Taxi drivers, sex crimes and retrospective legislation

A few people have criticised the new section 29A of the Land Transport Act (which prevents people convicted on certain offences from holding passenger services licences) for being retrospective and saying it breaches the Bill of Rights: see Peter Dunne, NoRightTurn [1], [2] etc and, generally, DomPost: "New transport law will 'destroy my life', taxi driver says" and NZ Herald: "Driver sex-offence law may change". I agree its bad law but it not double jeopardy or retrospective legislation (at least not in the sense that the Bill of Right is concerned or, in my view, objectionable on this basis either). The new section s29A prevents people convicted of various serious offences from holding passenger services licences and cancels any such licences already granted:

s29A.Persons convicted of specified serious offences prohibited from holding or applying for passenger endorsement— (1) A person who has been convicted of a specified serious offence on, before, or after the commencement of this section may not hold or apply for a passenger endorsement on his or her driver licence. (2) A passenger endorsement is deemed to be expired and of no effect if held by a person who has been convicted of a specified serious offence on, before, or after the commencement of this section. (3) In subsection (1), specified serious offence means— (a) murder; or (b) a sexual crime under Part 7 of the Crimes Act 1961 punishable by 7 or more years' imprisonment (other than an act that is no longer an offence); and includes a crime under section 144A or section 144C of that Act; or (c) an offence against any of the following sections of the Crimes Act 1961: (i) section 173 (attempt to murder): (ii) section 174 (counselling or attempting to procure murder): (iii) section 175 (conspiracy to murder): (iv) section 176 (accessory after the fact to murder): (v) section 188 (wounding with intent): (vi) section 189(1) (causing grievous bodily harm by injury): (vii) section 191 (aggravated wounding or injury): (viii) section 198 (discharging firearm or doing dangerous act with intent): (ix) section 199 (acid throwing): (x) section 200(1) (causing grievous bodily harm by poison): (xi) section 201 (infecting with disease): (xii) section 208 (abduction of woman or girl): (xiii) section 209 (kidnapping): (xiv) section 210 (abduction of child under 16): (xv) section 234 (robbery): (xvi) section 235 (aggravated robbery): (xvii) section 236 (assault with intent to rob): (d) an offence committed outside New Zealand that, if committed in New Zealand, would constitute an offence specified in paragraphs (a) to (c).

Essentially the fuss has arisen because the “clean-slate” provision which operates as an exception to this provision only applies to the miscellaneous offences listed in s29A(3)(c) and not to murder or sexual crimes. Section 29B allows qualifying people to apply for reinstatement of their licence if: - their last conviction for a serious offence was over 10 years ago, and - during the last 10 years they have had no convictions punishable by imprisonment. If they qualify, the Director then considers whether it is “would not be contrary to the public interest” to reinstate the person’s licence, after considering: - the sentence they received - the general safety criteria in section 30C (anything which relating to the interests of public safety or which ensures the public is protected from serious or organised criminal activity, including particularly the person's criminal history, transport-related offences (including infringement offences), any history of serious behavioural problems, any complaints made in relation to their transport service operation, any history of persistent failure to pay fines for transport-related offences). If they are declined reinstatement, they have the right to appeal to the High Court. (As an aside, the legislation also automatically exempts people convicted of sexual offences which are no longer offences under our law: see section 29A(3)(b). Despite Duynhoven's concerns, it wont affect people convicted of now repealed homosexual offences.) As I mentioned, it has been argued that the legislation is “retrospective”. Section 26(2) of the Bill of Rights says:

s26. Retroactive penalties and double jeopardy— (1) No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred. (2) No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

A similar protection is found in sections 10 and 10A of the Crimes Act 1961. In my view it is clear that the new section does not breach section 26(2). The Court of Appeal in Daniels v Thompson [1998] 3 NZLR 22 has ruled section 26(2) "is referable only to penalties imposed as part of the criminal process" (page 34). In doing so, our Court of Appeal adopted the approach taken by the Supreme Court of Canada in R v Wigglesworth [1987] 2 SCR 541 in relation to the equivalent provision in their Charter. The courts have also made it clear that the double jeopardy protection does not apply to disciplinary or administrative processes following conviction, including the suspension of licences following convictions. See Harder v Director of Land Transport Safety (1998) 5 HRNZ 343 (taxi licence suspended after conviction of indecent assault) and Chapman v Institute of Chartered Accountants of New Zealand [2001] NZAR 456 (conviction for fraud no bar to professional disciplinary proceedings). Nor is it a retroactive offence or inappropriately retrospective provision. This part gets a bit tricky. The distinction between the terms “retroactive” and “retrospective” can be confusing. Often, the two are used interchangeably: see, for example, the speech of Lord Hope in Wilson v Secretary of State for Transport and Industry [2003] UKHL 40. However, others draw a distinction between the two. See, for example, Iacobucci J in Benner v Canada (Secretary of State) [1997] 1 SCR 358 at para 39 said:

The terms, “retroactivity” and “retrospectivity”, while frequently used in relation to statutory construction, can be confusing. E A Driedger, in “Statutes: Retroactive Retrospective Reflections” (1978) 56 Can Bar Rev 264 at pp 268-69, has offered these concise definitions which I find helpful: 'A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event.'

