Untitled document
Road Safety Amendment (Hoon Driving) Act 2010
No. 76 of 2010
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Principal Act
Part 2—Amendment of Road Safety Act 1986
4Definitions
5Section 84E substituted
84EMeaning of second or subsequent offence
6Powers of Victoria Police
7Seizure of motor vehicle
8New sections 84GA and 84GB inserted
84GASearch for motor vehicle
84GBDirection to provide location of motor vehicle
9Surrender of motor vehicle
10Impoundment or immobilisation of a motor vehicle
11Powers of persons authorised by Victoria Police
12Content of notice
13Appeal rights
14Offences
15New section 84QA inserted
84QAHow motor vehicle immobilised by steering wheel
lock may be recovered
16Impoundment or immobilisation order
17Forfeiture order
18New section 84TA inserted
84TARegistrar of Personal Property Securities to be notified of impoundment or immobilisation order or forfeiture order
19Application for an impoundment or immobilisation order or a forfeiture order
20New section 84WA inserted
84WARegistrar of Personal Property Securities to be notified of application
21Notice where 2 or more offences charged
22Direction not to transfer registration or register motor vehicle
23Hearing of application
24Application for variation of order
25New sections 84ZAB and 84ZAC inserted
84ZABInterest in motor vehicle not to be transferred
84ZACBreach of undertaking
26Police powers
27Search and seizure warrant
28Sale or disposal of uncollected motor vehicles and items
29New sections 84ZQA to 84ZQC inserted
84ZQANotice to be given of intention to sell or dispose
84ZQBRegistrar of Personal Property Securities to be
notified of intention to sell or dispose84ZQCRegistrar of Personal Property Securities to be
notified if vehicle vests in Crown
30Sale or disposal of motor vehicle subject to forfeiture order
31New section 84ZRA inserted
84ZRANotice to be given of intention to sell or dispose
32Application of proceeds of sale
33Disposal of motor vehicle, item or thing subject to disposal order
34Notice to be given of intention to apply for disposal order
35New section 84ZUA inserted
84ZUARegistrar of Personal Property Securities to be
notified of intention to apply for disposal order
36Hearing of application for and making of disposal order
37New section 84ZWA inserted
84ZWARegistrar of Personal Property Securities to be
notified of disposal order
38Application of proceeds of sale
39New section 103ZC inserted
103ZCTransitional provision—Road Safety Amendment (Hoon Driving) Act 2010
40Statute law revision
Part 3—Amendment of Melbourne City Link Act 1995
41Power to revoke certain declarations of Link road
61APower to revoke certain declarations of Link road
42Power to revoke certain declarations of Extension road
93HAPower to revoke certain declarations of Extension road
Part 4—Repeal of Amending Act
43Repeal of amending Act
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Endnotes
Road Safety Amendment (Hoon Driving) Act 2010
No. 76 of 2010
[Assented to 19 October 2010]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to amend the Road Safety Act 1986—
(i)to strengthen the application of the motor vehicle impoundment, immobilisation and forfeiture provisions in relation to serious offences; and
(ii)to extend the period for which a motor vehicle may be impounded or immobilised; and
(iii)to provide for mandatory impoundment or immobilisation of motor vehicles in certain circumstances; and
(iv)to provide for immobilisation of a motor vehicle by the use of a steering wheel lock; and
(v)to provide police with greater powers to locate a motor vehicle for the purposes of impoundment, immobilisation or forfeiture; and
(vi)to limit the ways in which a court may have regard to any exceptional hardship caused by impoundment, immobilisation or forfeiture of a motor vehicle; and
(vii)to provide for the giving of an undertaking as an alternative to impoundment, immobilisation or forfeiture of a motor vehicle; and
(viii)to make provision in relation to search and seizure warrants; and
(ix)to provide for the extinguishing of interests in a motor vehicle that is forfeited or abandoned after impoundment in order to facilitate its sale or disposal; and
(x)to make amendments of a statute law revision nature; and
(b)to amend the Melbourne City Link Act 1995 to insert a power to revoke certain declarations of roads.
2Commencement
(1)This Act (other than Part 2) comes into operation on the day after the day on which it receives the Royal Assent.
(2)Part 2 of this Act comes into operation on 1 July 2011.
3Principal Act
In this Act, the Road Safety Act 1986 is called the Principal Act.
