Transport and Industrial Select Committee Parliament House WELLINGTON Attention: Clerk of the Committee By email and post Submission of YouthLaw Tino Rangatiratanga Taitamariki on Vehicle Confiscation and Seizure Bill and Land Transport (Enforcement Powers) Amendment Bill
Introduction
1. YouthLaw Tino Rangatiratanga Taitamariki is a community law centre vested under the Legal Services Act 2000. We provide a free, national legal service for children and young people aged below 25 years.
2. Our service includes the provision of free legal advice and advocacy, law-related education and outreach work, development and publication of legal resources (including books, flick-cards and a website) and law reform and policy work.
Our Position on the Bills
3. Read together, the Vehicle Confiscation and Seizure Bill and the Land Transport (Enforcement Powers) Bill propose a significantly more deterrent regime of penalties and enforcement provisions, particularly in respect of illegal street racing offences.
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4. As we have stated in previous submissions we have made on proposed transport legislation, we are supportive of measures designed to make New Zealand roads safer and lower the road toll. It is particularly important to ensure that children and young people, who are more often than not passengers rather than road users, are kept safe. We therefore acknowledge the importance of effective laws and policy for curbing and penalising behaviour on our roads that places the public at risk of harm.
5. We consider that it is likely that the enforcement of these proposed laws will be primarily targeted at the group colloquially known as “boy racers”. The very term is associated with young people or an aspect of youth culture. Bearing this in mind, our submission will focus on the following issues:
(a) substitutes for the offender (b) confiscation and destruction orders (c) grounds for seizure under s100G(1) (d) anti-cruising provisions (e) mandatory impoundment of vehicles (f) driver licence penalties
Vehicle Confiscation and Seizure Bill 6. The Vehicle Confiscation and Seizure Bill („the VCS Bill‟) amends the Sentencing Act 2002, Summary Proceedings Act 1957 and the Privacy Act 1993 in order to provide the Courts and police with more punitive sentencing and enforcement powers.
7. Part 1 of the VCS Bill amends the Sentencing Act and in doing so introduces two key extensions to the current sentencing regime:
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(a) The establishment of a confiscation and destruction order (b) Authorises the seizure, confiscation and potential destruction of vehicles owned by a third party, termed a “substitute”, rather than the offender themselves
Substitutes 8. Clause 5 of the VCS Bill provides for the new definition of a “substitute” or “substitute for the offender”. A person qualifies as a substitute if served with a written caution under proposed s129B of the Bill and their vehicle is used by an offender within a four period following the date the written caution was served.
9. The criteria for a written caution under proposed s129B occurs where an offender, not being the owner or without a legal interest in the vehicle used to commit the offence, is convicted of a specified offence under current s128(1) of the Sentencing Act 2002. This encapsulates “illegal street racing” offences, reckless and dangerous driving, careless driving causing injury or death, aggravated careless driving causing injury or death and excess breath alcohol offences.
10. Under proposed s129B, if the Court considers that the circumstances of the offence would permit or require the confiscation of the vehicle, it must order that a written caution be served on the registered owner of the vehicle. However, this does not apply where the vehicle was stolen, hired by the offender through a rental agreement or where the third party did not have an interest in the vehicle at the material time or no relationship to the offender other than that of a encumbrance to the vehicle.
11. The Court currently has wide discretionary powers under ss128 and 129 of the Sentencing Act to confiscate a vehicle in respect of those specified offences. However, the VCS Bill takes these powers much further by providing for the service of a written caution on a third party, with the potential for confiscation of
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the vehicle an offence is committed by an offender within a four year period forthwith.
12. Furthermore, and at a more fundamental level, the VCS Bill allows a third party to be punished through confiscation or potential destruction of their personal property as a result of the actions of another person.
