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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-24 Daily Xml
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SUMMARY OFFENCES (PRESCRIBED MOTOR VEHICLES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 22 March 2011.)

The Hon. B.V. FINNIGAN (Minister for Industrial Relations, Minister for State/Local Government Relations, Minister for Gambling) (16:33): I would like to thank honourable members for their contributions to this debate. The Hon. Ms Bressington has indicated that she supports the bill on condition of her filed amendments. The government will oppose those amendments for reasons I will outline in committee. The Hon. Mr Wade has filed a number of amendments which seek to import into the bill numerous features from the existing clamping and impounding legislation. For reasons which I will make clear in the committee stage, those amendments are strongly opposed.

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 data base, 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.

Notwithstanding, I respectfully suggest to the honourable member that drawing a distinction between fatalities and serious injuries is, in the context of debating whether the action taken by this government to get these vehicles off the road, disingenuous. They are a nuisance, and it is well recognised that they can present a danger to riders and others. Again, I thank members for their contributions on this bill and indications of support. I look forward to dealing with the amendments in committee.

Bill read a second time.

In committee.

Clauses 1 to 4 passed.

Clause 5.

The Hon. A. BRESSINGTON: I move:

Page 3, after line 8 [clause 5, inserted section 55]—After subsection (3) insert:

(3a) It is a defence to a charge of an offence against subsection (2) to prove that—

(a) the vehicle was not driven or left standing on the road by the defendant; and

(b) the defendant did not consent to the vehicle being driven, or left standing, in contravention of this section; and

(c) the defendant had taken reasonable steps to ensure that any person lawfully entitled to use the vehicle was aware that the defendant did not consent to the vehicle being driven, or left standing, in contravention of this section.

As I detailed in my second reading contribution, this amendment makes clear that, where an owner has consented to a vehicle being ridden but specifically has stated that they do not consent to it being ridden on a road or a road-related area, they will have a defence available to them if the rider fails to comply, which I do not believe the general defence provided in subsection (4) currently provides.

The Hon. B.V. FINNIGAN: The government opposes this amendment. The amendment seeks to afford an additional defence to an owner of a prescribed motor vehicle prosecuted under subsection (2) for their vehicle being driven or found standing on a road. It is important to recognise that such owners already enjoy a limited defence against the subsection (2) prosecution via subsection (4). The subsection (4) defence exculpates a defendant/owner from criminal liability where, as a result of some unlawful act, their vehicle was not in their possession or control at the time it was driven or left standing on the road.

That limited defence has been deliberately calibrated to protect owners against criminal sanction arising as a consequence of an unlawful act but not in other circumstances. This distinction was deliberately drawn to reflect the government's desire that parents take seriously their responsibility to ensure that their children do not drive or leave standing on a road monkey bikes belonging to those parents.

If the amendment proposed by the Hon. Ms Bressington were agreed, the efficacy of the sanctions would, in our view, be fatally undermined. Any prosecution of an owner/parent could be avoided by the defendant/owner asserting to police that they did not consent to their vehicle being driven or left standing on a road and that those views had been made known to their children.

The Hon. S.G. WADE: For the assistance of the committee, I will indicate that the opposition does support the amendment. We believe the defence that the minister refers to would be enhanced by this clarification. We do not think it is appropriate that people who have taken reasonable steps should not be able to access a defence.

The Hon. M. PARNELL: The Greens will also be supporting this amendment unless the minister can assure us that this is not the same issue that the Law Society wrote to us all about, saying that they thought it should be included as an additional defence. My understanding from their submission is that this is the type of inclusion that they supported. If the minister has a response to say no, that I have got that wrong, then I will reconsider.

The Hon. J.A. DARLEY: I will be supporting this amendment.

The Hon. B.V. FINNIGAN: I advise that the Law Society did indicate they would support an amendment of this kind, but for the reasons outlined before, the government opposes the amendment. We believe that the defence available should be sufficient to make sure this bill is as effective as it can be. We do not want to make it very easy for people to absolve themselves of responsibility for the nuisance caused by a monkey bike.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 3, lines 13 to 35 [clause 5, inserted section 55(5), (6) and (7)]—Delete inserted subsections (5), (6) and (7) and substitute:

(5) If a person has been charged with an offence against this section relating to a motor vehicle, a police officer may seize and retain the motor vehicle until proceedings relating to the offence are finalised.

