MIKIPEDIA LAW BLOG: ROAD SAFETY AMENDMENT (HOON DRIVING) BILL

ROAD SAFETY AMENDMENT (HOON DRIVING) BILL

Statement of compatibility

Mr PALLAS (Minister for Roads and Ports) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act:

In accordance with section 28 of the Charter of Human Rights and Responsibilities, I make this statement of compatibility with respect to the Road Safety Amendment (Hoon Driving) Bill 2010.

In my opinion the Road Safety Amendment (Hoon Driving) Bill 2010, as introduced to the Legislative Assembly, is compatible with the human rights protected by the charter. I base my opinion on the reasons outlined in this statement.

Overview of the bill

The bill:

a) extends the vehicle impoundment, immobilisation and forfeiture scheme in part 6A of the Road Safety Act 1986 to the following offences:

i. driving with a blood or breath alcohol content of 0.10 or higher (for the second or subsequent time) contrary to sections 49(1)(b), (f) or (g) of the Road Safety Act 1986; and

ii.

driving with drugs present in blood or oral fluid (for the second or subsequent time) contrary to sections 49(1)(bb), (h) or (i) of the Road Safety Act 1986; and

iii. unlicensed driving (for the second or subsequent time) contrary to section 18(1) of the Road Safety Act 1986 (except in

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circumstances where the person merely failed to renew their driver licence or permit);

b) strengthens the way the motor vehicle impoundment, immobilisation and forfeiture scheme in part 6A of the Road Safety Act 1986 operates with respect to the following offences:

i. disqualified driving (for the second or subsequent time) contrary to section 30(1) of the Road Safety Act 1986; and

ii.

driving at 70 kilometres per hour or more over the applicable speed limit (or 170 kilometres per hour or more where the speed limit is 110 kilometres per hour) contrary to rule 20 of the road rules or section 65B of the Road Safety Act 1986; and

iii. dangerous driving under section 64(1) of the Road Safety Act 1986 in circumstances where a vehicle is driven at 70 kilometres per hour or more over the applicable speed limit (or 170 kilometres per hour or more if the speed limit is 110 kilometres per hour);

c) enables police under part 6A of the Road Safety Act 1986 to immediately immobilise or impound a motor vehicle for seven days upon detection of a tier 1 relevant offence or a tier 2 relevant offence;

d) provides that, under part 6A of the Road Safety Act 1986, on a finding of guilt for:

i. a second or subsequent 'tier 2 relevant offence'; or

ii. any 'tier 1 relevant offence'--

e) the court must, on the application of the police, order immobilisation or impoundment of the relevant motor vehicle for 28 days;

f) facilitates the use of steering wheel locks as a new method of motor vehicle immobilisation;

g) provides police with additional powers to search premises for the purposes of locating and accessing a motor vehicle that is to be impounded, immobilised or forfeited;

h) provides that when an impoundment or immobilisation order or a forfeiture order is sought with respect to a motor vehicle, the police may concurrently apply for a search warrant to facilitate access to the vehicle;

i) provides police with power to question adult persons as to the whereabouts of a motor vehicle to facilitate the impoundment, immobilisation or forfeiture of that vehicle;

j) facilitates the sale or disposal of forfeited motor vehicles and uncollected impounded motor vehicles by extinguishing third-party interests;

k) ensures that applications for --exceptional hardship-- to avoid orders for the immobilisation, impoundment or forfeiture of a motor vehicle are granted only in appropriate cases; and

l) amends the Melbourne City Link Act 1995 to provide the minister administering that act with power to revoke, in whole or in part, a road declaration made under that act.

Human rights issues

Section 12 -- Freedom of movement

Section 12 of the charter provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

Extension of vehicle impoundment, immobilisation and forfeiture scheme to certain drink-driving, drug-driving and unlicensed-driving offences

The bill provides that part 6A of the Road Safety Act 1986 will apply to three new categories of offences which were not previously subject to vehicle impoundment, immobilisation or forfeiture. These include:

a) driving with a blood or breath alcohol content of 0.10 or higher (for the second or subsequent time) contrary to sections 49(1)(b), (f) or (g) of the Road Safety Act 1986;

b) driving with drugs present in blood or oral fluid (for the second or subsequent time) contrary to sections 49(1)(bb), (h) or (i) of the Road Safety Act 1986; and

c) unlicensed driving (for the second or subsequent time) contrary to section 18(1) of the Road Safety Act 1986 (except in circumstances where the person merely failed to renew their driver licence or permit).