__________________
Part 2—Amendment of Road Safety Act 1986
4Definitions
(1)In section 84C(1) of the Principal Act—
(a)in the definition of designated period, for "48 hours" substitute "14 days";
(b)for the definition of relevant offence substitute—
"relevant offence means—
(a)a tier 1 relevant offence; or
(b)a tier 2 relevant offence;";
(c)insert the following definitions—
"second or subsequent offence has the meaning given in section 84E;
tier 1 relevant offence means—
(a)a second or subsequent offence against section 18(1) other than an offence to which section 18(2) applies;
(b)a second or subsequent offence against section 30(1);
(c)a second or subsequent offence against section 49(1)(b), (f) or (g) in circumstances where the concentration of alcohol—
(i)present in the blood of the person was 0·10 grams or more per 100 millilitres of blood; or
(ii)present in the breath of the person was 0·10 grams or more per 210 litres of exhaled air;
(d)a second or subsequent offence against section 49(1)(bb), (h) or (i);
(e)an offence against section 65B or rule 20 of the Road Rules in circumstances where the motor vehicle is driven—
(i)at 70 kilometres per hour or more over the applicable speed limit; or
(ii)if the applicable speed limit is 110 kilometres per hour, at a speed of 170 kilometres per hour or more;
(f)an offence against section 64(1) in circumstances where the motor vehicle is driven—
(i)at 70 kilometres per hour or more over the applicable speed limit; or
(ii)if the applicable speed limit is 110 kilometres per hour, at a speed of 170 kilometres per hour or more;
tier 2 relevant offence means—
(a)an offence against section 64(1)—
(i)in circumstances involving improper use of a motor vehicle; or
(ii)in circumstances where a motor vehicle is driven at 45 kilometres per hour or more over the applicable speed limit but under 70 kilometres per hour over that limit; or
(iii)in circumstances where a motor vehicle is driven, if the applicable speed limit is 110 kilometres per hour, at a speed of 145 kilometres per hour or more but under 170 kilometres per hour;
(b)an offence against section 64A(1);
(c)an offence against section 65(1) in circumstances involving improper use of a motor vehicle;
(d)an offence against section 65A(1);
(e)an offence against section 68(1) or (2);
(f)an offence against section 68B;
(g)an offence against section 65B or rule 20 of the Road Rules in circumstances where the motor vehicle is driven—
(i)at 45 kilometres per hour or more over the applicable speed limit but under 70 kilometres per hour over that limit; or
(ii)if the applicable speed limit is 110 kilometres per hour, at a speed of 145 kilometres per hour or more but under 170 kilometres per hour;
(h)an offence against rule 291 of the Road Rules in circumstances involving improper use of a motor vehicle;
(i)an offence against rule 297 of the Road Rules in circumstances involving improper use of a motor vehicle;".
(2)Section 84C(2) of the Principal Act is repealed.
(3)For section 84C(3) of the Principal Act substitute—
"(3)For the purposes of an application for an impoundment or immobilisation order or a forfeiture order, charges for more than one relevant offence arising out of the same single set of circumstances are to be treated as one charge for a relevant offence.
(3A)For the purposes of subsection (3), if one of the charges is for a tier 1 relevant offence, all of the charges are to be treated as one charge for a tier 1 relevant offence.".
5Section 84E substituted
For section 84E of the Principal Act substitute—
"84E Meaning of second or subsequent offence
(1)In this section—
commencement day means—
(a)in relation to a tier 1 relevant offence (other than an offence referred to in paragraph (b)), the commencement of Part 2 of the Road Safety Amendment (Hoon Driving) Act 2010;
(b)in relation to an offence against section 30(1), the commencement of Part 2 of the Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005.
(2)For the purposes of the definition of tier 1 relevant offence, an offence is a second or subsequent offence only if the first offence was committed on or after the commencement day.".
6Powers of Victoria Police
In section 84F(1) of the Principal Act, before paragraph (a) insert—
"(aa)search for, or gain access to, the motor vehicle; and
(ab)direct a person of or over the age of 18 years at the premises being searched to provide information concerning the location of the motor vehicle; and".
7Seizure of motor vehicle
(1)In section 84G(1) of the Principal Act, for "impounding or immobilising" substitute "impoundment, immobilisation or forfeiture of".
(2)After section 84G(1)(b) of the Principal Act insert—
"(ba)from a place that is not a public place without the consent of the owner or occupier of that place following a search of that place in accordance with section 84GA; or".
(3)In section 84G(2) of the Principal Act—
(a)in paragraph (b), for "that warrant." substitute "that warrant; or";
(b)after paragraph (b) insert—
"(c)in the case of seizure following a search conducted in accordance with section 84GA—
(i)if the motor vehicle is subject to an impoundment or immobilisation order or a forfeiture order, 10 days after the date on which the surrender of the vehicle was required by that order; or
(ii)in any other case, the period referred to in paragraph (a).".
(4)In section 84G(3)(b) of the Principal Act, after "moving the motor vehicle" insert "or immobilising the motor vehicle (whether by use of a steering wheel lock or otherwise)".
8New sections 84GA and 84GB inserted
After section 84G of the Principal Act insert—
"84GA Search for motor vehicle
(1)Subject to subsection (3), for the purpose of seizing a motor vehicle under this Part, a member of the police force may, without consent and without warrant, enter and search—
(a)the garage address for that motor vehicle; or
(b)any land or premises, or any part of land or premises, where the member reasonably believes that the motor vehicle is present (either at that time or from time to time).
(2)For the purpose of searching for, or gaining access to, a motor vehicle under this Part, a member of the police force may—
(a)open unlocked doors, panels, objects or other things, or open unlocked places; and
(b)move, but not take away, anything that is not locked or sealed.
(3)This section does not authorise a member of the police force who is searching for a motor vehicle under this Part—
(a)to use force; or
(b)if the member is searching business premises, to enter those premises outside normal business hours; or
(c)to enter any part of a building if that part is used for residential purposes; or
(d)to enter any part of land or premises if the entrance to that part is locked; or
(e)to open any locked door to any building on the land.
84GBDirection to provide location of motor vehicle
(1)For the sole purpose of locating a motor vehicle to be seized under this Part, a member of the police force may direct a person to provide information concerning the location of that motor vehicle if—
(a)the person is of or over the age of 18 years; and
(b)both the person and the member of the police force are present at the garage address of the motor vehicle or at premises where the member reasonably believes that the motor vehicle is present (either at that time or from time to time).
