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This clause states that the intent of Part VA of the Traffic Act is to discourage hoon driving and related anti-social behaviour.
29AAB Definitions
This clause introduces and defines terms which are specific to Part VA of the Act. The prescribed driving offences to which Part VA applies remain unchanged, but the concept of impounding has been expanded to include the immobilisation a vehicle through the use of wheel clamps or other devices.
29AC Traffic infringement notice counted as offence
This clause provides that a traffic infringement notice for a prescribed driving offence, that is not withdrawn, is taken to be a finding of guilt in respect of the offence. This allows the Court to take prior infringement notices into account when determining whether a hooning offence is a second or subsequent offence.
Division 2 Impounding determination
29AD Power of police officer to impound vehicle
This clause provides the police with the power to impound a vehicle where they reasonably believe that it has been used to commit a prescribed driving offence, for 48 hours. It also allows the police to act on a written complaint, but this must be done within 14 days of the alleged offence.
The clause also requires a copy of the written determination to impound a vehicle to be given to the driver, the registered owner and any registered operator, the Registrar of Motor Vehicles, and, if the vehicle is not registered or the registered owner is not the legal owner of the vehicle, notice must be given to the vehicle‘s owner, if the owner is known to the police.
The clause also sets out what information needs to be included in an impounding determination.
29AE Review and revocation of impounding determination
This clause requires every 48 hour police impounding determination to be reviewed by a senior police officer (someone holding the rank of superintendent or higher). If it transpires that the vehicle was stolen, taken without the owner’s authority, a rental vehicle, or if the senior officer is not satisfied that the vehicle was used to commit a prescribed driving offence, the impounding order may be revoked.
29AF Related powers of police officer
Subclause (1) allows a police officer to:
Where a vehicle is not seized by police upon the apprehension of a driver, subclause (2) restricts the time in which police can seize a vehicle for the purposes of a 48 hour impounding to 14 days from the date the impounding determination is made.
Subclause (3) allows the police to use reasonable force when exercising their powers under subclause (2).
Subclause (4) creates an offence for a refusal to comply with a request made by a Police officer to provide the names and addresses of owners and operators. The maximum penalty is 20 penalty units (currently, $2200).
Subclause (5) creates an offence for a refusal to comply with a request to deliver a vehicle used to commit an alleged offence to a police officer. The maximum penalty is 100 penalty units (currently, $11 000).
Subclause (6) provides that it is a defence to a charge under subclauses (4) or (5) if the person can establish that they had a reasonable excuse for failing to comply with a direction given by a police officer.
Division 3 Impounding orders and forfeiture orders
29AG Application of division
This Division applies if more than one prescribed offence is committed by a person within a two year period.
29AH Sentencing for second offence
When someone is found guilty of a second prescribed driving offence (within a two year period) the police may apply to the Court for an impounding order before the person is sentenced, and the Court can order that the vehicle used to commit the offence can be impounded for a period between three months and six months.
An application cannot be made if the vehicle was stolen, used without the authority of the owner, or if the vehicle was a rental vehicle.
The Court cannot make an impounding order:
The fact that the vehicle may already have been impounded by the police for 48 hours for the same offence does not prevent the Court from making an impounding order.
29AI Sentencing for subsequent offence
Where someone is found guilty of a subsequent prescribed driving offence (a third or subsequent offence within a two year period) the police may apply to the Court before the person is sentenced for an order for the forfeiture of the vehicle.
An application cannot be made if the vehicle was stolen, used without the authority of the owner, or if the vehicle was a rental vehicle.
The Court cannot make a forfeiture order:
When a forfeiture order is made, the vehicle becomes the property of the Territory.
If the Court finds that forfeiture would cause severe hardship to someone with an interest in the vehicle, it has the option of making an impounding order for a period between three months and six months so long as it is satisfied that impounding the vehicle will not also cause severe hardship. That order may be made on the application of the police, or by the Court on its own initiative. It can also be made irrespective of the fact that the vehicle may already have been impounded by the Police for 48 hours for the same offence.
This clause requires a police officer seeking an impounding or forfeiture order to serve notice of the application on:
A person who receives notification of the application for an impounding or forfeiture order may appear and be heard in the proceedings for an impounding or forfeiture order.