The imposition of impoundment, immobilisation or forfeiture sanctions with respect to a motor vehicle restricts the use of that vehicle for transport purposes and therefore engages the right to freedom of movement.

However, the right to freedom of movement is not limited because the affected person(s) are free to use other forms of transport such as walking, cycling and public transport. In addition, if an affected person continues to hold a driver licence or permit, then that person is free to drive an alternate vehicle.

It is noted that in many cases the imposition of an impoundment or immobilisation sanction will not directly affect the offender's ability to drive a vehicle because that person is already prohibited from driving a motor vehicle. The person may be unlicensed (and disqualified from applying for a licence) or may have had his or her licence or permit suspended. For example, in the case of repeat drink and drug-driving offences, the offender's licence or permit will be suspended or cancelled under part 5 or part 7 of the Road Safety Act 1986.

It is also noted that it is generally possible for persons substantially affected by the imposition of vehicle immobilisation, impoundment or forfeiture sanctions to make an application on the grounds of --exceptional hardship-- for

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either the release of the relevant vehicle or to prevent the immobilisation, impoundment or forfeiture of the vehicle from occurring. If a successful application is made, then the vehicle can continue to be used for transport purposes.

Revocation of road declarations

The insertion of a power in the Melbourne City Link Act 1995 to revoke a road declaration engages the right to freedom of movement because the revocation or partial revocation of a road declaration means that the affected land will cease to be a public highway and therefore public rights of access to the land will be altered. In the present case, the power to revoke a road declaration or part of a road declaration is restricted to areas of land that are surplus to the requirements of City Link.

The act of revoking road declarations that apply to surplus land will allow that land to be used for alternative purposes. The altering of rights of public access to certain parcels of surplus land does not limit the right to freedom of movement because the public will still be able to move freely within Victoria, including travel along City Link and adjacent roadways.

Section 13(a) -- Privacy

Section 13(a) of the charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

Extension of vehicle impoundment, immobilisation and forfeiture scheme to certain drink-driving, drug-driving and unlicensed-driving offences

The bill provides that certain drink-driving, drug-driving and unlicensed-driving offences are to become subject to the motor vehicle impoundment, immobilisation and forfeiture scheme in part 6A of the Road Safety Act 1986.

If a vehicle is to be impounded, immobilised or forfeited due to the commission of one of these offences, then the search and seizure powers set out in division 2 of part 6A (search and seizure without a warrant) and division 4 of part 6A (search and seizure with a warrant) will apply. The exercise of search and seizure powers engages the right to privacy.

However, the exercise of the abovementioned search and seizure powers are authorised by law and, for the reasons given below, are not exercised in an arbitrary manner. Therefore the right to privacy is not limited by this reform.

The exercise of the search and seizure powers are confined to those circumstances where there is a reasonable belief that a vehicle of interest is located at particular premises. Furthermore, a number of safeguards are in place to ensure that the search and seizure powers are exercised appropriately. Where a vehicle is seized under division 2 of part 6A (without a search warrant), a senior police officer must review the circumstances of the impoundment or immobilisation within 48 hours, to ensure that there were reasonable grounds for impounding or immobilising the vehicle. Also, appeal rights are available to persons whose interests are substantially affected by the impoundment or immobilisation and they may apply to the Magistrates Court for an order that the motor vehicle be released on the ground that the impoundment or immobilisation is causing, or will cause, exceptional hardship to the applicant or another person.

Where a search is conducted under a search warrant issued under division 4 of part 6A, an application for the search warrant must be made to the Magistrates Court and may only be made where the police believe on reasonable grounds that the motor vehicle of interest is or may be in or on specified premises within the next 72 hours. The person that executes the warrant must report back to the Magistrates Court as to the outcome of the execution of the warrant.

Expanded search powers

The bill provides police officers with additional powers to search premises without a search warrant. These include the ability:

a) to enter a motor vehicle for the purpose of affixing a steering wheel lock immobilisation device; and

b) solely for the immobilisation, impoundment or forfeiture of a vehicle under part 6A of the Road Safety Act 1986:

i. to enter on land and enter any part of a building where vehicles are stored (excluding parts of buildings or dwellings used for residential purposes);

ii. to open any unlocked doors or panels or open unlocked places and move (but not take away) anything that is not locked or sealed to get access to the vehicle; and

iii. to search the premises to locate a vehicle that is reasonably believed to have been used to commit a --tier 1 relevant offence-- or a --tier 2 relevant offence-- if the premises are:

the garage address of the vehicle; or

another premises where the vehicle is believed to be present.

