Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005

Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005

Act No. 93/2005

table of provisions

SectionPage

Part 1—Preliminary

1.Purposes

2.Commencement

Part 2—Amendment of Road Safety Act 1986

3.New section 65A inserted

65A.Improper use of motor vehicle

4.New Part 6A inserted

Part 6A—Impoundment, Immobilisation and Forfeiture of Motor Vehicles

Division 1—Preliminary

84C.Definitions

84D.This Part does not affect other penalties

84E.Part has prospective application

Division 2—Impoundment or Immobilisation by Victoria Police

84F.Powers of Victoria Police

84G.Seizure of motor vehicle

84H.Surrender of motor vehicle

84I.Impoundment or immobilisation of a motor vehicle

84J.Powers of persons authorised by Victoria Police

84K.Notice to driver and registered operator

84L.Content of notice

84M.Review by a senior police officer

84N.Release of motor vehicle by Victoria Police

84O.Appeal rights

84P.Offences

84Q.Recovery of motor vehicle

84R.Crown to pay costs if driver found not guilty or chargesnot proceeded with

Division 3—Impoundment, Immobilisation or Forfeiture by Court Order

84S.Impoundment or immobilisation order

84T.Forfeiture order

84U.Application for an impoundment or immobilisation orderor a forfeiture order

84V.Substitution of motor vehicle

84W.Notice of application

84X.Interest in motor vehicle not to be transferred

84Y.Notice where 2 or more charges laid

84Z.Hearing of application

84ZA.Application for variation of order

84ZB.When order takes effect

84ZC.Police powers

84ZD.Liability for costs of impoundment or immobilisation

84ZE.Rights of owners

84ZF.Third party protection from forfeiture order

Division 4—Search and Seizure Warrants

84ZG.Application for search and seizure warrant

84ZH.Search and seizure warrant

84ZI.Record of proceedings for search and seizure warrant

84ZJ.Announcement before entry

84ZK.Copy of search and seizure warrant to be given to occupier

84ZL.Use of assistants to execute search and seizure warrant

84ZM.Application of Magistrates' Court Act 1989

84ZN.Expiry of search and seizure warrant

84ZO.Report on execution of search and seizure warrant

84ZP.Obstruction or hindrance of person executing search andseizure warrant

Division 5—Disposal of Motor Vehicles

84ZQ.Sale or disposal of uncollected motor vehicles and
items

84ZR.Sale or disposal of motor vehicle subject to forfeiture order

84ZS.Application of proceeds of sale

5.Detention or immobilisation of motor vehicles

6.Subject-matter for regulations

Part 3—Amendment of Various Acts—Sentencing Orders

7.Amendment of Children and Young Persons Act1989

8.Amendment of Children, Youth and Families Act2005

9.Amendment of Crimes Act 1958

10.Amendment of Magistrates' Court Act 1989

Part 4—Amendment of Commonwealth Games Arrangements Act 2001

11.Removal of vehicles obstructing Games management area

12.Amendment to Schedule 5—Infringement Notices

Part 5—Amendment of Various Acts—Drug Offences

13.Amendment to section 4 of the Bail Act 1977

14.Amendment to section 76 of the Drugs, Poisons and ControlledSubstances Act 1981

15.Amendment to Schedule 1 to the Sentencing Act1991

16.Amendment to section 50 of the Working with Children Act2005

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Endnotes

SectionPage

Victoria

No. 93 of 2005

SectionPage

Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005[†]

[Assented to 29 November 2005]

Act No. 93/2005

Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005

Act No. 93/2005

Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005

The Parliament of Victoriaenacts as follows:

Part 5—Amendment of Various Acts—Drug Offences

Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005

Act No. 93/2005

Part 1—Preliminary

1.Purposes

The purposes of this Act are—

(a)to amend the Road Safety Act 1986—

(i) to enable the seizure and impoundment or immobilisation by Victoria Police of motor vehicles in certain circumstances; and

(ii) to allow a court to order the impoundment, immobilisation or forfeiture of motor vehicles in certain circumstances; and

(iii) to create a new offence relating to the improper use of a motor vehicle; and

(b)to make consequential amendments to the Children and Young Persons Act 1989,the Children, Youth and Families Act 2005, theMagistrates' Court Act 1989and the Crimes Act 1958 toexpand the definitions of "sentencing order" and "sentence"; and

(c)to amend the Commonwealth Games Arrangements Act 2001 to—

s. 1

(i)enable authorised officers to exercise the same powers as Victoria Police to remove motor vehicles which obstruct a Games management area; and

(ii)expand the range of offences that may be subject to infringement notices; and

(d)to amend the Bail Act 1977, the Drugs, Poisons and Controlled Substances Act 1981, the Sentencing Act 1991and the Working with Children Act 2005 to make reference to new Commonwealth drug offences and to make consequential amendments.

