any difference between, say, a 16-year-old boy having sex a year ago with his 15-year-old girlfriend who 3 weeks later turned 16, and a boy who did it 40 years ago? I do not think there is much difference. I do not think many people think that that is the biggest offence that can occur. On the other hand, if a person murdered somebody, then I do not care that it happened 50 years ago. If that person has been convicted of murder, then he or she should be ruled out. Let me say to all the murderers out there: “I’m sorry, but go and drive a truck, go and drive a bulldozer, but don’t want to keep driving a passenger vehicle where you may have one female passenger late at night and have the access to something where you’ve already proved you’ve gone beyond standards of behaviour that this Parliament accepts.”

I finish as I began, by saying the National Party will cooperate in a fairly truncated select committee process, but I warn every member of the House who thinks that this process is easy. It is not. I received calls, as did Harry Duynhoven, asking why we did not just fix it. So I asked the question back: “So you would be happy to do this?”, and the callers said they would. But when I told them that that meant more serious offenders would also be able to get a P endorsement, they replied: “Oh no, not them.” So I said: “OK, tell me how you word this in order to stop one offender but not the other, both of whom were charged and convicted of the same offence, despite the fact that most of us can live comfortably with one of the offences, while most of us would think the other was a pretty heinous crime.”

The moment the courts are allowed in I worry, because one of the reasons the first bill was passed was that the court had let this Parliament down; the discretion had been given to the director, who had declined a particularly grubby individual. That individual made an appeal to the District Court. The court overrode the director and instated this guy with a P endorsement. Again, I would be very happy, if time permitted, to give members the facts and details of that individual. I would like to see any members of the House put their hand up and say that they would be OK with that guy driving a taxi, because I can tell them that they would not. It was the courts that overrode the will.

So if Parliament is going to have some control on this, I want to know that the bill, when it is reported back from the select committee, will be as tight as it can be—that it may be different for those who are already in the industry and have a livelihood, compared with those who may want to enter the industry in the future, so that we keep at least future entrants clean and tidy. I want to know that the powers and discretionary ability of the director are kept very, very tight—as tight as a drum. Also, to some of those offenders, such as those who commit murder, we must just say no.

I am happy to draw up a black, a white, and a grey list—it can be like the foreign withholding tax. The black list is murder, rape, and a number of those offences, and those criminals must not get a P endorsement. The white list includes a number of other offences that are quite minor, in which case those people most certainly will get a P endorsement. I want the grey list to be as tight, as narrow, and as carefully defined as possible, so that most members of the House know that when their wives or daughters, or themselves—such as female members of the House who leave at night—take a taxi it will be with somebody who is safe.

STEVE CHADWICK (Labour—Rotorua) Link to this

We know that the proposed amendment in the bill is not simple. It is not a black and white issue at all. But it does remedy an anomaly that became very apparent to many constituent MPs over the Christmas period, when some of those who had been driving buses or taxis—some for 40 years, as in a case in my electorate—lost their ability to work. I found this particularly difficult when those people had to come to see me as a woman MP to admit to a minor indiscretion they committed in their youth. Also, sweating profoundly, they had to admit this to their wives, whom they had not told. They then had to be prepared to stand up and go through a process that was very embarrassing for them.

I entreated the Minister to intervene in a couple of cases in my electorate, but he had no powers in the current Act to do so. Then we found, through the legal advisers in the town who saw those people, that they had no appeal process. So they had to face the consequences of having to live with their wives after admitting to an indiscretion—and we have all had them—from their youth. Then, what is worse, they lost the right to drive, and, at 60, they found that they could no longer earn an income. One constituent from my electorate committed an offence in 1974. He undertook a period of 6 months’ periodic detention. He sought legal advice for clarity, but when the lawyer phoned Land Transport to find out whether he was in the grey zone, the black zone, or the white zone he did not get clarity. I hope that the Transport and Industrial Relations Committee can get this right now.

