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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-07-15 Daily Xml
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CRIMINAL LAW (CLAMPING, IMPOUNDING AND FORFEITURE OF VEHICLES) (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (16:48): Obtained leave and introduced a bill for an act to amend the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007. Read a first time.

Second Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (16:48): I move:

That this bill be now read a second time.

The bill proposes changes to the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007. The measures in this bill represent an initial and immediate response by the government to the increasing prominence of hoon and dangerous driving by certain sections of the public. On 7 July 2009, the number of road fatalities since July 2008 was 124, 15 more than at the same time last year. South Australia Police, the government and the public of South Australia are worried and will not continue to tolerate this criminal conduct on South Australia's roads.

This bill will try to address these concerns by strengthening the current laws about clamping, impounding and court-ordered forfeiture of vehicles by increasing the period for which vehicles can be impounded or wheel clamped by police from seven days to 28 days, by providing for court-ordered forfeiture in more cases and by allowing for the destruction (by crushing) of forfeited and uncollected impounded vehicles.

I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Currently under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007, police are able to impound or clamp a vehicle before proceedings are finalised when a person is reported, charged or arrested with a prescribed offence for a period of seven days. Police may clamp or impound a vehicle used in the alleged commission of the offence (that is, whether belonging to the driver or not); or any other vehicle of which the alleged offender is the registered owner. Fees associated with police clamping or impounding are incurred by the alleged offender but are not liable to be paid unless and until found guilty of the prescribed offence. Apart from the current method for credit providers to seek relief, there is no appeal mechanism for alleged offenders or owners of vehicles who are not responsible for the offending, to seek release of a police impounded or clamped vehicle. If found guilty of the prescribed offence, the offender is liable to pay the fees associated with police impounding or clamping and receive a penalty at sentencing for the prescribed offence, which may involve a fine, imprisonment and or licence disqualification.

If an offender has previously been convicted or expiated for one or more prescribed offences in the last 10 years, the prosecution apply to the court for a further period of impounding or alternatively forfeiture of the vehicle as the case may be, depending on the number of previous convictions for prescribed offences. If a vehicle is forfeited, the vehicle must be sold by public auction or tender and once costs associated with sale and any other fees are deducted, the proceeds must be paid into the Victims of Crime Fund established under the Victims of Crime Act 2001. Alternatively, in the case of the sale of uncollected impounded vehicles, the proceeds are treated as unclaimed moneys, the owner of which cannot be found. If sale is not achieved, or the vehicle is not worth selling, the vehicle may be disposed of.

I will now explain how the Bill will change the current law.

Amendments to increase the period of police impounding and clamping to 28 days

The first measure is to increase the period for clamping or impounding of a motor vehicle from 7 to a period of 28 days. This increase applies to police clamping or impounding prior to finalisation of proceedings. There will be no mechanism for the offender to seek release of the vehicle until the period of clamping or impounding has been served. As is currently the case, any costs associated with police clamping or impounding during the 28 day period will be liable to be paid if the alleged offender is found guilty. If, however, the alleged offender is acquitted of the prescribed offence or the charge is withdrawn, the Commissioner of Police will bear the costs associated with impounding or clamping, as is currently the case.

When police impound or clamp a motor vehicle, there are certain notification requirements on police about alerting registered owners. A new notification requirement is introduced in this Bill. The Commissioner of Police must ensure that reasonable attempts are made to advise current registered owners of a clamped or impounded motor vehicle that an application may be made to the Commissioner for a determination to bring the clamping or impounding period to an end. Where an application is made by a registered owner seeking the Commissioner's determination, the Commissioner must determine the application as soon as is reasonably practicable. If however the Commissioner has not determined an within eight days after it is received, the Commissioner is to be taken to have refused the application. The measure to apply to the Commissioner can be described as a hardship mechanism, designed to provide a pathway to seek relief for a small minority of registered owners who, through no fault of their own, but of another who is the alleged offender of a prescribed offence, have a vehicle clamped or impounded for 28 days. It should be noted that aside from receiving an application, the Commissioner of Police can still make a determination to release a vehicle that has been impounded or clamped of the Commissioner's own initiative, prior to the expiration of the 28 days.