(2)A person of or over the age of 18 years must not—
(a)knowing the location of the motor vehicle referred to in a direction under subsection (1), fail to comply with the direction; or
(b)in purported compliance with a direction under subsection (1), give information that the person knows to be false or misleading in a material particular.
Penalty:5 penalty units.
(3)A person is not excused from complying with a direction given under subsection (1) on the ground that complying with the direction may result in information being provided that—
(a)might incriminate the person; or
(b)may make the person liable to a penalty.
(4)Any information, document or other thing obtained as a direct or indirect consequence of a person complying with a direction given under subsection (1) is admissible in evidence against the person in—
(a)a proceeding for making a false or misleading statement; or
(b)any proceeding under this section—
but is not otherwise admissible in evidence against that person.".
9Surrender of motor vehicle
In section 84H(4) of the Principal Act, for "section 84F or 84G" substitute "sections 84F to 84GB".
10Impoundment or immobilisation of a motor vehicle
In section 84I(b) of the Principal Act, after "wheel clamps" insert ", a steering wheel lock".
11Powers of persons authorised by Victoria Police
In section 84J(d) of the Principal Act, after "wheel clamps" insert ", a steering wheel lock".
12Content of notice
(1)After section 84L(f)(iv) of the Principal Act insert—
"(v)if the motor vehicle has been immobilised by use of a steering wheel lock, the address and telephone number of the police station from which the key for that steering wheel lock may be collected; and".
(2)For section 84L(g) of the Principal Act substitute—
"(g)that the Chief Commissioner of Police may apply to the relevant court for an impoundment or immobilisation order or a forfeiture order in accordance with this Part if the requirements of this Part relating to previous relevant offences (if any) are satisfied; and".
13Appeal rights
(1)Before section 84O(1) of the Principal Act insert—
"(1AA)In this section—
offender means a person believed to have committed the relevant offence in relation to which the motor vehicle was impounded or immobilised.".
(2)In section 84O(3) of the Principal Act, for "On" substitute "Subject to subsections (3A), (3B) and (3C), on".
(3)After section 84O(3) of the Principal Act insert—
"(3A)If—
(a)the offender is disqualified from obtaining a driver licence or permit; or
(b)the offender's driver licence or permit is suspended—
for a period longer than the period of impoundment or immobilisation, the Magistrates' Court must not consider any exceptional hardship caused to the offender.
(3B)The Magistrates' Court must not make an order under subsection (3) on the grounds of exceptional hardship relating to the offender's employment unless the applicant satisfies the Court that—
(a)driving the impounded or immobilised motor vehicle is essential (not merely convenient) for the offender's employment; and
(b)no other transport to his or her place of employment is available to the offender; and
(c)the offender, after making reasonable enquiries, is unable to arrange for another person to drive the offender to his or her place of employment.
(3C)In determining whether to make an order under subsection (3), the Magistrates' Court must have regard to the safety of the public and the public interest in preventing the use of a motor vehicle that the Court considers is reasonably likely in all the circumstances to be used for further driving offences.".
14Offences
(1)After section 84P(2)(a) of the Principal Act insert—
"(ab)if the motor vehicle is immobilised by use of a steering wheel lock and immediately after the vehicle is moved the person who moved the vehicle or arranged for it to be moved informs a member of the police force of the new location of the vehicle; or".
(2)In section 84P(3) of the Principal Act, after "authorised person" insert "or a member of the police force".
15New section 84QA inserted
After section 84Q of the Principal Act insert—
"84QA How motor vehicle immobilised by steering wheel lock may be recovered
(1)This section applies if a motor vehicle has been immobilised under this Part by use of a steering wheel lock and—
(a)under section 84Q(1), that motor vehicle must be released; or
(b)a decision under section 84N, or an order under section 84O, has been made to release that motor vehicle.
(2)The member of the police force who served the notice under section 84K must make the key to that steering wheel lock available at the police station specified in accordance with section 84L(f)(v) for collection by—
(a)if the motor vehicle is to be released to a specified person in accordance with an order under section 84O, that person; or
(b)in any other case, the registered operator or any other person entitled to possession of the motor vehicle.
(3)A person who collects a key to a steering wheel lock must not, without reasonable excuse, fail to return the key and the steering wheel lock to the police station from which the key was collected within 24 hours after collecting the key.
Penalty:60 penalty units.
(4)A person must not copy, or attempt to copy, a key to a steering wheel lock.
Penalty:60 penalty units.
(5)It is not an offence against subsection (4) for any of the following persons to copy, or attempt to copy, a key to a steering wheel lock—
(a)a member of the police force;
(b)a person engaged or employed by a member of the police force for the purpose of copying the key.
(6)A person (other than a member of the police force or an authorised person) must not unlock, or attempt to unlock, a steering wheel lock fitted under this Division with any thing other than a key made available under subsection (2).
Penalty:60 penalty units.".
16Impoundment or immobilisation order
(1)For section 84S(1) of the Principal Act substitute—
"(1)On the application of the Chief Commissioner of Police under section 84U(1), if a driver is found guilty of—
(a)a tier 1 relevant offence; or
(b)a tier 2 relevant offence and within the period of 3 years immediately preceding the commission of that offence the driver has committed one or more relevant offences (whether a tier 1 relevant offence or a tier 2 relevant offence)—
the relevant court must order, subject to section 84Z, that the motor vehicle used in the commission of the relevant offence before the court or a substituted motor vehicle—
(c)be impounded or immobilised for a period of 45 days or, on the application of the Chief Commissioner of Police, any longer period not exceeding 3 months in total (including any period of impoundment or immobilisation during the designated period); or
(d)be forfeited to the Crown by order under section 84T(1).