The exercise of these search and entry powers engages the right to privacy. However, the exercise of these powers are authorised by law and will be exercised only in limited circumstances as described above. The powers are quite limited and carefully tailored to the purpose for which they are necessary, that is, gaining access to a vehicle in order to immobilise or impound it or to seize a vehicle that is to be forfeited to the Crown. For example, where the police exercise the abovementioned search and entry powers with respect to business premises, entry will only be permitted during business hours. Therefore the right to privacy is not limited by this reform.

Police power to question adult persons as to whereabouts of a vehicle

The police power to question adult persons as to the whereabouts of a vehicle may engage the right to privacy.

However, the exercise of that power will be authorised by law and will not be exercised in an arbitrary manner. The exercise of the power is constrained to the narrow purpose of locating a vehicle that is to be immobilised, impounded or forfeited. Furthermore, any information provided to the police cannot be used against the person providing the information in any civil or criminal proceedings (other than where it is alleged that the person has provided information to the police that is false or materially misleading). Since the questioning powers are authorised by law and, for the reasons given above, cannot

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be exercised arbitrarily, the right to privacy is not limited by this reform.

Section 15(2) -- Freedom of expression

Section 15(2) of the charter provides that every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether orally, in writing, in print, by way of art or in another medium chosen by him or her.

Police power to question adult persons as to whereabouts of a vehicle

Given that the right to freedom of expression includes a right to not be compelled to express information, the power of police to question adult persons as to the whereabouts of a vehicle engages the right to freedom of expression.

Section 15(3) of the charter provides that the right to freedom of expression may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons or for the protection of national security, public order, public health or public morality.

In this case, the purpose of the limitation of the right to freedom of expression is to assist police in locating vehicles that are to be immobilised, impounded or forfeited. This is necessary to impose sanctions on offenders to prevent and discourage unsafe driving behaviour that threatens public safety on Victoria's road network.

Therefore, the restriction of the right to freedom of expression is appropriately limited on 'public order' grounds in accordance with section 15(3) of the charter. The reasonableness of that restriction is further considered below.

(a) the nature of the right being limited

The right to be limited is the right to not be compelled to express information. Information is required to be provided if the person is an adult and if they have relevant knowledge as to the whereabouts of the relevant vehicle.

(b) the importance of the purpose of the limitation

The limitation is very important because it will assist police to locate vehicles for the purpose of vehicle impoundment, immobilisation and forfeiture when confronted with uncooperative persons who are concealing or are complicit in the concealment of the location of the relevant vehicle and are thereby thwarting the imposition of an important road safety sanction.

The limitation of the right to freedom of expression is confined to requiring the expression of information as to the whereabouts of a specified vehicle. This is therefore a very narrow limitation. Furthermore, the use of the information that is provided is tightly controlled. That information cannot be used in any civil or criminal proceedings against the person who provided the information (other than where it is alleged that the person has provided information to the police that is false or misleading in a material respect).

(d) the relationship between the limitation and its purpose

The limitation is directly linked to its purpose which is to protect public safety.

(e) any less restrictive means reasonably available to achieve its purpose

The proposed measure has become necessary because police have repeatedly been frustrated by offenders who deliberately conceal the location of relevant vehicles to prevent the imposition of immobilisation, impoundment and forfeiture sanctions. There are no less restrictive means of achieving the stated purpose.

Section 20 -- Property rights

Section 20 of the charter provides that a person must not be deprived of his or her property other than in accordance with law.

Extension of vehicle impoundment, immobilisation and forfeiture scheme to certain drink-driving, drug-driving and unlicensed-driving offences

The bill provides that certain drink-driving, drug-driving and unlicensed-driving offences will become subject to the vehicle impoundment, immobilisation and forfeiture scheme in part 6A of the Road Safety Act 1986, and therefore the search and seizure powers set out in divisions 2 and 4 of part 6A of the Road Safety Act 1986 will apply with respect to vehicles used in the commission of those offences (or a substitute vehicle). Furthermore, the restrictions on the sale, disposal, registration and transfer of registration of a vehicle set out in division 3 of part 6A will apply to the relevant vehicle.