One further constituent, who admitted a minor sexual offence, did contact Land Transport and was told that there was no record of his offending at all. So his lawyer then advised him that perhaps he should not go for a P endorsement, because he had admitted—hand across heart—that he had committed one of those offences of a minor sexual nature. So he also had to write to his bosses and to admit the offence to his wife, and he lost his job.

It is simply the lack of an appeal process, or a lack of clarity around the reinstatement option, that is of concern to us. That is especially so for those breaches of a minor sexual nature. None of us in the House would argue or take issue with the workings of a very good select committee, and the fact that it got it wrong. But it is wrong, in terms of the law, when there is no appeal process or no right to get reinstatement considered. This bill remedies that. I think it is great for Parliament to say that it got one aspect wrong. It has had some unintended consequences, but this Government will have a look at it, will try to clarify it, and will get it fixed up. It is fantastic for the voices to be heard of those brave people who made entreaties to their MPs, who admitted a breach of a minor nature many years ago, and who were quite prepared to go through an appeal process in order to get their licences reinstated. They were quite prepared to go to the courts over this issue, because they themselves said that it was in the public interest and, as Mr Williamson said, the interests of public safety are paramount.

Dr WAYNE MAPP (National—North Shore) Link to this

In my call I want to address a couple of key points: why we are here today and how the select committee got it wrong, and what the motivation initially of the select committee actually was. This part of the transport legislation had its origins with Deborah Coddington. There had been a whole swath of offences, particularly in Wellington, where taxi-drivers who had previous serious convictions, who held a P endorsement, had assaulted women passengers. That was the origin of the legislation. A whole bunch of people who should not have had P endorsements, nevertheless got them; and that had occurred because of lax procedures in the Land Transport Safety Authority and in the courts. So the motivation of the select committee was to narrow down the discretion or, in the words of my colleague Maurice Williamson, to have a definitive blacklist. If someone was convicted of murder, no way could that person get a P endorsement or an appeal, and everyone in this House would, logically, agree with that.

The second category, which was hugely troubling, was the whole range of sexual offences. We know as a general proposition that once someone is convicted, there is likely to be a prospect of similar conduct in the future. We did not want people who had been convicted of serious sexual offences to ever hold a P endorsement—that is, to drive a taxi or a bus ever again. There was to be no appeal for that group.

Then there was a third category of violent offences under the Crimes Act. What happened was this. Land Transport advisers came along and gave us a list of sections. They just gave us a whole bunch of numbers, such as section 153, section 177, and so forth, and said that none of those people should be included. We said: “Let us describe those offences.” So we duly did that, which is why in the legislation there are offences described such as attempts to murder, conspiracy to murder, and wounding with intent—all of those. All people convicted of those offences can also apply to have their P endorsements reconsidered if they have been convicted in the past.

However, the problem occurred with the middle band, where the legislation states that in the situation of any sexual crime punishable by 7 years’ imprisonment or more, there is a complete ban and no right of appeal. We asked the Land Transport officials whether they were sure that that was OK, and they said that, obviously, everything with a penalty of 7 years’ imprisonment is a bad offence. That seemed a reasonable proposition. Surely, anyone convicted of a sexual offence punishable with 7 years of imprisonment or more should not hold a taxi licence. But the trouble was that one or two offences were included in that category that probably should not have been, or at least there should have been a review procedure.

One is section 134, “Sexual intercourse or indecency with girl between 12 and 16”. Now, we have all heard the facts—the 17-year-old and the 15-year-old, 40 years ago, where there would have been a small fine or even a discharge without conviction. In one situation the couple subsequently got married, although I do not know whether they are still married. But clearly we would wonder whether that is really a situation where that offender should never be able to be a taxi-driver. I think everyone in this House would say that if that is how the law worked, then clearly something has gone wrong in the lawmaking process, and that the person in that situation should be able to hold a P licence.