Notes
1 Section 84Z allows a court to decline to make an impoundment or immobilisation order in certain circumstances.
2 An application under section 84ZG for a search and seizure warrant may be heard and determined immediately after an application under section 84U(1) if an impoundment or immobilisation order is made.".
(2)For section 84S(2) of the Principal Act substitute—
"(2)An order under subsection (1) may only be made if the relevant court is satisfied that, if the application is in respect of the motor vehicle used in the commission of the relevant offence, at the time that offence was committed that motor vehicle was not—
(a)a stolen motor vehicle; or
(b)a hired motor vehicle; or
(c)being used in any prescribed circumstances.".
17Forfeiture order
(1)For section 84T(1) of the Principal Act substitute—
"(1)On the application of the Chief Commissioner of Police under section 84U(1), if a driver is found guilty of—
(a)a tier 1 relevant offence and within the period of 3 years immediately preceding the commission of that offence the driver has committed one or more tier 1 relevant offences or two or more tier 2 relevant offences; or
(b)a tier 2 relevant offence and within the period of 3 years immediately preceding the commission of that offence the driver has committed two or more relevant offences (whether tier 1 relevant offences or tier 2 relevant offences or a combination of both)—
the relevant court may order, subject to section 84Z, that the motor vehicle used in the commission of the relevant offence before the court or a substituted motor vehicle be forfeited to the Crown.
(1A)If the relevant court is satisfied of the matters referred to in subsection (1) but declines to make an order under that subsection, the court must order, subject to section 84Z, that the motor vehicle used in the commission of the relevant offence or a substituted motor vehicle be impounded or immobilised by order under section 84S(1).
Notes
1 Section 84Z allows a court to decline to make an impoundment or immobilisation order or a forfeiture order in certain circumstances.
2 An application under section 84ZG for a search and seizure warrant may be heard and determined immediately after an application under section 84U(1) if a forfeiture order or impoundment or immobilisation order is made.".
(2)For section 84T(2) of the Principal Act substitute—
"(2)An order under subsection (1) or in accordance with (1A) may only be made if the relevant court is satisfied that, if the application is in respect of the motor vehicle used in the commission of the relevant offence, at the time that offence was committed that motor vehicle was not—
(a)a stolen motor vehicle; or
(b)a hired motor vehicle; or
(c)being used in any prescribed circumstances.".
18New section 84TA inserted
After section 84T of the Principal Act insert—
"84TA Registrar of Personal Property Securities to be notified of impoundment or immobilisation order or forfeiture order
(1)If a court makes an impoundment or immobilisation order under section 84S or a forfeiture order under section 84T, the Chief Commissioner of Police must serve notice of that order on the Registrar of Personal Property Securities (within the meaning of the Personal Property Securities Act 2009 of the Commonwealth) as soon as practicable after the order takes effect.
Note
See section 84ZB for when an order takes effect.
(2)A notice under subsection (1) must specify—
(a)the motor vehicle in respect of which the order is made; and
(b)the kind of order made; and
(c)the period of the order; and
(d)the date on which the order takes effect; and
(e)in the case of a forfeiture order, that the motor vehicle was forfeited to the Crown.
(3)The Corporation may serve notice under subsection (1) on behalf of the Chief Commissioner of Police.".
19Application for an impoundment or immobilisation order or a forfeiture order
(1)In section 84U(1)(b) of the Principal Act, before "the driver" insert "unless subsection (1A) applies,".
(2)After section 84U(1) of the Principal Act insert—
"(1A)Subsection (1)(b) does not apply to an application for an impoundment or immobilisation order in relation to a tier 1 relevant offence.".
20New section 84WA inserted
After section 84W of the Principal Act insert—
"84WA Registrar of Personal Property Securities to be notified of application
(1)If the Chief Commissioner of Police gives notice of an application under section 84W(1), he or she must serve notice of that application on the Registrar of Personal Property Securities (within the meaning of the Personal Property Securities Act 2009 of the Commonwealth) immediately after giving notice under section 84W(1).
(2)A notice under subsection (1) must—
(a)specify the motor vehicle in respect of which the order is sought; and
(b)state the matters described in section 84W(3)(a) and (b).
(3)The Corporation may serve notice under subsection (1) on behalf of the Chief Commissioner of Police.".
21Notice where 2 or more offences charged
(1)For section 84Y(3)(a) of the Principal Act substitute—
"(a)that the Chief Commissioner of Police intends to apply to the relevant court for an impoundment or immobilisation order or a forfeiture order in accordance with this Part if the requirements of this Part relating to previous relevant offences (if any) are satisfied; and".
(2)In section 84Y(5) of the Principal Act—
(a)in paragraph (a), for "relevant offence" substitute "tier 2 relevant offence";
(b)in paragraph (b), for "the second or third relevant offence" substitute "the relevant offences in relation to which the notice is served";
(c)in paragraph (c), for "relevant offence" substitute "tier 2 relevant offence".
22Direction not to transfer registration or register motor vehicle
In section 84YA(3)(b) of the Principal Act—
(a)in subparagraph (i), for "relevant offence" substitute "tier 2 relevant offence";
(b)in subparagraph (ii), for "the second or third relevant offence" substitute "the relevant offences in relation to which the notice is served";
(c)in subparagraph (iii), for "relevant offence" substitute "tier 2 relevant offence".