Both the exercise of search and seizure powers and the sale, disposal and registration restrictions engage the right to property.

However, the right to property is not unlawfully or arbitrarily interfered with. The limitations placed on the sale, disposal, registration and transfer of registration of a vehicle are authorised by law and are only imposed in narrow circumstances where certain serious road safety offences are alleged to have been committed.

Expanded search powers

The bill provides police with additional powers to search premises without a search warrant. These include the ability:

a) to enter a motor vehicle for the purpose of affixing a steering wheel lock immobilisation device; and

b) solely for the immobilisation, impoundment or forfeiture of a vehicle under part 6A of the Road Safety Act 1986:

i. to enter on land and enter any part of a building where vehicles are stored (excluding parts of buildings or dwellings used for residential purposes);

ii. to open any unlocked doors or panels or open unlocked places and move (but not take away) anything that is not locked or sealed to get access to the vehicle;

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iii. to search the premises to locate a vehicle that is reasonably believed to have been used to commit a 'tier 1 relevant offence' or a 'tier 2 relevant offence' if the premises are:

the garage address of the vehicle; or

another premises where the vehicle is believed to be present.

The exercise of these search and entry powers engages the right to property. However, the exercise of those search and entry powers are authorised by law and will not be exercised in an arbitrary manner. For example, where the police exercise the abovementioned search and entry powers with respect to business premises, entry will only be permitted during business hours. Therefore the right to privacy is not limited by this reform.

Extinguishing security interests to facilitate the sale or disposal of a forfeited or uncollected impounded vehicle

The bill provides that security interests in forfeited vehicles and uncollected impounded vehicles will be extinguished to facilitate the sale or disposal of those vehicles. The extinguishment of a security interest engages the right to property. However, the right to property is not limited because the extinguishment of the security interests is authorised by law and only occurs in narrow circumstances where a vehicle has been forfeited to the Crown or where a vehicle has been impounded but not collected by the registered operator. Furthermore, although security interests will be extinguished, the persons holding those interests will, where the vehicle is fit for sale, still be eligible to have their interests paid out when the proceeds of sale are distributed according to the current priority order set out in section 84ZS of the Road Safety Act 1986.

Section 24(1) -- Fair hearing

Section 24(1) of the charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Seven-day impoundment or immobilisation of vehicles upon detection of an offence

The imposition of vehicle impoundment or immobilisation for seven days (rather than the current 48-hour period) by a police officer limits the right to a fair hearing since a form of punishment is being imposed for alleged criminal behaviour before any finding of guilt by an independent tribunal such as a court.

It is submitted however, that, for the reasons given below, the limitation is reasonable and demonstrably justified in a free and democratic society.

(a) the nature of the right being limited

The right to a fair hearing implicitly requires that no punishment for criminal behaviour be imposed unless charges are brought and they are determined by a competent, independent and impartial court or tribunal after a fair and public hearing. The imposition of a vehicle impoundment or immobilisation sanction for seven days under division 2 of part 6A of the act occurs prior to any finding of guilt by a court and therefore limits the right to a fair hearing.

(b) the importance of the purpose of the limitation

During the period from January 2003 to November 2004, hoon driving behaviour contributed to 41 serious collisions in which 28 people were killed. This revelation was a significant impetus for the creation of the Victorian vehicle impoundment scheme. It has been acknowledged since the commencement of the scheme that immediate sanctions for hoon driving offences play a critical role in discouraging unsafe driving behaviour.

The imposition of vehicle impoundment or immobilisation for seven days upon the detection of a 'tier 1 relevant offence' or a 'tier 2 relevant offence' by police allows for the immediate removal of an unsafe driver from the road and also provides a significant deterrent to that person and other drivers from engaging in unsafe driving behaviour.

The limitation of the right to a fair hearing is constrained by a number of safeguards to ensure that it is not imposed inappropriately. Firstly, section 84M of the act provides that any decision to impose a 7 day impoundment or immobilisation sanction must be reviewed by a senior police officer within 48 hours of the impoundment or immobilisation being imposed.

Secondly, appeal rights exist under section 84O of the act where a person substantially affected by the seven-day impoundment or immobilisation sanction can seek the release of the vehicle on exceptional hardship grounds. It is acknowledged that even if an urgent appeal application was submitted to the Magistrates Court immediately after the imposition of the impoundment or immobilisation, it would be unlikely that the court would hear and determine the appeal immediately. Therefore a successful appeal would most likely result in a shortening of the seven-day impoundment or immobilisation rather than complete avoidance of the sanction.