(6) Subject to this section, if a person is convicted by a court of an offence against this section, the court must, on the application of the prosecution, order that the motor vehicle the subject of the offence is forfeited to the Crown.

(6a) A motor vehicle forfeited to the Crown under subsection (6) may be dealt with in accordance with section 20 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 as if it had been forfeited by order of a court under that Act.

(6b) Notice of an application for an order under subsection (6) relating to a motor vehicle must be given to—

(a) if the prosecution is aware of any person (other than the defendant) who claims ownership of the motor vehicle—that person; and

(b) if the prosecution is aware that any other person is likely to suffer financial or physical hardship as a result of the making of an order under subsection (6)—that person; and

(c) each holder of a registered security interest in respect of the motor vehicle under the Goods Securities Act 1986.

(6c) A court hearing an application for an order under subsection (6) relating to a motor vehicle—

(a) must, if a person given notice of the application under subsection (6b) so requests, hear representations from the person in relation to the application; and

(b) may, at the request of any other person who is likely to be affected by the making of the order, hear representations from that person in relation to the application.

(6d) A court making an order under subsection (6) may make any consequential or ancillary order or direction that it considers necessary or expedient in the circumstances of the case.

(6e) A court may decline to make an order for forfeiture under subsection (6) if satisfied that—

(a) the making of the order would cause severe financial or physical hardship to a person; or

(b) 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

(c) the making of the order would significantly prejudice the rights of the credit provider; or

(d) the motor vehicle the subject of the application has, since the date of the offence, been sold to a genuine purchaser or otherwise disposed of to a person who did not, at the time of the sale or disposal, know or have reason to suspect that the motor vehicle might be the subject of proceedings under the section.

(6f) If—

(a) a court declines to make an order for forfeiture under subsection (6); and

(b) the court is satisfied that it would be reasonably practicable for the convicted person to instead perform community service,

the court must order the convicted person to perform not more than 240 hours of community service.

(6g) An order to perform community service under subsection (6f) must be dealt with and enforced as if it were a sentence of community service (and in any enforcement proceedings the court may exercise any power that it could exercise in relation to a sentence of community service).

The opposition, through this amendment, is simply trying to provide consistency between two pieces of legislation dealing with the misuse of vehicles, the first one 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 this committee this afternoon. Our amendments replicate the hoon legislation forfeiture provisions on the basis that the confiscation process should be no tougher on monkey bike riders than we are placing on hoons. The government has set the standard. We ask that it be applied consistently.

The government proposal in the proposed subsections, section 55(5) and (6), is that if a person is to be or has been reported for, or charged with, or given an expiation notice in relation to an offence outlined in that proposed section, a police officer may seize the vehicle until proceedings relating to the offence are finalised. One way 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 this bill, even if the owner of the vehicle did not know about the offence or consent to it being used by the offender.

The opposition amendment would substitute the automatic forfeiture provisions contained in section 55, with the relevant hoon driving forfeiture and penalty provisions introduced by the government in February 2010 through the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007. The amendment would allow police to give offenders the opportunity to expiate the offence and keep the vehicle. However, if the police want to pursue confiscation, they would need to charge the alleged offender and may temporarily confiscate the vehicle until the matter is finalised.

Once found guilty of an offence, there is still a presumption towards the forfeiture of the vehicle to the Crown upon application by the prosecutor, but the owner of the vehicle and the offender will have the right to appeal the forfeiture on a range of grounds, such as the owner being unaware of or not consenting to the events, the fact that another party may have a financial interest in the vehicle, or on the basis of financial or physical hardship.