23Hearing of application
(1)Before section 84Z(1) of the Principal Act insert—
"(1AA)In this section—
offender means a person believed to have committed the relevant offence in relation to which the motor vehicle is to be impounded, immobilised or forfeited.".
(2)In section 84Z(3) of the Principal Act, for "The" substitute "Subject to subsections (3A), (3B) and (3C), the".
(3)After section 84Z(3) of the Principal Act insert—
"(3A)The court must not decline to make an impoundment or immobilisation order or a forfeiture order on the grounds of exceptional hardship caused to the offender if—
(a)either—
(i)the offender is disqualified from obtaining a driver licence or permit; or
(ii)the offender's driver licence or permit is suspended; and
(b)in the case of an application relating to an impoundment or immobilisation order, the suspension or disqualification is for a period longer than 3 months.
(3B)The court must not decline to make an impoundment or immobilisation order or a forfeiture order on the grounds of exceptional hardship relating to the offender's employment unless the offender, or another person appearing before the court, satisfies the court that—
(a)driving the impounded or immobilised motor vehicle is essential (not merely convenient) for the offender's employment; and
(b)no other transport to his or her place of employment is available to the offender; and
(c)the offender, after making reasonable enquiries, is unable to arrange for another person to drive the offender to his or her place of employment.
(3C)In determining whether to decline to make an impoundment or immobilisation order or a forfeiture order on the ground of exceptional hardship, the court must have regard to the safety of the public and the public interest in preventing the use of a motor vehicle that the court considers is reasonably likely in all the circumstances to be used for further driving offences.
(3D)If the court declines to make an impoundment or immobilisation order or a forfeiture order on the ground of exceptional hardship, it may require the applicant (other than the offender) to give an undertaking that the motor vehicle will not be made available to be driven by the offender during a period not exceeding—
(a)3 months if the application is for an impoundment or immobilisation order and—
(i)the offender is disqualified from obtaining a driver licence or permit for a period not exceeding 3 months; or
(ii)the offender's driver licence or permit is suspended for a period not exceeding 3 months; or
(b)12 months in any other case.
Note
Section 84ZAC provides for the impoundment, immobilisation or forfeiture of the motor vehicle on breach of an undertaking.
(3E)A person is deemed to be released from an undertaking under subsection (3D) if, on appeal—
(a)the driver is found not guilty of the relevant offence in relation to which the motor vehicle was impounded, immobilised or forfeited and is not found guilty of any other relevant offence arising out of the same single set of circumstances; or
(b)the conviction for that relevant offence is set aside.".
24Application for variation of order
(1)Before section 84ZA(1) of the Principal Act insert—
"(1AA)In this section—
offender means a person believed to have committed the relevant offence in relation to which the motor vehicle was impounded, immobilised or forfeited.".
(2)After section 84ZA(2) of the Principal Act insert—
"(2A)An application under subsection (1) cannot be made on the grounds of exceptional hardship caused to the offender if—
(a)either—
(i)the offender is disqualified from obtaining a driver licence or permit; or
(ii)the offender's driver licence or permit is suspended; and
(b)in the case of an application relating to an impoundment or immobilisation order, the suspension or disqualification is for a period longer than the period of impoundment or immobilisation.
(2B)An application under subsection (1) cannot be made on the grounds of exceptional hardship if the impoundment or immobilisation order or forfeiture order was made in accordance with section 84ZAC.".
(3)In section 84ZA(4) of the Principal Act, for "The" substitute "Subject to subsections (5), (6) and (7), the".
(4)After section 84ZA(4) of the Principal Act insert—
"(5)The court must not make an order under subsection (4) on the grounds of exceptional hardship relating to the offender's employment unless the applicant satisfies the court that—
(a)driving the impounded or immobilised motor vehicle is essential (not merely convenient) for the offender's employment; and
(b)no other transport to his or her place of employment is available to the offender; and
(c)the offender, after making reasonable enquiries, is unable to arrange for another person to drive the offender to his or her place of employment.
(6)In determining whether to make an order under subsection (4), the court must have regard to the safety of the public and the public interest in preventing the use of a motor vehicle that the court considers is reasonably likely in all the circumstances to be used for further driving offences.
(7)If the court makes an order under subsection (4) setting aside the impoundment or immobilisation order or forfeiture order, it may require the applicant (other than the offender) to give an undertaking that the motor vehicle will not be made available to be driven by the offender during a period not exceeding—
(a)3 months if the application is for an impoundment or immobilisation order and—
(i)the offender is disqualified from obtaining a driver licence or permit for a period not exceeding 3 months; or
(ii)the offender's driver licence or permit is suspended for a period not exceeding 3 months; or
(b)12 months in any other case.
Note
Section 84ZAC provides for the impoundment, immobilisation or forfeiture of the motor vehicle on breach of the undertaking.
(8)A person is deemed to be released from an undertaking given under subsection (7) if, on appeal—
(a)the driver is found not guilty of the relevant offence in relation to which the motor vehicle was impounded, immobilised or forfeited and is not found guilty of any other relevant offence arising out of the same single set of circumstances; or
(b)the conviction for that relevant offence is set aside.".
