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Land Transport (Enforcement Powers) Amendment Bill (Consistent) (Sections 5, 7, 21, 25) [2009] NZBORARp 31 (15 May 2009)

Last Updated: 28 April 2020

LAND TRANSPORT (ENFORCEMENT POWERS) AMENDMENT BILL

15 May 2009

Attorney-General

LAND TRANSPORT (ENFORCEMENT POWERS) AMENDMENT BILL (PCO 13662/24)

consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/100

1. I have reviewed the Land Transport (Enforcement Powers) Amendment Bill

(PCO13662/24) for consistency with the New Zealand Bill of Rights Act 1990.

2. I note that following aspects of the Bill raise issues under that Act:

2.1. Clause 6, which concerns the offence of breaching bylaws against certain forms of driving, places an evidential onus on the accused and so is contrary to the presumption of innocence protected by s 25(c). In the context of those particular offences, however, I consider that the onus is justifiable.

Clause 16 of the Bill adds a further ground for the impoundment of a motor vehicle for 28 days under s 96 of the Land Transport Act 1998 (“LTA”) and removes discretion in respect of the current provision in s 96(1A):

2.2.1. At its introduction in 2002, what is now s 96(1A) was the subject of a report under s 7 of the Bill of Rights on the basis of apparent inconsistency with the right against unreasonable search and seizure protected by s 21. I conclude, however, that these provisions no longer fall within s 21 as now interpreted.

2.2.2 However, impoundment for a largely fixed period of 28 days is a significant sanction. As such, it is necessary to consider whether impoundment, which occurs if an enforcement officer believes on reasonable grounds that certain offences have been committed, constitutes a criminal penalty imposed without charge or trial, contrary to s 25. While the issue is not beyond argument, I consider that such impoundment for purposes of public safety and prevention of disorder does not amount to such a penalty.

3. Accordingly, no apparent inconsistency arises in respect of this Bill.

Impoundment

4. Where an enforcement officer believes on reasonable grounds that a person has “operated the vehicle in a race, or in an unnecessary exhibition of speed or acceleration, on a road” or “without reasonable excuse, operated the vehicle on a road in a manner that

caused the vehicle to undergo sustained loss of traction”, current s 96(1A) provides that the

officer may seize and impound that vehicle for 28 days.

5. The Bill alters that provision in two respects:

5.1. Clause 16(1) extends the seizure and impoundment power to the new offence of

breaching bylaws governing vehicle racing and “cruising”, as provided for in proposed s

22AB (cl 7); and

5.2.Clause 16(2) removes the discretion under current s 96(1A) to provide that an

enforcement officer “must, if practicable” seize and impound.

6. At the introduction of s 96(1A) in 2002, the then Attorney-General, the Hon Margaret Wilson, made a report under s 7 of the Bill of Rights Act that that provision appeared to be inconsistent with the right against unreasonable search and/or seizure, affirmed by s 21.[1]

7. As cl 16 extends s 96, it is necessary to consider whether that objection again arises here. I note that the 2002 report was made on the basis that s 21 applied to “seizures arising in the context of offending”. Since that time, however, there has been further judicial

consideration both in New Zealand and under the parallel provision of the Canadian Charter, which has had substantial influence in New Zealand caselaw:

7.1. In Quebec (Attorney-General) v Laroche [2002] 3 SCR 708, [53], the Supreme Court of

Canada approved the proposition that:[2]

“The prohibition against unreasonable search and seizure is designed to promote privacy interests and not property rights. ... Specifically, where property is taken by government action for reasons other than administrative or criminal investigation a ‘seizure’ under the Charter has not occurred. ... A detention of property, in itself, does not amount to a seizure for Charter purpose - there must be a superadded impact upon privacy rights occurring in the context of administrative or criminal investigation.”

7.2 In P F Sugrue Ltd v Attorney-General [2006] 3 NZLR 464 (PC), the Privy Council similarly commented (at [23]):

“Constitutional provisions such as s 21 of the Bill of Rights Act are primarily directed towards

preventing the invasion of personal freedom and privacy.”

7.3 More recently still, in R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 (CA), W Young P and Glazebrook J

observed (at [48]):

“A touchstone of s 21 of the Bill of Rights is the protection of reasonable expectations of privacy ... It is thus only where a person’s privacy interest has been breached that his or her rights under s 21 of the Bill of Rights have been breached and a personal remedy is available.”

8. While the point is still not wholly beyond dispute,[3] it follows from these statements that s 21 requires not only, as was considered in 2002, that a seizure occur “in the context of

offending” but that it does so where there is the prospect of an interference with privacy

through criminal investigation.

