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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-05-03 Daily Xml
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SUMMARY OFFENCES (PRESCRIBED MOTOR VEHICLES) AMENDMENT BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

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

The Legislative Council's amendments be disagreed to.

This legislation has returned to us from the other place with a number of amendments, and I wish to say a few words about them. In so doing, I think it is probably useful to give an overview again of what this legislation is about and why the legislation has been introduced.

The legislation is directed towards things which are known, I gather, in the vernacular, as monkey bikes. Monkey bikes are a small replica of a motorcycle. They are illegal to bring into Australia by virtue of rules governed by the commonwealth. They are illegal to sell in South Australia and therefore they represent a residual pool of these vehicles which were imported and purchased prior to their importation and legal sale being brought to an end.

The legislation is directed towards a particular mischief, and that mischief is that these vehicles, these monkey bikes, which, I am reliably informed, are extremely noisy and have a habit of being driven by people who do not appear to be particularly responsible in the way they drive them, are the scourge of, in particular, the northern and southern suburbs of Adelaide. I can assure members that I have spoken to members who represent electorates in both the north and the southern suburbs and they have said to me that they get a lot of complaints about these vehicles being ridden in public parks, on footpaths and on roads.

They are not only a nuisance in terms of the noise, but also they represent a hazard because, even though they are, some might think, a toy, if you are unlucky enough to be hit by somebody gliding along on one of these vehicles you would be very lucky to escape serious injury. So, there are good reasons, both from a public nuisance viewpoint and from the risk of people being hit by these things and injured, bearing in mind they are not registered and are not registrable (and therefore most likely not insured and insurable either), for the only legitimate, legal place that one should be able to ride one of these things being on one's own property.

So, if you are lucky enough to have a large farm or a huge backyard, and you wanted to ride around it on one of these bikes, good luck to you—that is fine. Good luck to you. But this legislation is directed towards people who take these vehicles out of their private property and into the public domain and thereby irritate their neighbours and place other members of the public at risk of injury, without any of the sort of framework of registration, insurance, etc., that attaches to a registrable motor vehicle.

So, that is the context, and the context is quite important. I want to go through a brief discussion of the amendments that were introduced in the other place. The first one was to insert a new section (3a), and this amendment extends an additional defence to an owner of a prescribed motor vehicle prosecuted under section 55(2), that is, the offence attaching to the owner of the vehicle where that vehicle is driven or found standing on a road.

Owners of these vehicles—I say 'prescribed vehicle'; I am talking here of monkey bikes, so maybe I should say 'monkey bike'—owners of a monkey bike already enjoy a limited defence against a section 55(2) prosecution via section 55(4), which says that an owner will be exculpated from criminal liability where, in the consequence of some lawful act, that owner's prescribed motor vehicle was not in their possession or control at the time that it was driven or left standing on the road.

The subsection 55(4) defence was designed to afford protection to owners where their potential criminal liability arose as a consequence of an unlawful act, but not in other circumstances. In other words, if there is a theft of your vehicle and then something happens to your vehicle, you should hardly be held accountable for that—quite reasonable. A distinction was deliberately drawn between unlawful acts (for example, a theft of your vehicle) and those involving persons otherwise lawfully entitled to use the vehicle.

Most relevantly, this meant that, in circumstances where a parent's child drove or left standing on a road their parent's vehicle, the parent would be liable to prosecution under new section 55(2). This reflected a policy intent that parents should take active measures to ensure that their motor vehicles are not ridden or left standing on public roads; in other words, take responsibility for your own vehicle.

The inclusion of the proposed new subsection (3a) undermines that objective. It introduces an element that merely requires the defendant owner (that is, the parent in my example) to prove that they took 'reasonable steps' to ensure that a person lawfully entitled to use the vehicle (for example, their child) was aware that the parent did not consent to the vehicle being driven or left standing on the road.

All you have to do is to say, 'George, don't ride my monkey bike. Don't leave it standing on a road,' and that's it; you are off the hook. Now, this is obviously not an onerous element to discharge, and it is difficult to envisage a prosecution of a parent under new section 55(2) actually succeeding. More likely SAPOL will decline to charge parents under new section 55(2) due to the limitations brought about under proposed new subsection (3a), which I have just referred to.

