Police powers to seize fleeing drivers’ cars risked Bill of Rights breach - Attorney-General

The Attorney-General was concerned the Government’s intended expansion of police’s ability to seize vehicles following a fleeing driver incident breached the Bill of Rights.

Officials also stressed to ministers that proposals to strengthen fleeing driver penalties hadn’t gone through sufficient consultation and therefore could disproportionately affect Māori, who weren’t consulted - despite being over-represented in fleeing driver offender studies.

It follows the Land Transport (Road Safety) Amendment Bill, which contains the changes to current legislation, being debated under urgency in the House last week as the Government attempts to pass the bill before the House rises in August ahead of the election.

The bill’s Regulatory Impact Statement, published by Treasury today, was finalised for Cabinet ministers in October last year ahead of then-Police Minister Chris Hipkins and Justice Minister Kiri Allan announcing stronger penalties for fleeing drivers in December after an increase in incidents.

The bill went through its first reading in the House under urgency last week and the public now had the opportunity to submit on the bill until June 4.

Justice Minister Kiri Allan wants to see stronger penalties for fleeing drivers. Photo / Mark Mitchell

The proposed changes included increasing the period of licence disqualification from 12 months to between 12 months and 24 months after a second conviction for a failing to stop offence.

It also gave police the ability to seize and impound a vehicle for six months if its driver failed to stop, or if the registered owner failed to provide information about a fleeing driver and impounding the vehicle was necessary to prevent a threat to road safety.

Vehicle owners not providing information had added to police’s struggles in identifying fleeing drivers after incidents.

Officials suspected being able to seize and impound a vehicle if the owner wasn’t forthcoming would indicate the swift repercussions for those associated with fleeing drivers and demonstrate the need for owners to be more selective in who drove their vehicle.

However, officials referenced concerns from Attorney-General David Parker about the potential for the seizure power to breach the Bill of Rights Act 1990, like a similar proposal in 2016.

“The Attorney-General at the time found that impounding a vehicle in relation to failure or refusal to provide information would not be rationally or proportionately connected to the primary purpose of police vehicle impoundment, which is road safety,” officials said.

He proposed adding the necessity for police to have a reasonable belief impounding the vehicle would prevent an “imminent threat to road safety”, even if it made the power less practical.

“The intent was to more rationally connect the power to the purpose of road safety, which could help mitigate [Bill of Rights] concerns.

“However, it would also limit the possible practical application of the power.”

The Attorney-General had raised concerns some powers could breach the Bill of Rights. Photo / Hayden Woodward

Officials also noted their consultation process was constrained by “tight timeframes, driven by the desire from Ministers for a Cabinet report back by October 2022″, meaning Māori, sector stakeholders, and the public couldn’t be appropriately consulted.

A profile of fleeing drivers, built from studies from police and the Independent Police Conduct Authority, showed offenders were most commonly Māori, in their 20s and male.

“Therefore, imposing stronger penalties could disproportionately affect Māori and further contribute to the over-representation of Māori in the criminal justice system and prison population,” officials said.

“The removal of vehicles, whether it be through impoundment, confiscation or forfeiture will have a greater impact on people without access to other transport options, and lower socio-economic groups, who may need their vehicle to access key amenities, including employment, the supermarket, healthcare, and other services.”

Allan told the Herald she welcomed all submissions during the select committee process.

Last week, she said the law change was intended to target fleeing drivers who put innocent lives at risk.

“Those who recklessly attempt to evade the law need to be held to account and we’re ensuring there are increased and serious consequences for this behaviour,” Allan said.

“These new tools make it clear that drivers, vehicle owners or people obstructing police’s work will face serious consequences.”

Allan intended to have the bill pass through the House before September, a rushed timeline given the select committee stage typically lasted six months.

Announcements regarding police’s review into its pursuit policy, committed to in November after a “significant increase” in fleeing driver incidents, were understood to be made in the coming weeks.