Lord Rodger in Wilson v Secretary of State for Transport and Industry [2003] UKHL 40 offered a similar but slightly different interpretation (para 188):

Retroactive provisions alter the existing rights and duties of those whom they affect. But not all provisions which alter existing rights and duties are retroactive. The statute book contains many statutes which are not retroactive but alter existing rights and duties – only prospectively, with effect from the date of commencement. Although such provisions are often referred to as “retrospective”, Viscount Simonds rightly cast doubt on that description in Attorney General v Vernazza [1960] AC 965 at 975.)

Further, the terms “apparent” or “secondary” retroactivity are also sometimes use, usually to describe cases where the law is changed on a prospective basis but when it may also undermine a person’s previous choices (Bowen v Georgetown University Hospital 488 US 204 (1988) at 219).

Consider the 4 different “retroactive” or “retrospective” laws, each with varying degrees of retrospectivity and unfairness:

1. Parliament passes a law raising the age of consent from 16-18 for the years 1980-1990. A taxi driver who had sex with a 17-year old in 1985 is prosecuted, convicted, and loses his licence.

2. Parliament passes the present law but deemed the licences quashed from the date of the original offence. A taxi driver whose licence is revoked is then prosecuted for driving without a licence in 1985 (even though at the time he had the licence).

3. The present law – which from today quashes licences previously granted.

4. Parliament passes the present law but only applies it to new licences. A prospective taxi driver who has for the last 12 months been training to be a taxi driver and recently purchased his vehicle on the basis of the previous law applies for a licence is turned down due a historic conviction.

The short point is the retrospectively is probably best seen as a continuum. In Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712, 724, Staughton LJ described the common law principle in the following terms.

[P]arliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.

See also Brosseau v Alberta (Securities Commission) [1989] 1 SCR 301, Maxwell v Murphy (1957) 96 CLR 261, and R v Poumako [2000] 2 NZLR 695 and, generally, the Legislative Advisory Guidelines, chapter 3, part 3. This brings the principle back to its theoretical underpinnings. The reason why retrospective laws are bad is that they undermine the ability of a person to plan their lives conscious of the (legal) consequences that flow from their choices – one of the key aspects of liberty, autonomy, or the "Rule of Law". Munzer says (“Retroactive Law” (1977) 6 Jnl Legal Studies 373 at 391):

[A] retroactive law will deprive a person of the opportunity to decide what to do with knowledge of the law that will be applied to him. This explains why retroactive laws are generally objectionable: We feel that a person is morally entitled to know in advance what legal character and consequences his acts have.

But, of course, this principle is aspirational and needs to be set against the countervailing public interest and the state’s need to govern. No-one can insist that laws remain static for ever. The public interest demands that the state be able to change laws, even though that may be at the expense of some people’s liberty. As the Tunnicliffe quote suggests, it really comes down to the degree of unfairness. The present situation is instructive. The objective of the legislation is public safety. The public safety objective demands that the new regime apply across the board – the objective will be undermined if it only applies to new applicants or there is another sort of transitional regime. Although a changed state of legal affairs applies with some retroactive effect or (arguably) retrospectively, its effect on someone’s ability to previous plan their affairs is not particularly grave: - It is unlikely to have had a huge effect on someone’s motivation for committing the original crime (after all, there is generally an awareness that some non-criminal restrictions may flow from convictions for offences). - It may have affected some people’s decision about whether to enter into the passenger service trade. The extent of unfairness they suffer depends on the extent of irreversible detriment they have suffered, eg lost opportunities for other careers, lost capital investment.

Some people’s ability to plan may have been undermined but not significantly. And the reason for doing so is for a pressing and substantial public interest objective.

That said, there’s still significant unfairness in the legislation even if it isn't double jeopardy or retrospective. That arises from the deeming of all offenders to be a risk to public safety without any consideration of their individual circumstances. This is more a violation of the administrative law or natural justice principle that someone should be able to have their circumstances considered according to their particular merits.

Presumptions and policies which apply to particular groups are usually permissible as long as an individual can argue why the presumption or policy should not apply to them. In the present case, a person convicted of murder or a sexual offence to argue for reinstatement. There may be sound reasons why they do not pose a rise to passengers but there is no ability for them to argue their case on this basis. They are deemed bad apples even if they are not truly bad. See generally Chris Hilson, "Judicial Review, Policies, and the Fettering of Discretion” [2002] Pub L 111 (although this principle usually gets most attention in relation to policies and guidelines developed by the administration, not rules in legislation itself). The problem can be fixed easily – but only through legislative amendment. The ability to apply to for reinstatement should be extended from the offences listed in s29A(3)(c) to all offences (ie, delete the reference to paragraph (c)). And appeal rights should be allowed as well – to ensure the evaluation of the people’s circumstances is properly undertaken.