The Land Transport (Road Safety) Amendment Act 2023, otherwise known as the Fleeing Drivers Bill, came into force on 1 March 2024. Its main objective is to “improve legislative response to fleeing drivers and to address safety matters within the land transport system”.
Before the bill’s incorporation, The Law Association (TLA) had the opportunity to submit its views to the Justice Select Committee. While TLA recognised the need to improve justice and road safety outcomes for situations involving fleeing drivers, it questioned whether the bill would pull the right policy levers. It argued that several of the changes were too severe, would have only limited impact as deterrents, were impractical and might result in unintended consequences.
Onerous penalties
The amendment to s 52A(4) raised the disqualification period for a second offence for a charge of failing to stop from one year to a period of “not less than one year and not more than two years”, regardless of the seriousness. This amendment, like others, will apply to individuals who are not considered a threat but are slow to stop. A first offence for failing to stop attracts, under s 52A(3), a minimum disqualification period of six months. TLA viewed the increase in penalty from a first offence to a second offence as severe.
Section 96AAA is a new section that increases the police’s vehicular impoundment-period powers from 28 days to six months if an officer has reasonable grounds to believe the driver has failed to stop or remain stopped as required. TLA expressed concerns that the amended increase in the impoundment penalty violated natural justice and was disproportionately severe.
TLA underlined the need for judicial oversight in assessing an officer’s “reasonable belief” before impounding a vehicle for a lengthy period. This lack of impartial assessment raises concerns around protections afforded under the New Zealand Bill of Rights Act 1990 (BORA), specifically:
- s 21, which protects the right to be secure against unreasonable search and seizure;
- s 25(a), which guarantees the right to a fair trial;
- s 25(c), which protects the right to be presumed innocent until proven guilty; and
- s 27(1), which protects the right to natural justice. Section 96AAB of the Land Transport Act 1998 is another new section, authorising police to seize a vehicle for up to 28 days if the driver or registered owner refuses to provide information that would be of evidential value to police and impoundment was necessary to prevent a serious threat to road safety.
A similar clause was proposed in the 2017 Land Transport Amendment Act, although it was removed by the Attorney-General as he considered that “the new power to seize and impound a vehicle for failing or refusing to provide information is not rationally or proportionately connected to its purpose of deterring people from committing an offence under the Land Transport Act”.
The Attorney-General further suggested there was already an offence under s 52 of the Land Transport Act for failing or refusing to provide information or give false information. TLA believed the Attorney-General’s rationale for excluding this provision in the 2017 Land Transport Amendment Act was the correct approach.
The bill proposed further additions to the Sentencing Act 2002 by incorporating s 142AAB, which gives a court the authority to forfeit a motor vehicle for certain offences regardless of severity. Even a fineable first offence under s 52A(2) is captured under this provision. The deliberate use of the word “forfeiture” instead of “confiscation” under ss 146AAB and 142AAF(2)(g) has significant implications.
Forfeiture eliminates a defendant’s right to receive any proceeds from the sale of a vehicle under s 137(3)(g) of the Sentencing Act.
TLA advocated that the discretionary confiscation powers contained in s 128 and the mandatory confiscation for repeat offenders in s 129 of the Sentencing Act are proportionate responses to the policy objectives relating to fleeing drivers. A fleeing driver who presents a safety risk can be prosecuted under the Land Transport Act under s 52A for failing to stop and under s 35 for dangerous or reckless driving.
Where a fleeing driver causes actual injury, more severe charges are available in ss 36, 36A and 39. These offences associated with a fleeing driver already provide significant scope for sentencing, disqualification and confiscation. TLA believed the forfeiture amendment was too broad and could be deemed disproportionate to the offending.
Effective deterrent?
TLA argued that threats of charges often did not deter offenders. Indeed, a 2021 report by WithBox, in collaboration with the New Zealand Police, found that some repeat offenders were more motivated to evade the police than to cooperate:
“punishment, including possible charges, is not a deterrent. Many rangatahi, particularly those with previous fleeing driver convictions, are even more determined to flee”
This finding is consistent with studies in Australia, where high penalties for offenders led to punishment avoidance instead of behavioural change:
“Studies of illegal street racers in Australia suggest that even where the perception of penalties and the certainty of receiving them is quite high, these offenders continue the behaviour, instead focusing their efforts on punishment avoidance. Fleeing police is one method of attempting to avoid punishment, so where offenders view punishment as too harsh, they are likely to be additionally motivated to both flee and to force the abandonment of a pursuit by police.”
In TLA’s view, these studies support the decision made by the Attorney-General in 2016 to remove provisions allowing for the impounding of vehicles for failure to provide information to police from the proposed Land Transport Amendment Bill 2017. As mentioned, the reasoning behind the decision to remove the impounding provision was that it “may not necessarily prevent or deter further offending”. Given this background, TLA raised questions about the likely efficacy of the amendments.
Unintended consequences
TLA observed that proposed changes under s 52A(3) and (4) of the Fleeing Drivers Bill could have the unintended consequence of capturing individuals who are not “fleeing drivers” but are slow to stop and are otherwise safe. TLA advocated for revisions to avoid this unintended consequence and to ensure only those who were intended to be caught under the proposed changes were affected.
Impracticalities
Appeal rights in relation to vehicular impoundment grievances under s 96AAA of the Act are available under ss 102 and 110. Despite these provisions, TLA raises concerns about the practicality of these provisions for defendants, who are ineligible for legal aid, to navigate this process. Even if an appeal is lodged, TLA is uncertain whether an appeal determination can be reached before a six-month impoundment period expires. The loss of a vehicle for six months before a determination can be made raises serious concerns for those who are presumed innocent of an allegation.
Furthermore, pre-existing legislation contains penalties for refusal and failure to provide information. And the proposed changes under s 96AAB of the Land Transport Act may end up punishing vehicle owners rather than drivers. TLA saw the proposed amendments in the bill requiring people to provide information to the police as problematic as they genuinely may not have the requested information or may be intimidated by the drivers into not revealing their identity.
Towing and storage companies have expressed concerns about implementing the increased impoundment provisions under the amended statute. The practical steps required to execute these provisions would be arduous for these businesses. Some offenders may not have the financial resources to pay for the fees associated with towage and storage at their facility. This could lead to vehicle owners abandoning their vehicles at the yard, leaving the storage companies to bear the costs involved. While there are towage and storage fees provisions under the Land Transport Storage and Towage Fees for Impounded Vehicles Regulations 1999, the ability of those involved to pay might lead to towing companies being out of pocket.
Wrong focus
TLA’s submissions raise several valid concerns with the new regime. So what would be a better way to deliver on the legislature’s desired outcomes? There is a strong argument for focusing on constructing fences at the top of the cliff rather than deploying ambulances at the bottom. In particular, opportunities for reform should focus on young drivers during the licensing application process, providing defensive driving courses and alternative approaches that emphasise education rather than punishment.
Further, according to a 2020 report by the police, a potential solution to reduce reoffending is implementing restorative justice measures, such as Te Pae Oranga. Under this program, an iwi panel addresses the harm caused by offenders and provides support services as an alternative to the traditional criminal justice system.
With this approach, the desired results can be achieved through a more compassionate and rehabilitative process. The police would seem to concur. In a report from December 2020, Understanding Motivations of Fleeing Drivers, the police commented on the benefits of rehabilitative programs such as Te Pae Oranga:
“Evaluations suggest future offending harm is reduced, and participants value the support they receive from police and other agencies, while still being held to account for what they have done”.
Elaine Ward is a barrister and a member of The Law Association’s Criminal Law committee.
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