To make it very clear, the amendment that has been introduced means that the penalty attaching to the owner of the prescribed vehicle (the monkey bike) has been increased to such an extent that it is difficult to imagine where there will ever be a prosecution of a parent who has allowed one of these vehicles to fall into the hands of a child, or whoever, and who goes off and then uses the vehicle inappropriately. That is the first of the amendments.

The second relates to the deletion of new subsections (5), (6) and (7), and the introduction of proposed new subsections (5), (6), (6a) (6b), (6c), (6d), (6e), (6f), and (6g). These amendments substantially alter SAPOL's powers to seize monkey bikes and subsequently to deal with them. First, they remove a number of the circumstances which previously triggered a seizure power. Under the bill as passed by the House of Assembly, a monkey bike could be seized in a variety of circumstances, for example, if a person was to be or had been reported for an offence against new section 55, or who had been issued with an expiation notice.

As a consequence of these amendments, a police officer can only seize and retain the vehicle where the person is charged with an offence. Secondly, the amendments import a number of provisions from the clamping and impounding legislation, which is the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007.

As I mentioned in my second reading reply in this house, the provisions of the clamping and impounding legislation apply to registrable motor vehicles—in other words, vehicles which are able to be legally on the road; they are also vehicles which can be lawfully bought or sold. Prescribed motor vehicles the subject of this bill are fundamentally different things. They are unregistrable, banned from sale and illegal to ride on public roads.

Further, as I observed in the house, by introducing the role of a court into the forfeiture process, as is contemplated by new section 55(6), you introduce an element which is wholly inconsistent with the expiable nature of the offence. In other words, if you have an expiation notice issued it is completely inconsistent with that process then to have a court managing an aspect of the matter. Notwithstanding my urgings for members to reflect on these issues, unfortunately, in the other place the foreshadowed amendments were pursued.

The effect of the amendments made in the other place would be to frustrate SAPOL's ability to promptly address offending behaviour undertaken on monkey bikes. For example, notice must now be given to interested third parties of an application for a forfeiture order.

The Hon. M.J. Atkinson: The credit company has an interest in the monkey bike.

The Hon. J.R. RAU: Aunties and uncles, perhaps. Those parties must be given an audience at the hearing of the application should they desire it. Bear in mind, we are talking here about an illegal, unregisterable vehicle which is being driven on a public road or in a public place, and we are now having to give notice to the owner, if that owner is different to the driver and anybody else who happens to be interested, to have a court hearing about whether the thing is going to be taken out of the system.

Additionally, the court has the discretion to deny the application on a host of bases, including severe financial or physical hardship—difficult to imagine those, but there you are. Whilst such considerations are legitimate in the context of removing, for example, the family's sole mode of transport (a registerable motor vehicle, for example), they are entirely inappropriate in a bill which deals with an unregisterable monkey bike only capable of lawfully being used on private property.

For the sake of completeness, I also note that these amendments remove section 55(7), which was an amendment I moved in this house to appease concerns raised with me that the original wording left open the potential for an innocent owner to have their bikes seized and forfeited as a consequence of a third party's illegal use. That has been taken out. The bill as amended in the other place would no longer carry that express protection. Rather, the owner will be notified of any application for the vehicle to be forfeited and will then need to attend court on their time and at their cost to make representation as to why this seized vehicle ought not be forfeited to the Crown.

The next amendment related to clause 5, page 4, lines 1 to 3. Clause 5 inserted section 55(8)(c); the council deleted (c). This amendment omits from the ambit of the definition of 'finalised proceedings' offences dealt with under part 2 of the Young Offenders Act, where the offender has admitted the commission of the offence. The amendment arises as a consequence of the amendment to No. 2, which we have just talked about, which removed reference to provisions of the Young Offenders Act 1993.

