TRANSPORT LEGISLATION (HOON BEHAVIOUR) AMENDMENT BILL 2009

Serial 28
Transport Legislation (Hoon Behaviour) Amendment Bill 2009
Mr McCarthy

A Bill for an Act to amend the Traffic Act and other legislation in relation to hoon driving and related anti-social behaviour

An Act to amend the Traffic Act and other legislation in relation to hoon driving and related anti-social behaviour

The Legislative Assembly of the Northern Territory enacts as follows:

This Act may be cited as the Transport Legislation (Hoon Behaviour) Amendment Act 2009.

This Act commences on the date fixed by the Administrator by Gazette notice.

The object of this Part is to discourage hoon driving and related anti-social behaviour.

Consumer Credit (Northern Territory) Code, see section 4 of the Consumer Credit (Northern Territory) Act.

costs, of impounding a motor vehicle as a result of an impounding determination or impounding order, means all the costs related to the following as a result of the determination or order (whether or not the initial period has passed):

(b) if the determination or order specifies that the vehicle be immobilised – immobilising, and removing the immobilisation of, the vehicle.

impound, for a motor vehicle and in relation to an impounding determination or impounding order, means 1 or both of the following as specified in the determination or order:

(a) keeping the vehicle at a specified place (including, for example, a place under the control of a tow truck operator);

(b) immobilising the vehicle by using wheel clamps or other devices.

(b) for an impounding order – see sections 29AH(4) and 29AI(8).

prescribed driving offence means an offence committed by the driver of a motor vehicle against a provision of this Act prescribed by regulation for this definition.

registered operator, of a motor vehicle, means the person who is nominated under section 92A of the Motor Vehicles Act to be the operator of the vehicle.

registered owner, of a motor vehicle, means the person who is the owner of the vehicle as defined in section 5(1) of the Motor Vehicles Act.

senior police officer means a police officer of the rank of superintendent or above.

storage place, for an impounding determination or impounding order relating to a motor vehicle, means the place at which the vehicle is kept because of the impounding determination or impounding order.

traffic infringement notice means a traffic infringement notice issued under the regulations.

If a traffic infringement notice for a prescribed driving offence has been issued to a person and the notice is not withdrawn, the person is taken to have been found guilty of the offence for this Part.

(1) A police officer who reasonably believes a motor vehicle was used in committing a prescribed driving offence (the alleged offence) may determine in writing (the impounding determination) that the vehicle be impounded.

(2) Without limiting subsection (1), the police officer may form the belief on the basis of a sworn statement of a complainant in relation to the commission of the alleged offence.

(3) The police officer may make the impounding determination only within 14 days of the alleged offence.

(4) The police officer must, as far as reasonably practicable after making the impounding determination, give a copy of it to the following:

(a) the person who was the driver of the motor vehicle at the time of the alleged offence;

(b) if the vehicle is registered and the driver is not the registered owner or registered operator of the vehicle – the registered owner and registered operator of the vehicle;

(c) if the police officer knows the identity of the owner of the vehicle (whether or not the vehicle is registered) – that owner;

(d) if the driver was found guilty of 1 or more prescribed driving offences within 2 years immediately before the date of the alleged offence – the Registrar.

(a) must include information about the impounding determination and its effect (including, for example, the storage place and liability for the costs of impounding the vehicle); and

(b) may include other information relating to impounding the vehicle.

(6) The impounding determination has effect during the period (the initial period):

(a) starting when a police officer takes control of the motor vehicle for the determination; and

(b) ending 48 hours later or at an earlier time if the determination is revoked at the earlier time.

(1) As soon as practicable after the police officer has made the impounding determination, the police officer must give a copy of it to a senior police officer to review the determination.

(2) The senior police officer must review the impounding determination as soon as practicable and no later than 24 hours after the copy is given to him or her.

