Tuesday, June 30, 2009

"Boy racers": Submission I

Below is the draft of my submission on the Land Transport (Enforcement Powers) Amendment Bill, which I'll be emailing away before Friday. It has been informed by posts here and here.

  • I oppose the Land Transport (Enforcement Powers) Amendment Bill, and ask that it not be passed.
  • The primary purpose of the bill is to create a bylaw scheme targeting “cruising”, punishable by automatic seizure of the vehicle on a second offence. This scheme has numerous problems, undermines the rule of law, and is contrary to the Bill of Rights Act 1990.

    Definition of “cruising”

  • The bill defines “cruising” as:
    driving repeatedly over the same section of a road in a motor vehicle in a manner that—
    (a) draws attention to the power or sound of the engine of the motor vehicle being driven; or
    (b) creates a convoy that—
    (i) is formed otherwise than in trade; and
    (ii) impedes traffic flow
  • The definition is potentially applicable to protest action, such as the 2008 “big rig” protest against increased road-user charges, which shut down the centre of several cities with organized convoys of large trucks. It thus potentially violates the freedom of expression affirmed in the New Zealand Bill of Rights Act 1990.
  • Recommendation: the definition of “cruising” should be amended to explicitly exclude political protests.

    Bylaw regime

  • New sections 22AB – 22AE would allow local authorities to enact bylaws banning “cruising’. New section 22AF provides that any vehicle breaching such a bylaw be issued with a warning notice for 90 days. Section 16 amends the Land Transport Act to require that any vehicle with a warning notice contravening such a bylaw must, if practicable, be impounded. This scheme has numerous problems and violates the Bill of Rights Act 1990 in numerous ways.
  • The bylaw regime prima facie violates the freedoms of assembly, association, and movement affirmed in the BORA. Simply put, if someone wants to waste petrol by driving round and round a particular piece of road, they should be allowed to. If they are not driving unsafely (as tested by whether they are obeying speed limits and other relevant traffic regulations), then there is no harm to anyone but themselves, and no justification for state intervention. If they are joined by friends, then again provided it is done safely, there is no harm, and no justification for intervention. As John Stuart Mill noted, “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection”. There is no such case here.
  • A case can be made for limiting vehicle noise, as this may do harm to others when it is excessive. But that is not the primary purpose of this bill.
  • The punishment is grossly disproportionate. The proposed punishment for this “offence” of driving round and round in circles is (on the second offence) mandatory impoundment of the vehicle for 28 days. This is a significant punishment, which imposes significant costs. By way of comparison, a penalty of mandatory impoundment is only applied at present to disqualified drivers and drunk drivers who are grossly over the limit and already have multiple convictions for drunk driving. Here, it is being imposed for driving which is not unsafe, but which can at best be described as “annoying”. Such disproportionately breaks down the proportionality of offences and encourages (no, incites) disrespect for the law.
  • It may be argued that impoundment is not a punishment. This is simply ridiculous. It is performed by agents of the state, using the coercive power of the state. It is inflicted explicitly for violation of a bylaw. Unlike the existing reasons for impoundment, it serves no safety purpose – driving round and round in circles within the road rules is not any sort of risk to safety. It is explicitly intended as a deterrent. These are all the hallmarks of a punishment, and it will be understood as such by those it is inflicted upon.
  • The punishment is imposed without trial. Impoundment is performed by a police constable at the roadside. There is no hearing, and no need for evidence beyond their “reasonable belief” that a law has been violated. While this may be acceptable for a speeding ticket, it is entirely inappropriate to impose such a significant penalty as vehicle impoundment without proper judicial oversight.
  • Recommendation: this section of the law should not be passed.

    Information requirements

  • Section 24 would amend existing provisions of the Land Transport Act 1998 requiring drivers to provide identifying details (name, address and date of birth) to include occupation and telephone number. This seems totally unnecessary, and simply an information grab on the part of police. It prima facie violates the freedom of expression (which includes the freedom to say nothing), and so must be justified. No such justification is provided, and no evidence is submitted that there is a problem with identifying drivers which would be solved by requiring them to submit further information. The police do argue that there is a problem with drivers providing false details, but it is difficult to see how requiring further details which can be easily falsified will solve this.
  • There are significant concerns in a democratic society around any compulsion to reveal information or prove your identity to police. “Papers, please” is widely taken as the hallmark of totalitarianism. Requirements to prove identity establish a power relationship with police and the state in which citizens are forced to be subservient – the exact opposite to what should prevail in a democracy. Such requirements should therefore be kept to an absolute minimum, and ask only for information that is strictly required to meet an important public purpose. A policeman by the side of the road may need to know my name (and address, and date of birth, as names are not exclusive) in order to verify that I do have a driver’s license and am not currently the subject of an arrest warrant – but they do not need to know what I do for a living, or what my phone number is. And they certainly should not be able to imprison people for refusing to reveal what is fundamentally private information.
  • Recommendation: this section should be removed.
  • I do not wish to make an oral submission to the Select Committee.