Cosgrove Clayton: Land Transport (Enforcement Powers) Amendment Bill — In Committee Third Reading 
Cosgrove Clayton: Land Transport (Enforcement Powers) Amendment Bill — In Committee Third Reading 
[Volume:658;Page:7207] 
Hon CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I want to return to the issue of cruising as outlined in Part 1 of the Land Transport (Enforcement Powers) Amendment Bill. I was a little bit amazed at what the Minister said and it was noted by Carol Beaumont that we will know it when we see it. I am not a lawyer and the Minister in the chair Steven Joyce I suspect is not a lawyer. I note that Mr Finlayson is here and he is an eminent lawyer I am told by some. Others may take a different view but some say he is an eminent lawyer. I just raise this issue again but with greater worry. If the Minister is telling us that the legal basis from which either he or the department—I presume it was him—drafted this definition is that we will know it when we see it then I offer some assistance from our side to the Minister. We have some lawyers over here who might be able to help. That is not how to make law. 
As I turn to the legislation the concern I had was about the definition of for instance “sustainable loss of traction”. We spent quite a bit of time on it. An eminent person—and I better not mention his name because National might hunt him down if it knew he helped me—within the ministry spent a lot of time tightening as much as possible the definition then of “sustainable loss of traction”. I know it might sound stupid to some but I remember quite a bit of fear being expressed by submitters from vintage car clubs and from all sorts of folk including people taking part in the Christmas parade or other parades who appeared before the select committee. There was the fear that even though their motives were pure somehow inadvertently they may fall victim to this issue. There was even a fear that a young person for instance who squeaked his or her brakes at the lights might hear a policeman saying “Oi we got you”. I do not take credit for the legal drafting and others should but we spent a lot of time tightening the definition of “sustainable loss of traction” in the hope—which proved to be correct because it was never tested in a court—that a judge would not take a case make a terminology interpretation and water it down. It was also to give confidence to those who were not the perpetrators that we were going after that they would not be caught by it. They were the innocent folk. But we are now hearing regarding the definition that we will know it when we see it. The Minister shakes his head but that is what he said. Is he now denying that is what he said? He said it not two or three speeches ago. 
In practical terms I agree with the Minister that most police I suspect will know it when they see it. However there is the unintended consequence. The definition draws attention to the power or sound of the engine. To what level I ask the Minister? What is the test? Is it revving up? I suspect it probably is but to what level? Is it somebody who revs up and hits the accelerator instead of the brake? Will they be caught by this very non-specific definition? But the Minister says that we will know it when we see it. Maybe we should call this the “You’ll Know It When You See It Bill”. 
The bill refers to “impedes traffic flow”. What does that mean? Does that mean they drive in a group at 50 kilometres per hour which is the legal limit as they do now? What is the difference between that and going around Hereford Street looking for a car park? Normally when I have driven around there at lunchtime on a Friday there are about 300 or 400 folks who are not breaking the law who are driving legally who are sober and whose cars are registered and licensed engaging in exactly the same activity. Despite the squawks we hear from the back row I know that the Minister is well intentioned. But the point I am desperately trying to make— 
Hon Tau Henare 
: What? What is it? 
Hon CLAYTON COSGROVE 
: No I am not trying to make the point to the thing at the back of the Chamber. The point I am trying to make to the Minister is if this definition is not tight enough— 
Hon Tau Henare 
: Do you support it? 
Hon CLAYTON COSGROVE 
: —it may cause an unintended consequence. But equally if it is not tight enough there may well be a test case where a judge decides to water it down or alter it in such a way or let somebody off and sets a precedent. I would be obliged if the Minister could gives us some reassurance or clarify what he meant by saying that we will know it when we see it. If he cannot do that and he is not confident in his own drafting I ask him perhaps to yield to that eminent lawyer Mr Finlayson who I think could give us quite a good dissertation in respect of the definitions. He may well be able to give us some assurance. The problem is that this bill is not part of Mr Finlayson’s portfolio but he is an eminent lawyer. Maybe the Minister could lean across the aisle to him and get him to pass a note to tell him that this is OK. I want to catch these people just like the Minister does. Christchurch has had a gutsful of it just like the Minister has and as have other places. 