29AK Other related orders
On the hearing of an application for an impounding or forfeiture order, the Court may order the owner of the vehicle to deliver possession of the vehicle to a police officer, and may also authorise the police to use reasonable force to enter a place, and to search for and seize and remove the vehicle.
29AL Proceedings for order and other penalty
This clause makes it clear that the application for an impounding or forfeiture order is part of the sentencing proceedings, but at the same time, the making of an impounding or forfeiture order is in addition to any other penalty that the Court might otherwise impose on the offender for a prescribed driving offence.
29AM Application by interested party to Local Court
This clause allows anyone claiming an interest in a forfeited vehicle and who did not appear at the hearing of the application for forfeiture, to apply for the return of the vehicle or for payment of compensation for the value of their interest. Anyone wishing to make such an application and who was notified of the application but failed to appear at the hearing, will require special leave from the Court.
Compensation is limited to the amount of the surplus on the sale after payment of sale costs, forfeiture costs, any outstanding impounding costs, monies paid to other interest holders, and after the payment of any money to other interest holders under this clause.
This clause also allows claims to be made following the disposal of an uncollected vehicle, but the amount claimed is limited to any surplus (after payment of costs for impounding and the sale of the vehicle, and money due to registered interest holders) paid to the Central Holding Authority, which will only occur if the vehicle’s owner cannot be found.
The time for bringing an application is limited to 60 days from the date of the forfeiture (the date of an order made under clause 29AI), unless the Local Court gives leave to allow a later application where it is satisfied that the delay in bringing the application was not due to the neglect of the applicant.
Three days notice of the application must be given to the Commissioner of Police, and an order can only be made if the Court is satisfied the applicant had a genuine interest in the vehicle before its forfeiture, and the offence leading to the forfeiture order was committed without the applicant’s knowledge and consent.
29AN Registrar's obligations
The Registrar of Motor Vehicles must, on request, give a police officer making an impounding determination or seeking either an impounding order or a forfeiture order, all information held by the Registrar about the vehicle.
This clause also restricts the ability of the Registrar to process and record any change to the registration details of a vehicle before the driver of the vehicle is dealt with by the Court, but the Registrar may still process
This clause preserves a credit provider’s contractual right to repossess and sell a vehicle, notwithstanding that it is subject to an impounding determination or an impounding order.
29AP What happens at end of initial period
The owner of an impounded vehicle is entitled to collect the vehicle when the impounding period expires, upon payment of the impounding costs.
If there is any change in the arrangements for the impounding of a vehicle, the police must notify the driver and other people known to the police who have an interest in the vehicle, of those changes.
29AQ Costs of impounding
Subclause (1) makes the driver of a vehicle (the offender), responsible for the cost of impounding the vehicle.
However, where a vehicle is impounded for 48 hours under a police impounding determination, and either:
If the vehicle is not collected within two days of the end of the impounding period, the offender has to meet the storage costs that accrue after that two day period, and if the Territory pays any costs payable by the offender, that money is a debt due to the Territory by the offender.
Subsection (5) provides a regulation making power if it is necessary to specify a procedure for the release of the vehicle at the end of an impounding period.
Subsection (6) provides that an owner of a vehicle (who is not the offender) may, recover any costs that they have paid to secure the release of their vehicle, from the offender.
29AR Disposal of impounded vehicles
This clause makes provision for the situation where a vehicle is impounded, either by the police, or the Court, and at the end of the impounding period the vehicle’s owner or operator fails to collect it within 28 days. The Commissioner of Police is given the power to dispose of the vehicle in any way that he or she considers to be appropriate if all proceedings related to the offence have been completed and the time for an appeal has expired, and if the Commissioner has given 28 days notice of the proposed disposal to:
The Commissioner is only required to give notice to the extent that it is reasonably practical to do so.
An owner may collect their vehicle at any time before it is disposed of by paying the costs associated with its impounding.
A person purchasing an uncollected vehicle gets title free of any charges and encumbrances and the Commissioner is not liable to anyone who may have had an interest in a vehicle before its disposal
If an uncollected vehicle is disposed of by way of sale, the sale proceeds are disbursed as follows:
Following the making of a forfeiture order, the Commissioner of Police may dispose of the forfeited vehicle in any way that the Commissioner thinks appropriate. Examples of disposure methods given in subclause (1) include the sale or destruction of a vehicle.
