15

		TRANSPORT LEGISLATION (HOONING BEHAVIOUR) AMENDMENT BILL 2009
SERIAL NO. 28

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR TRANSPORT

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Transport Legislation (Hooning Behaviour) Amendment Bill 2009 amends the Traffic Act and the Traffic Regulations to increase the penalties for drivers who engage in hooning and antisocial driving behaviour (prescribed driving offences).

The Bill pulls together those items requiring changes to legislation in order to implement the delivery of harsher consequences to offenders.  These include:
o	the power to immediately impound or immobilise an offender’s vehicle for 
48 hours when they commit an offence;
o	allowing police, acting on a written complaint from a member of the public about a hooning offence, to impound the vehicle used in the offence for 
48 hours and issue the offender with a traffic infringement notice or summons/arrest;
o	the imposition by the court of a penalty of a minimum of 3 months to a maximum of 6 months impoundment of a vehicle when someone is found guilty of a second hooning offence within a two year period;
o	the imposition by the Court of an order for the forfeiture of a vehicle upon a conviction for a third offence within a two year period. If the Court believes that severe hardship will be caused by the forfeiture of the vehicle, it can in lieu of forfeiture, order the impoundment of the vehicle for a minimum of three months if it considers that the hardship caused by temporarily removing the offender’s vehicle will not cause severe hardship; 
o	making offenders responsible for all costs associated with the removal, transport and storage of their impounded or immobilised vehicle whether it is a result of a Police impounding directiondetermination or a court imposed penalty; 
o	providing a process of review by senior police officers of all 48 hour impoundment determinations to ensure the grounds to impound are sound;
o	allowing a vehicle to be immobilised by wheel clamping or some other means as an alternative to storing it in a tow truck operator’s yard or some other storage facility;
o	allowing for orders for vehicle impoundment, immobilisation or forfeiture to be made by the Court of Summary Jurisdiction as part of the sentencing process rather than requiring a separate civil application to be made to the Local Court; 
o	making it an offence to sell, strip or otherwise dispose of a vehicle used in a prescribed driving offence before an impoundment, immobilisation or forfeiture order is made by the Court;
o	giving police the power to direct anyone responsible for excessive noise associated with the use of a vehicle (be it engine noise or the car stereo) to immediately abate the noise, creating an offence for failing to comply with a noise abatement direction, and allowing for the issue of a $200 Traffic Infringement Notice for that offence; and
o	preventing the Registrar of Motor Vehicles from cancelling or transferring the registration of a vehicle that is the subject of an application to the Court for an impoundment or forfeiture order.

NOTES ON CLAUSES

PART 1	PRELIMINARY MATTERS
Clause 1.	Short Title

The Bill when passed will be cited as the Transport Legislation (Hoon Behaviour) Amendment Act 2009.

Clause 2.	Commencement

The Bill will commence on a date fixed by the Administrator and notified in the Gazette.

PART 2	AMENDMENT OF TRAFFIC ACT
Clause 3.	Act Amended

This part amends the Traffic Act.

Clause 4.	Repeal and substitution of long title

This clause changes the long title of the Traffic Act to “An Act to regulate traffic, and for other purposes” to reflect the proposed inclusion of offences relating to 
anti-social behaviour, such as excessive noise from vehicles.

Clause 5	Repeal and substitution of Part VA 

This clause repeals and substitutes Part VA of the Traffic Act with a new Part VA, which contains the following provisions:

PART VA	HOON BEHAVIOUR
Division 1	Preliminary matters

29AA	Object of Part
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:
·	require the driver involved in an alleged prescribed driving offence to provide the name and address of the vehicle’s registered owner, registered operator, and anyone else who is the owner of the vehicle;
·	require a person who has control of the vehicle to deliver it to a police officer;
·	to use reasonable force to enter a place that the officer reasonably suspects the vehicle may be found without a warrant; and
·	 to search that place and seize and remove the vehicle,
for the purposes of giving effect to an impounding determination.
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: 
·	unless it is satisfied that: 
Ø	each person with an interest (other than security interest holders) in the vehicle has been given notice of the application and has had the opportunity to be heard; and 
Ø	making such an order will not cause severe financial or physical hardship to anyone with an interest in the vehicle; and
·	if:
Ø	the offender is not the owner of the vehicle; and
Ø	the Court is satisfied that the offence happened without the knowledge and consent of the owner of the vehicle.
An impounding order becomes effective upon the earlier of the expiry of the time allowed for an appeal or the dismissal of any appeal brought by the offender.
The order must specify the storage place other matters related to the impounding. 
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: 
·	unless it is satisfied that: 
Ø	each person with an interest in the vehicle has been given notice of the application and has had the opportunity to be heard; and 
Ø	making such an order will not cause severe financial or physical hardship to anyone with an interest in the vehicle; and
·	if:
Ø	the offender is not the owner of the vehicle; and
Ø	the Court is satisfied that the offence happened without the knowledge and consent of the owner of the vehicle.
A forfeiture order becomes effective upon the earlier of the expiry of the time allowed for an appeal or the dismissal of any appeal brought by the offender.
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.
29AJ 	Interested parties for proceedings 
This clause requires a police officer seeking an impounding or forfeiture order to serve notice of the application on:
·	the Registrar of Motor Vehicles;
·	the registered owner and any registered operator if the vehicle is registered;
·	if the vehicle is unregistered, or the registered owner of the vehicle is not the true owner of the vehicle, the owner of the vehicle, if he or she is known to the police;
·	the spouse of the registered owner, registered operator, or owner of the vehicle, if he or she is known to the police,
and in the case of a forfeiture order, anyone with an interest in the vehicle that is registered under the Registration of Interests in Motor Vehicles and Other Goods Act.
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 
·	an application for the renewal of the vehicle’s registration; or 
·	a transfer of registration affected by a credit provider following their repossession of the vehicle.

Division 4 	Impounded and forfeited vehicles 

29AO 	Rights of credit provider 
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:
·	that impounding determination is subsequently revoked; or 
·	if the driver of the vehicle: 
Ø	is not found guilty of a prescribed driving offence; or 
Ø	is not charged with a prescribed driving offence within 6 months of the impounding determination, 
the Territory is responsible for the cost of towing and storing the vehicle during the impounding period and for up to two days following the expiry of the impounding period until the vehicle is collected, and must reimburse whoever may have paid the impounding costs to secure the release of the vehicle.
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 driver at the time of the offence;
·	any registered owner or operator of the vehicle;
·	the actual owner of the vehicle, if known to the police; and
·	anyone else known to the police who has an interest in the vehicle,
and if 28 days notice of the proposed disposal is:
·	published in the Gazette; and
·	given to the Registrar,
and if the Commissioner obtains a certificate under section 12 of the Registration of Interests in Motor Vehicles and Other Goods Act setting out whether the vehicle is subject to any registered interest, and, if it is, the details of that interest.
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:
·	first, to the payment of the sale costs;
·	second, to the costs associated with the impounding of the vehicle;
·	third, in payment of the costs associated with giving notice of the disposal;
·	fourth, to any amount owing under a security interest registered against the vehicle under the Registration of Interests in Motor Vehicles and Other Goods Act or similar legislation of force in another jurisdiction; and
·	finally, any surplus is paid to the owner of the vehicle, or if the owner cannot be found, to the Central Holding Authority.
29AS 	Disposal of forfeited vehicles 
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:
·	first to the payment of the sale costs;
·	second to the costs associated with the seizure and storage of the vehicle;
·	third to any costs that might be owed in relation to a 48 hour impounding determination or an impounding order in relation to the vehicle; 
·	fourth to any amount owing under a security interest registered against the vehicle under the Registration of Interests in Motor Vehicles and Other Goods Act or similar legislation of force in another jurisdiction; and
·	finally, any surplus is paid to the Central Holding Authority
Division 5 	Related Offences 

29AT 		Impounding determination, impounding order and forfeiture order
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.

Clause 6	New section 49
49	Misleading information 
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.
Clause 7	Amendment of section 51 (Regulatory offences)

This clause updates the current section 51 to include the new offences contained in Part VA which are not considered regulatory offences.

Clause 8	New section 52A
52	Acquisition on just terms

This clause provides that if the operation of the Act (and in particular Part VA) results in an acquisition of property by the Territory other than on just terms, the Territory must pay compensation to ensure that the acquisition is on just terms.  A Court may determine the appropriate amount of compensation.

Clause 9	New section 56
56	Transitional matters for Transport Legislation (Hoon Behaviour) Amendment Act 2009
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.
PART 3	TRAFFIC REGULATIONS
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.