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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-22 Daily Xml
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SUMMARY OFFENCES (PRESCRIBED MOTOR VEHICLES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 March 2011.)

The Hon. S.G. WADE (17:08): The bill before us today shows an emerging trend for the Deputy Premier and Attorney-General John Rau to take on the Atkinson legacy—the legacy of his predecessor, the member for Croydon. Despite all the talk of a different approach, the Attorney-General is just singing from the same song book. When the government announced its plans to legislate in November 2009 there was no substantiation given about the dangers of monkey bikes, just a series of press releases.

Prior to the opposition requesting statistics on monkey bike incidents, I understand the government had not even compiled them to assess the extent of the problem. The government was content to rely on anecdotal reports in the media. To highlight an example of the government's campaign in the media, former attorney-general Michael Atkinson claimed in his release of 10 November 2009, 'Monkey bikes to be crushed', that:

People should not have to tolerate this behaviour on our streets. People have already lost their lives because of these bikes and I don't want to see these bikes cause any more injuries or fatalities.

Attorney-General Rau, when reannouncing the proposals on 22 July last year, put out a media release titled 'Government tackles monkey bike menace', saying:

I am advised that there have been cases where riders of these 'monkey bikes' have been killed or seriously injured. These bikes have no place on our roads or anywhere else that places the public at risk.

However, in scrutinising this legislation we asked the government for substantiation of the claim that people have been killed on monkey bikes. We were advised that in the last five years there have been five minor injury crashes, resulting in five minor injuries, and four serious injury crashes, resulting in five major injuries. In addition there was one minor injury from one crash and two serious injuries from another, which is said to have happened on a road-related area.

There is no evidence to support the claim of this Attorney-General or his predecessor that people have been killed. I welcome the opportunity for the government to correct me at the end of the second reading stage if, in fact, the information we have been given does not tell the complete story. I would like to know what the government was referring to; in fact, the advice from the Attorney-General's office in the scrutiny of this bill was that there were no known fatalities involving monkey bikes. So where did the media spin come from?

This performance from the Attorney-General and his predecessor shows the pattern of this government in misleading the public by hyping up risk for the sake of its media presence. It is a classic example of how this government is driven by media, not by the facts. The public should be very sceptical about what it hears from government ministers; that is one of the reasons that the opposition has flagged amendments to the legislation in the other place regarding the declaration of prescribed motor vehicles. We indicate that we share the views of the Hon. Ann Bressington that prescription should occur through regulation rather than through declaration, and we are pleased that the government has adopted the Hon. Ann Bressington's common-sense approach.

Another amendment adopted by the government was to change the definition of prescribed motor vehicle to mean a 'class of vehicles that are not able to be registered, or conditionally registered, under the Motor Vehicles Act 1959'. This amendment takes into account the concerns raised by the member for Schubert, Ivan Venning, in relation to agricultural vehicles and, again, we are pleased that the government was willing to take a balanced approach and take up this amendment. I would like to commend the Hon. Ann Bressington for her advocacy in relation to this legislation to this point. Even before the bill was at the table, she effectively raised a number of concerns in relation to the bill and influenced both the government and opposition's amendments.

During the committee stage I will speak to a number of amendments the opposition will propose to bring this legislation into line with the government's own anti-hoon legislation. The reference to the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 applies so narrowly as to remove all discretion related to the forfeiture of the vehicle, thereby mandating confiscation. The police discretion suggested by the Attorney-General in another place, and repeated in this place by the Hon. Bernard Finnigan, applies only to the initial confiscation of the monkey bike and does not apply once the offence is finalised.

In other words, once the person expiates or is convicted the bike is automatically forfeited to the Crown without the possibility of appeal or the proper consideration of circumstances. The opposition will move to make these forfeiture provisions consistent with the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007. I will speak further to the opposition's amendments during the committee stage, but with those few words I indicate that the opposition will support the second reading of this bill.

The Hon. A. BRESSINGTON (17:14): I rise to speak to the Summary Offences (Prescribed Motor Vehicles) Amendment Bill 2010, which was introduced in another place by the Attorney-General on 14 September last year. As stated by the Attorney-General when introducing the bill, it seeks to reduce the incidence of offences involving unregistrable miniature motorcycles known as 'monkey bikes' or, as was coined by the former minister for consumer affairs in 2006, 'pocket rockets'.

It was, in fact, 2009 when this government, through the former attorney-general, made the commitment to introduce tough legislation to address miniature motorcycles, legislation it promised 'to rush through parliament'. As with any populist government, it did so in response to public angst at the risks taken by and general nuisance of those who ride monkey bikes on roads and footpaths. However, as so often seems to happen, the government soon moved on to another headline, and it is only now in 2011 that we are being asked to give effect to that commitment. The bill before us seeks to insert a new section 55 into the Summary Offences Act 1953 to make it an offence to drive (or, in this case, ride or stand) certain motor vehicles on a road.

The bill defines 'road' to also include road-related areas, such as median strips, footpaths, car parks, cycling trails and other areas declared by the Minister for Transport as road-related areas. Relying on the definition of such in the Motor Vehicles Act 1959 means those looking to ascertain the law will have to consult a separate act from that in which the offence resides to learn that the term 'road' does not simply mean what one naturally presumes: that it is an area designated for driving motor vehicles, but rather also includes the aforementioned areas.

