SUMMARY OFFENCES (PRESCRIBED MOTOR VEHICLES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 14 September 2010.)

Ms CHAPMAN (Bragg) (16:49): The opposition will be supporting this bill and I indicate that there are foreshadowed amendments in another place. I will come to those in a moment. This is a bill that was introduced on 14 September 2010 by the Attorney-General to make amendments to the Summary Offences Act of 1953, and in particular to create offences relating to monkey bikes.

I am sure members of parliament have a much better understanding than I do as to what a monkey bike is. I understand that it is a two-wheeled apparatus and, unlike a bicycle, has some sort of motorised component that makes it travel unaided by feet. The best I can describe it is as it has been described to me: a low-powered motorcycle. I understand that they have little wheels and that they are really built for children or small people. Probably the members for Mount Gambier and Hammond would not be rushing around on one; I think that would be a challenge for the monkey bike. In any event, I think members are aware of what we are talking about.

My further understanding from what the Attorney-General has informed me—and I am sure that it is reliable—is that largely in urban areas in metropolitan Adelaide, these bikes have caused problems in some of the streets and public parks, and the like, where people's general quiet and enjoyment of that public space has been interrupted by one or more monkey bikes speeding through their tranquillity.

As a result, this matter has come to the attention of the Attorney-General and I think other members of his government. How can we deal with this, bearing in mind that we do not have rules or registration procedures for people on gophers or, indeed, bicycles, which have some accessory to make them go faster—gear transfers and so on? So, what do we do with these vehicles that appear to have sort of slipped through the net? They can be highly disruptive and have demonstrably been so.

I also understand that these are vehicles that have been built and imported from overseas, and they are popular in some other places in the world. They are actually no longer able to be brought into Australia. I am not sure under which laws this restriction exists. Essentially, I think it is fair to say that, where we have a motorised vehicle, we have very strict rules as to where they might go in public places and who might drive them.

To protect and provide for those who might be injured as a result of the mishandling of those vehicles, we have a registration and insurance scheme to make provision for those circumstances. In fact, we have just been debating in this house the Motor Vehicles (Third Party Insurance) Amendment Bill to deal with the changes of rules that apply in respect of compensation for people who sustain injuries arising out of motor vehicle accidents.

We take this very seriously in Australia. We understand the significance and potential danger to life and limb for those who might misuse them. In addition to that, we have a very strict criminal law system which applies to circumstances where people might recklessly or wilfully act in a manner which could cause someone else harm, injury or death or, indeed, property damage. All of these things, I think, translate to our jurisdiction and our legislators before us taking a very dim view of poor conduct, or misconduct, when it involves a motor vehicle.

In recent years, we have also seen a plethora of criminal sanctions in respect of misbehaviour using a motor vehicle to the extent that that vehicle is able to be clamped, towed away, crushed, disposed of or sold as an extra form of punishment for the person who has misbehaved.

The opposition in principle supports the need to deal with the residual monkey bikes in existence and the government's decision to provide this by having a prescription process. So, we do not need to register these vehicles, but once they are prescribed, under the bill, they attract many of the obligations and consequences of their misuse, and, of course, appropriate penalties are there. That is the gist of that. We have had a public nuisance problem; it has been identified. We treat these issues quite seriously. At present, these vehicles are not caught in the system and this bill seeks to remedy it.

There are a couple of aspects, though, that we think need to be tidied up. Some will be remedied in foreshadowed amendments. In one instance, there is an attempt to do so, but we think they do not have it right and we foreshadow moving some amendments in another place. Firstly, I will deal with vehicles that are given conditional registration under section 25 of the Motor Vehicles Act. These are predominantly for use on private properties, such as agricultural motorcycles. They can be driven on public roads in accordance with the conditions specified in the regulations or as imposed by the registrar.

