About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.
   
2. We wish to make an oral submission to the Committee.

Introduction

3. This bill tries to fix the flaws in the Land Transport (Drug Driving) Amendment Act 2022 which introduced a roadside drug-impaired driver testing scheme. The major flaw in this act was that there are no roadside tests that can be used to detect impairment caused by drug use, making the law somewhat pointless.
   
4. This bill attempts to get around this problem by implementing a two-stage scheme with an initial roadside detection test followed by an evidential lab test. The scientific standard required for the roadside test has been dropped to meet the limits of current technology. The standard for the lab test has been dropped to show presence of a drug rather than a level that would prove impairment.
   
5. The Council opposes the Land Transport (Drug Driving) Amendment Bill as an unwarranted intrusion on our civil liberties to implement a regime that fails in its stated purpose.

Unreasonable search and seizure

6. The Council agrees with the Attorney General’s New Zealand Bill of Rights Act (BORA) section 7 report.¹  The act of performing the drug tests proposed by the bill is a search.  As s71A(1)(a) of the existing act allows for drug tests to be conducted without suspicion of wrongdoing, and the bill does not amend this, tests conducted under that section are unreasonable.
   
7. Adding a requirement for an officer to have good cause to suspect drug-impaired driving before administering a test would at least improve this aspect of the bill even if it is still fatally flawed in other ways.

Recommendation 1

Remove section 71A(1)(a) from the Land Transport Act 1998, so that an officer needs “good cause to suspect” (s71A(1)(b)) that an offence has been committed before conducting a search.

Liberty of the person

8. The council agrees with the BORA report that the bill allows for arbitrary detention. Again, the problem is that people can be detained without suspicion of wrongdoing.

Right to Justice

9. This bill’s explanatory note says that the reason for the bill is that:

The existing legislative settings have prevented the implementation of roadside oral fluid testing for drugs as there is no oral fluid testing device that meets the current requirements for approval. The Minister of Police can currently only approve an oral fluid testing device if satisfied that the device will return a positive result only if it detects the presence of a specified qualifying drug at a level that indicates recent use (recent use is a proxy for impairment). However, devices can produce false positive and false negative results, cannot always detect an individual specified qualifying drug (but rather classes or families of drugs), and may detect some drugs several hours or longer after consumption.

10. Put plainly, we do not have the technology to meet the standards of evidence in the principal act.  Rather than accepting that, this act seeks to lower our standards for justice to match the available technology.  The Council strongly disagrees with that approach.

Impaired driving

11. The most significant flaw in this bill is that at no point is there any requirement to show or prove impairment in driving ability. The roadside tests can be administered without reasonable cause to suspect poor driving. Furthermore the roadside tests only show the presence of a drug and it is admitted that these results are not very reliable.
    
12. The Council notes that the Medical Association opposed the 2022 bill, saying in their submission: 

A major concern with roadside oral fluid drug testing is that while such tests detect the presence or absence of a small panel of common drugs, they do not detect impairment and correlate poorly with actual blood concentration. [emphasis added]

13. The bill tries to separate the roadside and laboratory testing to cater for the limitations of the technology, but even then the laboratory testing does not credibly detect impairment. The intention is that the lab tests will be calibrated to detect recent use but even this does not indicate an impaired ability to drive.
    
14. We note that there is an attempt in the discussion of the bill to draw parallels with the drink-driving legislation but these fall down on the science. In the case of drink-driving there are scientifically proven tests that show the level of alcohol present in the driver’s system, as well as research that clearly demonstrates a link between blood-alcohol levels and impairment of the ability to drive. Without these two elements there can be no credible testing, and the comparison between drug testing and alcohol testing does not stand up.
    
15. While not claiming any medical expertise, the Council notes that if the tests do not detect impairment, then there is no benefit being derived from limiting our liberties. Therefore, we call for the bill to be rejected entirely rather than amended.
    
16. The Council would also like to reiterate our belief that we would all benefit from a transition away from a criminal justice approach to addiction and toward a wellbeing-focused, harm-reduction approach.  Our reaction to determining that someone is taking controlled substances should be to get them treatment, not to throw them in prison.

Freedom of Information concerns

17. The Regulatory Impact Statement (RIS) for this bill has information redacted on pages 3, 5, 16, 19, 20, 21, and 23.
    
18. There are strong public interests in overriding the reasons for withholding information cited by the RIS, not least to enable public participation in scrutinising the proposals and whether they can be effective and fair.
     
19. On August 23, 2024 the Council filed an urgent Official Information Act (OIA) request with the Ministry of Transport for the unredacted RIS.
    
20. Commendably, the Ministry treated our OIA request with urgency and replied on August 28, 2024. The Council strongly recommends that the Committee review the less-redacted version which the Ministry provided to us.
    
21. On page 5, the original RIS redacts this text under s9(2)(g)(i), “free and frank expression of opinions”:

First, given the time constraints this proposal has been developed under there has not been an opportunity to directly consult non-government stakeholders, especially the laboratories that will be required to implement the proposed regime. This deficiency is partially addressed by previous consultation processes and experience with a similar regime in Australia. However, the lack of specific consultation on the new proposal, especially on its detailed implementation, creates a serious risk that the new regime, once legislated, will not work as intended. The Statement points out that some of the implementation issues will be worked through after legislative enactment when detailed regulations are drawn up but this is not sufficient to fully close off the risk that the legislative authority might be inadequate. [emphasis added]

22. On page 16, paragraph 54 was initially redacted for s9(2)(b)(ii)-“trade secret”, s9(2)(g)(i)-“free and frank expression of opinions”, and s9(2)(i)-”enable the crown to conduct commercial activities”:

Laboratory testing of oral fluid (as opposed to blood) for qualifying drugs is not currently undertaken in New Zealand by the Institute of Environmental Science and Research (ESR), the approved laboratory test provider for Police. This poses a risk to the implementation of the new regime. If ESR is unable to provide oral fluid drug tests there are other laboratory testing options that can be explored.

23. This redacted text is important to the BORA analysis of this bill.  If the bill will not work, as the redacted text suggests, then no limitation of our liberties can be justified.
    
24. However, the Ministry continued to redact text on pages 16,19, 20, and 21. We also note that on page 19 the text redacted relates to the bill’s consistency with BORA, and there is a very strong public interest in disclosure of this information.  The Ministry continued to redact the end of the sentence which begins “Raises potential consistency issues with New Zealand Bill of Rights Act,” under s9(2)(h) ”maintain legal professional privilege.”
    
25. The Council notes that the first purpose of the OIA in s4(1)(a) is “to enable their more effective participation in the making and administration of laws and policies”.
    
26. The Council takes the Ministries insistence of redacting information from the RIS as a clear indicator that the OIA is failing in practice.  It’s frankly not credible to us that legal privilege could outweigh the public’s right to know how the ministry believes our liberties will be curtailed by this bill.
    
27. The Council reiterates our urgent call for strengthening the OIA.
    
28. The Council thanks members of the Committee for their time and consideration of our submission.

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1.  The Council would like to note the unusually high quality of the Attorney General’s report.  Given that we are frequently critical of the Attorney General’s reports, it seems appropriate to draw attention to the absence of significant errors in this report. ↩︎