(3) At any time before an impounding determination ceases to have effect:

(a) the police officer or senior police officer must revoke the determination if the police officer or senior police officer is satisfied that, at the time of the alleged offence, the motor vehicle was a rental vehicle, or was stolen or otherwise used without the authority of its owner; or

(b) the senior police officer must revoke the determination if the senior police officer is not satisfied the vehicle was used in committing the alleged offence.

(1) A police officer may, for the purposes of the impounding determination:

(a) require a person who was the driver of the motor vehicle at the time of the alleged offence to give to the officer the names and addresses of the registered owner, registered operator or anyone who is otherwise the owner of the vehicle; and

(b) by the impounding determination or another written notice – require a person having the control of the vehicle to deliver the vehicle to the officer by a specified time at a specified place; and

(2) A police officer's power to seize the motor vehicle under subsection (1)(d) may be exercised only within 14 days after the day on which the impounding determination is made.

(3) A police officer may use any reasonable force and assistance in exercising a power under this section.

(4) A person required by a police officer to give information as mentioned in subsection (1)(a) must comply with the requirement.

(5) A person required by a police officer to deliver the vehicle as mentioned in subsection (1)(b) must comply with the requirement.

(6) It is a defence to a prosecution for an offence against subsection (4) or (5) if the defendant establishes a reasonable excuse.

This Division applies if, within 2 years after a person (the offender) being found guilty of a prescribed driving offence (the first offence):

(a) the offender is found guilty of another prescribed driving offence (the second offence); or

(b) the offender is found guilty of 1 or more further prescribed driving offences (each of which is a subsequent offence) after being found guilty of the second offence.

(1) This section applies after a court has found the offender guilty of the second offence.

(2) Before the offender is sentenced for the second offence, the Commissioner of Police may apply to the court for an order (an impounding order) to impound the motor vehicle used in committing the offence.

(3) However, the Commissioner of Police may not do so if, at the time of the second offence, the motor vehicle was a rental vehicle, or was stolen or otherwise used without the permission of its owner.

(4) The court may order the impounding of the motor vehicle for a specified period (the initial period) that is at least 3 months and not more than 6 months if the court is satisfied:

(a) each person with an interest in the vehicle had the opportunity to be heard in the proceedings for the application; and

(b) impounding the vehicle will not cause severe financial or physical hardship to a person mentioned in paragraph (a) who was heard in the proceedings.

(5) The court must not make the impounding order if the court is satisfied:

(a) the offender was not the owner of the motor vehicle at the time of the second offence; and

(b) the second offence happened without the knowledge and consent of the owner of the vehicle.

(6) The impounding order must specify the storage place and may specify other matters relating to impounding the motor vehicle as decided by the court.

(7) The impounding order takes effect as specified in the order at the earlier of the following:

(a) the expiration of the period for instituting an appeal in relation to the offence or sentence if no appeal is instituted;

(b) the end of the proceedings for an appeal by the offender if the appeal is unsuccessful.

(8) The impounding order may be made whether or not the motor vehicle was previously impounded under section 29AD because of the second offence.

(1) This section applies after a court finds the offender guilty of a subsequent offence.

(2) Before the offender is sentenced for the subsequent offence, the Commissioner of Police may apply to the court for an order (a forfeiture order) to forfeit the motor vehicle used in committing the offence.

(3) However, the Commissioner of Police may not do so if, at the time of the subsequent offence, the motor vehicle was a rental vehicle, or was stolen or otherwise used without the permission of its owner.

(4) The court may make the forfeiture order only if the court is satisfied:

(a) each person with an interest in the motor vehicle had the opportunity to be heard in the proceedings for the application; and

(b) forfeiting the vehicle will not cause severe financial or physical hardship to a person mentioned in paragraph (a) who was heard in the proceedings.

(5) The court must not make the forfeiture order if the court is satisfied:

(a) the offender was not the owner of the motor vehicle at the time of the subsequent offence; and

(b) the subsequent offence happened without the knowledge and consent of the owner of the vehicle.