The amendment also allows further penalty of up to 240 hours of community service to be imposed in lieu of the forfeiture of the vehicle. This provision is provided as an alternative additional penalty; for example, where the offender uses another person's vehicle. An owner of a prescribed motor vehicle who commits an offence may be fined up to $5,000 and have their vehicle forfeited, and a person who uses another person's vehicle would otherwise only be liable for up to a $5,000 penalty if this subsection was not included. We believe that there are good grounds for having similar provisions in this legislation as to what the government has put forward in the hoon legislation. I commend this amendment to the committee.

The Hon. B.V. FINNIGAN: I disagree with the Hon. Mr Wade that the government has set the standard in relation to this matter in our hoon legislation, because there is a very critical difference. Cars are a legal product. You can buy them legally, drive them legally on the road and have them insured and registered. We have a whole framework of laws that govern how we drive our vehicles because we recognise that cars are a legitimate and very necessary part of our life.

What we are talking about here are monkey bikes, so-called, which are not able to be ridden on a public road at all, and they are not able to be registered. So, it is not at all comparable, because we have these provisions in relation to the forfeiture, clamping and impounding of cars where somebody misuses a legal product that has a very extensive framework of laws built around it. You cannot compare that with what is essentially a product that is not able to be driven lawfully on a road at all and is not able to be registered. So, we see these amendments as substantially altering the existing measures.

Dealing with the seizure of and the subsequent dealings with a monkey bike, there are two principal changes. First, the amendments exclude a number of existing categories triggering South Australia Police's seizure powers. Under this amendment, only when a person is charged with an offence could a police officer seize and retain a motor vehicle until proceedings are finalised. The existing bill permits a police officer to seize and retain a motor vehicle where a person is to be or has been reported for an offence, has been arrested for an offence, has received an expiation notice in relation to an offence or is the subject of action under Part 2 of the Young Offenders Act 1993 in relation to an offence.

Second, the amendments import wholesale provisions taken from the clamping and impounding legislation of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007. Notably, under the proposed amendments, it is necessary for the prosecution to apply for an order that the vehicle in question be forfeited to the Crown. Notice of such an application must be given to a host or third parties, who must be given an audience at the hearing of the application should they so wish. Furthermore, the court has the discretion to deny the application on a host of bases, including severe financial or physical hardship or that 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.

In the government's view, it is inappropriate to seek to introduce into this bill provisions (framed to apply to registrable, insured and potentially financed vehicles) to apply to unregistrable monkey bikes unable to be lawfully driven on a public road. Furthermore, as the vast majority of offences are likely to be dealt with by way of expiation, removing that category as a trigger to SAPOL's powers of seizure will undermine the ability for the police to immediately remove the source of the dangerous and disruptive conduct—that is the monkey bike—from the roads.

For the sake of completeness, I note that the Attorney-General in another place made similar comments in respect of the opposition's then foreshadowed amendments. It is unfortunate that the opposition appears to have paid little heed. It follows for the reasons outlined above that the government strongly opposes these amendments.

This amendment very much threatens to undermine the entire basis of the bill, which is to get these things off our roads. There are people in the community in many parts of South Australia, particularly in the outer suburbs of Adelaide, who are being tormented by these things, and we want to put in place the measures that can easily get them off the roads, not treat them as if they are a lawful car the same as the car that you and I drive every day.

The Hon. S.G. WADE: I want to respond to the government's response in two respects. First, the minister keeps talking about monkey bikes as though this bill was about monkey bikes. This bill is called—

The CHAIR: Can either you or the minister explain to me what a monkey bike is?

The Hon. S.G. WADE: Yes, I can. The Chair probably understands it as a pocket rocket from the younger days. They are unregistered miniature motorcycles, which are typically about half the size of a standard road bike, powered by a 50cc petrol motor and capable of speeds in excess of 70. My understanding is that there have been significant disruptions in both the southern suburbs and the northern suburbs through the use of them.

The point I was hoping to make was that this bill is not the 'Summary Offences (Monkey Bikes) Amendment Bill 2010', it is the Summary Offences (Prescribed Motor Vehicles) Amendment Bill 2010. The government, under its original proposal, just by proclamation could have declared a whole range of vehicles as prescribed motor vehicles. I commend the government for picking up a suggestion from the Hon. Ann Bressington that a proclamation or regulation would be more appropriate, so that could be disallowable by this parliament.