I think we should have an assurance that this bill will do what we want it to do. Firstly an assurance that it is strong enough and secondly that it is blunt enough that a judge will not be able to make a strange interpretation of it that will water it down or capture somebody who should not be captured. We will then end up back here a couple of months after that common law precedent goes through trying to pass amending legislation to get it right. This is not an uncommon practice and I say this in a bipartisan way. 
When I was Minister for Building and Construction a judge—I think it was Justice Stevens—altered through a court judgment the compensatory benefits or damages payable to victims of leaky buildings. It was not what the Government—or the Parliament generally I suspect as a whole—had intended. On that occasion—and it threw a cat amongst the pigeons—we were advised by our departmental lawyers that it was as tight as a drum it would be no problem and it would be OK. From memory we had to suspend Standing Orders come back and blast through a bill consisting of three four or five clauses or whatever it was which I think all parties supported to correct the record and to stop other members of the judiciary from using that precedent and perpetrating what Parliament did not intend. I think it is a fair question. The Government and we as a Parliament are going to a lot of effort and we are supporting this bill. To clarify it for that person in the back row we are supporting this bill. But what we want to do is support a bill that gets it right. 
Hon Tau Henare 
: Sit down and get a move on! 
Hon CLAYTON COSGROVE 
: That sort of inane contribution from the back which flows like verbal sewage does not help the matter. If the member wants to make a contribution and help his colleague out—I take it he is not a lawyer either; neither am I—he could get to his feet and make a contribution rather than making sounds akin to a belching noise down in the back row. 
David Bennett 
: Oh that’s unfair. 
Hon CLAYTON COSGROVE 
: Well maybe it is not a belching noise; it could be another emission but we will not go there. But I reiterate and say to the Minister that I would be grateful if he could readdress the point on cruising. We want to stop the sort of stuff that he is trying to stop in this bill but I have a fear based on his own words which may come back to haunt him that we will know it when we see it. A test case may be taken and this may be watered down or there may be an unintended consequence. Again I hope that Mr Finlayson as a lawyer may decide to take a call and provide us with that reassurance but I think the Minister is duty-bound to address that issue. 
What happens in a political campaign when members of the National Party as they did on a number of occasions drive down the middle of roads with loud hailers blaring and flags flying drawing attention to themselves and the noise of their vehicles? Perhaps they are in a convoy and perhaps some would argue they are impeding traffic flow. Could the Minister tell me whether that would be illegal under this bill? Will that be called cruising? What will the police do in that respect for instance? What will they do if the cars are decorated if the horns are sounding and there might be a truck that has a bit of music playing on the back of it? Is that considered cruising if there are 20 30 or 50 such vehicles heading down Hereford Street in the middle of an election campaign? I think that is a fair enough question. It probably arises out of self-interest; it probably concerns all of us I suspect if we think about it. Will the police take the view: “Don’t worry. The Minister says we’ll know it if we see it. We’ll put a finger in the air and try to define the law.”? If somebody takes a case against the police and embarrasses them as a police force will the Minister stand up beside them and say: “No no. I blew it in the Committee stage because I said you guys would know it if you saw it.” And that is the strength of the legal argument. 
I want to get this right. Labour wants to get this right. Labour supports the Government in this but we would like more reassurance as would the communities in Christchurch in Hamilton in Dunedin in Auckland and in other places that it is right and that when the police do see it they will have the tools the power and the legal definitions to deal to those people. I do not think it is good enough for someone who is collecting a quarter of a million bucks and taking a warrant and the limousine to simply stand up and say: “Don’t worry she’s right. They’ll know it if they see it.” I think those will be words we will be happy to use at future public meetings when people say that they did not see it they did not know it and we are still being harangued from pillar to post by these boy racers. Maybe we should ask Judith Collins in the next round if she takes the same view—that the police will know it if they see it.