However, the same section would also cover someone convicted in the last few years, where the offender is 45 and the victim is 13. Would we want that person to hold a taxi licence? Surely, the answer would be no. The problem with the bill presented by the Minister is that it allows everyone who has been convicted and has lost a P endorsement to be able to apply to the director for reinstatement. Why would we do that? Why would we allow a murderer to reapply for a P endorsement? That is ridiculous. Why would we allow a rapist to reapply for a P endorsement? That is also ridiculous. Frankly, this legislation, which has had a number of weeks’ worth of work done on it, as it has been presented to the House, is actually a pretty poor job.

The select committee will once again have to work to get it right and to narrow it down to the particular area that I think the House is broadly agreed on. We want as minimal a level of discretion as possible. I guess we cannot remove it completely, but we can certainly narrow it down—maybe, for instance, to an offence under section 134 where there was a discharge or a small fine, because that would cover the class we are interested in. That is the group of people—and I have certainly had phone calls on it—with some of them having been convicted 40 years ago, where, for instance, one party was aged 17 and the other was aged 15, and the offender was discharged without conviction. That sort of person should be able to hold a P endorsement. Unfortunately, the bill presented to the House is too wide. It will have to be restructured by the select committee in order to narrow its focus to deal with genuine cases of injustice, as opposed to murderers or rapists being able to reapply for their P endorsements.

So the National Party is put into the position of saying that we have a bad bill, which fixes up what was actually a relatively narrow error by the select committee, but this is the only opportunity we have to fix the problem. So we have to support a bill that is, frankly, poorly drafted—because it is the only way that we can look at the issue. I say to the Minister and to the House that National members will look at this very carefully indeed. We want it a lot narrower than in the bill as presented. We want it to be narrowed precisely to a few cases—and there are not actually very many, given that there are only one or two offences in the Crimes Act that are relevant—and we want it to be targeted. We do not want the director to have some kind of sweeping discretion, as the bill currently provides for, to allow people to hold a P endorsement whom none of us would think it reasonable that they should do so.

I say to my colleagues on the select committee that we have a pretty serious job of work ahead of us and we have a limited period of time to get it right. I suggest the bill will have to be significantly redrafted to achieve that outcome. We in this Parliament are pretty clear as to what the problem is. Unfortunately, the way this bill is drafted at the moment is too broad. I believe that it can be fixed, and then the group of people we are concerned about will be allowed to reapply for the P endorsement and, in the right circumstances, get it. The select committee made a particular error around section 134. That narrowly focused point can be fixed, but this bill, unfortunately, has not got it right. The select committee will have the opportunity to get it right.

PETER BROWN (Deputy Leader—NZ First) Link to this

Sometimes one has to be big enough, ugly enough, and strong enough to say that one has stuffed up. The Transport and Industrial Relations Committee, on that particular issue, stuffed up—and stuffed up big time, absolutely big time. Genuine people out there are hurting hugely as a result of what that select committee did or did not do.

People might be wondering how the bill got through. I have to say that if we had been dealing with just this issue in the last bill, New Zealand First would not have supported the bill, at all. But it was just a small part of a clause of a major and important bill that had to get overall support, so New Zealand First supported the bill overall and as a consequence it went through.

I listened intently to Dr Wayne Mapp. I think he suffers a little bit from amnesia. He should check his facts. I have the bill as it was reported back from the select committee right here in my little hot hand and there is no appeal process in it, no recommendation, nothing. Let me say that New Zealand First—and, I recognise, the Greens, particularly Mike Ward—said that that clause would cause problems. I will read the paragraph that was put in the commentary by myself on behalf of New Zealand First: “New Zealand First is concerned there is no appeal provision whatsoever for current drivers including those who might have been driving for many years and have subsequently led a responsible life and their crime is known to the public.” That was a huge concern that we tried to get the select committee members to pick up. I will give Wayne Mapp a little bit of credit, because towards the end—I suppose I am out of order, making reference to what goes on in select committee—Wayne said—