However, it is quite conceivable that a whole range of motor vehicles will be prescribed under this legislation. Whether or not the monkey bikes are subject to a range of measures (I understand that they cannot be imported and they cannot be sold, etc.), they are certainly experiencing a crusade, if you like, and the opposition does not object to that.

The opposition is very aware that this legislation has not been drafted merely for monkey bikes or pocket rockets (as the President prefers to refer to them), it is to do with prescribed motor vehicles—and that could be anything. I should not say 'anything', but my understanding is that it could include in the future things like golf carts, mopeds, self-propelled elevating platforms, power-assisted pedal cycles—well, perhaps not that last one.

The point is that we just do not know how valuable the next prescribed motor vehicle will be. The fact that mopeds might not be worth pursuing for retrieval does not mean that the next prescribed media vehicle is not. We do not disagree with the government that monkey bikes are a curse that need to be taken off the roads, but this bill has more general application and, in anticipation of whatever may yet come, we want a bill that works not just for monkey bikes but for whatever else might be proclaimed.

The Hon. B.V. FINNIGAN: I welcome the honourable member going to visit people in the northern and southern suburbs, who have these things roaring around on their footpaths, through their parks and ripping up their neighbourhoods, and explain to them in the nicest diplomatic language that because 'monkey bike' is not in the title of the bill they are just going to have to wear it because the government might decide, in the future, to prescribe mopeds or gophers or spacecraft or something else. That is the most absurd argument I have heard. These things are a menace and the opposition is deliberately trying to frustrate the government doing something about it. I would like to see them justify and explain that to the people who are affected by them.

The Hon. S.G. WADE: I will be brief because there is a brief and simple answer. People will only be given the option of expiation by the decision of the police officer. If the police officer decides to charge them, they will be completely vulnerable to confiscation. This does not close the confiscation route, and we support the police having the power, through appropriate appealable processes, to confiscate assets.

The Hon. M. PARNELL: I turn again to the Law Society's submission on this question. It states that its principal concern with the provision of, for example, new subsection (5) as drafted, is that it is draconian. The Law Society's submission states:

We consider that the power to seize and consequently retain should only be exercisable upon the institution of criminal proceedings.

That, in fact, is what the honourable member's amendment seeks to do. The current wording of new subsection (5) includes such concepts as 'if a person is to be reported'. I am not sure what that means. Is it simply the intention or a threat of a police officer that they have a present intention to report but they have not yet done it? In other words, the net is cast too wide. As currently drafted, if a person is to be reported, has been reported, or if they have been charged, that is covered by the honourable member's amendment.

Regarding expiation notices, I acknowledge what the minister is saying in that we are talking about vehicles that perhaps are inherently illegal, rather than something that is 'herently' legal. However, it seems to me that an expiation notice is a pretty thin basis on which to confiscate and retain property. You can imagine that if someone overstays a parking meter by a few minutes and leaves themselves liable to an expiation, we would be outraged if confiscation was a result of that. We are not talking about cars parked on the streets but about different types of vehicles.

The ultimate list we do not yet know because we have not seen it, but it seems that the Law Society submission, which I find attractive, is that the bar needs to be set a bit higher. If the police are going to charge someone then, yes, let them confiscate. The Law Society goes on to say, again using the word 'draconian', that there is no mechanism to challenge such a decision, which could be a misplaced decision on the part of a police officer. If there is no right to challenge it, there is no right for justice to be done.

I note that the honourable member's amendment incorporates the ability to go to an umpire and see whether the powers were properly exercised. This amendment is quite a lengthy one, and I note that the Hon. Ann Bressington has an amendment to the amendment, so I will reserve my judgment until I have heard the full debate on that. Certainly, in terms of these threshold questions of the trigger for confiscation and the rights of people to challenge those decisions, the Greens are supportive of those parts of the amendment.