Thirdly, section 84R of the act provides that in the event that a person is found not guilty of the alleged offence (or any other 'tier 1 relevant offence' or 'tier 2 relevant offence' arising out of the same single set of circumstances) or where charges are not proceeded with, the Crown is liable to refund any designated costs paid by any person and the motor vehicle (if not already recovered by the registered operator or any other person entitled to the possession of it) must be immediately released without any designated costs payable by the person seeking recovery of the vehicle.

(d) the relationship between the limitation and its purpose

The limitation of the right to a fair hearing is directly linked with its primary purpose which is to protect the public from unsafe drivers.

(e) any less restrictive means reasonably available to achieve its purpose

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the effectiveness of the legislation in deterring unsafe driving practices.

Section 25(1) -- Right to be presumed innocent

Section 25(1) of the charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

Seven-day impoundment or immobilisation of vehicles upon detection of an offence

The imposition of vehicle impoundment or immobilisation for seven days (rather than the current 48-hour period) prior to any finding of guilt by a court engages and also limits the right to be presumed innocent since a sanction is being imposed by police officers for alleged criminal behaviour without any formal finding of guilt.

It is submitted however, that, for the reasons given below, the limitation is reasonable and demonstrably justified in a free and democratic society.

(a) the nature of the right being limited

The right to be presumed innocent implicitly requires that no punishment for alleged criminal behaviour be imposed until a person is proven guilty according to law.

The imposition of a vehicle impoundment or immobilisation sanction for seven days under division 2 of part 6A of the act occurs prior to any finding of guilt by a court and therefore limits the right to be presumed innocent.

(b) the importance of the purpose of the limitation

The imposition of vehicle impoundment or immobilisation for seven days upon the detection of either a 'tier 1 relevant offence' or a 'tier 2 relevant offence' by police allows for the immediate removal of an unsafe driver from the road and also provides a significant deterrent to that person and other drivers from engaging in unsafe driving behaviour.

The limitation of the right to be presumed innocent is constrained by a number of safeguards. Firstly, section 84M of the act provides that any decision to impose a seven-day impoundment or immobilisation must be reviewed by a senior police officer within 48 hours of the impoundment or immobilisation being imposed.

Secondly, appeal rights exist under section 84O of the act where a person substantially affected by the seven-day impoundment or immobilisation sanction can seek the release of the vehicle on exceptional hardship grounds. It is acknowledged that even if an urgent appeal application was submitted to the Magistrates Court immediately after the imposition of the impoundment or immobilisation sanction, it would be unlikely that the court would hear and determine the appeal straight away. Therefore a successful appeal would most likely result in a shortening of the seven-day impoundment or immobilisation rather than complete avoidance of the sanction.

(d) the relationship between the limitation and its purpose

The limitation of the right to be presumed innocent is directly linked with its primary purpose which is to protect the public from unsafe drivers.

(e) any less restrictive means reasonably available to achieve its purpose

It would be possible to factor in some delay period before the impoundment or immobilisation could take effect to ensure that the right to appeal under section 84O could be exercised prior to the sanction taking effect. However this would reduce the effectiveness of the legislation in deterring unsafe driving practices. It is important that persons that disregard public safety by committing serious traffic offences are removed from the roads as quickly as possible.

Section 25(2)(k) -- Right to not be compelled to incriminate oneself

Section 25(2)(k) of the charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against oneself or to confess guilt.

Police power to question adult persons as to whereabouts of a vehicle

The bill provides police with power to question adult persons as to the whereabouts of a vehicle. This coercive power engages the right to not be compelled to testify against himself or herself or to confess guilt.

However because the bill also provides an immunity whereby any evidence provided by the questioned individual cannot be used in any civil or criminal proceedings against that person (other than in proceedings where the person is being charged with providing false or materially misleading information) it is submitted that the right to not be compelled to incriminate oneself is not limited.

Conclusion

I consider that the bill is compatible with the Charter of Human Rights and Responsibilities.

Provisions of the bill engage with, but do not limit, rights conferred by sections 12, 13(a), 20 and 25(2)(k) of the charter. The provisions of the bill that limit human rights under sections 15(2), 24(1) and 25(1) of the charter are reasonable and proportionate.

