Ministry of Justice
February 13 2006
Land Transport Amendment Bill
13 February 2006
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
LAND TRANSPORT AMENDMENT BILL
- We have considered whether
the Land Transport Amendment Bill (the "Bill") is consistent
with the New Zealand Bill of Rights Act 1990 (the "Bill of Rights
Act") (PCO 7032/6). We understand that the Bill will be considered
by the Cabinet Business Committee at its meeting on Monday, 13 February
2006.
- The purpose of the Bill is to
amend the unintended implications of sections 29A and 29B of the Land
Transport Act 2005, which came into force on 16 January 2006. Section
29A prohibits people convicted of murder, sexual offences punishable by
7 or more years’ imprisonment, and specified serious violent offences
from holding or applying for a licence to drive a passenger service
vehicle (a P endorsement) such as a bus or taxi. On 16 January 2006, the
P endorsements of people with relevant convictions automatically expired
which meant they are no longer able to be the driver of a passenger
service. Section 29B allows some of these people to apply to the
Director of Land Transport to have their P endorsements reinstated
where:
·
the qualifying conviction was not for an offence specified in
s29A(3)(a) or (b) (murder or a sexual offence punishable by 7 or more years
imprisonment);
·
the qualifying conviction occurred more than 10 years ago; and
·
the individual concerned has had no convictions for any offences
potentially punishable by a period of imprisonment for at least 10 years.
- In considering an application
for reinstatement, the Director must consider whether reinstating the
applicant's P endorsement would be in the public interest, taking into
account factors such as the seriousness of the qualifying offence(s).
Those who the Director declines to reinstate have the right of appeal to
the High Court.
- The Ministry of Transport has
advised that as of 16 January 2006 there were an estimated 209 P
endorsement holders (out of approximately 38,000 nationwide) with
convictions for offences specified in section 29A(3)(a) or (b), or with
convictions for imprisonable offences in the past 10 years. Some of the
affected individuals have a single qualifying conviction, often decades
old, for a sexual offence which attracted a small non-custodial penalty,
or a very short custodial sentence. The Ministry of Transport has
advised that these persons are unlikely to pose any safety risk to
passengers. But because section 29A deems the endorsements of these
persons to have expired they do not have recourse to the reinstatement
avenue of section 29B and, therefore, are no longer able to drive in a
passenger service.
- The original wording of
section 29A of the Land Transport Bill limited the provision to offences
committed after the Bill was passed. For this reason, the then
Attorney-General was advised that the Bill was consistent with the Bill
of Rights Act. During the parliamentary stages, the application of this
clause was extended to relevant offences committed at any time. The
Attorney-General was not given an opportunity to comment on whether this
change raised an issue of natural justice in terms of section 27(1) of
the Bill of Rights Act.
- Section 27(1) provides that
every person whose interests are affected by a decision by a public
authority has the right to the observance of the principles of natural
justice. One of the fundamental principles of natural justice is the
right to be heard. As persons who had committed certain offences are
prohibited from applying to the Director to have their P endorsements
reinstated, it can be argued that section 29A appears to raise an issues
of inconsistency with section 27(1) of the Bill of Rights Act.
- The Bill seeks to address
this situation by amending the Land Transport Act to:
·
allow reinstatement applications to be made by any P endorsement
holder with a conviction for an offence specified or described in section
29A; and
·
include in the factors that the Director be required to consider, when
deciding whether to reinstate a P endorsement, the period of time elapsed
since the qualifying conviction, any offending subsequent or prior to the
qualifying conviction and the likelihood that the person would, if granted a
P endorsement, be a threat to public safety or security.
- We consider that this Bill
appears to be consistent with the Bill of Rights Act.
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Jeff
Orr
Chief Legal Counsel
Office of Legal Counsel
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Stuart
Beresford
Principal Legal Adviser
Bill of Rights/Human Rights Team
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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 Amendment
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.
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