Obviously, whilst that amendment is consistent with the earlier amendment (which we are opposed to), this particular amendment to which I am now referring is also opposed, as it is consequential and therefore we believe an inappropriate and unnecessary amendment. So, I have moved, for the reasons I have just outlined, that the particular amendments to which I have referred be disagreed to.

Ms CHAPMAN: Thank you, Madam Chair. I note that you are much more generous in allowing regurgitation of the original debate of this matter than was afforded to me in the last debate we had here before the close of the parliament—not by you, but another chair, of course. I can see that you are much more generous in allowing that to occur. I think I was soundly reminded that we could only discuss the amendments and the opening statements and 'revisiting the basis of the bill', I think, to use words of the minister, was certainly not allowed. I will no doubt keep that for a future precedent.

May I address the question of the amendments in the other house, which the opposition welcomes? I note that, during the course of the carriage of this matter in another place, the Hon. Bernard Finnigan (the then minister for industrial relations, minister for state/local government relations and minister for gambling) moved the third reading and, in fact, was the person who had the carriage of the matter on behalf of the government. He made a number of statements on 24 March 2011 about some of the merits and otherwise of the objections to the amendments that have been raised.

He did acknowledge, at that point, that the Hon. Ann Bressington, who moved the first of the amendments referred to by the Attorney (that is, the insertion of section 3a) was one which was conditional upon her support for the bill. In other words, had her amendments not been accepted, she would oppose the bill. Notwithstanding that, the honourable member indicated the government would oppose those reasons.

The minister again confirmed his commitment to reject this, on the basis that this defence should not be expanded, and that there should be some difference maintained between the consequences of a lawful act and an unlawful act, and then went on to give us a little lecture about how parents have to be responsible for their children. It assumes, of course, that it is only children who are actually on these monkey bikes in the first place.

What I put to the house is that the expansion of this defence, as presented by the Hon. Ann Bressington, is one which we support. There has been some debate on how that should be worded, but nevertheless, that is one for which we maintain our support.

The second matter, or raft of amendments, was introduced by the Hon. Stephen Wade and again, the Hon. Bernie Finnigan indicated that he took some objection to this. In fact, I just refer to one reference. He says:

I wish to address a point raised by the Hon. Mr Wade with respect to announcements linking the vehicles that are the subject of this bill and fatalities. My short response is that the statistics referred to at the time of those announcements were understood to be correct, and I am advised that they still are. As the honourable member notes, inquiries were made last year about the number of fatalities attributed to monkey bikes.

A search was conducted with the Department for Transport, Energy and Infrastructure crash database, which revealed that there have been a number of serious injuries associated with the use of monkey bikes, but the search did not point to any fatalities that could be directly linked to their use. However, it should be noted that a search of this type is difficult as monkey bikes can be given a number of different descriptions by the reporting officer. It depends on the way in which the information is originally recorded into the system as to what a search will reveal. For example, if the officer refers to a 'motor bike' rather than a 'monkey bike', the statistic will not be recorded as a fatality attributable to a monkey bike.

As a result of the Hon. Mr Wade raising further inquiries in the second reading stage, further inquiries have been made through the Coroner's Office. Those inquiries suggest that there has been at least one fatality associated with monkey bikes. In 2006 a male died while riding a monkey bike in a car park at Parafield.

The minister then goes on to suggest, notwithstanding this information, that he considered that there needed to be a distinguishing between monkey bikes and motor vehicles, and therefore confirmed his opposition to the amendment, as indeed, the Attorney has again today.

The position of the opposition, as presented by the Hon. Stephen Wade, is one in which we do not accept that just because this particular vehicle is an unregistered vehicle, it is a vehicle that is being used in a public area. It is causing 'nuisance and risk,' to use the words of the Attorney, and it can cause damage. Indeed, we have had the evidence of a fatality. The opposition, through its amendment, was simply trying to put and provide a consistency between the two pieces of legislation dealing with the misuse of vehicles: the first being the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007, and the Summary Offences (Prescribed Motor Vehicles) Amendment Bill 2010—the bill that is before the house now.