The Hon. A. BRESSINGTON: I move to amend the Hon. Mr Wade's amendment as follows:

Page 3, lines 13 to 35 [clause 5, inserted section 55(5, (6) and (7)]—After inserted subsection (6f(a) insert:

(ab) the convicted person is an owner of the motor vehicle the subject of the offence; and

I support the Hon. Stephen Wade's amendment to create a more equitable process that is flexible to owners' circumstances and involvement in the commission of the offence when determining whether to forfeit a monkey bike. As I detailed in my second reading contribution, the government's bill, in its haste to forfeit these bikes, created a process in which monkey bikes are arbitrarily forfeited with no opportunity for the owner to intervene.

As I said, even before the amendment, that is even where the property had been stolen. I am one of those people out in the northern suburbs who have to put up with these things zipping past my front door. Although it is a nuisance, I also know of people who have bought these bikes for their young children to learn how to ride a motor bike on their property—not in the suburbs but on a property out yonder where they take the kids out to ride these bikes.

If one of these people was to have their bike stolen and illegally ridden on a road or on an area the minister will prescribe, that child's bike, which was a Christmas or birthday present, will be forfeited, confiscated and probably crushed. You are going to punish the people who are doing the right thing and have tried to do the right thing by their kids by buying one of these bikes in the first place to start them off on something small and reasonable in order to learn how to ride a bike.

They could easily be caught up in this net, and that is being lost in this debate about monkey bikes and their being a nuisance. Yes, when ridden in the suburbs, they are a nuisance, but we are not talking about that with forfeiture but about where an owner has not given permission for that bike to be ridden on the road, and where that monkey bike has probably been stolen and ridden without their knowledge.

There has to be a threshold. When people bought these bikes for their kids, they were not illegal. They did not buy them illegally. We have a crossover here where they have now been declared to be illegal, unregisterable, and all the rest of it, from where people were able to buy them quite legally. You could even buy them at the Brickworks Markets. A bit of leeway will not go astray.

I will explain why I am amending the Hon. Stephen Wade's amendment. I support his amendment, but I also support imposing a penalty of community service as a substitute penalty for forfeiting a monkey bike in cases where to do so would cause financial or physical hardship to the owner, where it would prejudice the rights of a credit provider or where the vehicle has been sold.

This is indeed appropriate where the owner is the defendant and, hence, would be subject to community service. However, I do not believe it to be appropriate where the defendant is the rider of the vehicle as distinct from the owner. The honourable member's amendments would mean that a rider of a motor vehicle who has already received a penalty for the criminal action (potentially, a fine of up to $5,000) would then be subject to an additional penalty, not for a criminal act they have committed but instead solely due the financial status of the bike's owner, and this is clearly inappropriate.

The other situation in which a court can decline to forfeit a vehicle used in contravention of this section is where the bike was ridden without the owner's consent. Of course, an owner should not be penalised for an offence in which they played no part. However, in declining to forfeit the monkey bike for this reason, should the court impose community service on the rider? This is a question I have considered in some detail. Ultimately, I concluded that a penalty should not be imposed for conduct the defendant has not been found guilty of.

It must be remembered that, while riding a bike without the consent of the owner is indeed an offence, this is not the offence of which a rider has been found guilty and for which they have received a penalty. Instead, they have been found guilty of riding a prescribed bike on a road or road-related area and have been penalised accordingly. If they are to be penalised for riding the bike without consent, it should be after prosecution and a guilty verdict for offending against section 86A of the Criminal Law Consolidation Act 1935. It is for these reasons I move this amendment to restrict the imposition of community service to the owner of a monkey bike where they are also the defendant in proceedings.

The Hon. J.M. GAZZOLA: I seek some clarification from the mover of the amendment. The Hon. Ann Bressington mentioned that some parents bought their children one of these monkey bikes, which are up to 50cc, I think. What speeds do these monkey bikes get up to and what age are the children?

The Hon. A. BRESSINGTON: Well, the speeds the bike can go, I believe, is up to about 70 km/h but, certainly when a little kid is learning to ride a motorbike, they are not going at 70 km/h and they are learning to ride a bike. I believe it is safer to teach a kid to ride a 50cc motorbike than it is to start them off on a motocross bike or off-road bike. These little bikes are quite manageable for kids around the age of 10 or 11 to ride on private property, on farm property, to learn how to manage a bike.