Tim Pallas, MP

Minister for Roads and Ports

Second reading

Mr PALLAS (Minister for Roads and Ports) -- I move:

That this bill be now read a second time.

This bill makes a number of amendments to further enhance the vehicle impoundment scheme set out in

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part 6A of the Road Safety Act 1986 that commenced operation on 1 July 2006. That scheme was introduced by the government to deal with the menace of 'hoon' driving.

The scheme provides for the imposition of vehicle impoundment, immobilisation or forfeiture sanctions. Those sanctions may be imposed for a number of serious road safety offences which currently include:

dangerous driving;

careless driving;

speeding offences where a vehicle is driven at more than 45 kilometres per hour or more over the applicable speed limit (or 145 kilometres per hour or more if the speed limit is 110 kilometres per hour);

deliberately losing traction;

street racing offences;

deliberately or recklessly entering a level crossing when a train is approaching;

refusing to stop when directed by police;

making unnecessary noise or smoke;

not having proper control of a vehicle; and

driving while disqualified (for a second or subsequent time).

The scheme relies on graduated sanctions to punish and deter hoon drivers. A first offence may result in the impoundment or immobilisation of a vehicle for 48 hours. A second offence may, in addition to an initial 48-hour impoundment or immobilisation sanction, result in a further court imposed impoundment or immobilisation sanction of up to three months in total. A third offence can, in addition to an initial 48-hour sanction, result in the court ordering the forfeiture of the vehicle.

Since the scheme commenced operation, over 11 400 motor vehicles have been impounded and 17 vehicles have been forfeited to the Crown. The imposition of vehicle impoundment, immobilisation and forfeiture sanctions for hoon driving offences has proven to be effective in discouraging dangerous driving behaviour.

Up to 15 April 2010, 94 per cent of detections of hoon driving offences were in relation to first-time offenders, 5 per cent of detections related to second-time offenders and 1 per cent of detections related to third-time offenders.

The Road Safety Amendment (Hoon Driving) Bill 2010 will further enhance the vehicle impoundment scheme and extend the road safety benefits that it provides to all Victorians.

One of the key reforms contained in the bill is the extension of the vehicle impoundment scheme to drink and drug driving offences.

Drink driving and drug driving continue to be a significant threat to safety on our roads. Drink driving contributes to around 20 per cent to 30 per cent of driver deaths on Victoria's roads each year.

Drug driving, where one or more illicit drugs are present, is found in approximately 40 per cent of driver deaths each year.

The government's Arrive Alive 2008-2017 road safety strategy contained a commitment to examine tougher sanctions for recidivist drink drivers, including extension of the vehicle impoundment scheme to those offenders.

The first action plan 2008-10 of Arrive Alive included a commitment to review penalties for drink and drug-driving offenders to appropriately reflect the risk to the community and ensure that penalties are aimed at, and are recognised by the community as, achieving improved road safety.

That review has determined that penalties for drink and drug driving are currently inadequate and that the vehicle impoundment scheme should be extended to recidivist drink-driving and drug-driving offenders.

The bill therefore provides that vehicle impoundment sanctions will be available in those cases were a driver is detected with a blood or breath alcohol concentration of 0.10 or higher for a second or subsequent time or where a driver is detected with drugs present in his or her system for a second or subsequent time. The offence of driving unlicensed for a second or subsequent time will also become subject to the vehicle impoundment scheme.

The operation of the vehicle impoundment scheme with respect to these new offences will be altered slightly from the usual graduated approach described in my earlier remarks. A first offence will not result in any vehicle impoundment sanctions because they are already subject to heavy financial and licence loss penalties, and the focus of these impoundment reforms is on recidivist offenders.

However, as with other offences already covered by the vehicle impoundment scheme, a second offence may, in addition to short-term immediate roadside impoundment or immobilisation, result in up to three months vehicle impoundment or

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immobilisation. A third offence may lead to forfeiture of the vehicle to the Crown.

Speeding is another menace on our roads that needs to be tackled with firm action. Speeding and inappropriate travel speeds directly contribute to at least 30 per cent of deaths on Victoria's roads each year. More can be done to further discourage this high-risk behaviour.

The first action plan 2008-10 of Arrive Alive included a commitment to review penalties for speeding to ensure that they more accurately reflect the risk to the community and ensure that the sole objective of these penalties is aimed at, and is recognised by the community as, achieving improved road safety.

That review has determined that tougher sanctions are required for extreme speeding offences.

