Land Transport Amendment Bill

DAVID BENNETT (National—Hamilton East) Link to this

The Land Transport Amendment Bill is an attempt to meet the needs of the community, while at the same time being a signal to all New Zealanders of the standard of conduct expected from people in positions of such trust.

In reviewing this bill, some situations need to be considered. In Hamilton before Christmas we had an example where a local female student was raped on a taxi ride home, after a night out. The driver was never arrested. However, the description of the driver led to major innuendo regarding one of the taxi firms in the city. The taxi firm in question had a large number of migrants as drivers. With the public concerns over safety, that taxi firm found it had a major drop-off in business. Simply speaking, people were afraid to use the taxis from that firm. Needless to say, the firm soon folded, and it is no longer in business in Hamilton.

A second example is that of the local taxi driver who drove me to Parliament on Tuesday morning. We discussed what drivers think of their industry and the legislation that governs their activities. Jignesh has been driving for over a year, and has a good understanding of the rules that govern his industry. He was adamant that anyone who has the position of trust that a taxi driver has should not have such a criminal record. He was proud of his history of having a clean slate. That pride in his own history is a measure of the high standard of care he expects from other taxi drivers. He believed that drivers with criminal convictions should not be granted an endorsement.

Those examples illustrate public opinion. New Zealanders place great trust in their taxi and bus drivers and, as a result, passengers expect certain levels of conduct. The criminal history of the driver is a relevant factor for passengers.

A third example is that of the well-documented cases of drivers who have had convictions many years ago for certain offences, and who have now been denied an endorsement. Those drivers have been unable to undertake their normal business and employment opportunities since the passing of the 2005 amendment Act. The two most widely discussed cases are, first, the one of the Dunedin driver who lost his licence because 34 years ago, at the age of 16, he slept with his 15-year-old girlfriend 2 days short of her 16th birthday. The second case is that of a Kaiapoi driver. It is important to note that many of the cases in the public arena have involved sexual relationship convictions. The Transport and Industrial Relations Committee was advised that such convictions are very rare these days, so going forward there will be substantially fewer people in that situation.

The examples I have given show the two key elements that the legislation needs to achieve. First, a group of drivers has been caught out by the reforms of late 2005. Those drivers have gained public prominence and support for their case. Many constituents have expressed their desire for leniency for those drivers. New Zealanders agreed with the policy of the 2005 amendment Act, but they also wanted there to be a degree of discretion for those who were caught out in their current employment or business positions. Second, the public, and drivers in particular, have a general perception that certain levels of trust are placed in drivers and, therefore, certain standards are to be expected. The generally accepted standard as enacted last year is for all drivers to fulfil strict criteria. This bill fails to achieve the second of those fundamental concepts.

In June last year members of the Government passed the restrictive legislation. The arguments of public safety and passenger rights were given prominence. But, as a result of public opinion on certain cases, there has been a major rethink in policy. The 2005 amendment Act was intended to show a signal to drivers as to the standard of conduct required. If a driver wants to undertake that career, he or she needs to meet the standards of the industry. That is the only way we can retain trust in the industry. It is appropriate to make some change to the 2005 amendment Act, but let us not go so far to the other extreme that the original intention of that amendment is lost. We need to incorporate the concerns of existing drivers, but we should not remove the spirit of the high standards required of new drivers. We need to take a balanced approach.

This bill in its current form goes too far. The changes proposed in it are to the overall detriment of the industry and of New Zealand as a whole. The bill is in the interests of neither drivers nor passengers. The bill removes the intention of strengthening the drivers in their industry and removes security from passengers. It makes no distinction between existing and new drivers, and we need such a distinction in order to enact strict criteria for new drivers.

For those reasons we propose the following amendments. For existing drivers, namely those drivers currently undertaking such activity, an avenue for endorsement may be offered, as is proposed in this bill. However, for new drivers we propose an amendment that will mean the strict rules and enforcement that were the essence of the 2005 amendment Act shall apply. These amendments will mean, first, that we can achieve the goal of assisting those caught in a situation that had not been envisaged, and, second, that the amendments will retain the ultimate goals of the 2005 amendment Act. Passengers and drivers can then have confidence in the industry. The amendments will mean that we can accommodate public opinion and also keep alive the spirit and intent of the 2005 amendment Act. It is a win-win situation, as existing drivers are satisfied and we also endorse the high standards expected of the industry.