(6) The forfeiture order takes effect as specified in the order at the earlier of the following:

(a) the expiration of the period for instituting an appeal in relation to the offence or sentence if no appeal is instituted;

(b) the end of the proceedings for an appeal by the offender if the appeal is unsuccessful.

(b) any rights in the vehicle existing before the forfeiture are extinguished.

(8) Instead of making a forfeiture order, the court may make an order (an impounding order) to impound the vehicle for a specified period (the initial period) that is at least 3 months and not more than 6 months, if the court:

(a) would, apart from subsection (4)(b), make the forfeiture order; and

(b) is satisfied that impounding the vehicle for the initial period will remove or reduce the hardship as mentioned in that subsection.

(9) The court may make the impounding order on its own initiative or on the application of the Commissioner of Police, and whether or not the motor vehicle was previously impounded under section 29AD because of the subsequent offence.

(10) The impounding order must specify the storage place and may specify other matters relating to impounding the vehicle as the court decides.

(1) This section applies if, in relation to an offender, the Commissioner of Police intends to apply for an impounding order or forfeiture order.

(2) The Commissioner of Police must, before the offender is sentenced for the offence to which the proposed order relates, give written notice of that intention to the following:

(b) if the vehicle is registered – the registered owner and registered operator of the motor vehicle;

(c) if the Commissioner knows the identity of the owner of the vehicle (whether or not the vehicle is registered) – that owner;

(d) if the Commissioner knows the identity of a person who is the spouse or de facto partner of a person mentioned in paragraph (b) or (c) – that person;

(e) for an application for a forfeiture order – anyone whose interest in the vehicle is recorded in the Register of Interests in Motor Vehicles and Other Goods maintained under section 6 of the Registration of Interests in Motor Vehicles and Other Goods Act.

(3) A person notified under subsection (2), or anyone else claiming to have an interest in the motor vehicle, has a right to be heard in the proceedings for the application.

(1) The court making an impounding order or forfeiture order may:

(a) order the owner of the motor vehicle to which the order relates to deliver the vehicle to a police officer by a specified time at a specified place; or

(i) enter a place the officer reasonably suspects the vehicle may be found; and

(2) A police officer may use any reasonable force and assistance in exercising a power under the order.

(a) the proceedings for the application of an impounding order or forfeiture order in relation to a prescribed driving offence are part of the proceedings for sentencing the offender in relation to the offence; and

(b) the making of an impounding order or forfeiture order is in addition to, and does not limit the court's power to impose, any other penalty for the offence.

29AM Application to Local Court after making of forfeiture order

(a) the person had an interest in a motor vehicle before it was forfeited under a forfeiture order; and

(i) was not notified of the application for that order under section 29AJ and did not appear as a party in the proceedings for that application; or

(ii) is allowed by the Local Court to make an application for an order under this section; and

(ii) has been sold under section 29AS and part of the proceeds has been paid to the Central Holding Authority (the CHA amount).

(2) The person (the applicant) may, within 60 days after the forfeiture of the motor vehicle, apply to the Local Court for an order:

(i) if the vehicle is still vested in the Territory – to transfer it to the applicant; or

(ii) otherwise – to pay to the applicant an amount worked out under subsection (3).

(a) equal to the value of the interest if that value is less than so much of the CHA amount as is reduced by any amount already paid under this section to another person who also had an interest in the vehicle (the reduced CHA amount); or

(4) The Local Court may allow the application to be made more than 60 days after the forfeiture of the vehicle if it is satisfied the delay in making the application was not caused by the applicant's neglect.

(5) The applicant must notify the Commissioner of Police of the application at least 3 days before the Local Court hears the application.

(b) if the vehicle is vested in the Territory – must not dispose of the vehicle after being notified of the application and before the end of the proceedings.

(7) The Local Court must grant the application by making an order it considers appropriate if it is satisfied:

(a) the applicant would, apart from the forfeiture order, have a genuine interest in the vehicle; and

(b) if the vehicle was forfeited under a forfeiture order – the prescribed driving offence to which the order relates happened without the knowledge and consent of the applicant.

