Attorney-General David Parker says a proposed law introducing random roadside drug testing appears to breach New Zealand's Bill of Rights in several places - similar to past attempts to implement roadside drug testing.
The Land Transport (Drug Driving) Amendment Bill was introduced on July 30 and had its first reading on August 4, and has now advanced to select committee.
The aim of the bill is to introduce a regime where police can test motorists at the roadside for drugs - such as cannabis, methamphetamine, benzodiazepines, MDMA, opiates and cocaine - in response to statistics showing that drugged drivers are a major contributor to New Zealand's road toll.
Associate Transport Minister Julie Anne Genter, the MP in charge, said 103 people died last year where the driver was later found to have drugs in their system.
Genter had previously spoken out against similar Bills introduced to Parliament, saying they were likely to violate people's rights.
Now, a report by Attorney-General David Parker into her new Bill suggested that the same issues may be present.
"I have concluded that the provisions of the Bill are inconsistent with the rights to be secure against unreasonable search and seizure, the right not to be arbitrarily detained, and the right to be presumed innocent until proved guilty," Parker wrote.
"I note that my analysis of the Bill is similar to previous 2018 advice in relation to the Land Transport (Random Oral Fluid Testing) Amendment Bill, a member's Bill, which was also found to be inconsistent with the same rights in the Bill of Rights Act.
"It intrudes into a person's privacy beyond the intended aim of the Bill, which is to prevent drug-impaired drivers, by detecting and holding a person liable for any level of a qualifying drug (beyond any threshold set on a device); and there is the taking of swabs from a driver's mouth."
The current suggested regime would have police only testing for a positive or negative result for drugs, rather than measuring for a certain concentration, and there are currently no grounds for judging how impaired a driver is by those concentrations.
"The Bill uses 'recent use' as a proxy for impairment – essentially deeming someone who has recently used qualifying drugs to be impaired," Parker wrote.
"Any drug use, impairing or not, will be punished."
Parker's report suggested two changes to the Bill in order to "focus on preventing impaired drivers from driving rather than general deterrence", which he said would likely bring the new law in line with the Bill of Rights.
Those were introducing set levels based on impairment, where it would not be classed as an offence if a driver was under that level, and ensuring police's testing devices would only provide a positive result if the driver was above those thresholds.
Speaking to 1 NEWS, Genter said such considerations will be taking place at the select committee after the election.
"I acknowledge the issues raised by the Attorney General and I've had a number of conversations with him about how we can address them," she said.
"It's important we get this right - Ministers agreed that these concerns could be addressed during the select committee stage, informed by advice from our independent expert panel."
That expert panel, which includes ESR forensic toxicologist Dr Helen Poulsen as chair, has faced delays due to Covid-19 in formulating the thresholds for impairment.
"Eventually, for this Bill to become law, it needs to be voted on by Parliament," Genter said.
"I anticipate they will only do so when we have carefully balanced these rights with peoples' right to be safe on the road and protected from people who choose to drive while impaired."
It's not the first time such a Bill has been attempted - the Land Transport (Random Oral Fluid Testing) Amendment Bill was introduced by National's Alastair Scott, MP for Wairarapa, in 2018, but was voted down in the house and failed at first reading.
At the latest Bill's first reading, political parties blamed each other for not introducing a testing regime sooner - but universally supported the latest iteration.
NICK SMITH: 'IT IS A MESS'
Nelson MP and National's drug reform spokesperson Nick Smith, who has pushed for roadside drug testing, pointed out that "if recreational cannabis is legalised, it is even more important that we have an effective system for deterring drugged driving.
"This Attorney-General's report on the drug driving bill confirms it is a mess," Smith said.
"The chair of the Government’s expert panel advised the Government in July it was not ready for introduction.
"It is also poor process that key elements of the bill like the specific thresholds of drug levels for offences have not been specified.
"The drink driving regime totally depends on the much debated-breath and blood alcohol limits.
"It was rushed into Parliament for political reasons and they had not properly done their homework."
Smith said he and the National Party did not accept that asking a driver for saliva during a traffic stop was an excessive infringement on their rights.
"National faced the same argument in the 1990s over the introduction of random breath alcohol testing which was also said to breach the Bill of Rights.
"The random roadside alcohol testing halved the fatalities from drunk driving within three years and we believe drug testing has the same potential."
On introducing thresholds for prosecution or detection into the Bill, Smith said he'd be happy for the government take a more cautious approach to the limits.
"I have heard lots of arguments from drug users that they are fine to drive despite having used drugs - we heard the same arguments over alcohol," Smith said.
"While it is true that the level of impairment can vary between different people, impairment is too difficult to measure - the alcohol limits for breath and blood levels take a precautionary approach and we should do the same with drugs."
"I do not accept these issues are so difficult that we cannot introduce random roadside drug testing.
"Australia and the UK have done so - we would take a similar approach."
AUSTRALIAN AND UK APPROACH
Roadside drug testing was first introduced in Australia in 2004 in Victoria, but the devices used by police to take samples have been criticised for their accuracy.
The Victorian approach is zero tolerance - if any kind of illicit drug can be detected at all in a driver's saliva, regardless of concentration, it's an offence.
In the UK, roadside drug testing was introduced in 2015, and includes eight illicit drugs and also eight legally prescribed drugs which can be tested for.
However, the UK system has set levels of the legal substances which must be tested for, while even "trace" amounts of illicit drugs being detected constitute a criminal offence.
The Land Transport (Drug Driving) Amendment Bill is currently open for public consultation.