KEITH LOCKE (Green) Link to this

The Green Party will be supporting this bill and we do not want it to be watered down at the Transport and Industrial Relations Committee in the way that other parties have proposed. The mistake that was made at the select committee was not an accident; it was the result of what happens too often with legislation in this House: that is, a competition between parties—not the Greens—to see who can bash the criminals the hardest, to see who can impose the longest sentences, etc., and reason goes out the window, as it did in the select committee consideration of this matter. However, we heard from the previous speaker, Peter Brown, that New Zealand First had some qualms about the land transport legislation that it wrote into the report back.

Our member on the select committee, Mike Ward, wrote some minority comments that indicate that we saw exactly what was coming. He said: “The Green Party strongly supports improving safety for taxi passengers and preventing unsuitable people from holding passenger endorsements. However, the Green Party is concerned at the permanent and retrospective exclusions created by the new clause 29A. Under this clause someone who committed a serious offence in their teens, served their time and has then led a blameless life for 20 or 30 years will lose their taxi licence with no possibility of reinstatement. The Green Party is uncomfortable with the potential for injustice, especially when there is no evidence that such a blanket prohibition delivers a significant improvement in safety compared with alternatives. … The Green Party would prefer that clause 29A was qualified to allow such a person to hold a passenger endorsement where the Director is satisfied that there is no risk to public safety now or in the foreseeable future from the person concerned. This is a very high test and places heavy onus on the Director, who would err on the side of caution. Failure to include even such a restrictive exemption provision means that we are elevating taxi-driving to a status well above such sensitive areas as early childhood education in terms of the standards we impose on those involved. In the Green Party’s view, the main result will be to penalise a small number of individuals who have long since been rehabilitated while doing little to improve the safety of taxi passengers overall.”

So the select committee would have known exactly, if it had thought about it, that what Mike Ward and the Green Party were saying was true, and it has come to pass, as we all know. We have all received letters from taxi-drivers and bus drivers who have been affected. I have received several. One letter that I received last night was from Dale McGhee, who wanted it read out in Parliament. I will read part of it to give members an idea. “In 1965 I was 16 years old and had just left college and the girl I was with was 2 days away from her 15-year-old birthday. Consensual sex had taken place over a period of 6 months while we were together. On 27 January 1966 I was convicted at the District Court in Gisborne of having sex with a minor under 15.”

He went on to say that he has had no court convictions since then. “I have been happily married for 38 years, with three children and two grandchildren. I am self-reliant on the income I was receiving from being an owner taxi-driver and have just purchased a new car and have pressing financial commitments to maintain. However, as of 16 January 2006 I have no income coming in and have financial commitments to maintain, like any other person owning their own business. I am sorely pressed financially and the stress is taking its toll on myself as well as on my marriage and family. I am in remission for cancer and have just had my clearance for the last 6 months. It has taken me 4 years to find the confidence to believe that I can beat this. I have the right to make a decent living for myself where I’m not dependent on the Government and a benefit to take care of me until I retire or otherwise.” He asked for prompt attention to address this matter for people such as him, who paid their dues to the justice system back then and are now expected to pay again, 40 years later, for a misdemeanour that took place when fresh out of college.

I think we have to look at that and apply what Mike Ward proposed, which is in this amendment, that discretion in the public interest and in the interests of public safety should be allowed by the Director of Land Transport. I think that this should apply to all offences. Of course the offence has to be taken into account, which is what the bill proposes, and also the time that has elapsed has to be taken into account, which is in essence the other aspect of the Act that this bill is amending. For instance, if it had a 10-year time period, and 10 years have elapsed, that should be taken into account. We do have to look at the overall situation.