(1) The Registrar must, on request of a police officer, give the officer all information held by the Registrar about a motor vehicle to which any of the following relates:

(a) an impounding determination, impounding order or forfeiture order;

(b) an application that has been made for an impounding order or forfeiture order.

(2) In addition, the Registrar must not cancel or change the registration of the motor vehicle during the following periods:

(a) if the Registrar is given a copy of the impounding determination under section 29AD(4) for the vehicle – the period of 28 days starting from the date of the notice;

(b) if the Commissioner of Police has made an application for an impounding order or forfeiture order for the vehicle – the period starting on the day the Registrar is given a notice under section 29AJ(2) in relation to the application and ending on the day the application is decided by a court.

(a) renewing the registration of the motor vehicle without changing the registration of the ownership of the vehicle; or

(b) changing the registration of the motor vehicle because it is repossessed or sold by a credit provider as mentioned in section 29AO.

An impounding determination or impounding order for a motor vehicle does not affect the rights of a credit provider to repossess and sell the vehicle under the Consumer Credit (Northern Territory) Code.

(1) The owner of a motor vehicle to which an impounding determination or impounding order relates is entitled to collect the vehicle at the end of the initial period on payment of the costs of impounding the vehicle.

(2) The Commissioner of Police must notify the following about any change of the arrangement for impounding the vehicle after the initial period:

(a) the person who was the driver of the vehicle at the time of the alleged offence;

(b) if the vehicle is registered and that driver is not the registered owner or registered operator of the vehicle – the registered owner and registered operator;

(c) if the Commissioner knows the identity of the owner of the vehicle (whether or not the vehicle is registered) – that owner.

(1) The driver of a motor vehicle (the driver) at the time of the alleged offence or offence to which an impounding determination or impounding order relates is liable to pay the costs of impounding the vehicle as a result of the determination or order.

(2) However, a person is entitled to be reimbursed the amount of those costs that is attributable to the initial period and the 2 days immediately following the initial period (the initial costs) if:

(a) the person incurs the initial costs when the owner of the vehicle collects the vehicle after the initial period; and

(b) for a vehicle impounded under an impounding determination – any of the following applies:

(iii) the driver is not charged with, or issued with a traffic infringement notice or summons for, the alleged offence within 6 months after the determination is made; and

(c) for a vehicle impounded under an impounding order – the order is overturned on an appeal against the decision to make the order.

(3) The Territory is responsible for the initial costs if subsection (2) applies.

(4) If the Territory incurs an amount of costs of impounding the vehicle (other than the initial costs for which the Territory is responsible under subsection (3)), the amount is a debt due to the Territory by the driver.

(5) Despite subsections (3) and (4), the regulations may provide for the release of the vehicle to a person on payment of an amount by the person.

(6) This section does not prevent the owner of the vehicle to recover from the driver an amount of the costs of impounding the vehicle paid by the owner under section 29AP(1).

(1) This section applies if the owner of a motor vehicle to which an impounding determination or impounding order relates does not collect the vehicle:

(a) for an impounding determination – within 28 days after a copy of the impounding determination is given to a person under section 29AD(4); or

(b) for an impounding order – within 28 days after the order expires.

(2) The Commissioner of Police may dispose of the vehicle in any way the Commissioner considers appropriate (including, for example, sale or destruction) if:

(a) all proceedings for the alleged offence or offence to which the determination or order relates have ended, the period for appeal has expired and, for an impounding order, the order is not overturned; and

(b) at least 28 days before the proposed disposal of the vehicle – the Commissioner has notified each of the following of the proposed disposal:

(i) the person who was the driver of the vehicle at the time of the alleged offence or offence;

(ii) if the vehicle is registered and that driver is not the registered owner or registered operator of the vehicle – the registered owner and registered operator;

(iii) if the Commissioner knows the identity of the owner of the vehicle (whether or not the vehicle is registered) – that owner;

(iv) anyone else whom the Commissioner knows to have an interest in the vehicle; and

(c) at least 28 days before the proposed disposal – the Commissioner has, by Gazette notice, publicised the proposed disposal; and

(d) at least 28 days before the proposed disposal – the Commissioner has notified the Registrar about the proposed disposal; and

(e) the Commissioner has obtained a certificate for the vehicle under section 12 of the Registration of Interests in Motor Vehicles and Other Goods Act.