13. This issue was considered by Crown Law in their advice to the Attorney-General regarding the Bill‟s compliance with section 7 of the New Zealand Bill of Rights Act 1990 („NZBORA‟). Crown Law concluded that the Bill does not contravene section 25 of NZBORA, noting that the third party does not obtain a criminal record or a condemnation of guilt, that the penalty can be avoided if it is found by a Court to cause undue hardship and the general preventative purpose of the proposed law.1
14. We consider that the VCS Bill has implications for other rights enshrined in NZBORA. In our view, the imposition of a punishment upon a person who has not committed an offence may well constitute disproportionately severe treatment for the purposes of s9 of NZBORA. This is due to:
(a) the potential financial loss and hardship suffered by the substitute as a result of confiscation or destruction of their vehicle as a result of the actions of another person; and (b) the inordinate duration (four years) under which the substitute is subject to potential confiscation and destruction of their vehicle following service of the written caution
15. The VCS Bill places further onerous obligations on substitutes who appeal against seizure of their vehicles. New section 100Q(c) of the Summary Proceedings Act provides that the substitute must show that they took all reasonable steps to
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Crown Law, 15 May 2009 Ref ATT396/100, para 11
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prevent the defendant from committing the offence or offences. We consider that, if substitute liability is retained, this provision should be qualified along the lines of those reasonable steps practicable in the circumstances.
Confiscation and Destruction Orders
16. New section 129A introduces confiscation and destructions orders whereby the Court may order the confiscation and destruction of any motor vehicle used by an offender upon their conviction for a third illegal street racing offence under the Land Transport Act.
17. As noted above, a confiscation and destruction order can also be applied to a substitute (s129A(3)(b)) provided they have been previously served with a written caution.
18. We note that a confiscation and destruction order is discretionary and that the Court must not make such an order if it would cause the offender “extreme hardship” or any other person (including substitutes) “undue hardship”. 19. These orders are therefore a kind of “third strike” penalty and are designed for maximum deterrent impact. However, the destruction of potentially valuable vehicles will undoubtedly lead to a degree of economic loss which would otherwise be avoidable. In particular, such an order will fetter payment for any outstanding fines out of the proceeds the Court would otherwise receive from the sale of the confiscated vehicle per section 137 of the Sentencing Act. 20. We note from the VCS Bill‟s explanatory note that the threshold for a confiscation and destruction order is such that, at current offending rates, it would only cover approximately 10 offenders per year. Given this, it is questionable whether there is an overwhelming need for such punitive legislation and whether it will have the deterrent impact intended. If anything, it may well encourage
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more entrenched anti-social attitudes which in turn could lead to more instances of dangerous, illegal activity on our roads. 21. As noted in the VCS Bill‟s explanatory note, the Sentencing Act already provides for a confiscation regime, which in 2006 applied to almost 60,000 offences with 1062 confiscation orders being granted. The Bill‟s preamble also notes that there were on average 1659 illegal street racing convictions per year between 2003 and 2007. Illegal street racing offences therefore make up a very small proportion of those offences where confiscation is a potential outcome.
22. In addition, the overall low rate of confiscation perhaps reflects the circumstances of each offence and offender, rather than any failings in the implementation of the current legislation. Purpose of Seizure – section 100G 23. We are concerned at the VCS Bill‟s proposed introduction of new section 100G of the Summary Proceedings Act. Section 100G(1) provides that a motor vehicle may be seized for the purpose of “reducing opportunities for traffic offending”.
24. These are particularly ill-defined and nebulous grounds upon which a warrant for seizure may be based. The section provides no details of specific circumstances or qualifying criteria under which this would apply. We are concerned that it could accordingly be subject to misuse. We submit that section 100G(1) should be amended to remove this reference.
Land Transport (Enforcement Powers) Amendment Bill 25. The Land Transport (Enforcement Powers) Amendment Bill („LTA Bill‟) sits alongside the VCS Bill in targeting a raft of punitive measures in response to the perceived problems caused by illegal street racing.
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26. The LTA Bill particularly targets illegal street racing through the introduction of “anti-cruising” by-law powers given to local authorities, the repeated breach of which can lead to mandatory impoundment. The Bill also proposes to provide for the mandatory impoundment of vehicles involved in illegal street racing or sustained traction offences.
27. The LTA Bill also seeks to introduce tougher penalties for driver licence offences, failure to stop and failure to provide details offences.