These amendments are designed so that a determination by the Commissioner of Police to release an impounded or clamped vehicle, prior to expiration of the 28 day period, will only occur in very limited circumstances and not for the benefit of the alleged offender. These situations are:

where the offence occurred without the knowledge or consent of any person who was an owner of the motor vehicle at the time of the offence; or

where the motor vehicle is not owned by the alleged offender and the continued clamping or impounding of the motor vehicle would cause severe financial or physical hardship to a person other than the alleged offender or a person who has knowingly involved in, or who aided or abetted, the commission of the offence; or

where other grounds, exist that warrant the clamping or impounding being brought to an end.

Amendments to court ordered forfeiture and impounding

The next set of amendments apply to Part 3 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007, that deal with court ordered impounding or forfeiture. Currently a court may impound or forfeit a motor vehicle owned by the alleged offender, whether or not it is the same vehicle that or was used to commit the prescribed offence. These amendments will target offenders who have a history of committing and being found guilty of prescribed offences by increasing the period of court ordered impounding and reducing the number of chances before their vehicles become eligible for court forfeiture. I will now explain how the Government will target these repeat offenders of prescribed offences, who continue to demonstrate disregard for the authority of the law.

Firstly, technical amendments are contained in the Bill to change how courts take into account previous offending history involving prescribed offences. Currently the court considers the date of previous findings of guilt or expiation to determine whether further impounding or forfeiture is required. Instead, these amendments will substitute the date a prescribed offence was committed or allegedly committed or expiated for within 12 months or 10 years, as the case may be, of the date of the prescribed offence for which the offender has been convicted.

Secondly, another amendment will extend the period of court ordered impounding from three months to six months, where an offender has, during the period of 10 years immediately preceding the date of the offence, committed or allegedly committed and subsequently been found guilty of, or expiated, one other prescribed offence. Therefore in addition to receiving a penalty from the court for the prescribed offence, an offender, if subject to court ordered impounding, will also endure the inconvenience of being deprived of use of the vehicle for up to six months but also, be liable to pay the hefty fees associated with impounding that will accumulate on a daily basis during the period of court ordered impounding.

Thirdly, where the offender has committed or allegedly committed and been found guilty of, or expiated, at least one other prescribed offence within 12 months of the date of the offence, their vehicle will now be eligible for court forfeiture upon application by the prosecution. The Government is of the view that such offenders pose a serious risk and their vehicles should be exposed to forfeiture where they commit another prescribed offence within 12 months and are found guilty of that second offence. This approach is very much a policy of two strikes in 12 months and you are out.

Fourthly, the Bill will allow court forfeiture of a vehicle upon application of the prosecution where an offender has, within 10 years of the offence, committed or allegedly committed and subsequently been found guilty of, or expiated, two other prescribed offences. Under the current law, offenders receive three chances before they become eligible for court forfeiture of their vehicle.

A new category of forfeiture offences will be defined in the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007. At this stage it is intended that a forfeiture offence will be any indictable offence under sections 19A, 19AB or 19AC of the Criminal Law Consolidation Act 1935; namely the offences of Cause Death or Harm by Dangerous Driving, Leaving Accident Scene After Causing Death or Harm by Careless Use of Vehicle or Vessel and Dangerous Driving to Escape Police Pursuit. On conviction for any of these offences, the prosecution may apply to the court for forfeiture of the vehicle; irrespective of the past prior number if any of convictions or findings of guilty for prescribed offences.