(3) The Commissioner of Police is required to notify a person mentioned in subsection (2)(b) only to the extent to which it is reasonably practicable to do so.

(4) The owner of the vehicle is entitled to collect the vehicle at anytime before the proposed disposal on payment of the costs of impounding the vehicle as mentioned in section 29AQ.

(5) If the motor vehicle is disposed of by sale to a person, the purchaser holds title to the vehicle free of any interest existing in it before the disposal.

(6) If the Commissioner of Police sells the vehicle under this section, the proceeds of the sale must be paid as follows:

(b) second – in payment of the costs incurred by the Territory for any impounding determination or impounding order for the vehicle;

(d) fourth – in payment of the amount owing to the holder of a security interest registered for the vehicle under the Registration of Interests in Motor Vehicles and Other Goods Act or a corresponding law of another jurisdiction;

(7) If, after making reasonable attempts to locate the owner, the Commissioner has not done so, the amount payable to the owner under subsection (6) must be paid to the Central Holding Authority.

(1) The Commissioner of Police may dispose of a motor vehicle forfeited under a forfeiture order in any way the Commissioner considers appropriate (including, for example, sale or destruction).

(2) If the Commissioner of Police sells the vehicle under this section, the proceeds of the sale must be paid as follows:

(b) second – in payment of the costs incurred by the Territory for removing and keeping the vehicle for the forfeiture order;

(c) third – in payment of the costs incurred by the Territory for any impounding determination or impounding order for the vehicle;

29AT Impounding determination, impounding order and forfeiture order

(1) A person must not enter into a transaction relating to a motor vehicle, or remove anything fitted or attached to the vehicle, within 28 days after an impounding determination has been made for the vehicle if:

(a) the driver of the vehicle at the time of the alleged offence to which the determination relates was found guilty of 1 or more prescribed driving offences within 2 years immediately before that time; and

(i) the driver has been found guilty of 1 or more of the offences within the 2 years; and

Maximum penalty: 200 penalty units or imprisonment not exceeding 1 year.

(2) A person must not enter into a transaction relating to a motor vehicle, or remove anything fitted or attached to the vehicle, if:

(a) a driver of the vehicle has been charged with, or issued with a summons for, a prescribed driving offence (the relevant offence); and

(b) the driver was found guilty of a single prescribed driving offence during the 2 years immediately before being charged with the relevant offence; and

(d) the person has been notified under section 29AJ(2) of the intention of the Commissioner of Police to apply for an impounding order for the relevant offence.

Maximum penalty: 200 penalty units or imprisonment not exceeding 1 year.

(3) Subsections (1) and (2) do not apply to any transaction entered into by a credit provider who repossesses or sells the vehicle as mentioned in section 29AO.

(4) A person must not enter into a transaction relating to a motor vehicle, or unlawfully remove anything fitted or attached to the vehicle, if:

(a) a driver of the vehicle is charged with, or issued with a summons for, a prescribed driving offence (the relevant offence); and

(b) the driver was found guilty of 2 or more prescribed driving offences during the 2 years immediately before being charged with the relevant offence; and

(d) the person has been notified under section 29AJ(2) of the intention of the Commissioner of Police to apply for a forfeiture order for the relevant offence.

Maximum penalty: 400 penalty units or imprisonment not exceeding 2 years.