The Hon. B.V. FINNIGAN: These monkey bikes are not the sorts of harmless things you can have in the back shed. You can use them for a legitimate purpose, but we are just trying to make sure that you do not take them out on the road. The commonwealth has issued a permanent ban on these monkey bikes being sold. If you are interested, Mr Chairman, there is some significant detail as to what constitutes a monkey bike or a mini bike or pocket bike. There are various ways of describing them, but it is very clear to those who are buying them and using them what is being talked about when we talk of monkey bikes.

The commonwealth has issued, under the Competition and Consumer Act 2010, a permanent ban on monkey bikes with unsafe design features. I am advised that the South Australian Office of Consumer and Business Affairs has also had restrictions in place for some time. It is not to suggest that all we are worried about here is when people misuse these vehicles. They are not really seen as a legitimate vehicle that we want being purchased and used at all because, inevitably, they are used principally for an illegal purpose, and that is what this bill seeks to correct, and it seeks to give police the powers to deal with these and to make sure they are taken off the road.

Yet again, we see here that the Liberal Party do not have confidence in the police; they do not trust the police. Rather than simply being honest and admitting that and saying that they oppose the bill, they simply try to make the bill unworkable and to take away from the police the power they require to make sure that monkey bikes are taken off the road.

These are a menace in our community, and yet again the Liberal Party is showing that it is more interested in what lawyers have to say than what the community have to say, and it is being absolutely soft on those who are hooning around the community on these things. As my friend the Hon. Mr Holloway says, I am sure if they started turning up in Burnside and other eastern suburbs of Adelaide, ripping up their rose gardens, we would find a very different attitude being presented by the honourable members opposite.

I look forward to drawing to the attention of citizens in the southern and northern suburbs that the Liberal Party does not care about them; it does not care about monkey bikes; it does not trust the police to deal with them and, as far as it is concerned, there is no problem that needs to be addressed, because the Law Society says there is not one. That is the message the Liberal Party is sending to the people of Adelaide.

The Hon. A. BRESSINGTON: I would like to remind the minister that the legislation he mentioned came into operation in 2010 and there were people who bought those bikes in good faith long before 2010. I believe there was a gentleman in the northern suburbs who was begging the government to make these bikes illegal about three and a half to four years ago, before too many people got sucked into buying them, and then the government realised that they were unsafe and banned them.

A number of people have bought these bikes legitimately for their children and, if the police want to go around all of the farms in South Australia and capture all the illegal use of motorbikes and cars by kids who are living on farms—where they learn to drive and ride these bikes—then by all means feel free, because it is not just monkey bikes that these kids are riding and practising on.

The Hon. S.G. WADE: I would like to reiterate to the minister that the Liberal Party is supporting this bill. All that we are trying to do is enhance it, and we are trying to enhance it on the basis of legislation which this government has put on the statute books. If that legislation was soft then this legislation is subject to his criticism in those terms.

If I could address the Hon. Anne Bressington's amendment, in the context of enhancing the bill I appreciate that these things are matters for judgement and the scenarios that you can construct for a sequence of events are complex. In the context of making that judgement we will not be supporting this particular amendment. As I understand it, and the honourable member may be able to correct my understanding, it is based on the premise that it is unfair to make a penalty available against a non-owner offender on the basis of the circumstances of a third party.

If a person commits an offence under section 55(1) driving their own prescribed motor vehicle, either their vehicle will be forfeited or they will be forced to perform community service. If a person commits the same offence driving another person's prescribed vehicle, the effect of the amendment would be to ensure that the person committing the offence would not be forced to undertake any community service, unlike the person driving their own vehicle.

Furthermore, if the court made a forfeiture order, the penalty would be inflicted on the owner, not the driver. Essentially it would allow, in our view, a double standard that allows a person using another person's vehicle to get off with not more than a $5,000 fine, whereas a person driving their own vehicle would be liable for the fine, plus either forfeiture or community service. The opposition thinks the risk of injustice is greater without a community service option, and we will not be supporting the amendment.