Let us not forget that when the bill that was to become the 2005 amendment Act first came before the House in May and June last year, Lianne Dalziel and Lynne Pillay backed Deborah Coddington’s moves to extend that legislation from new drivers to existing drivers. The reasons given for the 2005 amendment Act were that it was required in order to maintain public safety and public confidence in the industry. The extension of its provisions now requires refinement, but we should not lose sight of the original intent of that amendment. The original intent was that the higher standards are required and expected of new drivers. The same emotion and strength of argument that extended the 2005 amendment Act to existing drivers can be achieved only through distinguishing new from existing drivers. The difference between new and existing drivers needs to be enshrined in law.

In the select committee, we originally came to that conclusion, albeit with some debate over the actual thresholds to be used to determine the level of leniency for existing drivers. All parties on the select committee initially concluded that new drivers should be treated differently from existing drivers. I ask Peter Brown from New Zealand First to adhere to his comments in Hansard on 16 February 2006: “From now on, sure, no murderers and nobody who has committed those serious crimes will be eligible for a licence, but people who have a passenger licence and have driven for some time, and who have been law abiding, are entitled to have consideration.” Peter Brown goes on to say: “We should treat them as individuals and get the legislation right from now on.” Similarly, Te Ururoa Flavell said on the same day: “The Māori Party, in supporting this bill, nevertheless retains its position that people convicted of specified serious offences, such as murder, or sexual and violent offences, should be prohibited from carrying passengers.”

I believe that our initial gut feelings at the select committee were proper. I ask all the parties to consider this legislation in terms of what is right and just. It is not a matter of trying to cover specific cases in the future. Any attempt to second-guess future circumstances will lead to the same problems that we are trying to correct today. The only fair and just approach is to send a signal to new entrants of the standard required of them. That is what these amendments will achieve. The Land Transport Amendment Bill needs to have some discretion for those caught out in the 2005 amendment Act while retaining the original intention of that amendment, which was to improve public safety and public confidence in the industry. The amendments now proposed achieve both these goals. Let us go back to first principles and enact those amendments, so as to confirm the original intent of the 2005 amendment Act. Let us take a reasoned approach to cases caught in the 2005 amendment Act. Let us also send the right signals to future drivers and passengers. To do both those things shows a flexible and listening Parliament, and also a Parliament that is willing to provide direction and a clear vision for the future.

Mark Gosche said two things that I think we need to focus on. He said that now we have the facts. That is right—now we have the facts to deal with the existing drivers. We have the facts for those cases. That should not deter us from the original intention of the legislation, which was so good that everyone voted for it last term.

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

I would like to start by complimenting the member who has just resumed his seat. I thought he read that beautifully. This bill was a dog’s breakfast from whoa to go, principally because the two old tired parties would not listen during the last term of Parliament. Wayne Mapp shakes his head, but he has been privately over here and acknowledged that I made more than one appeal to be a little bit more reasonable. He is now nodding in agreement. Labour was exactly the same, and it has now fallen on the shoulders of the Hon Harry Duynhoven to sort out the mess. Let me just remind the House that when the bill came back to the House there was no provision for appeal for anybody in relation to any one of those serious offences.

KEITH LOCKE (Green) Link to this

The Greens are very disappointed that the Transport and Industrial Relations Committee has disembowelled the Land Transport Amendment Bill sent to us last month. The bill, as sent to the select committee, righted a major injustice to 200 or so former offenders who are currently driving buses and taxis, and to many rehabilitated former criminals who may want to drive buses and taxis in the future. This all goes back to a serious misjudgment made by the Transport and Industrial Relations Committee last year. The committee then was dealing with a real problem that was illustrated by a few cases of taxi drivers assaulting and raping passengers. So it was useful to have the former sex offenders and violent offenders looked at and for them to have to go through the hoops to get a clean bill of health. That was only if their offences had been some time ago—the amending bill had 10 years as a guideline—and if it was established that they had clearly been rehabilitated. The idea was that the Director of Land Transport would look at those individual cases and grant exemptions where appropriate.

The problem was that the select committee last year made a couple of mistakes. Firstly, it dealt only with injustices to existing drivers who might have been rehabilitated former offenders, not injustices to those rehabilitated former offenders who might apply for bus and taxi jobs in the future. Secondly, although the committee allowed current drivers whose past offences were for violence a chance to get approvals, it denied that chance to former sex offenders. As the January date to implement those exclusions approached, there was quite an outcry across the country, as members know. Drivers who had spent most of their life in the industry with spotless work records were being kicked out because, for example, 30 years ago they had a carnal knowledge conviction for sleeping with a 15-year-old when they were themselves 16.

Our Green MP on the Transport and Industrial Relations Committee last year, Mike Ward, warned what would happen, in his minority comments in the committee’s report back to Parliament. He reported that failure to include an exemption for former sex offenders “… 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.” Mike Ward also said that: “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.” And how right Mike Ward was.