The bill therefore provides that where a driver is detected driving at 70 kilometres per hour or more over the applicable speed limit or at a speed of 170 kilometres per hour in a 110-kilometres-per-hour speed zone, that driver will face vehicle impoundment or immobilisation sanctions for up to three months for a first offence. Such a sanction is normally reserved for a second offence under the vehicle impoundment scheme. Also, for a second extreme speeding offence, the court will be empowered to order the forfeiture of the vehicle. That sanction is normally reserved for a third offence under the vehicle impoundment scheme.

Driving while disqualified or suspended remains prevalent and a serious threat to road safety. Studies in Victoria have found that disqualified or suspended drivers are overrepresented in high-severity crashes causing injury.

For the years 2005-06 to 2007-08, the average number of persons sentenced in the Magistrates Court for driving while disqualified was 2685 and an average of nearly 5000 persons were sentenced for driving while their drivers licence was suspended. The Sentencing Advisory Council's April 2009 report on driving while disqualified or suspended noted that these offences were the most commonly proved in the Magistrates Court after theft.

Accordingly, the bill will toughen the vehicle impoundment and forfeiture sanctions for disqualified driving offences. It provides that a second offence may result in up to three months vehicle impoundment or immobilisation and a third offence may result in forfeiture of the vehicle. This differs from the current scheme which treats unlicensed driving in a more lenient fashion than other vehicle impoundment offences. The current scheme requires a third offence before three months vehicle impoundment or immobilisation can be imposed and requires a fourth offence before forfeiture sanctions are imposed.

As discussed earlier, the current graduated impoundment scheme sanctions start with the imposition of impoundment or immobilisation of the vehicle by the police for a period of 48 hours. The bill provides that this initial impoundment or immobilisation period will be increased across the board to seven days. This change will apply to all offences to which the vehicle impoundment scheme applies. Increasing the initial impoundment or immobilisation sanction to seven days is expected to further deter dangerous driving behaviour as the immediate negative consequences of that behaviour mount up. In addition, offenders are less likely to able to conceal the sanction (and need to make alternative transport arrangements) from their families and friends who have the potential to intervene and so reduce further offending.

In addition, the bill provides that in all cases where a person appears before the court for an offence for which a three-month impoundment or immobilisation sanction may be imposed, the court will be required, upon a finding of guilt and upon the application of the police, to impose a vehicle impoundment or immobilisation sanction for at least 28 days. This will ensure that strong sanctions are imposed sending a strong message to road users that hoon driving behaviour has serious consequences.

The bill streamlines court processes by allowing the police to apply for a search warrant to facilitate access to the vehicle at the same time that the court imposes an impoundment, immobilisation or forfeiture sanction.

The bill also provides the police with limited powers to search premises without a search warrant for the purposes of locating and accessing a vehicle for the purposes of impoundment, immobilisation or forfeiture of the vehicle.

In recent years, the police have encountered attempts by persons to conceal the location of vehicles to prevent them from being impounded, immobilised or forfeited to the Crown. Such behaviour threatens to frustrate the operation of the scheme and also threatens the important road safety outcomes that the scheme provides. The bill therefore provides police with limited powers to question adult persons as to the whereabouts of a vehicle for the specific purpose of locating a vehicle of interest so that it can be impounded, immobilised or forfeited to the Crown.

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The information provided by questioned persons will be kept in the strictest confidence and protections will be enshrined in the legislation to ensure that the information provided during police questioning cannot be used to the detriment of the questioned person in any civil or criminal proceedings (except where the person has provided false or materially misleading information). This reform will allow the police to do their work more effectively and help to prevent persons from thwarting the law by actively concealing the location of vehicles or refusing to cooperate with the police.

The bill also provides for a new form of vehicle immobilisation that involves the use of a specially designed steering wheel lock that is placed over the steering wheel of the vehicle. The act already provides for vehicle immobilisation with wheel clamps but vehicles immobilised with wheel clamps are difficult to move with a tow truck.

The new steering wheel lock immobilisation method will provide greater flexibility as it has the benefit of allowing an immobilised vehicle to be towed to an alternative location. This may be necessary if, for example, the immobilised vehicle is creating a hazard to road users.

In order to facilitate the use of steering wheel locks for the purpose of immobilising vehicles, the bill provides police with power to enter a vehicle to install the immobilisation device. It also provides that at the end of the immobilisation period, the steering wheel lock must be returned to a designated police station. Steering wheel lock immobilisation is already widely practised in Tasmania and is reported to be working very well.