The Hon. M. PARNELL: For similar reasons to the Hon. Stephen Wade, I think it probably is more reasonable to have a provision that allows for the non-owner drivers to also be subject to community service orders, although I fully accept the honourable member's rationale for moving the amendment. Clearly, she does not have the numbers for that, which brings me back to the original amendment of the Hon. Stephen Wade. Having heard the debate so far, the Greens are not inclined to change our position, so we will be supporting the whole of the amendment.

The CHAIR: The question is that the Hon. Ms Bressington's amendment to the Hon. Mr Wade's amendment be agreed to.

Amendment to amendment negatived.

The committee divided on the amendment:

AYES (11)
Bressington, A. Darley, J.A. Dawkins, J.S.L.
Franks, T.A. Lensink, J.M.A. Lucas, R.I.
Parnell, M. Ridgway, D.W. Stephens, T.J.
Vincent, K.L. Wade, S.G. (teller)
NOES (8)
Brokenshire, R.L. Finnigan, B.V. (teller) Gago, G.E.
Gazzola, J.M. Holloway, P. Hood, D.G.E.
Hunter, I.K. Zollo, C.
PAIRS (2)
Lee, J.S. Wortley, R.P.


Majority of 3 for the ayes.

Amendment thus carried.

The Hon. S.G. WADE: I move:

Page 4, lines 1 to 3 [clause 5, inserted section 55(8)(c)]—Delete paragraph (c)

I regard this amendment as consequential; and, if any member does not regard it as consequential, I am happy to speak to it at length.

The Hon. B.V. FINNIGAN: This relates to the young offenders?

The Hon. S.G. WADE: Yes.

The Hon. B.V. FINNIGAN: This amendment seeks to omit from the ambit of the definition of 'finalised proceedings' offences dealt with under part 2 of the Young Offenders Act 1993 where the offender has admitted the commission of the offence.

As it is the government's expectation that a number of offences will be committed by children who are likely to be dealt with under the provisions of the Young Offenders Act 1993, and its removal from section 55(8) would impact on the Crown's ability to deal with vehicles in accordance with section 20 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007, the amendment is opposed.

The CHAIR: Perhaps we will hear what some of the other members are doing. The honourable member has moved the amendment, hasn't he?

The Hon. S.G. WADE: My understanding of what happened was that I said that we regard this amendment as consequential. The minister has just indicated that he does not, so I was hoping to address my amendment to explain why I do believe it is consequential and would like it to be supported on that basis.

The reason I am seeking to delete subsection 8(c) is that the amendment that the committee has already supported (Wade 1, amendment No. 1) deletes section 55(5)(d) and section 55(6c), both of which relate to offences under part 2 of the Young Offenders Act.

I would stress to the minister (and I do not know whether he appreciates this) that part 2 of the Young Offenders Act deals with, shall we say, less formal processes, particularly formal and informal cautions. The opposition's view, reflected in our amendment (and, for that matter correlating with the hoon legislation), is that the police should charge a person with an offence in order to activate the forfeiture provisions, as the Hon. Mr Parnell indicated other stakeholders have recommended.

I stress that, in spite of the minister's earlier attack on me being the lackey of some externals, I actually have not mentioned that external body. The Hon. Mark Parnell might have to consider his conscience about whether he is a lackey of external stakeholders, but I have not brought them into this debate. For the reasons I have outlined, I do believe that this amendment is consequential, and I would urge members who supported me on amendment No. 1 support me on amendment No. 2.

The Hon. M. PARNELL: The Greens declare that we are not the lackey of the Law Society or anyone else (just to get that on the record), but we do support the amendments for the reasons that the honourable member gave, and we believe that they are properly classified as consequential.

The Hon. J.A. DARLEY: I will be supporting the opposition amendment.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. B.V. FINNIGAN (Minister for Industrial Relations, Minister for State/Local Government Relations, Minister for Gambling) (17:19): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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