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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-10-27 Daily Xml
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CRIMINAL LAW (CLAMPING, IMPOUNDING AND FORFEITURE OF VEHICLES) (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee (resumed on motion).

(Continued from page 4483.)

Clause 11.

The CHAIR: The committee has before it the amendment No. 1 moved by the member for Bragg.

Amendment negatived; clause passed.

Clause 12 passed.

Schedule 1.

The Hon. M.J. ATKINSON: I move:

Page 5, lines 29 to 33—Delete Schedule 1 and substitute:

Schedule 1—Related amendments and transitional provisions

Part 1—Related amendment to Summary Offences Act 1953

1—Amendment of section 4—Interpretation

Section 4(1)—after the definition of minor insert:

motor vehicle has the same meaning as in the Motor Vehicles Act 1959;

2—Insertion of section 17AA

After section 17 insert:

17AA—Misuse of a motor vehicle on private land

(1) For the purposes of this section, a person misuses a motor vehicle if the person, in a place other than a road or road related area—

(a) drives a motor vehicle in a race between vehicles, a vehicle speed trial, a vehicle pursuit or any competitive trial to test drivers' skills or vehicles; or

(b) operates a motor vehicle so as to produce sustained wheel spin; or

(c) drives a motor vehicle so as to cause engine or tyre noise, or both, that is likely to disturb persons residing or working in the vicinity; or

(d) drives a motor vehicle onto an area of park or garden so as to break up the ground surface or cause other damage.

(2) However, conduct of a type described in subsection (1) does not constitute misuse of a motor vehicle if it occurs in a place with the consent of the owner or occupier of the place or the person who has the care, control and management of the place.

(3) A person who misuses a motor vehicle is guilty of an offence.

Maximum penalty: $2,500.

(4) Where a court convicts a person of an offence against this section, the court must, if satisfied that the offending caused damage to, or the destruction of, any property or damage to an area of park or garden or a road related area, order the convicted person to pay to the owner of the property, or the owner, occupier or person who has the care, control and management of the area, such compensation as the court thinks fit.

(5) The power of a court under subsection (4) is in addition to, and does not derogate from, any powers of the court under the Criminal Law (Sentencing) Act 1988.

(6) In this section—

road and road related area have the same meaning as in the Road Traffic Act 1961.

Part 2—Transitional provision

3—Transitional provision

The amendments to sections 20 and 21 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 effected by this Act apply in relation to an impounded or forfeited motor vehicle whether the impounding or forfeiture occurred before or after the commencement of those amendments.

This amendment is to give the member for Mitchell his wicked way. The amendment, although amending the Summary Offences Act, is a related amendment to the act as it seeks to introduce a new offence that will then be added to the list of prescribed offences under the act. It is proposed that schedule 1 of the bill be deleted and substituted with a new schedule that, in addition to the transitional provision, will insert the new offence of misuse of a motor vehicle on private land, as advertised and advocated by none other than the member for Mitchell. The road to Damascus conversion; now, like St Paul, he is leading the movement.

The new offence will only apply to private land where the alleged offender has entered private land or is on private land without lawful excuse or without the consent of the owner or occupier of the place. The regulations will subsequently be amended to include this new offence as a prescribed offence to trigger the application of the clamping, impounding and forfeiture provisions.

As stated, the offence will cover a range of conduct that includes racing vehicles, operating a vehicle so as to produce a sustained wheel spin, driving a motor vehicle so as to cause engine or tyre noise and driving a motor vehicle onto an area so as to break up the ground surface or cause damage. The maximum penalty for this offence will be $2,500. Provision is also made for compensation to be awarded for property damage upon conviction where the court is satisfied that the offending caused damage.

The clamping, impounding and forfeiture provisions already apply to some prescribed offences when they are committed on private land because these offences can be committed anywhere. These are:

(a) the prescribed offence of driving dangerously so as to cause serious injury or death, under section 19A of the Criminal Law Consolidation Act;

(b) the prescribed offence of driving to escape pursuit if members of the public are endangered, under section 19AC of the Criminal Law Consolidation Act;

(c) the prescribed offence of damage to property when it involves marking graffiti, under section 85 of the Criminal Law Consolidation Act;

(d) the prescribed offence of marking graffiti, under section 9 of the Graffiti Control Act; and

(e) the prescribed offence of failing to obey a police direction to cease emitting excessive amplified noise—that is the 'doof doof' offence—from a vehicle if the noise is excessive in being likely to unreasonably disturb persons in the vicinity of the vehicle, under section 54 of the Summary Offences Act.