The amendments replicate the hoon legislation forfeiture provisions on the basis that the confiscation process should be no tougher on monkey bike riders than that which we are placing on hoons. The position is quite clear: the government has set the standard in relation to what is required and the opposition is quite simply seeking to apply that consistently.

The government proposal in the proposed sections 55(5) and (6), for which it has maintained its support, is that if a person is to be or has been reported for, charged with, or given an expiation notice in relation to an offence outlined in that proposed section, a police officer may seize the vehicle while proceedings relating to the offence are finalised.

One way that the proceedings may be finalised is through the payment of an expiation. If a person expiates or is found guilty of an offence, the vehicle is automatically forfeited to the Crown and may be dealt with under the disposal provisions of section 20 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007. No appeal is available under the bill even if the owner of the vehicle did not know of the offence or consent to it being used by the offender.

As the Attorney has acknowledged, the amendment that is now before us substitutes the automatic forfeiture provisions with the relevant hoon driving forfeiture and penalty provisions which were introduced by the government in February 2010. So the government wants a standard for one group to be different from another, and yet both are vehicles, both are deadly in the wrong hands, they are dangerous and they are a risk and nuisance, as acknowledged by the Attorney himself.

Even though it is now illegal to bring them into the country and we are dealing with the tail of a number of these vehicles, the reality is—and the opposition maintains—that there should be consistency and that it is quite unacceptable to distinguish with a different procedure these vehicles purely on the basis that they are not registered and insured like other vehicles on the road. That is completely unacceptable to us.

Whilst I thank the minister (the Hon. Bernie Finnigan) in another place for having provided the information as was sought, that of course only confirms what the position should be which has merit and which the opposition suggests should be followed in this house. We cannot make the Attorney-General see common sense in the recognition and acceptance of these amendments. That is unfortunate because there is clearly a demonstrable need to deal with monkey bikes in the community, particularly for those who are in the northern and southern regions as identified by the Attorney.

We need to have this matter resolved. This matter has been comprehensively considered in another place, and it is disappointing at best that the Attorney has not seen the light of the overall benefit of accepting those amendments. No doubt we will proceed down the usual course and this matter will be deadlocked.

Mr VENNING: I did note the minister's comments in relation to this bill and congratulate him on the good deliberation and detail of the exposé of those amendments. I just want to remind the house, as I did in my original second reading speech, that this is not only about monkey bikes. It can relate to other bikes, particularly farm motorcycles and vehicles, which do not comply and are therefore not registrable but are allowed to be conditionally registered. They are very similar vehicles to these monkey bikes in some cases, where on-farm registrations allow the vehicles only to be driven on the farm and on roads within the precinct of the farm.

I agree that any unregistered—or worse, unregistrable—vehicles or bikes being driven on public roads, using back roads, even by unlicensed, underage riders, is wrong and needs to be stamped out strongly. Are electric bikes included in this? The question was never quite answered. Where do gophers come into this, because some gophers are modified to the point where they come very close to this. In relation to public safety, how many accidents do we hear about? We know about the death in 2006—

Ms Chapman: He's preparing for retirement.

Mr VENNING: I did hear the interjection, Madam Chair. I have had a long experience in matters like this over the years. I was one of the first to buy the so-called Enduro-type motorcycle back in 1963 or 1964—the first Yamaha, the AT1 or 125. That was a big, powerful machine in those days. So, I have a history with motorcycles, and I still enjoy them, as other members would. When I have had a bad week in this place, the best recreation I could have is to go back to the farm, get on the bike and go down to the river. That is the recreation for a person who has been here for over 20 years. Do not tell me about bikes, because I certainly know a fair bit about them.

This bill has been brought to the house. I know that two or three ministers have had an infatuation with this problem, particularly the ex attorney-general, but I do not see it as being as serious a problem to take the time of this house like it has. Yes, we have accidents on monkey bikes. We probably have more on motorcycles because they have only two wheels. However, a lot of these monkey bikes that are around are driven only on private property. I think you are going to make it very difficult—

An honourable member: They're safe.