25New sections 84ZAB and 84ZAC inserted
After section 84ZA of the Principal Act insert—
"84ZAB Interest in motor vehicle not to be transferred
If a person is bound by an undertaking under section 84Z(3D) or 84ZA(7), the person must not, before the expiry of the period of the undertaking, without the approval of the relevant court, sell or otherwise dispose of any interest in the motor vehicle in relation to which the undertaking was given.
Penalty:60 penalty units.
84ZACBreach of undertaking
(1)In this section—
relevant motor vehicle means the motor vehicle in relation to which an undertaking was given;
undertaking means an undertaking under section 84Z(3D) or 84ZA(7).
(2)If—
(a)a person has given an undertaking to a relevant court; and
(b)it appears to the court that the person has failed to comply with the undertaking—
the court must direct that the person and the registered operator for the relevant motor vehicle (if not the person who has given the undertaking) be served with a notice stating the matters referred to in subsection (3).
Note
See section 93 for how a notice may be served.
(3)A notice served under subsection (2) must state that—
(a)the relevant court intends to deal with an apparent breach of the undertaking at the specified time on a specified date; and
(b)the person who gave the undertaking is required to attend before the relevant court at that time and date; and
(c)if the person who gave the undertaking is not the registered operator for the relevant motor vehicle, the registered operator may attend before the relevant court at that time and date.
(4)If a notice is served under subsection (2) on a person and he or she fails to attend before the relevant court at the time and date specified, the relevant court may deal with the apparent breach of the undertaking in the absence of the person.
(5)If the relevant court is satisfied that a person has failed to comply with an undertaking, the court may—
(a)make an impoundment or immobilisation order in accordance with section 84S in relation to the relevant motor vehicle; or
(b)make a forfeiture order in accordance with section 84T in relation to the relevant motor vehicle—
as the case requires.
(6)In considering whether to make an impoundment or immobilisation order or a forfeiture order under subsection (5), the relevant court must not consider whether making that order will cause exceptional hardship to any person.".
26Police powers
In section 84ZC of the Principal Act—
(a)after "same powers to" insert "search for and";
(b)for "and (3)" substitute ", 84G(3), 84GA, 84GB".
27Search and seizure warrant
Before section 84ZH(2)(a) of the Principal Act insert—
"(aa)direct a person to provide information concerning the location of the motor vehicle specified in the warrant in accordance with section 84GB;".
28Sale or disposal of uncollected motor vehicles and items
(1)After section 84ZQ(1) of the Principal Act insert—
"(1A)A purchaser of a motor vehicle, item or thing sold in accordance with subsection (1) acquires good title to that vehicle, item or thing.".
(2)For section 84ZQ(3)(b) of the Principal Act substitute—
"(b)the Chief Commissioner has given notice in accordance with section 84ZQA at least 14 days before that sale or disposal; and".
(3)Section 84ZQ(3)(c) of the Principal Act is repealed.
(4)After section 84ZQ(3) of the Principal Act insert—
"(4)Subject to subsection (5), if notice is given under section 84ZQA of an intention to sell or otherwise dispose of a motor vehicle and any uncollected item or thing left in or on it, 14 days after that notice is given the motor vehicle and any items or things left in or on it vest absolutely in the Crown, free from all other interests, rights, titles or claims in or to ownership or possession.
(5)Subsection (4) does not apply to a motor vehicle, item or thing if, within 14 days after notice is given under section 84ZQA, the Chief Commissioner of Police determines that the motor vehicle, item or thing should not be sold or otherwise disposed of.
(6)Subsection (4) has effect despite any other Act (other than the Charter of Human Rights and Responsibilities) or law to the contrary.".
29New sections 84ZQA to 84ZQC inserted
After section 84ZQ of the Principal Act insert—
"84ZQA Notice to be given of intention to sell or dispose
(1)The Chief Commissioner of Police must give notice of intention to sell or otherwise dispose of a motor vehicle, and any uncollected item or thing left in or on the motor vehicle, under section 84ZQ by—
(a)serving notice of the intention on—
(i)the driver of the motor vehicle; and
(ii)if the driver of the motor vehicle is not the registered operator of the motor vehicle, the registered operator; and
(iii)any person who the Chief Commissioner is aware has an interest in the motor vehicle; and
(iv)the Corporation; and
(b)publishing the notice of intention in a newspaper circulating generally in the State.
(2)A notice under subsection (1) must state—
(a)that the Chief Commissioner of Police intends to sell or otherwise dispose of the motor vehicle, and any uncollected item or thing left in or on the motor vehicle, not less than 14 days after the notice is given; and
(b)information that identifies the motor vehicle, including the motor vehicle's registration number (if applicable); and
(c)that 14 days after the notice has been given, the motor vehicle and any uncollected item or thing left in or on it will vest absolutely in the Crown, free from all other interests, rights, titles or claims in or to ownership or possession.
(3)The Chief Commissioner of Police must not give notice under this section unless all proceedings in relation to the relevant offence that led to the impoundment or immobilisation of the relevant motor vehicle have been finalised and any appeal period has expired.
84ZQBRegistrar of Personal Property Securities to be notified of intention to sell or dispose
(1)If the Chief Commissioner of Police gives notice of a motor vehicle of an intention to sell or otherwise dispose of a motor vehicle under section 84ZQA(1), he or she must serve notice of that intention on the Registrar of Personal Property Securities (within the meaning of the Personal Property Securities Act 2009 of the Commonwealth) immediately after giving notice under section 84ZQA(1).
(2)A notice under subsection (1) must state the matters described in section 84ZQA(2).