They might be conditional to the extent that they can only be used on public roads within a certain vicinity or at a certain time of day, for example. Concern was raised, and opposition members representing country districts see the direct consequence that that could have. I have been enlightened during my comprehensive contribution. Apparently, conditional registration is already incorporated in the provisions of the second amendment foreshadowed by the Attorney-General.

So, on that basis, I will not dwell on it further. It seems as though that has been listened to and already remedied. I think it was also foreshadowed as a potential problem by the Motor Traders Association. I will place on the record, though, my appreciation to the Mr Ivan Venning, the member for Schubert, who raised this matter and foreshadowed his own amendment regarding the needs of country people.

The second issue is the provision for forfeiture of a prescribed motor vehicle (which is under clause 5) if a person is convicted or found guilty of an offence under the proposed act, or expiates or admits the commission of the offence where action is taken under the Young Offenders Act 1993. We understood that the Hon. Ann Bressington had foreshadowed an amendment and, as a result, the government is proposing an amendment today. She raised it and, as I understand it, the government has picked up on the fact that the forfeiture of a prescribed motor vehicle should be restricted to where the owner is the person responsible for the offence.

Her concern was that the provisions of the bill, as it currently stands, allow for another person's prescribed motor vehicle to be forfeited, even if they did not consent to the use of the vehicle or were unaware of the offence taking place. She said that essentially they must have either been the owner or consented to or had reasonably known that the prescribed motor vehicle would be used in the commission of an offence, and for them to then be liable to have their vehicle forfeited.

This matter was considered by the opposition. We think that it is important to make the bill consistent with the forfeiture provision of the hoon act, which is the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act. Unfortunately, neither the Bressington proposal nor what has been picked up here, we think, actually reflects that, in that there is no discretion in the application of the forfeiture provisions or appeal. That is the matter which we will look at further amending.

We accept that the government may have acceded to the intent of what was proposed by the Hon. Ann Bressington and tried to address it, but we think that there are some aspects that need to be finetuned, and we look forward to the government's support on that. In the meantime, I have located what seems to be a draft of that. I am not sure that it was the one that was approved by our party room; but, if I find the one that is amended and approved, I will try to ensure that the Attorney-General has that fairly quickly and that, between houses, he can consider that as a means of resolving that issue.

The other matter was the prescription of motor vehicles. The prescribed motor vehicle under the bill is a motor vehicle that is not able to be registered under the Motor Vehicles Act 1959 and a class declared by the minister by notice in the Gazette. Under the bill, the minister could prescribe any motor vehicle, including one currently subject to exemptions, for example, farm bikes (that were not under the conditional registration that we talked about before) with dimpled tyres, golf buggies and mopeds. All vehicles not able to be registered could be declared to be prescribed motor vehicles.

We are consistent as an opposition in not being in favour of procedures which allow for change without scrutiny of parliament, and so gazettal change is something that we are not normally attracted to or supportive of, and there is no exception in this case. Really, for the public scrutiny, this is something that we seek to have. We understand that the Hon. Ann Bressington is of a similar view. The Motor Trade Association has that view, and, wisely, the Attorney-General has listened and I think that there is a foreshadowed amendment to cover that issue.

I think that covers all matters of concern that were raised by the opposition. I did think that one of our other members would like briefly to speak on the matter. The interest is overwhelming. I conclude my comments.

Mr PICCOLO (Light) (17:04): I rise to speak in support of this bill. It is one which, I think, can only assist with two issues. One of the issues has been mentioned by the member for Bragg, that is, the issue of noise. That is a major issue. One of the things I get constant feedback about from some parts of my electorate is the issue of monkey bikes, or pocket rockets as they are nicknamed. As I said, it is a constant feedback issue.

More importantly than just a noise issue, though, is the safety issue. Often these bikes are ridden not on the roadway but on the footpath. I receive a lot of complaints from residents who say that they have nearly been knocked over by the, generally, young people who ride these bikes on the footpaths, etc.