The bill also contains a number of measures aimed at speeding up the process of selling or disposing of forfeited cars or vehicles that have been impounded but remain uncollected by the owner for an extended period of time.

The act currently provides a clear process for the sale or disposal of these vehicles but delays often arise where a security interest is held over the vehicle. The practice has been to seek the consent of each security interest holder prior to the sale or disposal of the vehicle and this often results in significant delays to the sale process. Where a vehicle has been impounded, storage costs tend to build up over time, and this diminishes the amount of funds that are available to be paid to security interest holders if a vehicle is eventually sold.

In those cases where a vehicle is fit for sale, the act sets out a clear priority system for the distribution of the proceeds of that sale. Government costs associated with the sale, immobilisation and impoundment of a vehicle are paid first. Next, persons that have a security interest in the vehicle are paid. If any proceeds of sale remain, then, in the case of an uncollected impounded vehicle, the proceeds of sale are paid to the owner of the vehicle.

In the case of a forfeited vehicle, the remaining proceeds of sale are paid into the consolidated fund.

In order to facilitate the efficient sale or disposal of vehicles, the bill provides that security interests in vehicles that are to be sold or disposed of will be extinguished. This extinguishment is not absolute, because if the vehicle is sold, the former security interest holders will still be entitled to payments from the distribution of funds according the usual priority system that I have just described. That is, once government costs are paid, they will be next in line. The speedy sale of vehicles will enable Victoria Police to clear vehicles from impoundment areas more quickly. It will also benefit security interest holders, because speedy sale will mean that the cost of vehicle immobilisation and impoundment will be minimised as far as possible. More funds will therefore remain for payment to those persons.

As stated earlier, surplus funds from the sale of forfeited vehicles are paid into the consolidated fund once all government costs are paid and all payments to security interest holders have been made. It is the government's intention that in the future, any surplus funds that make their way into the consolidated fund will be used to assist victims of crime in accordance with the provisions of the Victims of Crime Assistance Act 1996. This assistance plan will be delivered through an administrative arrangement where appropriations for the purpose of assisting victims of crime will be increased by an amount equal to the value of the surplus funds generated. No specific legislative amendments are required for this arrangement to be implemented.

The bill limits the circumstances where an impoundment or forfeiture sanction can be avoided by an offender on 'exceptional hardship' grounds.

The bill provides that applications by offenders to retain their vehicles or for the early release of their vehicles on 'exceptional hardship' grounds will not be considered in those cases where the offender has already been disqualified from driving or has had his or her driver licence or permit suspended due to the severity of the offences that were committed. Also, the bill clarifies the circumstances in which arguments relating to travelling for employment purposes can satisfy the 'exceptional hardship' test.

The bill also amends the Melbourne City Link Act 1995 to provide the responsible minister with power to revoke a road declaration made under that act, in whole

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or in part, in relation to land that is not required for City Link. This will enable surplus land that is not required for City Link to be used for non-road purposes.

The measures in this bill will contribute to the effective and efficient operation of the vehicle impoundment scheme. The passage of this legislation will play an important role in the deterrence of unsafe driving behaviour and will help to make Victorian roads safer for everyone.

I commend the bill to the house.

Debate adjourned on the motion of Mr MULDER (Polwarth).

Mr PALLAS (Minister for Roads and Ports) -- I move:

That the debate be adjourned until 15 September.

Mr McINTOSH (Kew) -- On the question of time I want to make it perfectly clear that to facilitate the government business program -- as I said before in relation to the lost sitting day for the condolence motion for the late Jim Kennan -- the opposition is prepared to shorten the normal adjournment time, which is of course two weeks. However, I emphasise that this should not be taken as a precedent. These are exceptional circumstances in which we are prepared to facilitate the government business program. The fact that the bill is dealing with the scourge of hoon driving also perhaps allows us to -- I should not say enthusiastically, as that will be up to the party room -- willingly look at expediting this bill a little.

Motion agreed to and debate adjourned until Wednesday, 15 September.

Last Updated on Wednesday, 12 May 2010

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Thursday, June 30, 2011

ROAD SAFETY AMENDMENT (HOON DRIVING) BILL

ROAD SAFETY AMENDMENT (HOON DRIVING) BILL

Statement of compatibility

Second reading

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