Of course we are not going to get a situation like Maurice Williamson referred to, of Graham Capill coming out of jail and jumping into a taxi-driving job straight off. That is not what is envisaged by giving discretion to the director. The director can take all things into consideration. The offence could be murder; it could be anything. We have to look at it. That is the problem with the whole law and order, criminal-bashing approach that goes on in this House. People can be rehabilitated. People who are guilty of any offence can be fully rehabilitated. Many are not rehabilitated, of course. We have a high reoffending rate. As Mike Ward said, discretion has to be exercised very conservatively and cautiously, but we should not write off people. We have heard that 200 people have been affected by this. Many of those people might be good citizens. At least this bill is going some way to address the problem.

I think the reason we made this mistake, and similar mistakes, in Parliament is that we have this law and order competition in the House, which runs contrary to some of the things that have been said in the last few days in terms of our prison population, such as how we have to focus on rehabilitation and that just having them all in jail might not be the best answer. We have to take into account things like the clean slate legislation that was passed by this Parliament, which cleared the records of people who had committed minor offences more than 7 years ago. That was the good part of what this Parliament has done—trying to help people rehabilitate themselves and not penalise them for it. If we take as gospel particularly what some of the National members have said, and what they will attempt to do no doubt in the select committee, we are just balancing everything one way, and one way only.

Sure, it may be that if it is applied to all offences, now and again the Director of Land Transport in using that discretion, will make a mistake and some crime might be committed by a bus driver or taxi-driver. We cannot guarantee perfection. It is the same with judges who decide on a sentence, or a District Court judge who decides whether to convict. Mistakes are sometimes made; that is inherent in the justice system. We have to allow for mistakes to be made. But to penalise hundreds of people in case one mistake is made somewhere down the track, as a result of exercising discretion, is wrong.

The way that MPs have responded to the publicity from many bus drivers and taxi-drivers around the country is very good, and I really praise those people who have spoken out. It is often difficult if one had a court conviction many years ago. Many of one’s friends do not know about it, and it is very brave of those people to come out at this stage and say they did have a conviction for carnal knowledge, or whatever, many years ago.

The Green Party is very much on the side of using discretion and giving that power and authority to the Director of Land Transport. Of course, Maurice Williamson cast aspersions on people in a similar job some years ago and he thought they could not be trusted to exercise discretion. But I think we do have to trust people, in cases like this, whether it be the Minister of Immigration exercising discretion in immigration matters, ministerial discretion across a range of things, or in this case the Director of Land Transport exercising discretion. We can even look at our own jobs as MPs. I am sure if we went back through the list of MPs who have sat in this House—I have not bothered to do so—we would find that many of them committed offences, often serious offences, but did rehabilitate themselves.

RON MARK (NZ First) Link to this

I raise a point of order, Mr Speaker. The question I am going to ask you through this point of order may take a little time, but I hope you noted that I actually waited until the honourable member had concluded his speech, rather than interrupt him.

My point of order is a matter on which I seek your guidance. I know that the Standing Orders demand that interjections should be rare, reasonable, and, as our former colleague the Hon Geoff Braybrooke used to say, hopefully witty. I also understand and accept the ruling that makes it impossible or difficult, if not outlawed, for members of the House who are in close proximity to the member on his or her feet to interject whilst he or she is speaking. You, in fact, brought me to order during the previous speech. Herein is my dilemma. Interjections themselves are not outlawed, and it is possible through interjection to challenge members who are speaking, on the points they are making, or, indeed, to pose questions to them so that they may, if they wish, address those questions during their speech. If one is lucky enough not to be seated in as close proximity to the speaker as I am to the member who has just resumed his seat, one can do that. However, the ruling of the House is such that members who are in close proximity to a member on his or her feet are denied the opportunity to get their questions across through interjection. Had I not been required to sit where I am, I could have done that, but because I am sitting here, I could not interject and therefore get my question across.