Amendments to method of disposal of vehicles

This amendment will allow the Commissioner of Police, on such grounds as the Commissioner thinks fit, to order the destruction of a vehicle that is not collected after two months from being due for release from police or court-ordered impoundment and to direct the Sherriff to destroy rather than sell a vehicle that has been forfeited by the court. The preference for disposal by public auction or public sale of a forfeited or uncollected impounded vehicle will remain, but will be subject to section 20(5) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007. Section 20(5) currently prescribes when a forfeited or impounded motor vehicle may be disposed of otherwise than by sale. The current provisions of section 20(5) will remain. If the Sheriff or the Commissioner (as the case may be) believes on reasonable grounds that the motor vehicle has no monetary value or that the proceeds of the sale would be unlikely to exceed the costs of the sale; or if the motor vehicle has been offered for sale and was not sold, then the vehicle may be disposed of by means other than sale. However a third alternative will be introduced, empowering the Commissioner of Police to make a direction on such grounds as the Commissioner thinks fit to dispose of the vehicle other than by sale. The amendment gives the Commissioner an absolute discretion to make this decision. The Government is of the view that the Commissioner of Police is the most suitable authority to make such a decision.

Finally section 20(7) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 will be amended to clarify that if a motor vehicle is sold, destroyed or otherwise disposed of under section 20 of the Act, any interests in the vehicle that existed prior to the sale, destruction or disposal are extinguished; and any purchaser of a vehicle, or any part of the vehicle, acquires a good title.

Summary

The Bill is designed to expand current impounding and forfeiture provisions so that they deter and punish hoon driving and similar antisocial crime more effectively.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007

4—Amendment of section 3—Interpretation

A new class of prescribed offences called forfeiture offences is added for the purposes of the amendments to sections 11 and 12.

5—Amendment of section 5—Power to clamp or impound vehicle before proceedings finalised

Section 5 is amended to require owners to be alerted to the possibility of making an application to the Commissioner under section 8 for a determination bringing the clamping or impounding period to an end.

6—Amendment of section 6—Period of clamping or impoundment

The period for which a vehicle is to be clamped or impounded is extended from 7 days to 28 days.

7—Amendment of section 7—Extension of clamping period

This clause makes a consequential amendment to section 7.

8—Amendment of section 8—Removal of clamps or release of impounded vehicle

This amendment sets out grounds on which the Commissioner may choose to release a vehicle early. New subsection (2a)(a) and (b) reflect the grounds set out in section 13(1)(a) and (b) of the Act for the court to decline to make an order for forfeiture or impounding.

The amendments expressly provide that an application cannot be made under subsection (2a) by the alleged offender and provide that if the Commissioner of Police has not determined an application within 8 days of its receipt, the Commissioner is deemed to have refused the application.

The discretion of a relevant authority to release early that is currently set out in section 8(3) is consequently limited to release for administrative reasons.

9—Amendment of section 11—Application of Part

This clause extends the application of the Part to conviction of a single forfeiture offence (an indictable offence of a kind prescribed by the regulations).

10—Amendment of section 12—Court order for impounding or forfeiture on conviction of prescribed offence

These amendments change the circumstances in which a court must order impounding or forfeiture of a motor vehicle on application by the prosecution. If a person is convicted of a single forfeiture offence, the order is to be for forfeiture. If a person has, within 12 months either before or after committing the offence of which he or she is convicted, committed or allegedly committed another prescribed offence of which he or she has been found guilty or paid an expiation fee, the order is to be for forfeiture. If a person has, within 10 years either before or after committing the offence of which he or she is convicted, committed or allegedly committed 2 or more other prescribed offences of which he or she has been found guilty or paid an expiation fee, the order is to be for forfeiture. If those circumstances do not apply but the person has, within 10 years either before or after committing the offence of which he or she is convicted, committed or allegedly committed 1 other prescribed offence of which he or she has been found guilty or paid an expiation fee, the order is to be for impounding. The period for which the vehicle can be impounded in this circumstance has been extended from 3 months to 6 months.

11—Amendment of section 20—Disposal of vehicles

This clause amends section 20 to allow the disposal of a forfeited or uncollected impounded vehicle by destruction or another method where the Commissioner of Police thinks fit.

12—Amendment of section 21—Credit provider may apply to Magistrates Court for relief

This clause makes a consequential amendment to section 21.

Schedule 1—Transitional provision

The Schedule provides that the amendments to sections 20 and 21 apply to motor vehicles impounded or forfeited before or after commencement of the amendments.

Debate adjourned on motion of Hon. I.F. Evans.

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