2.Commencement

s. 2

(1) This Act, except Parts 2 and 3, comes into operation on the day after the day on which it receives the Royal Assent.

(2) Subject to sub-section (3), Parts 2 and 3 (except section 8) come into operation on a dayto be proclaimed.

(3) If Parts 2 and 3 (except section 8) do not come into operation before 1July2006, theycome into operation on that day.

(4) Section 8 comes into operation on the day on which section3 of the Children, Youth and Families Act 2005 comes into operation.

______

See:
Act No.
127/1986.
Reprint No. 9
as at
25 August 2005 and amending ActNos 19/1991, 111/2003, 21/2005 and 24/2005.
LawToday:

dpc.vic.
gov.au

Part 2—Amendment of Road Safety Act 1986

3.New section 65A inserted

s. 3

After section 65 of the Road Safety Act 1986 insert—

"65A.Improper use of motor vehicle

(1)A person must not drive a motor vehicle in a manner which causes the motor vehicle to undergo loss of traction by one or more of the motor vehicle'swheels.

Penalty:5 penalty units.

(2)In a proceeding for an offence against sub-section (1) it is a defence to the charge for the accused to prove that he or she had not intentionally caused the alleged loss of traction.".

4.New Part 6A inserted

After Part 6 of the Road Safety Act 1986 insert—

'Part 6A—Impoundment, Immobilisation and Forfeiture of Motor Vehicles

Division 1—Preliminary

84C. Definitions

(1)In this Part—

"appeal period", in relation to a conviction or an impoundment or immobilisation order or a forfeiture order, means the period ending—

(a)if the period provided for the lodging of an appeal against the conviction or orderhas ended without such an appeal having been lodged, at the end of that period; or

(b)if an appeal against theconviction or orderhas been lodged, when the appeal is abandoned or finally determined;

"authorised person" means a person authorised by a member of the police force under section 84J;

"conviction", in relation to a relevant offence, includes a finding of guilt of the relevant offence without the recording of a conviction;

"designated costs" means the cost of impounding or immobilising a motor vehicle under this Part including, where relevant, the cost of—

s. 4

(a)driving or moving the motor vehicle to a holding yard or place where the motor vehicle is to be immobilised; and

(b)storing the motor vehicle at the holding yard or place where the motor vehicle is immobilised; and

(c)releasing the motor vehicle from the holding yard orfrom immobilisation—

and includes any additional costs incurred if the motor vehicle is impounded or immobilised for longer than the designated period or the period specified under an impoundment or immobilisation order;

"designatedperiod", in relation to a motor vehicle, means the period of 48 hours beginning with the seizure or surrender of the motor vehicle under section 84G or 84H, but if the period expires outside of normal business hours, the period extends to 9.00a.m. on the next business day, being a day other than a Saturday, a Sunday or a public holiday appointed under the Public Holidays Act 1993;

s. 4

"driver",in relation to a motor vehicle, means the person who was driving or in charge of the motor vehicle at the time when it was involved in the commission of a relevant offence;

"forfeiture order" means an order made by a court under section 84T;

"hired", in relation to a motor vehicle, means a motor vehicle that—

(a)is owned by a person whose business is the short term hire of motor vehicles; and

(b)is part of the business's fleet; and

(c)under a written agreement, is hired for the hirer's short term use;

"holding yard" means a place used for the storage of motor vehicles impounded under this Part;

"impoundment or immobilisation order" means an order made by a court under section 84S;

"improper use of a motor vehicle", in relation to a relevant offence, means the driving of a motor vehicle in a manner which intentionally causes the motor vehicle to undergo loss of traction by one or more of the wheels of the motor vehicle;

"public place" has the same meaning as in the Summary Offences Act 1966;

"relevant court", in relation to an application made under this Part, means—

(a)the court with jurisdiction to hear and determine the relevant offence to which the application relates; or

(b)if an application is made after the sentencing of the driver for a relevant offence, the Magistrates' Court;

"relevant offence" means—

s. 4

(a)subject to sub-section (2),an offence against section 30(1);

(b)an offence against section 64(1) in circumstances involving improper use of a motor vehicle;

(c)an offence against section 65 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 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; or

(ii)if the applicable speed-limit is 110 kilometres per hour, at a speed of 145 kilometres per hour or more;

(g) an offence against rule 291 of the Road Rulesin circumstances involving improper use of a motor vehicle;

(h) an offence against rule 297 of the Road Rulesin circumstances involving improper use of a motor vehicle;

s. 4

"Road Rules" means the Road Rules as defined in regulation 105(1) of the Road Safety (Road Rules) Regulations1999;

"search and seizure warrant" means a warrant issued under section 84ZH(1);

"senior police officer" means a member of the police force of or above the rank of Inspector;

"substituted motor vehicle" means a motor vehicle subject to an order for substitution made under section 84V(3);

"tow truck" has the same meaning as in the Transport Act 1983.