Anti-cruising provisions 28. The LTA Bill introduces a definition for “cruising”, the elements of which require repeated driving over one section of road in a manner that draws attention to the power and sound of the vehicle‟s engine or creates a convoy designed to impede traffic flow.
29. Following on from this, the LTA Bill provides road controlling authorities to make by-laws controlling or restricting cruising and prescribing fines of $500.00 for breach. The Bill also provides that warning notices are served on those breaching such by-laws. If the warning notice is not observed following a 90 day period following service, the vehicle must be impounded by police for 28 days. 30. We are concerned that the definition of “cruising” is drawn too broadly. The definition does not provide any time period during which the section of road in question must be driven. Nor is there any requirement that the activity be continuous or sustained. Thus, it would be possible for a person to liable for cruising if they traveled over the same section of road more than once over the course of a day or longer. We also note that this provision may be inconsistent with the right to freedom of movement guaranteed by section 18(1) of NZBORA.
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31. Secondly, subsection (a), which specifies “driving in a manner that draws attention to the power or sound of the engine of the motor vehicle being driven” as a qualifying aspect of cruising, is open to inconsistent or overly subjective interpretation. It is possible that under this definition any vehicle with a large bonnet, exposed engine or even racing stripes could qualify as “drawing attention to the power of the engine” irrespective of how much noise it makes, as volume or actual disturbance or public nuisance are not included as a factors in the definition.
Mandatory Impoundment of Vehicles
32. Clause 16 of the LTA Bill amends s96(1)(A) of the Act to provide for the mandatory introduction of vehicle impoundment if an enforcement officer believes on reasonable grounds that a driver contravened an anti-cruising bylaw or the illegal street racing offences under s22A(1) and s22A(3) of the Act. The Act currently provides that enforcement officers can exercise discretion when considering impoundment in response to a suspected illegal street racing offence.
33. We are concerned by the imposition of mandatory impoundment in these circumstances, particularly as this is triggered on the basis of an officer‟s “reasonable belief” rather than an ascertainable fact (as is the case when vehicle‟s are impounded for driving while suspended or disqualified for example). In our view, it will be liable to be applied inconsistently and with disproportionate application against young drivers, given the purposive intent of the Bill.
Driver licence penalties
34. The LTA Bill also provides for a more deterrent regime as regards breaches of conditions of licence, including demerit points, possession of keys or immobilisation of the vehicle.
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35. We consider that these provisions (s121A and amendments to Schedule 2) have more weight in terms of enforcing licence compliance that the current $400 fine. However, we consider that it will be essential for current and prospective conditional licence-holders to be made aware of the consequences of a breach of licence conditions through information resources and advertising.
Conclusion
36. The explanatory notes and police statements of each Bill indicate that the boy racer subculture is the primary target for enforcement. As a result, younger drivers will likely be, by association, disproportionately affected by the punitive aspects of this legislation. We are concerned that aspects of this proposed legislation – particularly destruction orders, the liability of substitutes and mandatory impoundment – create an imbalance within our land transport system in favour of increasingly punitive penalties and powers that markedly increase the power of the state to seize, confiscate and destroy personal property.
37. It is important to note that illegal street racing offences constitute a very small proportion (2.37%) of overall traffic offences2. In addition, whilst younger drivers are disproportionately represented in crash statistics, it is encouraging that the numbers of serious and fatal accidents involving younger drivers has decreased markedly over the past 20 years. Between 1985 and 2007 there was a 50% reduction in the number of fatal crashes involving a 15-19 car drivers and a 90% reduction in fatal crashes involving 15-19 year old motorcyclists.3 For 20-24 year old car drivers fatal accidents have reduced by 57% (cars) and 87% (motorcycles) over the same period4.
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In 2007 there were a total of 69,901 traffic convictions in NZ, 27918 of which were excess breath alcohol offences. There were on average 1659 illegal street racing offences – or 2.37% of overall convictions. Traffic offence stats available at Dept of Statistics website http://wdmzpub01.stats.govt.nz/wds/TableViewer/tableView.aspx 3 http://www.transport.govt.nz/research/Documents/Young-Driver-Crash-Factsheet.pdf 4 ibid
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