9. The question is therefore whether impoundment, as provided for in cl 16, satisfies that requirement and so engages s 21. I note, in this respect, that while seizure and impoundment is triggered by the reasonable belief of an enforcement officer that certain offences have occurred and, further, that impoundment ceases if, within the 28 day period, Police decide not to charge or there is an acquittal, the impoundment is not in fact connected to the process of investigation or prosecution. Notably:

9.1. Impoundment does not occur for evidence-taking or similar purposes;

9.2. Impoundment does not occur in order to facilitate forfeiture, as release occurs after 28 days even if - as will generally be the case - charges are yet to be determined; and

9.3. Impoundment can also cease before the expiry of the 28 day period on appeal by the driver or owner on various grounds, rather than only when charges have been dismissed or do not proceed: see ss 102(1) and 110 LTA.

10. also note, in this respect, that the explanatory note to the Bill records serious risks to public safety and broader public disorder arising from the particular kinds of conduct concerned and the shortcomings of prosecution, conviction and imposition of sentences as means of regulating that conduct.[4] Further, cl 16(2), which is the substantive addition to s

96, is concerned with instances of breach of bylaws where a warning has already been given

(see proposed s 96(1AA)(b)). The targeting of repeat conduct is consistent with the apparently preventive intention.

11. It follows that the impoundment provisions must be regarded as a separate preventive measure, albeit one with substantial adverse consequences, rather than an incident of a criminal investigation and prosecution. It may also be seen to have a legitimate component of deterrence, which again does not of itself engage the privacy interests protected by s

21.[5] On that basis, I conclude that impoundment under cl 16 does not fall within the scope of s 21 as that provision is now understood and, consequently, no issue now arises.

12. Noting the substantial adverse consequences of impoundment, however, and that impoundment occurs on the basis of a reasonable belief that the driver concerned has committed certain offences, it is then necessary to consider whether impoundment amounts to an effective criminal penalty imposed without charge or trial.[6]

13. While the impoundment is broadly separate from the criminal process under the Bill, it is also necessary to consider the nature of the triggering “offence” and the severity of impoundment as a “penalty”.[7] Applying that approach here:

13.1. While impoundment is brought to an end by a decision not to charge or by acquittal, it does not follow that it is a penalty for the offence:

13.1.1. As noted above, impoundment can also end for other reasons unconnected to whether the relevant offence is upheld; and

13.1.2. If a decision as to charge and/or hearing of that charge does not occur within 28 days, impoundment ends in any case.

13.2. The fixed impoundment period does, however, appear to have a punitive and/or deterrent character and so has some resemblance to a penalty. It is, however, of a limited character and does, as noted above, also serve a preventive purpose in relation to a risk to public safety.

14. For those reasons, and while there is scope for concern over the length of the impoundment period, I do not consider that impoundment can be regarded as a criminal penalty.

Reverse onus of proof

15.Clause 6 provides that it is an offence to drive in contravention of certain bylaws that regulate racing or “cruising”, as defined, “without reasonable excuse”. As such, it places an evidential onus on the accused person,[8] and thereby limits the right to the presumption of innocence affirmed by s 25(c) of the Bill of Rights Act.

16. In considering whether that limit is justifiable in terms of s 5 of the Bill of Rights Act,[9] I note that matters of excuse in failure to comply with such a bylaw are likely to be peculiarly within the knowledge of the person concerned[10] and, further, the offence provisions relate to certain and quite specific acts of driving, which is itself a regulated activity.[11] On that basis, and noting the limited fine available under proposed s 22AB(1)(c), I conclude that the provision is justified.

17. In accordance with Crown Law practice, this advice has been peer reviewed by Victoria

Casey, Crown Counsel.

Yours sincerely

Ben Keith

Crown Counsel

1. Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Land

Transport (Street and Illegal Drag Racing) Amendment Bill 2002, AJHR E.63, 30 August 2002.

2. Citing S Hutchison, J Morton & M Bury Search and Seizure Law in Canada (Carswell: Looseleaf) 2-5.

3. See, particularly, the obiter comment of Tipping J in a separate judgment in R v Ngan

[2007] NZSC 105; [2008] 2 NZLR 48 (SC) (at [60]):

“The section protects citizens from unreasonable conduct on the part of state officials. Two interests are generally at stake. The first, which relates primarily to search, is the interest citizens have in being free from the prying eyes of state officials. The second, which relates primarily to seizure, is the interest citizens have in the security of their property and their uninterrupted possession of it. Hence the section requires that officials of the state do not

by unreasonable search or seizure interfere with the property and privacy interests of

citizens.”

4. Pages 7-8.

5. See Sugrue, above, [24].

6. See, similarly, Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR

507, [35]ff.

7. See, for example, Belcher, above, [41], and, more broadly, R Clayton & H Tomlinson (eds)

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

8. Section 67(8) of the Summary Proceedings Act 1956.

9. The application of s 5 entails an assessment of whether the restriction is rationally connected to an important objective and is proportionate to that objective: see, most recently, R v Hansen [2007] 3 NZLR 1 (SC) at [70], [123], [203]-[204] and [271].

10. See, for example, Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264.

11. See, for example, R v Wholesale Travel Group [1991] 3 SCR 154 (Supreme Court of Canada). The point was noted with possible approval but not decided in Hansen at [43], [66]and [227].

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 Land Transport (Enforcement Powers) Amendent 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.