While I have decided not to amend the bill to provide clarification, I nevertheless indicate that I would have preferred the definition of 'road-related area' to be included in the proposed section 55(9) rather than having to refer to another act. The offence for driving a monkey bike on the road will be expiable with a $315 fine or, if prosecuted, a fine of up to $5,000 can be imposed. Additionally, those who commit this offence will have their monkey bike confiscated and, upon finalisation of proceedings, whether by guilty verdict or payment of the expiation, forfeited to the crown.

Owners of the motor vehicle, as distinguished from riders, will also be subject to the same penalties. The bill does so by assuming that an owner of a monkey bike has permitted the rider to ride it on the road. There is, however, the defence of not being in control of the motor vehicle due to an unlawful act available to the owner, the obvious example being where the bike was ridden by a thief unlucky enough to be spotted while fleeing the owner, presumably on the monkey bike. Given the noise they emit and their limited speed, the thought is somewhat laughable, but stranger things do happen, and the owner in such circumstances is covered.

What is less clear is a situation where a bike is ridden without the direct consent of the owner, say, by a guest at a party. While there is, of course, the separate offence provided by section 86A of the Criminal Law Consolidation Act 1935 of driving the motor vehicle without first obtaining the consent of the owner, it is my understanding that to utilise this offence in defence for the purposes of this bill the owner will be required to exclude the possibility that the rider was not under an honest but mistaken belief on reasonable grounds that they had consent to ride the bike.

As cases prosecuted under section 86A have demonstrated, consent can be implied. Unlike the example of theft, where the owner will presumably be happy to assist the prosecution of the thief for both this offence and section 134 of the Criminal Law Consolidation Act, this cannot be so easily presumed for cases where the bike was ridden without consent, meaning that the owner may not be able to rely upon on the outcome of the prosecution under section 86A to prove the factual elements required of the defence.

The availability of this defence becomes even more blurred in an example where the owner did consent to the bike being ridden, but stated specifically for it not to be ridden on a road or road-related area. It is my understanding from the reading of section 86A of the Criminal Law Consolidation Act that in this example no offence has been committed, for consent to use the vehicle had been granted. This would mean that the defence provided by section 4, which requires an unlawful act to have been committed, would not apply, and hence the owner would potentially face a $5,000 fine for an act which they specifically stated they did not permit.

It is for these reasons that I will be moving an amendment to insert a new subsection 55(3)(a), which inserts a new defence to an offence against subsection (2), if it can be shown that the owner, first, did not consent to the vehicle being driven on the road and, secondly, and had taken reasonable steps to ensure the person lawfully entitled to use the vehicle was aware that the defendant did not consent to the vehicle being driven on the road. As this defence will be in addition to the general defence currently provided by the bill, it does nothing to detract from the bill. It clarifies the protection available to owners and closes the potential loophole where an owner consented to the vehicle being ridden, but not on a road or road-related area.

As members who have read the debates of this bill in another place would be aware, my office also identified early that the bill, in its haste to forfeit monkey bikes used in contravention of this section, created a situation where an owner who played no part in the commission of the offence, whether the bike was stolen or ridden without consent, had no opportunity to intervene in the forfeiture to make this known and subsequently would have their property forfeited with no recourse.

One can imagine a situation where an owner's monkey bike is stolen, the thief is then caught riding it on the road, the bike is confiscated by the police, but instead of being returned to the owner it is then crushed. Farcical it may be, but that was what the bill provided until I raised it in a briefing provided by the Attorney-General, who clearly, upon reflection, has moved to amend the bill in another place. I commend the Attorney-General for correcting what was a significant oversight in the bill and for acknowledging my involvement in that in the other place.

Another amendment moved in the other place at my instigation was to require the list of prescribed vehicles to be prescribed by regulation instead of by gazette. While we are assured that the bill before us is to address miniature bikes, there is nothing in the bill itself to restrict it to this class. It was my concern that in an attempt to broadly capture monkey bikes the definition may inadvertently capture agricultural bikes, trikes or four-wheelers used by farmers to travel around their properties as well as in herding stock, etc.

Many such bikes are not registered, nor, it is my understanding, could they be, at least not without significant modification. Such farmers, especially on large properties that are intercepted by roads, may need to ride across a road or along a road-related area, and if the definition used was broad enough it was my fear that they may be inadvertently captured by this section. I again advocated in the briefing that what is to be a prescribed motor vehicle should be subject to parliamentary oversight and disallowable in the form of regulation. This too was agreed to by the Attorney-General, who, with further input from the Liberal Party, amended the bill accordingly, and again, I thank him for doing so.

I also indicate to members that I will no longer be moving the other amendments that I had drafted and circulated to make the forfeiture process more equitable and flexible to the owner's circumstances and involvement. Instead, I will be supporting the shadow attorney-general the Hon. Stephen Wade's sensible amendments to bring the process in line with that used in the hoon legislation. In closing, I indicate that I support the bill on condition of amendment and I look forward to the committee stage.

Debate adjourned on motion of Hon. R.P. Wortley.

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