Twyford PhilHon PHIL TWYFORD (Minister of Transport): Thank you Madam Deputy Speaker. Alastair Scott has identified a serious problem but in the view of Labour members—and we'll be making the case through this debate—his solution falls well short of the level that we would need to see in order to support this bill to select committee. There is no question that drug impairment on our roads is a serious threat to the life and limb of New Zealanders as they travel to and from work and around this country. But the random roadside drug-testing regime that Alastair Scott proposes with this bill we believe has a number of flaws that make it implausible and impractical.The bill amends the Land Transport Act by introducing a regime for detecting drug-driving in relation to just three drugs: THC MDMA—that's Ecstasy—and methamphetamine by allowing for random oral fluid testing by police officers. There is no question let me repeat that drug-driving is a serious problem that requires action but we want to see an effective measure in response to that. We would support a change to legislation if it was required and if the technology exists and was reliable enough and proven to allow roadside testing in a timely efficient and reliable way. That technology does not currently exist.This bill attempts to solve a problem with measures that we believe are inadequate. The tests are slow. They are expensive at $45 a test. They identify only three types of drugs and this is the critical point: they only detect the presence of the drug; they have nothing to say about impairment. I want to come to the advice from the Attorney-General about that because that is the major flaw in Alastair Scott's bill where it falls short.I want to point out that the Hon Stuart Nash and the Hon Julie Anne Genter the police Minister and associate transport Minister with responsibility for safety are working on this issue. They have work under way. We are confident on this side of the House that they will come up with something that is comprehensive and effective unlike this bill.Alastair Scott reports in his comments that about a third of road deaths involve someone with drugs in their system often mixed with alcohol. But he doesn't elaborate on whether that person caused the incident or whether they were adversely affected by drugs at the time. This is a case of policy-based evidence-making. We prefer to do that in reverse and base our policy and our legislation on actual evidence. We do take drug harm very seriously in the Labour Party. We are committed to comprehensively responding to the Law Commission's report on controlling and regulating drugs a review of the Misuse of Drugs Act and we are committed to replacing the current Misuse of Drugs Act. Support for this bill is not some kind of litmus test for serious commitment to drug reform.So what are the problems with this bill? Well the first is that the oral tests that are currently being marketed that would be used to administer the test under Alastair Scott's bill are both expensive and unreliable. False positives are very likely to undermine the credibility of the regime and undermine the public confidence in the way that the police are required to—Hon Dr Nick Smith: Send it to select committee.Hon PHIL TWYFORD: —administer this regime. I've already said Dr Smith we believe this bill falls well short of the quality that would be expected if we were going to send it off to select committee and spend a significant amount of taxpayer public resources in giving scrutiny to this bill. It just doesn't get over the line.The other critical thing is that the roadside saliva-testing devices can take between three and five minutes to produce a result. I ask the members in the House tonight to imagine a random testing regime—the equivalent of a booze bus—on some busy highway stopping people and subjecting them with no prior reasonable cause to believe that they are impaired to a test that takes three to five minutes when members know that currently with alcohol testing it is a few seconds. The test literally takes a few seconds and people are on their way again. I ask Alastair Scott to consider how New Zealanders will feel when they are randomly stopped on the highway—they're going about their business and they are made to stop for five minutes or when there's no prior cause no reason to believe that they are impaired in any way and then they are stacked up on the side of the road—dozens and dozens of people—waiting for their results to come through. I don't think he's thought that through at all. Maybe the member when he makes his return contribution will tell us on an average day on a highway New Zealand how many people are likely to actually be under the influence of drugs on the highway.Alastair Scott: That's your reason not to do it?Hon PHIL TWYFORD: What I'm saying Mr Scott is that you might say there are large numbers of people who are involved in accidents who turn out to be drug impaired but the actual percentage of people who are on the highway who would be picked up by a random testing regime is actually likely to be very low. For all I know it could easily be 1 percent or 2 percent. So that member is happy to subject those people to an expensive time-consuming and unreliable random testing regime—it's completely impractical. I just don't think the member has thought this through.I want to draw the House's attention to the comments made by the Attorney-General in his New Zealand Bill of Rights Act advice. He points to clause 12 in the bill which introduces a power for an enforcement officer to require a driver to undergo a compulsory oral fluid test. The Attorney-General basically subjects Alastair Scott's bill to three tests. The first is consistency with section 21 of the Bill of Rights Act the right to be secure against unreasonable search [and] seizure" and in the view of the Attorney-General the bill's policy statement "does not address how effective the current drug driving detection regime is or whether random oral fluid testing will in fact introduce a more effective regime." Well that's worrying for a start.He goes on to say "there are inadequate procedural safeguards to ensure [that these] powers are exercised in a reasonable manner … Without statutory safeguards or any other guidelines the oral fluid test provided for by the bill does not appear fit for this evidential purpose." For those reasons the Attorney-General considers that "the requirement to undergo one or more compulsory random oral fluid tests … is inconsistent with s 21 of the Bill of Rights Act." which provides for the right to be secure against unreasonable search and seizure.He then goes on to look at the provision in the Bill of Rights Act which provides for the right to not be arbitrarily detained and again says that "an enforcement officer may use this power [under Alastair Scott's bill] without … any cause to suspect that a person has consumed a specified drug. Once detained I understand"—he says—"the test could take up to five minutes if undertaken at the roadside or significantly longer if the person is required to accompany the officer to another place to undergo the test." The Attorney-General concludes that the bill is disproportionate and "may lead to a warrantless arrest if [the] person fails to comply." So it fails on section 22 of the Bill of Rights Act.It also fails on section 25(c) of the Bill of Rights Act "the right to be presumed innocent until [proven] guilty". So without adequate procedural safeguards and any requirement for due cause the Attorney-General considers that "the process of conducting the oral fluid test constitutes both an unreasonable search and seizure and an arbitrary detention." So the Attorney-General's concerns based on the Bill of Rights Act perfectly mirror the practical concerns about this test. It's a random testing regime based on a technology that is unreliable expensive and time-consuming completely disproportionate to the possible gain to be achieved through the random testing regime.In our view this bill falls well short of the standard that we would expect for a bill that we would support to go to select committee. Thank you."