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Vehicle Confiscation and Seizure Bill (Consistent) (Section 25) [2009] NZBORARp 30 (15 May 2009)

Last Updated: 28 April 2020

VEHICLE CONFISCATION AND SEIZURE BILL

15 May 2009

Attorney-General

Vehicle Confiscation and Seizure Bill (PCO 13545/3.0) consistency with the New Zealand Bill of Rights Act 1990: Our Ref: ATT395/100

1. I have reviewed the Vehicle Confiscation and Seizure Bill for consistency with the New

Zealand Bill of Rights Act 1990.

2. The Bill provides a number of additional powers in the sentencing of persons convicted of a broad range of offences under the Land Transport Act 1998, including confiscation (cll 6-7) and destruction (cl 8) of vehicles, including vehicles owned by persons other than the offender, and also for the enforcement of fines in such cases (cl 28), again including against third parties.

3. While a question arises in respect of the provision for third parties, I conclude that no inconsistency arises.

Destruction of vehicles owned by offender

4.Clause 8 proposes to amend the Sentencing Act 2002 by the addition of ss 129A to 129E, which allow for the destruction of vehicles where the offender has been convicted of three separate specified offences.

5.The powers to order confiscation of vehicles owned by offenders in respect of certain offences and destruction of those vehicles in the case of repeat offending do not, in my view, raise any issue under the Bill of Rights Act 1990. I note the standard expressed in the Canadian decision of R v Guiller:[1]

“It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.”

6. These penalties, although potentially severe in their practical impact, do not approach that standard.

Confiscation, destruction and seizure of vehicles owned by others

7. It is also necessary to consider the provision in respect of third parties who own or have an interest in a vehicle used in such offending. Clause 5(2) of the Bill provides for the treatment of certain such persons as “a substitute for the offender”, where that person has been given a warning notice following a previous offence by that offender involving the vehicle and a further offence is committed within four years.

8. In such instances, the substitute is liable to confiscation and, where repeat offending occurs, destruction of the vehicle, unless there is undue hardship (current s 129(4) and proposed s 129A(4)) or that person exercises a separate right of appeal under proposed s

129E(1). The available grounds of appeal include that the vehicle had been stolen and that the substitute could not reasonably have known that the offender would offend and/or took all reasonable steps to prevent the offending.

9. There is similar provision in cl 28 for seizure of vehicles from third parties in respect of offenders’ fines, provided that those third parties have previously been given a written caution, again with similar grounds of appeal.

10. Both these parts raise an issue as to whether the third party is being punished for the offending of another without charge or trial. The issue comes down to whether the seizure, confiscation, and possible sale or destruction, amount to a criminal penalty and so require the criminal procedure protections under s 25 of the Bill of Rights Act.[2] If the orders are civil in nature, no issue arises.

11. It is generally recognised that forfeiture regimes for the seizure or confiscation of property involved in offending are not criminal in nature.[3] In this Bill, while the forfeiture takes place under the Sentencing Act 2002 and the Summary Proceedings Act 1957, and is consequent on conviction for offending by another person, the orders affecting the third parties are not criminal in either form or substance, in that such orders:

11.1 do not impact on the criminal record of the person;

11.2 do not involve condemnation or findings of guilt against the person;

11.3 do not involve any penalty other than the loss of the vehicle;

11.4 even that penalty is avoided if it causes undue hardship; and

11.5 are aimed at general preventive measures rather than specific punishment, by reducing the scope for avoidance of the existing forfeiture regime, and providing an incentive for vehicle owners to exercise some control over the use to which others put their vehicles, for the benefit of public safety.

12. conclude therefore that these orders do not amount to criminal penalties and so do not give rise to any apparent inconsistency with the Bill of Rights Act.

13. In accordance with Crown Law practice, this advice has been peer reviewed by Ben

Keith, Crown Counsel.

Yours sincerely

Victoria Casey

Crown Counsel

1. Ont. Dist. Ct., Sept. 23, 1985, approved and applied R v Smith [1987] 1 SCR 1045, 1070 and R v Latimer [2001] 1 SCR 3, [77]

2. See, for example, Belcher v Chief Executive of the Department of Corrections [2007] 1

NZLR 507, [35]ff, and, more broadly, R Clayton & H Tomlinson (eds) The Law of Human

Rights (2ed: Oxford, 2009)[11.30]ff and [11.358]ff.

3. See A Butler & P Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis,

2005), [21.6.4] and also Air Canada v The United Kingdom [1995] ECHR 15; 20 EHRR 150.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Vehicle Confiscation And Seizure Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect

of this or any other matter. Whilst care has been taken to ensure that this document is an

accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.