History of a "mistake"

Yesterday, NZPA revealed that Transport Safety Minister Harry Duynhoven knew in advance that last year's amendments to the Land Transport Act 1998 would create injustice when they came into force. By coincidence, I've just received a large pile of documents on the topic, and it's not just Duynhoven who knew. The select committee was fully informed of the consequences of what they were doing, and chose to do it anyway.

As originally drafted, the Land Transport Amendment Bill (2004 - 1st reading) contained a clause barring people convicted of a serious criminal offence after the bill was passed from holding or applying for a passenger endorsement. The committee asked for advice on making the clause retrospective in October 2004, and in early November were advised by Ministry of Transport officials that while it did not technically violate the New Zealand Bill of Rights Act 1990, it was not a good idea:

52. If the proposed new section was extended to include people with convictions that occurred prior to the commencement of the Act, some people currently working in the passenger service industry will be prohibited from doing so. This is despite having been determined to be fit and proper to hold a P endorsement under the current legislative arrangements¹. As a consequence, they would suffer a loss of employment, and perhaps hardship.

53. Their previous relevant convictions may have occurred many years earlier, they may never have re-offended, be at minimal risk of re-offending, and may in every other manner be suitable candidates for a P endorsement on their licence.

54. The balance to be struck is between removing drivers from the industry who pose a risk to passenger safety and taking away the livelihood of some people who currently hold passenger endorsements and are suitable passenger service drivers.

¹ This includes looking at a person's criminal history and, in particular, considering any previous violent or sexual offending.

A later briefing paper advised the committee that

[I]n some cases the effect of making new section 29A "retrospective" would be to overturn Court and administrative decisions where all the circumstances have been carefully considered and the applicant/appellant allowed to drive a taxi.

The Ministry recommended an alternative to complete retrospectivity: prohibiting people from applying for a passenger endorsement if they had ever been convicted of a relevant offence. This would have prevented new drivers with bad records, while not affecting anyone already found to be a "fit and proper person". The committee didn't buy it, and instead pressed on with retrospectivity. A further suggested amendment, limiting the revocation of licences to those who had actually served more than two years in jail (suggested so as to deal with extenuating circumstances) was rejected - as was (curiously) a recommendation that manslaughter be added to the list of specified offences in the interests of consistency.

On 30th March, in response to a request about whether those whose licences were revoked should be able to challenge the decision in court, the Ministry advised the committee that an appeals process was necessary, and that it was best done initially through the Director of Land Transport, with decisions subject to court review. This would

limit the work load for the Courts and the costs to individuals captured by the provisions, and take advantage of the Director's expertise in determining an individual's fit and proper person status.

The Ministry suggested laying out grounds for reinstatement based on the length of time since conviction, the seriousness of the offence, and the public interest. Left unstated was advice from the Ministry of Justice (mentioned in a later paper to the Minister) that an appeal process was necessary to ensure consistency with the BORA's affirmation of natural justice. In the end, the committee decided that the proposed criteria were "too wide", and decided that there would be no appeal process. The version of the bill they reported back to Parliament was thus even worse than the one that we have now. It was only "fixed" by a supplementary order paper brought by the Minister in response to officials' concerns.

What can we conclude from this sorry history? Firstly, the flaws in the original bill were not a "mistake". Instead, they were the result of calculated viciousness by a select committee obsessed with being "tough on crime". Secondly, the Minister's protestations that the problem "caught everybody by surprise" are false. The Ministry of Transport advised its Minister in April 2005 that there would be a problem, leading to significant amendments to the bill. Unfortunately, they weren't enough to ensure justice and fairness. Still, the Minister did at least try, which is more than most of the committee (with the honourable exceptions of the Green and NZ First members) did. Finally, given that the Transport and Industrial Relations committee has just repeated their mistake in the bill intended to fix this mess, it looks as if we will see the same solution: a supplementary order paper from the Minister. Hopefully they'll get it right this time...