(3)The Corporation may serve notice under subsection (1) on behalf of the Chief Commissioner of Police.
84ZQCRegistrar of Personal Property Securities to be notified if vehicle vests in Crown
(1)If, under section 84ZQ(4), a motor vehicle vests in the Crown, the Chief Commissioner of Police must give notice to the Registrar of Personal Property Securities (within the meaning of the Personal Property Securities Act 2009 of the Commonwealth) within 7 days of the motor vehicle vesting in the Crown.
(2)A notice under subsection (1) must state—
(a)information that identifies the motor vehicle, including the motor vehicle's registration number (if applicable); and
(b)that under section 84ZQ(4) the motor vehicle vested absolutely in the Crown, free from all other interests, rights, titles or claims in or to ownership or possession; and
(c)the date on which the motor vehicle vested in the Crown.
(3)The Corporation may give notice under subsection (1) on behalf of the Chief Commissioner of Police.".
30Sale or disposal of motor vehicle subject to forfeiture order
(1)After section 84ZR(1) of the Principal Act insert—
"(1A)A purchaser of a motor vehicle, item or thing sold in accordance with subsection (1) acquires good title to that vehicle, item or thing.".
(2)After section 84ZR(2) of the Principal Act insert—
"(3)The Chief Commissioner of Police must not sell or otherwise dispose of a motor vehicle that is the subject of a forfeiture order unless 14 days have elapsed since notice was given under section 84ZRA.".
31New section 84ZRA inserted
After section 84ZR of the Principal Act insert—
"84ZRA Notice to be given of intention to sell or dispose
(1)The Chief Commissioner of Police must give notice of intention to sell or otherwise dispose of a motor vehicle that is the subject of a forfeiture order, and any uncollected item or thing left in or on the motor vehicle, by—
(a)serving notice of the intention on—
(i)the driver of the motor vehicle; and
(ii)if the driver of the motor vehicle is not the registered operator of the motor vehicle, the registered operator; and
(iii)any person who the Chief Commissioner is aware has an interest in the motor vehicle; and
(iv)the Corporation; and
(b)publishing the notice of intention in a newspaper circulating generally in the State.
(2)A notice under subsection (1) must state—
(a)that the Chief Commissioner of Police intends to sell or otherwise dispose of the motor vehicle, and any uncollected item or thing left in or on the motor vehicle, no earlier than 14 days after the notice is served; and
(b)information that identifies the motor vehicle, including the motor vehicle's registration number (if applicable).".
32Application of proceeds of sale
In section 84ZS(c) of the Principal Act, after "arrangement" insert ", that existed immediately before the forfeiture order took effect".
33Disposal of motor vehicle, item or thing subject to disposal order
After section 84ZT(1) of the Principal Act insert—
"(1A)A purchaser of a motor vehicle, item or thing sold in accordance with subsection (1) acquires good title to that vehicle, item or thing.".
34Notice to be given of intention to apply for disposal order
After section 84ZU(3)(b) of the Principal Act insert—
"(ba)that on the making of the disposal order, the motor vehicle, and all items or things left in or on the motor vehicle, will vest absolutely in the Crown, free from all other interests, rights, titles or claims in or to ownership or possession; and".
35New section 84ZUA inserted
After section 84ZU of the Principal Act insert—
"84ZUA Registrar of Personal Property Securities to be notified of intention to apply for disposal order
(1)If the Chief Commissioner of Police gives notice of an application for a disposal order under section 84ZU(1), he or she must serve notice of that application on the Registrar of Personal Property Securities (within the meaning of the Personal Property Securities Act 2009 of the Commonwealth) immediately after giving notice under section 84ZU.
(2)A notice under subsection (1) must state the matters described in section 84ZU(3)(a), (b) and (ba).
(3)The Corporation may serve notice under subsection (1) on behalf of the Chief Commissioner of Police.".
36Hearing of application for and making of disposal order
For section 84ZW(3) of the Principal Act substitute—
"(3)The court must not decline to make a disposal order on the grounds of exceptional hardship relating to the accused if—
(a)the accused is disqualified from obtaining a driver licence or permit; or
(b)the driver licence or permit held by the accused is suspended.
(4)The court must not decline to make a disposal order on the grounds of exceptional hardship relating to the employment of the accused unless the accused, or another person appearing before the court, satisfies the court that—
(a)driving the impounded or immobilised vehicle is essential (not merely convenient) for the employment of the accused; and
(b)no other transport to his or her place of employment is available to the accused; and
(c)the accused, after making reasonable enquiries, is unable to arrange for another person to drive the accused to his or her place of employment.
(5)If the court makes the disposal order, the motor vehicle vests absolutely in the Crown, free from all other interests, rights, titles or claims in or to ownership or possession.
(6)Subsection (5) has effect despite any other Act (other than the Charter of Human Rights and Responsibilities) or law to the contrary.".
37New section 84ZWA inserted
After section 84ZW of the Principal Act insert—
"84ZWA Registrar of Personal Property Securities to be notified of disposal order
(1)The Chief Commissioner of Police must give notice of a disposal order made under section 84ZW to the Registrar of Personal Property Securities (within the meaning of the Personal Property Securities Act 2009 of the Commonwealth) within 7 days after the making of that order.