The Green Party hoped that the exposure in January and February of several individual cases of such injustice, and the public sympathy for the bus and taxi drivers concerned, would knock a bit of sense into the more conservative politicians in the House who jump on the “bash the criminals” bandwagon. We hoped that when the Minister for Transport Safety, Harry Duynhoven, came in with an amending bill last month National, ACT, United Future, and New Zealand First would get behind it. But the National and New Zealand First majority on the Transport and Industrial Relations Committee seems to have mucked it up. Harry Duynhoven’s new Land Transport Amendment Bill that went to the select committee in February rectified most of the problems. It allowed former violent offenders and sex offenders to go to the Director of Land Transport for an exemption. The director’s consideration would be based on the length of time since the person’s last conviction, any other convictions the person might have, and whether there was still a threat to public safety and security. Unfortunately, the select committee ripped the guts out of Harry Duynhoven’s bill and restricted the exemptions to some, but not all, categories of former sex offenders, and even then only to those people currently in the industry, not to people who might want to become bus and taxi drivers in the future. Former violent offenders were left out in the cold altogether.

I have had emails from people complaining about the injustice shown to them and others resulting from those changes brought in at the select committee—for example, one person in the taxi industry who is now 47 was convicted of armed robbery when he was 18. That might sound like a very serious offence, but he must have been at the lower end of the scale for that crime because he received only 6 months’ periodic detention. He will be pushed out of the industry if the bill goes through in its present form, even though he has given the industry over 20 years of meritorious service and has kept his nose clean all of that time. Under the select committee’s prescription, he has no chance of getting an exemption. He will be in the same category as all the other former violent offenders, regardless of how much they have rehabilitated themselves.

The Green Party will be voting for Jim Anderton’s amendment in the Committee of the whole House, and we sincerely hope that it will get through. At least, it rectifies most of the problems caused by the select committee. Under Jim Anderton’s amendment, any former offenders will be able to apply for an exemption to drive a bus or taxi, whether or not they have been convicted of a violent or a sex offence and whether or not they are currently in the industry or are new applicants. The only qualification is that they have not been in prison for an offence for more than a year. We would have liked that qualification not to be there, but we are putting our main efforts into getting support for Jim Anderton’s amendment, even with the weakness that I have described.

The Greens have a principled, compassionate approach that does not bend to the “bash the criminals” mob at all. Our compassion is first and foremost for the victims of crime and their families and friends. But we do not help the victims unless we also try to help the offenders and work with their families and public agencies to rehabilitate them. In doing so, we can help to prevent reoffending and the creation of new criminals. Surely, with over 7,000 people now in prison—and the number is growing—and many of them are violent offenders with a very high reoffending rate, we must work at rehabilitation.

We have to show compassion to people who are trying to rehabilitate themselves fully, and we must have confidence that people can be fully rehabilitated. We have to give former offenders the incentive that they do have a future if they fully rehabilitate themselves, whatever crime they have committed. Everyone deserves to have a chance to prove they have become good and respectable citizens. Unfortunately, Jim Anderton’s amendment does not go quite far enough to meet that compassionate and rehabilitative ethos. Take, for example, a case I was approached about this week. It concerns a man who 25 years ago was convicted for armed robbery and was in jail for 3 years. He does not qualify under Jim Anderton’s amendment, yet the offence was committed 25 years ago and he has made a good contribution to society ever since. He is good at working with disabled people, which not everyone is. He wants a passenger licence so as to be able to carry disabled people around in his taxi. It is a shame that under Jim Anderton’s amendment he will not have any chance to do so.

We believe that the Director of Land Transport would be qualified to deal with that former armed robber’s case, and to judge whether he is truly rehabilitated. Such an approach would be in the spirit of the Clean Slate Bill—a Green Party initiative that was passed in the last Parliament. It allows people who have relatively minor offences, and who have not offended in 7 years, to have their records wiped so they cannot be discriminated against in jobs and elsewhere. It is even illegal for employers to try to get information on potential employees if that information is restricted under the provisions of the Criminal Records (Clean Slate) Act. Surely, in that spirit, a person who was convicted of a more serious crime that happened 30 or 40 years ago but who has not reoffended since, can be deemed to be fully rehabilitated—or at least should have a chance to show that he or she has not reoffended over that 30 or 40 years. That is the common-sense, compassionate, humanitarian way to go. It also accords with the New Zealand Bill of Rights Act, which says that people should not be subject to double jeopardy—that is, they should not be punished twice for the same crime.