An honourable member interjecting:

Mr PICCOLO: Yes. Not only that, in one suburb in my electorate they use the parks to race these vehicles, which is a public way. Parks are designed for family events, for passive recreation, kicking a football, etc., not for these things which are zooming by. Hopefully, the way this bill is structured, it will make sure that parents exercise a bit more responsibility for their children, who may be using these things illegally. I will not go into the technical details of the bill, I am sure that will be dealt with elsewhere, but I will suggest that giving the police the discretion to act immediately is very important. It often requires a rapid response. The bill will only lead to, perhaps, quieter, safer communities, which is what we all want.

The Hon. R.B. SUCH (Fisher) (17:05): I have had, not experience riding them, but experience of constituents complaining about the behaviour of some people on what are called monkey bikes. I hesitate to use the term 'pocket rocket' because that was the name given to the former member for Chaffey whilst she was in this place. There are two issues here, and I think members have touched on one. There is the nuisance factor, noise and other aspects affecting amenity, but the greater concern for me is safety. I have seen the monkey bikes come through the areas adjacent to the shopping centre and if someone was hit by one of these it would cause quite serious injury.

I notice that this bill is focused particularly on those types of miniature motorcycles, but quite frequently I see people with the, I think, less than 50cc motor attached to their pushbike, and they can do 60 or 70 kilometres an hour on any of our roads. Whilst I am not advocating banning them, in my view they represent a danger, and not only to the people who ride them, because I do not believe there is much protection if you come off of one of those doing 60 kilometres an hour on a bitumen road. They do not have any identification on them, they are not required to. They do not have to be registered, and, presumably, they do not have any insurance. As I say, I am not advocating banning them, but I think it is time that the government had a look at whether or not they were somehow brought under a control.

I have also seen people near my office on motorised skateboards. Once again, I am not advocating banning them, if they use them properly and at a proper location. My concern with those would be that if people do get them and use them on a roadway then, I guess, that would be illegal. They are becoming more common and more popular. In looking at these issues of safety and nuisance, I think the government might want to look at the whole question of motorised skateboards, bicycles that are fitted with a 50cc, or less, engine, and whether there needs to be some sort of control or management arrangement regime that relates to the use of those particular types of vehicle.

I commend the government for this proposal. I think it is necessary and long overdue. We still have the problem of people riding unregistered and uninsured trail bikes on road verges. If you go anywhere through the Murray Mallee, on the old highway from Kanmantoo through to Murray Bridge and from Murray Bridge through to Loxton, you will see tracks there. Not only are they a risk because of the safety, they are also spreading weeds and riding over sandhills causing erosion and other problems for the farmers.

There is a big issue with inappropriate and often illegal use of motor vehicles including, as I say, trail bikes. They are good fun if you use them wisely and properly. Vehicles like quad bikes are a useful tool, but, if they are used inappropriately, and often illegally, that is just not acceptable. I conclude by commending the government for this measure and I am sure it will get speedy passage.

Mr MARSHALL (Norwood) (17:10): I also rise to speak on the Summary Offences (Prescribed Motor Vehicles) Amendment Bill. My comments will be brief. I will begin by commending the member for Bragg, a great fan of all things motorsport, for her comments. I note that we will, of course, be supporting this bill. I also support the comments of the member for Fisher, who said that this bill is long overdue and necessary. I suppose, in a way, that is the guts of what I would like to talk about; that is, it is long overdue.

In fact, the government has had a war on monkey bikes for some time. This war began back in early 2006 when the then minister for consumer affairs, who coined the phrase 'pocket rockets' in this house, declared that it was an offence. In fact, she made a dangerous goods declaration in respect of these bikes, which was gazetted. That effectively made it illegal to sell these bikes in South Australia, with a penalty up to $10,000.

We then fast-forward to a couple of years ago, 2009, when the then attorney-general continued his war on monkey bikes. In fact, he put out a press release which was called 'Monkey Bikes to be Crushed'. He was, of course, really against monkey bikes and gave a really impassioned—

An honourable member: Plea.