Mr VENNING: They are safe, but you are saying that to sell them is illegal. You say it is illegal to sell them, so how does a person buy a bike if they want to run around on their property? They cannot. Because of the government's heavy-handed attitude, those people who wish to buy one of these bikes and ride it around the bush property that they own are banned from doing so. I have no problem with it, as long as parents are competent enough to ensure that their children are able to handle the vehicle and not cause themselves injury.

Many years ago in this place, I made representations on behalf of country constituents who had purchased a very new product: a four-wheel motorcycle, an ATV, which they are now known as. They are now extremely popular. Back then, the minister for transport allowed concessional registration because they were not road registrable. There were a lot of things they did not have. They were classed as an agricultural vehicle—not like a Honda or Odyssey, for instance—an off-road racer. Many of the well-known makers now produce those too, but do not be confused, they are not the same.

I note the amendments and that the government will not support them. In that case, I hope that the bill lapses. However, in the same breath, I urge the government to use the existing powers that the police have against the illegal use of so-called monkey bikes, which really are only toys with petrol engines. Again, I will be interested to see whether the government will put this to the joint house committee. I presume it is going to. It will be interesting to see what comes out of that. I urge the parliament—if it is serious—to look at the amendments and, if it is really dinkum about the issue, support them.

The Hon. J.R. RAU: I thank both honourable members for their contribution. The member for Bragg is always erudite, but this time she was also concise.

Mr VENNING: She's always concise.

The Hon. J.R. RAU: Not really, no. She is many things but not always concise. I think we were here for quite a while talking about photographs and stuff a while ago, but I am not going to go down that track because it would not be on this topic. I say to the member for Schubert that I do take his advice to heart—and I have done so since I have been here. I have not always acted on it, but I can tell him that, having heard his contribution today, if I am ever so fortunate (if that is the right word) as to be here for 20 years, I will try to secure for myself a motorbike so that, when it has all become too much for me, I can go home and ride around the backyard because that does sound like a terrific idea.

Mr Venning: I am sure you will enjoy it!

The Hon. J.R. RAU: I probably will. It is probably more likely that I will find myself in a gopher—that is another form of locomotion to which the honourable member referred. The good news is that we are not here talking about gophers. The other thing is that (and I discovered this a while ago when I raised the question of the safety of gophers and some of their drivers) it caused a furore, at least for me, because every owner of a gopher rang me up and told me what they thought of me. Apparently gopher is only a trade name. It is like the word 'hoover' which is used in the vernacular for vacuum cleaner, as in, 'I'm going to do some hoovering', rather than 'vacuum cleaning'. Apparently, gopher is merely a name. It is like Chrysler or Ford or General Motors—I just thought I would throw that in. I cannot remember what the proper name is. I think 'scooter' might even be right—no, not 'scooter'. It is an interesting fact and, as you did raise the matter, I thought I would share it with you.

The member also mentioned the sale of these things. They are already illegal to sell, so we are not changing their marketability in any way by this proposal because it is already not legal to sell them. Another thing that I am sure will make the member feel a little more comfortable is that we are not proposing to have people enter your farm, seize your monkey bike and crush it. In order for your monkey bike to be at risk you need to take it out of your property, down the road, ride around in a public park, or through someone else's vineyard, or down the road, or wherever you might dangerously wish to take it, and then and only then is your monkey bike at risk—as, indeed, are you and all the people around you. So, as long as you keep your monkey bike—if you have one, I am not asking you to tell me—

Mr Venning: No, I don't.

The Hon. J.R. RAU: —but if you did, hypothetically, as long as you keep it on your own property you are going to be okay—that is the thing. This is not some sort of military thing, where we send people into the member for Schubert's property to search and destroy monkey bikes. That is not what we are trying to do. We are relying on the member for Schubert or somebody taking his bike off the property with his permission and then doing annoying things to other people before these things get triggered. So, the message from the government bill is very simple: if you want to keep your monkey bike, keep it in your backyard. It is really simple. I suspect, in light of the various contributions today, we are heading towards one of those conferences that have become such a familiar feature of life in this place.

Motion carried.

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