So my point of order is that through you, Mr Assistant Speaker, I seek leave to have Mr Locke answer this simple question: if his party was so affixed to, and so supportive of, the clean slate legislation and the points he has just made right now, why did his party, through its clean slate legislation, specifically stop offenders—people convicted of minor convictions, such as carnal knowledge—from being clean-slated? They took charge of the minor misdemeanours like smoking marijuana—and we know why that is—but they did not address carnal knowledge, which is the very problem we now face in the House and which they whitewash themselves of.

The ASSISTANT SPEAKER (H V Ross Robertson) Link to this

I understand the member’s dilemma when it comes to being able to interject, but the member well knows that he cannot interject from where he sits because of the effect on the microphones, and I accept that. But the issue he is raising now is really a debatable matter, and of course that issue can be taken up during the course of the debate. The member can seek leave—

KEITH LOCKE (Green) Link to this

I raise a point of order, Mr Speaker. As I understand it, members cannot seek leave on behalf of another member. That is well-established in the House. One cannot seek leave for another member to do something; one can seek leave only for oneself. That is well-established.

RON MARK (NZ First) Link to this

That is true, and I understand that. I am seeking the leave of the House to ask Mr Locke, and for the House to allow Mr Locke, to answer this question: why, if he is so concerned—

The ASSISTANT SPEAKER (H V Ross Robertson) Link to this

The member is asking leave for himself to ask a question. Whether Mr Locke answers is another matter. The member has sought leave from the House to ask Mr Locke a question. Is there any objection to that course of action being taken? There is.

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Tēnā koe Mr Assistant Speaker. Ka nui te mihi ki a koe, ki a tātou e noho nei te Whare.

[Greetings to you Mr Assistant Speaker. My grateful appreciation to you and those of us as well seated about this House.]

I stand on behalf of my Māori Party colleagues to commend Minister Harry Duynhoven for having the courage to identify an error in lawmaking and the commitment to follow through and address that error. It is an act of courage that we hope all members of the Government will learn from, and we look forward to supporting them in addressing other errors of lawmaking that have occurred in this Parliament. In fact, the Foreshore and Seabed Act, which is another example of a legal catastrophe, comes very easily to mind, and this bill is a fantastic precedent. Like other errors of lawmaking made by this Parliament, we know that that legislation has had a huge impact on human lives throughout Aotearoa.

In the case of the Land Transport Act, the evidence is undeniable that whānau have suffered because of the removal of the P endorsement from drivers of passenger service vehicles. In fact, over the last 2 months we have also heard some fairly sad stories about the traumatic impact families have experienced as a result of the retrospective provisions of that Act. Like others who have spoken today, we have heard of families being devastated by the impact of their fathers’ adolescent sexual exploits, some 35 years earlier, limiting their ability to put bread and butter on the table in 2006.

We have heard of drivers who were convicted 40 years ago of having carnal knowledge being doubly discriminated against. They are now having to pay the price again by losing their livelihoods. We have heard of an owner-operator in Christchurch who has been happily married for 31 years and who lost his licence for 6 months back in 1973 after he and a group of young boys he was with at the time were arrested on charges of sexual assault. He is being penalised again 33 years after the original charge.

To that end the Māori Party is looking for some action. For our part, we have taken up each and every one of our constituents’ concerns with the Minister for Transport Safety, asking him to revisit the legislation in order to prevent any further distress for workers and families. Although my earlier remarks might have commended the Minister for bringing this case to the House, the tragedy is that it has taken this Government so long to act.

Yesterday the member for Te Tai Hauauru brought to the attention of this House the repeated and unjustifiable delays that have characterised the inefficiency of the Crown Law Office. We talked about that yesterday. Later this afternoon, if I get a chance, I will talk about the incompetence and reckless inaction of other Crown agencies in relation to the business of Treaty of Waitangi settlements.