Mr MARSHALL: —plea to people that this was a really grievous situation in South Australia. He said that he was going to put a stop to it as quickly as possible. That was in 2009, and as we know, the government has rushed this legislation through, so here we are in 2011. That is exactly how important this issue actually is to this government.

It is an issue for monkey bikes but it is a much greater issue for this government in general. This government is one which loses focus and loses interest in an issue as soon as the press release is out of the way. So, in 2009, the then attorney-general said, 'We are going to rush legislation through the house to ban these monkey bikes, to make them illegal.' In fact, we are going to talk about crushing these monkey bikes. He uses that emotive term because they are such a problem here in South Australia, but, of course, the bill does not come back until 2011. This is, of course, not the only instance. There are many, many instances where this government has lost interest in a topic as soon as the press release has cooled off the photocopying machine.

A classic example of this, of course, is the significant tree legislation which passed both houses of parliament. It was, in fact, assented to by the Governor in 2009. We still have not seen those regulations introduced into this parliament. It is a very significant issue and, in the member for Bragg's electorate earlier this week, two people were taken to hospital as a result of a falling branch from a dangerous tree. So, people really are being put in a dangerous situation because of this government's lack of alacrity, or indeed interest, in putting legislation forward.

Today, we saw another classic example of that in the house when we talked about transition accommodation. Again, this is an issue which this government announced as a real issue for South Australia back in 2007. The funding was available in 2009 and here we are in 2011 and this government still has not been able to—

The Hon. J.R. RAU: I have been slow to rise on this because I have really been enjoying it but—

The DEPUTY SPEAKER: Riveted.

The Hon. J.R. RAU: —it does appear to be more in the nature of a grievance, which is fine. Everything in its place and a place for everything, but we have moved a fair way away now from the topic of monkey bikes.

The DEPUTY SPEAKER: We have.

Members interjecting:

The Hon. J.R. RAU: I don't know what we are into, but whatever we are into it is certainly not monkey bikes. So whilst I am picking up the thread of the honourable member's contribution, I think he is probably out of the zone a little.

Mr MARSHALL: I am happy to accept that, and I will wrap up by saying that we will be supporting this legislation.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development and Planning, Minister for Tourism, Minister for Food Marketing) (17:15): First of all, can I thank all the members who have contributed, including the member for Norwood. I was actually enjoying that—

The DEPUTY SPEAKER: So was I.

The Hon. J.R. RAU: —but it was taking us, I think—

The DEPUTY SPEAKER: No, the relevance of an argument may not always be perceptible.

The Hon. J.R. RAU: I thank also the member for Bragg who was very helpful in her comments, and, of course, the members for Light and Fisher. Can I say in particular to the member for Bragg, I am sympathetic with the member for Bragg often being placed in the position where she is in this chamber and has been, I guess—

Mr Pengilly: Picked on by Jennifer.

The Hon. J.R. RAU: No—is placed in the unenviable position of knowing that an amendment is coming but not quite knowing what it is. That is not her fault, but can I just say this—

Mr Pegler: That's Donald Rumsfeld, isn't it?

The Hon. J.R. RAU: Yes—the known knowns, the known unknowns and the unknown unknowns. She does have a difficulty that often she is only able to tell us in general terms what the amendments might be. That is certainly not her fault, but it does mean, unfortunately, that the debate in this chamber is not perhaps as useful as it might otherwise be. It also means that those people in another place, were they minded to have any interest in what happened down here, do not gain much information about it from reading the Hansard. I know that they do not often burden themselves with what we do here, perhaps, but if they were minded to do that, they might actually get a little more information if members opposite were kind enough to give the member for Bragg enough detail before the debate here to be able to help us, and that is not her fault, I know.

Mr Marshall interjecting:

The DEPUTY SPEAKER: The member for Norwood does raise a little point there, Attorney.