(5) If a motor vehicle is impounded under an impounding determination or impounding order, a person must not:

(a) unlawfully remove the vehicle or anything fitted or attached to the vehicle from the storage place where the vehicle is kept; or

(b) interfere with the vehicle while it is kept at the storage place; or

(a) a credit provider repossessing or selling the vehicle as mentioned in section 29AO;

(b) a person maintaining the vehicle (including, for example, periodically starting the engine of the vehicle);

(c) a person removing personal possessions (other than a thing that is fitted or attached to the vehicle) from the vehicle.

transaction, relating to a vehicle, includes but is not limited to:

(b) the creation of a mortgage or charge in relation to the vehicle.

(1) If a police officer reasonably believes excessive noise is generated by or from a motor vehicle that is at a public place or on a public street, the officer may direct a person having control of the vehicle to reduce or stop the noise.

(3) It is a defence to a prosecution for an offence against subsection (2) if the defendant establishes a reasonable excuse.

(a) an impounding determination has been made for the vehicle; or

(b) an application for an impounding order or forfeiture order for the vehicle has been made and is pending; or

(2) A police officer may give any information held by the officer about the vehicle to another person (including, for example, a tow truck operator) for the purposes of this Part.

(3) A person who obtains the information because of subsection (2) (whether directly or indirectly) must not disclose the information to anyone except as authorised under, or for the purposes of, this Part.

(1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Part as any of the following:

(2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.

exercise, of a power, includes the purported exercise of the power.

performance, of a function, includes the purported performance of the function.

The Chief Executive Officer is to conduct a review of the first 7 years of the operation of this Part after the commencement of this section.

(1) A person must not knowingly give misleading information to a police officer or inspector who is exercising a power or performing a function under this Act.

(2) A person must not knowingly give a document containing misleading information to a police officer or inspector who is exercising a power or performing a function under this Act.

(3) Subsection (2) does not apply if the person, when giving the document:

(a) draws the misleading aspect of the document to the attention of the police officer or inspector; and

(b) to the extent to which the person can reasonably do so – gives the police officer or inspector the information necessary to remedy the misleading aspect of the document.

misleading information means information that is misleading in a material particular because it:

29AF(4) and (5), 29AT(1), (2), (4) and (5), 29AU(2), 30(1), 30A(1), 31(1) and 49(1) and (2)

If the operation of this Act would, apart from this section, result in an acquisition of property from a person otherwise than on just terms:

(a) the person is entitled to receive from the Territory the compensation necessary to ensure the acquisition is on just terms; and

(b) a court of competent jurisdiction may decide the amount of compensation or make the orders it considers necessary to ensure the acquisition is on just terms.

56 Transitional matters for Transport Legislation (Hoon Behaviour) Amendment Act 2009

(1) Part VA, as inserted by the Transport Legislation (Hoon Behaviour) Amendment Act 2009, applies as provided in this section.

(2) A police officer may make an impounding determination under Part VA only in relation to a vehicle that is used, or alleged to have been used, in committing a prescribed driving offence that occurs on or after the commencement.

(3) An impounding order or forfeiture order may be made under Part VA only in relation to a vehicle used in committing a prescribed driving offence that occurs on or after the commencement.

(4) If, before the commencement, a person was found guilty of an offence that is a prescribed driving offence, that offence may be taken into account for sections 29AD(4)(d), 29AG and 29AT(1), (2) and (4).

A person was found guilty of a prescribed driving offence 10 months before the commencement. The person is again found guilty of a prescribed driving offence 2 months after the commencement. The Commissioner of Police may therefore apply for an impounding order in relation to the vehicle used in committing the second offence.

Part 3 Amendment of Traffic Regulations
Regulations amended

Amendment of Schedule 1 (Traffic infringement notice offences)

Fail to comply with determination of police officer about excessive noise

TA 29AU

200

Northern Territory Bills

TRANSPORT LEGISLATION (HOON BEHAVIOUR) AMENDMENT BILL 2009