Regulatory Systems (Transport) Amendment Bill

1. Do the proposed amendments create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalties)?

NO

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

NO

2. Do the proposed amendments create, amend, or remove any provisions relating to the collection storage, access to, correction of, use or disclosure of personal information?

YES

The proposed Amendment Paper relates to the handling of personal information, specifically driver licence photographs, which are personal information for the purposes of the Privacy Act 2020. The Bill as introduced, makes amendments to section 200 (clause 55) of the Land Transport Act (LTA) 1998 to enable third party access to driver licence photographs for the purpose of creating or maintaining electronic driver licences. The absence of a similar provision for physical driver licences and driver identification cards, highlights a legislative gap that needs addressing.

The Amendment Paper proposes amendments to section 200 of the LTA to expressly authorise access to driver licence photographs by contractors engaged by NZ Transport Agency Waka Kotahi (NZTA) for the purposes of developing and maintaining the driver licence register and producing physical driver licences and driver identification cards. These amendments recognise existing operational practice.

NZTA contracts a third party (Unisys) to develop and maintain the driver licence register, and another third party (Placard) to produce physical driver licences. Contracting out these functions is consistent with the Land Transport Management Act 2003, which requires NZTA to consider whether its functions are most efficiently and effectively performed by contracting with appropriate persons.

In addition, the Amendment paper proposes amendments to section 200 subclause 4(B) to remove reference to consent, while ensuring the scope of authorised access remains explicit and appropriately limited. Statutory (e.g. Privacy Act) and contractual privacy obligations will continue to apply.

The Bill, as introduced under section 200 subsection 4(B), requires individuals with electronic driver licences to provide consent for the Agency to let third parties use their photographic image for creating and maintaining the licence. On reflection, the Ministry and NZTA believe this is unnecessary and creates significant operational uncertainty, since providing a photograph is an inherent and mandatory precondition of holding a driver licence. A driver licence cannot be issued or maintained without a photograph, and individuals cannot meaningfully opt out of their photograph being used for licensing and register maintenance purposes while continuing to hold a licence. This reasoning applies irrespective of whether a driver licence is issued in physical or digital format.

Requiring consent does not fit with the current driver licensing system and would create significant operational complexity. For example, it would mean creating new systems to track consent and withdrawal, making major changes to licence forms and platforms, without providing additional privacy protection.

The Amendment Paper is tightly scoped.

-       Access to driver licence photographs is limited to uses that are consistent with the original purpose for which the photographs were collected.

-       The proposed amendments do not expand the categories of personal information collected, the persons about whom information is held, or the purposes for which that information may be used.

-       Access and use of driver licence photographs will continue to be subject to existing privacy, security, and information handling requirements, including the Privacy Act 2020.

NZTA’s contractual arrangements with service providers impose privacy and security obligations relating to the access, use, storage, and protection of personal information. Contractors are also required to comply with the New Zealand Government Protective Security Requirements and NZTA privacy policies and guidelines.

The Ministry has recommended that NZTA, as part of any refresh of driver licence application forms, review whether further clarity is needed to make explicit that third-party contractors may access information for the purposes outlined in section 200. This information will also need to be reflected in the design and infrastructure of the digital driver licence solution.

The proposed amendments align with the overarching policy intent of the Bill, agreed to by the Business Committee (as per standing order 267 for omnibus Bills), which is to improve the effectiveness, efficiency, and resilience of transport regulatory systems by addressing technical gaps and reducing the risk of regulatory failure.

The amendments are minor and technical in nature and do not alter the overall policy direction of the transport system but rather, recognise existing operational practices.

2.1. Was the Privacy Commissioner consulted about these provisions?

YES

The Office of the Privacy Commissioner (OPC) was consulted on the proposed amendments to section 200 of the LTA. The OPC advised that any legal changes allowing third parties to access driver licence photos should specify and restrict the exact purposes for which this information can be accessed and used. We have reflected this feedback in the drafting of the Amendment Paper.

OPC also recommended that the regulatory framework provide incentives on third parties to comply with the restrictions in section 200 of the LTA. For example, NZTA contracts and practices should support requirements for robust privacy practices, and for audit and monitoring of computer systems, staff training, and other risk factors to ensure good information governance in respect of driver licence photographs. We have passed these recommendations on to NZTA for its consideration.

3. Do the proposed amendments contain any provisions that could result in the compulsory acquisition of private property?

NO

4. Do the proposed amendments create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

5. Do the proposed amendments affect rights, freedoms, or impose obligations, retrospectively?

NO

6. Do the proposed amendments:

(a)   create or amend a strict or absolute liability offence?

NO

(b)   reverse or modify the usual burden of proof for any offence or civil pecuniary penalty proceeding?

NO

7. Do the proposed amendments create or amend a civil or criminal immunity for any person?

NO

8. Do the proposed amendments create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

NO

9. Do the proposed amendments create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

NO

10. Do the proposed amendments create or amend any other powers to make delegated legislation?

NO

11. Do the proposed amendments contain any provisions (other than those noted above) that are unusual or call for special comment?

NO