People who have served their time should not be punished again and again, for the rest of their days, by being denied the jobs they are suited to and can serve the community in. We must take an approach of compassion, and we must take an approach of rehabilitation. That is the Green Party’s approach to this bill.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

This past week we have dealt with the issue of justice in the various bills that have come before us—in relation to legal services and access to justice in the Supreme Court, as well as to justice for workers on probation. Today we come to the second reading of the Land Transport Amendment Bill, and, again, we return to the call for justice. That call for justice arose when the Land Transport Amendment Act 2005 came into force, and basically put a whole stash of bus and taxi drivers out of work. Up and down the country, drivers told us about the stigma they were confronted with as the Act kicked in, and the pain of unemployment and humiliation that they were facing. Yes, like many others we had to ask why we were continuing to punish people for crimes they had paid for long ago.

The original Act was overly restrictive in dictating the rights of former offenders to keep their jobs in the bus and taxi industries. The Minister presented a bill to give those citizens the right to get their licences back, and the Transport and Industrial Relations Committee also came back with a report. The Māori Party was disappointed that the committee chose to reduce exemptions only for those with minor sex offences, while leaving those with records of imprisonment for violence out in the cold. The Māori Party has often spoken in this House against violence, but also it is always willing to look for good in people. It is with that in mind that we come to the two amendments being put forward today.

We have concerns about drivers who will not be able to apply for a passenger licence, particularly because of the restrictions around the cut-off time frame, and the restrictions around violence. We support the amendment of Jim Anderton to allow people both inside and outside the industry to apply for an exemption, but we would be more flexible about the length of cut-off time in relation to imprisonment, because people jailed under the Crimes Act of 1961 will still be denied by this legislation. We will also support the amendment put forward by Harry Duynhoven to help those drivers most affected, because both amendments are consistent with Māori Party philosophy.

The Māori Party wants to enhance the mana of all people by promoting a system based more on justice that heals than justice that hammers. We support systems where restorative justice is given greater value, because restorative justice is a key element in a fair and just society, and a key element in Māori judicial practice, as well. We believe there is always room for hope, to believe the best in people, and to reward those who through their actions seek another chance. Ours is a focus on healing rather than conflict; a focus on reconciliation rather than retribution.

I started this speech today by reminding the House of the need to focus on justice, and today I remind us of matters of justice other than this issue. Where is the justice for those families who went hungry while the breadwinner was out of work, and where indeed is the justice for the original victims of the offences? How are their voices to be heard? The Māori Party supports both the bill and the two amendments being heard today, in the interests of those people who have been unfairly treated by the original legislation. We support the families who have suffered, and who will receive no redress or compensation. We support the principle of restorative justice.

The great Dr Martin Luther King once said: “Every man must decide whether he will walk in the light of creative altruism or in the darkness of destructive selfishness. This is the judgment. Life’s most persistent and urgent question is always: what are you doing for others?”. Thankfully, today we will all be able to do something for people who have already paid for their crimes and who need not be punished again. I wish us the strength and the wisdom to make the right choice.

GORDON COPELAND (United Future) Link to this

I would like to take a brief call on the second reading of the Land Transport Amendment Bill, primarily to reiterate the comments I made on the first reading of this bill. I think it is helpful to go back and refresh ourselves as to why this amendment bill was introduced by the Hon Harry Duynhoven.

It came about, of course, because of a bill that Parliament had passed last year—with a measure of hysteria around crime and punishment—without picking up the fact that its passage would bring to an end the employment of a group of people who had committed crimes many, many years ago, but who had since gone on to lead crime-free lives, as drivers of buses, taxis, etc. The particular group of people that was brought to the attention of the House at that time—in January, actually—consisted mainly of those who had been convicted of offences of a carnal knowledge type many, many years ago. They were men who had gone on to have happy marriages and happy families since that time, and some of them had gone on to marry the woman they had committed the original crime with. Effectively, that bill last year, when we think about it, had retrospective application to historic events. It brought to an end the employment of those people in the industries they were involved in, even though they had driven buses or taxis for many, many years, and, as I say, had otherwise led blameless lives as good citizens of this country. That was the mischief we set out to fix.

I would like to signal at this stage that United Future will support the Supplementary Order Paper proposed by the Government to the bill that has been reported back from the select committee, because we think it actually completes the job in that regard. Otherwise, we have done, if you like, half the job; we have half apologised, and we have restored justice for half of those involved, but not for the other half. I think the distinction between the two is too arbitrary, and therefore United Future will definitely support that Supplementary Order Paper.