With this bill we are considering the inexcusable delays that families have suffered from and the nature of the Government’s response to the error of its lawmaking. When the Transport and Industrial Relations Committee presented its report on 18 April 2005 there was unanimous agreement, for goodness’ sake, by all members of the committee that further consideration should be given to the matters in this bill. Why did it take 10 months to listen and to act? What part of “unanimous” has created uncertainty?

It reminds me of a song, and at this hour of the day we might need to listen to me sing. It goes something like this:

GORDON COPELAND (United Future) Link to this

In passing the Land Transport Act in June 2005, Parliament, as is now clear, passed an unjust law. Dr Wayne Mapp made the comment that only a small group of people have been penalised as a result of that law. But I want to say that when it comes to measuring an unjust law, even if the result is a serious injustice for one person, it is one person too many. On behalf of United Future, I want to extend our thanks to the Hon Harry Duynhoven, who came back from his summer recess to put this matter right, for the prompt action he has taken in bringing this matter back to Parliament. We do need to face up as promptly as we can to the consequence of our actions, and to put it right. As Alan Martin of L V Martin and Son was fond of saying on television: “It’s the putting right that counts.”

Other speakers have already set out in graphic terms why the law we passed last year was unjust. We seem to have forgotten a few basic things about the justice system—for example, that the punishment should fit the crime. Obviously if a man who was convicted as a teenager for carnal knowledge - type offences, and who at that time took his punishment, whatever it was, like a man, is unable 30 years later to continue his means of livelihood for himself and his family, then we really have done something seriously wrong and unjust to those people. It is not just the loss of a licence, of course, that is a serious matter for these people, but also there is the sheer embarrassment of having to own up after so many years to what we would regard in many cases as a fairly minor indiscretion, and one about which probably the majority of New Zealanders would say: “The only difference between him and me is that I wasn’t caught.” But, of course, it is also having to break that news to a wife, to children, to friends, and to neighbours. All of that, I think, has caused those people a lot of grief and a lot of sorrow. I was not a member of the select committee that considered this bill, and I was not personally aware of this issue for that reason, but I was a member of the Parliament and I would like to say at this stage that I am sorry for the difficulty we have placed these people in; I think we should say that.

Of course, when Parliament makes a mistake I have a philosophy in life that the only mistake we make is one we do not learn from.

We, as a Parliament, need to look at this exercise to see where the mistake was made. For example, I think that this law breached the New Zealand Bill of Rights Act. The New Zealand Bill of Rights Act talks about double jeopardy, and justice for New Zealand and for its citizens. There are people whose full-time job is to advise this Parliament whether it is about to breach the New Zealand Bill of Rights Act. In the aftermath of this event, we should ask what happened and where the safeguards broke down. I do not remember, for example, getting a note from the Attorney-General on this matter. There are some real questions to be asked about the process and about whether we should look at it. I specifically said the other day at the Business Committee that I would like the select committee to look at that issue, because it seems to me that we need to be careful that we do not continue down that track and make the same mistake again. That truly would be tragic. There comes a point when it becomes almost unforgivable. We must learn to do better.

I will also mention the distinction that others have drawn between people who, as teenagers, committed what in the old days—when I was a young person—were called crimes of carnal knowledge, and the people involved in crimes between, say, a 45-year-old and a 13-year-old. In all the cases that have been mentioned, it was surmised that the 45-year-old was a male, and the 13-year-old was a female. There are two points that I will make. First, here we are talking about paedophilia, which is very different from carnal knowledge. Some of the speakers have made the point that one of the review criteria that should be in the Act—it is in the bill—is the sentence imposed by the court when that person was convicted of the original crime. The distinction between carnal knowledge, for example, and paedophilia will be reflected quite clearly in the kind of sentence that the court imposed in that situation.

The member Steve Chadwick said that we need to protect the women and girls of this country who might be in taxis and in other situations where they could be vulnerable to people who have committed those sorts of crimes. She is right to make that point, and I agree with her entirely. But I am also concerned about boys in that situation. When I look at the figures on paedophilia, very often the victim is a boy. As far as I am concerned, we need to protect all of our citizens, regardless of whether they are male or female, against people of that kind.