This amendment would not extend the clamping, impounding and forfeiture to traffic offences that can be committed only on a road. That is the conduct described in the prescribed offences under the Road Traffic Act of driving at excessive speed, reckless and dangerous driving, driving while under the influence of alcohol and driving with the prescribed concentration of alcohol or drugs in the blood, and the offences under the Motor Vehicles Act of driving unregistered and driving while disqualified. These have always been road-related offences, and to extend them to private land, I think, is beyond the scope of the proposal, and I think the member for Mitchell would agree. That is the reason why the amendments are being made to the Summary Offences Act rather than the Road Traffic Act.

Mr HANNA: We are coming to the end of these amendments to the wheel clamping laws, and I am delighted to see that the government has picked up my proposal to extend this treatment of hoon drivers when they trespass on private property. The concern that led me to raise this in parliament was in particular the hoon driving that has taken place on the Sheidow land over the years.

The residents of Trott Park, Sheidow Park and Reynella will be very delighted that the government has picked up my amendment. I appreciate the work that the Attorney-General has done in relation to this amendment. I was satisfied if simply the offence of trespass was committed. The Attorney-General has seen fit to enshrine this amendment in the Summary Offences Act and has specified the requirement for commission of the offence that the motor vehicle be misused.

Various examples are given: if there is a race on private property without permission; if burnouts are done; if there is excessive noise which is likely to disturb persons residing in the vicinity; and if the vehicle is driven on an area of park or gardens so as to break up the ground surface or cause other damage. These are precisely the sorts of problems that have been experienced down in Sheidow Park.

There has been some gross environmental damage done by the drivers who have trespassed there, and the residents are routinely annoyed by the noise of little buzzing bikes, as well as heavier vehicles like four-wheel drives. I also have in my electorate a number of young people who really enjoy driving those things. What I need to get across to those people (and what the government needs to get across to them) is that it is crucial to get permission, otherwise they will fall foul of this wheel-clamping legislation. They do not have many opportunities for off-road driving, and that needs to be addressed because young people do need to have legitimate recreational opportunities.

There are a few places they can go further down south. There is a farmer down towards Victor Harbor who allows them on his land to tear around but they have to pay, I think, to go on to the property. Something closer to home would be better. However, the point is that that sort of driving should not be undertaken without the permission of the landowner—that is the key to it—and it should not be undertaken in a way that disturbs the surrounding residents or causes environmental damage.

So, I am delighted that the government has seen fit to endorse this proposal that I have brought to the parliament. I am quite willing to concede that this improves the concept that I have brought to the parliament and it creates very specific guidance for those who dare to go on to private property, drive their vehicles and cause this sort of nuisance. I am delighted to support the government's amendment and I am happy for it to take the credit for it.

Ms CHAPMAN: I have not read the whole of the amendment in detail but I have listened with interest to the proposal. I was aware of the amendment initially anticipated to be dealt with by the member for Mitchell which did have a trespass element to it.

I will have a look, between the houses, at the extent to which this applies. My understanding is that there has to be not only misuse but also no authority to enter the property or use the property where this activity is undertaken. After hearing the contribution of the Attorney, that it may also apply where there is offensive noise and, therefore, even though it is a legal activity on a property (private land) where permission is granted, if it somehow or other offends or causes noise or nuisance to neighbours then this really does go quite a lot further than what the member for Mitchell had in mind, according to the draft of his amendment, so we will consider that between the houses.

Points have been made, quite appropriately, that it is important to allow people who enjoy this sort of activity to have space to undertake their hot rod, motorbike and other activities of this nature, which could easily be confused as something akin to hoon driving. But to impose this level of offence to behaviour on private land—if it is not in breach of any other laws, other than to emit noise, for example—is something we would be very concerned to have a look at, to ensure that it has not gone too far. However, we will look at that between the houses.

Amendment carried; schedule as amended passed.

Title.

The Hon. M.J. ATKINSON: I move:

After '2007' insert: '; and to make a related amendment to the Summary Offences Act 1953'

Amendment carried; title as amended passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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