(2)A notice under subsection (1) must state—
(a)information that identifies the motor vehicle that is the subject of the disposal order, including the motor vehicle's registration number (if applicable); and
(b)that a disposal order was made in relation to the motor vehicle; and
(c)that on the making of the disposal order, the motor vehicle vested absolutely in the Crown, free from all other interests, rights, titles or claims in or to ownership or possession.
(3)The Corporation may give notice under subsection (1) on behalf of the Chief Commissioner of Police.".
38Application of proceeds of sale
In section 84ZX(1)(c) of the Principal Act, after "arrangement" insert ", that existed immediately before the disposal order was made".
39New section 103ZC inserted
After section 103ZB of the Principal Act insert—
"103ZC Transitional provision—Road Safety Amendment (Hoon Driving) Act 2010
(1)Part 6A as amended by Part 2 of the Road Safety Amendment (Hoon Driving) Act 2010 applies to relevant offences alleged to have been committed on or after the commencement of Part 2 of that Act.
(2)Subject to subsection (3), Part 6A as in force immediately before the commencement of Part 2 of the Road Safety Amendment (Hoon Driving) Act 2010 continues to apply to a relevant offence alleged to have been committed before the commencement of Part 2 of that Act.
(3)For the purposes of sections 84S(1) and 84T(1), in determining whether a driver has committed previous relevant offences, a relevant offence committed before the commencement of Part 2 of the Road Safety Amendment (Hoon Driving) Act 2010 is to be taken to be a tier 2 relevant offence.
(4)For the purposes of subsections (1), (2) and (3), if a relevant offence is alleged to have been committed between two dates, one before and one after the commencement of Part 2 of the Road Safety Amendment (Hoon Driving) Act 2010, the offence is alleged to have been committed before the commencement of Part 2 of that Act.".
40Statute law revision
(1)In section 77(5A) of the Principal Act, for "prosecutor authorised under subsection (2A)" substitute "person referred to in subsection (2)(db)".
(2)In section 84ZB(1)(b) of the Principal Act, for "made" substitute "imposed".
(3)In section 84ZF(1)(a)(ii) of the Principal Act, for "owners'" substitute "owner's".
(4)In section 84ZU(1) of the Principal Act, for "defendant" (wherever occurring) substitute "accused".
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Part 3—Amendment of Melbourne City Link Act 1995
41Power to revoke certain declarations of Link road
After section 61 of the Melbourne City Link Act 1995 insert—
"61A Power to revoke certain declarations of Link road
(1)The Minister may revoke, in whole or in part, a declaration made under section 61 in respect of land to which a lease under section 60 does not apply, whether the declaration has been made under section 61 as enacted or as previously enacted.
(2)A revocation under subsection (1) must specify the land which is the subject of the wholly or partially revoked declaration.
(3)The Minister must cause a notice of a revocation under subsection (1) to be published in the Government Gazette.
(4)On the publication of a notice of a revocation under subsection (3), the land specified in the revocation ceases to be—
(a)a freeway or an arterial road within the meaning of the Road Management Act 2004; and
(b)a road open to and for use by the public for passage with vehicles, and all rights, easements and privileges existing or claimed in it as a road either in the public or by any body or person as incident to any express or implied grant or past dedication or supposed dedication or by user or operation of law, cease; and
(c)a highway within the meaning of the Road Safety Act 1986.
(5)The partial revocation of a declaration under subsection (1) is not to be taken to affect any toll zone specified in relation to that part of the land which is the subject of that part of the declaration that has not been revoked.
(6)On a revocation of the whole or a part of a declaration under subsection (1), any reference to the Link road in a notice of a toll zone specified under section 71(1), so far as it relates to any period on or after the revocation, is taken not to include any land that was the subject of the revocation.".
42Power to revoke certain declarations of Extension road
After section 93H of the Melbourne City Link Act 1995 insert—
"93HA Power to revoke certain declarations of Extension road
(1)The Minister may revoke, in whole or in part, a declaration made under section 93H in respect of land to which a lease under section 93G does not apply, whether the declaration has been made under section 93H as enacted or as previously enacted.
(2)A revocation under subsection (1) must specify the land which is the subject of the wholly or partially revoked declaration.
(3)The Minister must cause a notice of a revocation under subsection (1) to be published in the Government Gazette.
(4)On the publication of a notice of a revocation under subsection (3), the land specified in the revocation ceases to be—
(a)an arterial road within the meaning of the Road Management Act 2004; and
(b)a road open to and for use by the public for passage with vehicles, and all rights, easements and privileges existing or claimed in it as a road either in the public or by any body or person as incident to any express or implied grant or past dedication or supposed dedication or by user or operation of law, cease; and
(c)a highway within the meaning of the Road Safety Act 1986.
(5)The partial revocation of a declaration under subsection (1) is not to be taken to affect any toll zone specified in relation to that part of the land which is the subject of that part of the declaration that has not been revoked.
(6)On a revocation of the whole or a part of a declaration under subsection (1), any reference to the Extension road in a notice of a toll zone specified under section 71(1), so far as it relates to any period on or after the revocation, is taken not to include any land that was the subject of the revocation.".
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Part 4—Repeal of Amending Act
43Repeal of amending Act
This Act is repealed on 1 July 2012.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
Minister's second reading speech—
Legislative Assembly: 2 September 2010
Legislative Council: 16 September 2010
The long title for the Bill for this Act was "A Bill for an Act to amend the Road Safety Act 1986 to make further provision regarding the impoundment, immobilisation and forfeiture of motor vehicles, to amend the Melbourne City Link Act 1995 and for other purposes."
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