With those remarks, I think it is good that we, as a Parliament, are putting right the grave error we made. As I have said—and I would just like to summarise—let us also take the opportunity to learn from the experience and try to get it right next time. United Future will be supporting the first reading of this bill.

HEATHER ROY (Deputy Leader—ACT) Link to this

I stand to speak to the first reading of the Land Transport Amendment Bill 2006. ACT, as will, I think, every other party in this House, will support the passage of the bill to a select committee and, hopefully, further on.

It is always unfortunate when people who have committed minor offences, often decades ago, receive extraordinarily harsh treatment further down the track. The Minister for Transport Safety, I am sure, will correct me if I am wrong, but I think that about 200 people have been affected, and 160 of those people who were in employment have subsequently lost their jobs.

Hon MARK GOSCHE (Labour—Maungakiekie) Link to this

With the exception of those who are new to Parliament this term, every single member of this House voted for the legislation. It is interesting; being part of this debate is like going to a confessional: “I didn’t know what I was doing, and how stupid was that select committee, and how stupid was the Committee of the whole House.”

Let me just read out the list of crimes that we are talking about that the previous Parliament decided should prevent someone from getting a taxi or bus licence. They include the following offences: sexual violation; assault with intent to commit sexual violation; inducing sexual connection by coercion; incest; sexual connection or attempted sexual connection with a dependent family member under 18; meeting a young person under 16 following sexual grooming; sexual connection or attempted sexual connection or indecent act with a child under 12; sexual connection or attempted sexual connection or indecent act with a young person under 16; indecent assault on another person; exploitative sexual connection; compelling another person to commit an indecent act with an animal; bestiality; sexual conduct with children outside New Zealand; organising or promoting child sex tours. That is the list of offences. They have been described by most members today as minor.

ANNE TOLLEY (National—East Coast) Link to this

I believe that we are in the House today—listening to some rather defensive speeches from the Government, I have to say—as a result of some pretty poor lawmaking. It is poor because it was unjust retrospectively. I do not think we should get into the blame game in this House.

In a press statement, the Land Transport New Zealand spokesman, a man named Andy Knackstedt, said that the legislation had taken 3 years to put together, and that any further change would not happen quickly. He said that Land Transport New Zealand sympathised with people like Mr Harrison, whom the article was about, but that: “we are simply administering the law on behalf of the Government”. I think that is an arrogant comment from one of the officials who is implementing the law, and it shows no understanding of the difficulties that we have heard about in the House today.

It took 3 years to put the legislation together. We have heard Transport and Industrial Relations Committee members talk about the difficulties they had in trying to find an equitable and just solution. Yet the Land Transport New Zealand spokesman said quite glibly that any changes would not happen quickly because it took so long to get it right—or wrong—in the first place. I understand absolutely the concerns for passenger safety, and that the changes were sought to prevent undesirable people from holding licences. None of us wants murderers, rapists, and sexual predators driving taxis or school buses, or driving the public at large, but with 3 years’ work and the scrutiny of this Parliament, how did we get it so wrong that on 16 January decent citizens were left with no job and no recourse in law?

The problem for this House is that we are not talking about figures; we are talking about real people. I, like other MPs, have had visits from people in my electorate. I will not further embarrass them by mentioning names, but I have a note here with details of a gentleman who was convicted in 1966. Since that date 40 years ago he has had no further conviction made against him. He has been happily married for 38 years and has two children and two grandchildren. He has been a taxi-driver for 20 years and every year he has renewed his P endorsement—

Hon HARRY DUYNHOVEN (Minister for Transport Safety) Link to this

I move, That the Land Transport Amendment Bill be considered by the Transport and Industrial Relations Committee referred to Transport and Industrial Relations Committee