Subclause (2) shields the Commissioner from any liability to anyone who may have had an interest in the vehicle prior to its disposal.
The proceeds of a sale are applied:
Subclause (1) creates an offence for anyone dealing with a vehicle or removing anything attached to the vehicle during the 28 day period after an impounding determination has been made, if they know that the determination has been made for a second prescribed driving offence by the driver of the vehicle within a two year period. The maximum penalty is 200 penalty units ($22 000).
Subclause (2) makes it an offence to enter into a transaction relating to a motor vehicle or removing anything attached to that vehicle when the person knows that the driver of the vehicle has been charged or issued with a summons for a second prescribed driving offence within a two year period. The maximum penalty is 200 penalty units ($22 000) or up to one year imprisonment.
Subclause (3) preserves the right of credit providers to repossess and sell impounded vehicles.
Subclause (4) makes it an offence to enter into a transaction relating to a motor vehicle when the person knows that the driver of the vehicle has been charged or issued with a summons for a third (or subsequent) prescribed driving offence within a two year period. The maximum penalty is 400 penalty units ($44 000) or imprisonment for up to two years.
Subclause (5) creates an offence for anyone who unlawfully removes anything attached to a vehicle that is subject to an impounding or forfeiture order or who interferes with it at its storage place. Again the maximum penalty is 100 penalty units ($ 11 000).
Subclause (6) excludes the application of subsection (5) to credit providers who repossess impounded vehicles, and allows people to access impounded vehicles to remove their personal belongings or to maintain their vehicles. Periodically starting the engine to keep the battery charged is cited as an example of maintenance that would be permitted.
Subclause (7) defines transaction to include the sale of all or part of a vehicle and the creation of a mortgage or charge in relation to the vehicle.
29AU Excessive noise from vehicle
Where a police officer reasonably considers that the noise emanating from a vehicle in a public place or on a public street is excessive, this clause gives the police officer the power to direct a person in control of that vehicle to reduce or stop the noise. A failure to comply with such a direction is an offence and carries a maximum penalty of 20 penalty units ($2200).
A person who fails to comply with a police noise abatement direction has a defence if they can establish a reasonable excuse for their failure to comply.
Under the regulations police may issue a $200 traffic infringement notice for this offence.
Division 6 Administrative matters
29AV Disclosure of information
This clause authorises the police to pass on personal information about the identity of people with interests in impounded vehicles or vehicles which are the subject of application for impounding or forfeiture orders. A person who receives that information from a police officer and passes it on to anyone else, other than for the purposes of Part VA of the Act, commits an offence. The maximum penalty for that offence is 200 penalty units ($22 000) or imprisonment for one year.
29AW Protection from liability
This clause protects the Commissioner of Police, police officers and anyone assisting a police officer from civil or criminal liability for anything done by them in good faith in the exercise of a power under Part VA of the Act.
29AY Review of Part
This clause provides for review of the effectiveness of this Part following 7 years of its operation.
Subclause (1) makes it an offence to respond to a request for information by giving misleading information. The maximum penalty is 100 penalty units
($11 000) or imprisonment for 6 months.
Subclause (2) makes it an offence to knowingly provide misleading documentation to a police officer how is exercising a power or performing a function under this Act. The maximum penalty is 100 penalty units
($11 000) or imprisonment for 6 months.
Subclause (3) excludes the application of (2) if the person alerts the police officer to the misleading aspect in the document or provides the necessary information to remedy the misleading aspect of the document.
Subclause (4) defines “misleading information” as both information that is false and information that is misleading, because some relevant information has been omitted.
Part VA, as amended by this Bill applies to prescribed offences committed after the commencement date but findings of guilt made for prescribed offences before the commencement date will be taken into account in considering whether an offender has committed a second or subsequent offence within a 2 year period.
Clause 10 Regulations amended
This Part amends the Traffic Regulations
Clause 11 Amendment of Schedule 1 (Traffic Infringement Notice Offences)
This clause amends Schedule 1 of the Traffic Regulations to prescribe a breach of section 29AU as an offence for the purposes of Part 3 of the Traffic Regulations. This will allow Police to issue a traffic infringement notice of $200 for failure to comply with a direction of a police officer about excessive noise coming from a vehicle in a public place or on a public street.