The Hon. J.R. RAU: Can I just say these couple of things in wrapping it up. First of all—

Mr Pengilly: The bill.

The Hon. J.R. RAU: The bill. These pieces of equipment are illegal to import and they are illegal to sell. We are dealing with a group of so-called monkey bikes which is a finite collection of monkey bikes. If one owns one of these things, the only legal thing a person can do with it is, for example, to ride it on their own property. So, as I mentioned before to the honourable member for Bragg, if she owned one of these and were minded to ride around Kangaroo Island, as long as she stayed within the confines of her own property—or indeed if the honourable member for Finniss had one and wished to ride around his property on one of these—nobody would care. It would be fine and it would be perfectly legal. It only becomes a problem if you actually leave private property.

So we have things that you cannot import into the country, you cannot sell to anybody and you cannot take off your property. That is what we are dealing with here. We are saying that those qualities about these bikes are materially different to, for example, an ordinary motorbike or an ordinary motor vehicle. I will explain a little bit later why that is significant.

The other point I wanted to briefly touch on was that the member for Norwood said, 'Here we are, many years down the track.' Can I just point out, to the extent that it is relevant that towards the end of March last year, this particular project landed in front of me and by September last year it was in the parliament. The fact that it has taken from September until now to get to this point is not something for which I can—

Mr Marshall: So you're not the slack one? It wasn't you. You're not the slack one.

The Hon. J.R. RAU: I am just saying, I don't know why but I can assure you I have been pushing this with some enthusiasm, but there you are. The other thing I want to mention is that there has been extensive consultation in relation to this bill and, as the member for Bragg mentioned, the Hon. Ann Bressington has had some views about this which we have tried to take into account. I met with Mr Chapman from the MTA last month. We had a discussion about matters and, in the end, the amendments we put forward are reflective of a position with which the MTA was comfortable.

I want to speak briefly about the amendments foreshadowed by both the government and the opposition so that we perhaps do not have to go into that in more detail later on. The first foreshadowed amendment by the government is to insert new subsection (6a) after section 55(6). This amendment would address a concern which was brought to our attention by both Ms Bressington and the MTA about innocent third parties being prejudiced by the seizure of one of these devices.

The amendment addresses the potentially inequitable result where an owner of a vehicle whose vehicle is driven or left to stand on a road as a result of an unlawful act—for example, being stolen by a person—could have that vehicle, nevertheless, seized and forfeited by the Crown by virtue of the fact that the driver would be committing an offence under section 55. It is not the government's intention that the owner should lose the vehicle due to the unlawful act of another person, and so this amendment is being moved to ensure that such a result would not occur.

I understand from what the member for Bragg has said and from the quick look I had at the foreshadowed amendment that the Hon. Mr Wade might be moving elsewhere, that there is a view that that does not go far enough and that what we should do is to replicate here the provisions in the hoon legislation which deal with forfeiture. I want to make, very quickly, a couple of points.

Bear in mind that when you are talking about a person's motor car, number one, it is legal to buy them, it is legal to drive them on the road and it is quite likely that you have an insurance company to whom you owe money in relation to that vehicle—all relevant interests to be taken into account when considering whether it can be crushed. Also, all very relevant in considering whether a court might want to sit down and consider your position. The point I am trying to make to members opposite is that that is fundamentally different from a vehicle that you cannot import, cannot buy and cannot drive anywhere on a public road.

The second point is that if you bring a court into the forfeiture provision, what you will be doing is introducing an element which is completely inconsistent with it being an expiable offence, because you cannot have the courts involved if you expect it to be an expiable offence. What you will do is make all of the offences then offences which must be dealt with in the court as well.

I am putting those matters on the record here. I am happy to talk to anybody between the houses if they are matters of concern, but I would urge people to reflect on that and consider the differences between these things and a motor vehicle, because they are fundamentally different in terms of their legality and, for example, whether you would be likely to have hire-purchase arrangements in respect of a monkey bike: I just cannot imagine that, but anyway. So, that is the first amendment.

