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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-05-19 Daily Xml
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SUMMARY OFFENCES (PRESCRIBED MOTOR VEHICLES) AMENDMENT BILL

Final Stages

Consideration in committee of the House of Assembly's message.

The Hon. G.E. GAGO: I move:

That the council do not insist on its amendments.

The government opposed these amendments when they were first considered in this place. The government continues to oppose the amendments for the reasons set out in the committee stages. As noted, the amendments made in this place undermine the bill's effectiveness by making it more difficult for SAPOL to seize noisy and dangerous monkey bikes that are driven or left standing on public roads. Further, those amendments introduce provisions taken from the clamping and impounding scheme that are unsuited to the types of unregistrable vehicles that are the subject of this legislation. If the council is to continue to insist on the amendments I expect that it will be necessary for the appropriate measures to be taken to establish a conference.

The Hon. S.G. WADE: I rise to oppose the motion because I would urge the council to insist on the amendments. Again, we find ourselves debating this legislation. It is another case where the government is demonstrating that for the sake of tough media talk it is happy to enact bad laws. In this case, the government seems to think that being tough on offenders means being indifferent to the legitimate interests of third parties.

The opposition and the vast majority of the crossbench MPs, who supported both the Hon. Ann Bressington's amendments and the opposition's amendments in this place, are taking a broader view. We want to ensure that those who commit crimes face the full force of the law but not those who happen to find themselves or their property in the wrong place at the wrong time. The Labor Party's crusade against monkey bikes has shown that it is willing to spin the facts for the sake of a media grab.

Both the former and current attorneys-general have been putting information into the public domain about monkey bikes which is just simply not true. They have called for these 'tough' laws on the basis that—to quote a press release from the Hon. Michael Atkinson—'people had already lost their lives'. The current Attorney-General reiterated this on 22 July 2010 when he said, 'I am advised that there have been cases where the riders of these monkey bikes have been killed or seriously injured.'

Through debate in this place it has been shown that that is not true. The government has advised that it is not aware of any fatalities that have occurred from these bikes. Monkey bikes are clearly a serious risk to community safety, but the credibility of the government and the personal credibility of the Attorney-General is undermined when the government tries to assert claims which cannot be substantiated.

At this point I should remind the council that this bill is about any kind of vehicle the minister wishes to prescribe. The government continues to focus it on the first cab off the rank—monkey bikes—but this bill envisages that vehicles other than monkey bikes might be covered, and that is why it is called 'prescribed motor vehicles'; it is not called the monkey bikes bill.

During consideration by the council a new section 55(3)(a) was inserted on the initiative of the Hon. Ann Bressington. The amendment provides a defence against confiscation of the vehicle if the owner did not consent to the vehicle being used and the vehicle had not been driven or left standing on a road by them. The Attorney-General in the other place objects that under the Legislative Council amendments there will not be any parents prosecuted under section 55(2) for their child's actions.

The opposition says, 'Well, that depends on the circumstances of the case.' The Attorney-General thinks that parents should be strictly and criminally liable for their child's actions. This liability would be carried even if the child acted directly against their parents' wishes and the parent had not consented and the parent had taken reasonable steps to ensure that the vehicle had not been used by those lawfully entitled to use it in a manner which contravenes sections 55(1) and (2). In his House of Assembly statements on 3 May 2011, the Attorney-General stated that he believed involving the court in matters that relate to an expiable offence was inappropriate and that the opposition amendments were inconsistent with the nature of the offence.

The amendments proposed by the opposition would mean that offences for which expiation notices were issued would not find owners of vehicles fighting for their vehicle in court. As the Attorney-General later acknowledged, a charge would need to be laid before a confiscation took place, meaning that a hearing in a court would occur anyway. For the Attorney-General to say that a court process is inappropriate is in itself inconsistent. The original bill's offences anticipate them going to court but did not allow the most offensive elements of the bill—that is, the confiscation of assets—to be reviewed in that forum.

The opposition thinks it is wholly appropriate for a review of a vehicle's confiscation to be considered by a court; after all, the government considers it is appropriate for such a court review in relation to the vehicles related to hoons. We ask: why are the owners of prescribed motor vehicles, whatever that might mean from time to time, not entitled to equal justice?

The Attorney-General also complained that his further defence, which was proposed to be inserted at section 55(7), for third parties who had their bikes used by others, was taken out of the bill. The Attorney-General acknowledged that his bill was flawed but did an ad hoc job addressing those provisions that were clearly unjust. Instead, the opposition has incorporated equivalent provisions for consideration by the court in proposed section 45(6)(e)(b). In this way it allows the court to consider all the circumstances in which a person's vehicle has been confiscated and whether it is in the interests of justice to confiscate it.

Instead, the Attorney-General would have this house believe that it is more appropriate to have police confiscate vehicles without appeal, without review, without consideration as to who else may be impacted by the confiscation of assets. This would occur even following a simple expiation notice. That is what the government's bill allowed. It is concerning to see the Attorney flying so loose with justice and being so keen to circumvent the courts. One would have thought that the government would have learnt from the costly court battle in the Totani case last year that courts have a role in justice. It is also in the interests of justice to allow the whole circumstances of an offence to be taken into account.

The opposition's amendments were based on the government's own provisions from the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007. The government claims that these provisions were some of the toughest in the nation, yet this was not tough enough for the government, and its 'tough on crime' rhetoric led to this bill being even tougher. Instead, the government has tried to introduce penalties to confiscate assets which, if given proper consideration by the court, may not proceed.

There was a strong and thorough debate on these provisions when the bill was last before the council. Those amendments were supported by all but two of the crossbenchers. There has been an overwhelming consensus that these amendments are both sensible and right. The government is clearly not willing to admit that good ideas can come from the crossbenchers or the opposition. We urge the council to insist on the amendments previously agreed to.

The Hon. M. PARNELL: Since the passage of this bill through the Legislative Council some time ago, the Greens have received no new information that suggests that the conclusion the council reached on that occasion was the wrong one. Therefore, if this bill were to go to a deadlock conference I think that provides the best opportunity for any finetuning of the bill. The Greens will not support the motion.

The Hon. A. BRESSINGTON: I also indicate that I will not support the motion for the reasons given by the Hon. Mark Parnell and the Hon. Stephen Wade. I will repeat what I say here quite often: there is only one thing worse than no legislation, and that is bad legislation. I consider that this legislation, without these amendments, is bad legislation.

Motion negatived.

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