When it comes to the Supplementary Order Paper from the Hon Jim Anderton of the Progressive party, I signal at this stage that United Future will not be supporting it. A judgment has to be made, and I think his amendment is possibly just a step a little bit too far. Every party here, I think with goodwill, has endeavoured to make that judgment. It is not a simple, straightforward matter as to where the line should be drawn. We think the Minister’s Supplementary Order Paper draws the line at about the right place.

So I signal our support for the second reading, and our intention to support the Supplementary Order Paper put forward by the Minister for Land Transport Safety when we get to the Committee stage.

CHESTER BORROWS (National—Whanganui) Link to this

I rise to speak to the Land Transport Amendment Bill and wish to acknowledge those around the country who will be most affected by the outcome of this debate and the subsequent vote: those people who have already lost their P-class licences—and therefore their livelihoods—and their families.

Years and years ago those people, as kids, gave way to natural impulses, were prosecuted and punished. They were charged under section 134(1) of the Crimes Act 1961. Those people, having put all that behind them, 20, 30, or 40 years later find themselves being refused a licence, and not only is that the case but they are lumped in with a bunch of serious criminals and sexos. Those people now have to go through the pain of having to differentiate themselves from those other offenders, and of having to go back and relitigate the rights and the wrongs of the circumstances that led to a conviction in the first place. Those are circumstances that nobody today would raise an eyebrow to, except for the fact that they were actually prosecuted for them. They have to justify that to family members, employers, and community members.

I will give an example from my own electorate. A school bus driver, a person who is held in very high regard, had sex with his girlfriend 42 years ago. He was 16 and she was nearly 16. They got home late, mum found out, interrogated the girl, and called the cops. The young boy was interrogated by the police, and pleaded guilty to a charge of what we then called unlawful carnal knowledge. He received a small fine of about $100. He has never offended again in any way whatsoever, and has now been married to that girl for over 40 years, and he has children and grandchildren. He is a very community-minded person, and he lost his job on 16 January this year. There are many, many others just like him.

The very obvious factor that causes huge unfairness is that, with time, and I would say the lowering of standards—others would say the adoption of policy that confronts real life—the courts no longer deal with those sorts of liaisons between young people by way of prosecution. In fact, when the police have brought a charge similar to that under section 134(1)—a boyfriend/girlfriend situation—even as far back as 1990 the courts sought non-judicial resolution of the charges.

The passage of time is very important, because changes to the law, including the introduction of new legislation that affected the provisions of sections 134 and 135 of the Crimes Act, are significant. It is sections 134 and 135 that are specifically mentioned in clauses 3 and 4 of this bill, and those sections certainly affected the way those offences, and sex offending in general, were investigated and prosecuted. Prior to the 1985 introduction of the terms for offences such as sexual violation and unlawful sexual connection, an offence pursuant to section 134(2) included all the non-penile penetrative sexual assaults and acts, and oral sex. So an effective rape with fingers, bottles, or other implements was charged under those two sections—134 and 135. Those offences are now included in the offence of sexual violation, which is punishable by up to 20 years’ imprisonment. So there was a situation where somebody who committed an offence with, say, a bottle on a women was charged with indecent assault prior to 1985. After 1985 the charge was one of sexual violation. Today the offence would be eligible for a penalty of up to 20 years’ imprisonment. So one is not comparing apples with apples. If one looks back and says that if someone received only under 12 months’ imprisonment the offence was not really very serious, the chances are that one will see it was a very serious offence at the time.

Another point is that just looking at the section against which the conviction was entered does not tell one about the circumstances of the offence, either. An indecent assault may be anything from an unwanted kiss to, in the days prior to 1985 where most of these cases come from, full penetrative sex. Looking at the section of the Act it does not tell one anything.

I can tell members that looking at the sentence does not necessarily tell one anything, either. I was part of a group of people who arrested somebody for rape in the early 1980s. It was a rape that occurred when two men took a girl from a party to the Maitai Valley in Nelson. One held her down while the other one had sex, and then they swapped over. They did that twice. They were convicted of rape. One offender received 3 years’ imprisonment, which was a pretty reasonable sentence in those days. The other offender was sentenced to 9 months’ periodic detention—9 months for rape, or for what we would consider to be aggravated rape. Nowadays the minimum sentence would be at least 8 years’ imprisonment. The guy who got 9 months’ periodic detention would expect to get somewhere between 6 and 8 years’ imprisonment, and the other guy would get 12 years.

One cannot make a blanket assessment by looking back at penalties or at the sections against which convictions were entered, and decide just how serious the crimes are. An offence that somebody received 6 months’ imprisonment for in 1985 would easily incur a sentence of 6 to 8 years today, and the Government says that those people are OK to drive taxis and school buses.