The second amendment is in relation to what is meant by a 'prescribed motor vehicle'. Originally, the government was talking about having a ministerial direction which would give that classification. The MTA and others were concerned that that might be a bit too remote from the parliamentary process and that an irresponsible minister might decide to prohibit everything. As much as I think that is unlikely, I do understand the constitutional and legal proposition that that is advancing. Indeed, that was a matter that Mr Chapman from the MTA raised with me.

The other polar position is to say that we have to put in the act every single thing which is going to be prescribed. That would mean every time a new product came out which people do not want, the act would have to be amended. That is, again, a little bit unreasonable. So what we have done in our amendment to clause 5 is to say that a 'prescribed motor vehicle' means a motor vehicle of a class prescribed by regulation for the purposes of this section.

In other words, the parliament will still control what is or is not a prescribed vehicle, but it will be doing so through the regulation-making process which is a swifter, more efficient process, rather than requiring the parliament to go through this process of opening up the act and going through a formal amendment.

So, I would encourage members opposite, again, through the member for Bragg, to consider that that is a reasonable compromise between what, on the one hand, would be obviously a lot of discretion placed on a minister, although I do not think anything to be feared, but nonetheless I can understand the potential objection to that, and, on the other hand, locking this thing up in a legislative straitjacket which would require the parliament to sit to undo.

So, with those few words, which I think cover everything that I would be likely to say at any time unless I have left something out, I would like to close the debate on the second reading.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. J.R. RAU: Now that we are in committee, can I just say, I understand, and I think it is clear if we look at the wording of our second amendment, in the second to last line it says 'are not able to be registered or conditionally registered'. That being the case, I assume that the member for Schubert's amendment will not be necessary to be proceed with. So, in that case, at the moment, I believe the only amendments that are before the committee are the two that I have just foreshadowed, and I would ask if we could perhaps deal with everything up to the first of the foreshadowed additional amendments and see whether everyone is happy with that, then we can deal with that amendment.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. J.R. RAU: I move:

Page 3, after line 31 [clause 5, inserted section 55]—After section 55(6) insert:

(6a) Subsections (5) and (6) do not apply in relation to an offence against subsection (1) where, in consequence of some unlawful act, the motor vehicle was not in the possession or control of the owner of the vehicle at the time of the offence.

Page 4, lines 3 to 6 [clause 5, inserted section 55(8), definition of prescribed motor vehicle]—Delete the definition of 'prescribed motor vehicle' and substitute:

'prescribed motor vehicle'means a motor vehicle of a class prescribed by regulation for the purposes of this section, being a class of motor vehicles that are not able to be registered, or conditionally registered, under the Motor Vehicles Act 1959;

Ms CHAPMAN: I indicate that, for the reasons that I have outlined in the second reading contribution, we will be not objecting to the first, and consenting to the second, on the basis that we are foreshadowing some extra amendments to cover the difficulty that amendment No.1 attempts to override.

The CHAIR: So, you will not be proceeding with amendment No. 1 on schedule 1 which stands in Mr Venning's name?

Ms CHAPMAN: Sorry, I thought you were referring to your two amendments.

The Hon. J.R. RAU: I was.

Ms CHAPMAN: Madam Chair, the Attorney-General was just referring to his two amendments, having indicated to you that Mr Venning's amendment would not be progressing.

The CHAIR: Are you happy, member for Schubert?

Mr VENNING: Yes. I apologise for not being here during the actual debate on the bill. I had a fairly pressing matter to deal with. I assume that you are talking about the amendment on section 25? That has already been done. That is all I had to worry about.

Amendments carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development and Planning, Minister for Tourism, Minister for Food Marketing) (17:31): I move:

That this bill be now read a third time.

Bill read a third time and passed.

At 17:31 the house adjourned until Thursday 10 March 2011 at 10:30.