(2)An offence against section 30(1) is only a relevant offence in relation to a person if that person had at any other time since the commencement of Part 2 of the Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005 been convicted of an offence against that section committed on or after that commencement.

(3)For the purposes of an application for an impoundment or immobilisation order or a forfeiture order, a charge of more than one relevant offence arising out of the same single set of circumstances is to be treated as a charge of one relevant offence.

(4)For the purposes of sub-section (3), a single set of circumstances is constituted by one continuous period during which a person continues to drive or be in charge of a motor vehicle.

s. 4

84D.This Part does not affect other penalties

The impoundment, immobilisationor forfeiture of a motor vehicle under this Part arising out of the commission of a relevant offence is in addition to, and does not limit or otherwise affect, any penalty that may be imposed on the person for the relevant offence other than under this Part.

84E.Part has prospective application

(1)This Part applies only to offences committed on or after the commencement of Part 2 of the Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005.

(2)For the purposes of Division 3, a second or third offence is only a second or third offence if the first offence was, or the first and second offences were (as the case requires) committed on or after the commencement of Part 2 of the Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005.

Division 2—Impoundment or Immobilisation by Victoria Police

84F.Powers of Victoria Police

(1)If a member of the police force believes on reasonable grounds that a motor vehicle is being, or has, that day or within the preceding 10 days, been used in the commission of a relevant offence, he or shemay—

(a)seize the motor vehicle or require it to be surrendered; and

s. 4

(b)impound or immobilise the motor vehicle for the designated period; and

(c)authorise any person under section 84J to assist in seizing, impounding or immobilising the motor vehicle.

(2)Ifa member of the police force has exercised a power to seize and impound or immobilise a motor vehicle under this Division and that motor vehicle has since been released, the power to seize, impound or immobilise a motor vehicle under this Divisionfor the same relevant offence is exhausted.

84G.Seizure of motor vehicle

(1) For the purposes of impounding or immobilising a motor vehicle under this Part, a member of the police force may seize the motor vehicle—

(a)from a public place; or

(b)from a place that is not a public place with the consent of the owner or occupier of that place; or

(c)from a place that is not a public place with a search and seizure warrant issued under Division4.

(2)The period within which a motor vehicle may be seized under sub-section (1) is—

(a)in the case of seizure from a public place or a place that is not a public place with the consent of the owner or occupier of that place—

(i)48 hours after the alleged commission of the relevant offence; or

s. 4

(ii) if a notice is served under section 84H(1), 10 days after the expiry of the period specified in that notice; or

(b) in the case of seizure from a place that is not a public place under a search and seizure warrant issued under Division4, the period specified in that warrant.

(3) In order to seize a motor vehicle a member of the police force may—

(a)require the driver of the motor vehicle to stop the motor vehicle and cause it to remain stopped;

(b)enter the motor vehicle, using reasonable force if necessary, for the purpose of moving the motor vehicle;

(c)direct the driver, or any person in possession of the ignition keys or other keys to the motor vehicle, to give the keys to a member of the police force or an authorised person;

(d)if, after having taken reasonable steps to obtain the keys, the keys are not available, cause any locking device or other feature of the motor vehicle that is impeding the exercise of the power to seize the motor vehicle to be removed, dismantled or neutralised, and start the motor vehicle by other means.

s. 4

84H. Surrender of motor vehicle

(1)If,more than 48 hours after the commission of a relevant offence, a member of the police force believes on reasonable grounds that a motor vehicle was used in the commission of arelevant offence, he or shemay serve a notice on the registered operator of the motor vehicle requiring the surrender of the motor vehicle.

Note:See section 93 for how a notice may be served.

(2)A notice served under sub-section (1) must—

(a)be served within 10 days after the commission of the relevant offence; and

(b)allow at least 7 days after thenotice is served for the surrender of the motor vehicle.

(3) A notice under sub-section (1) must include—

(a)a statement by a member of the police force that the motor vehicle is liable to impoundment or immobilisation because that member believes on reasonable grounds that the motor vehicle was used in the commission of a relevant offence within the preceding 10 days; and

s. 4

(b)a statement of the nature of the relevant offence and the date and time when the relevant offenceis alleged to have been committed; and

(d) the date, time and place at which the motor vehicle is required to be surrendered to a member of the police force; and

(e) a statement that if the motor vehicle is not surrendered at the date, time and place specified in the notice a member of the police force may seize the motor vehicle in accordance with section 84G; and

(f)the prescribed particulars (if any).

(4) If the motor vehicle is not surrendered to a member of the police force at the date, time and place specified ina notice served under sub-section (1), a member of the police force may,within 10 days after the period specified in the notice expires, exercise any power under section 84F or 84G to seize the motor vehicle.

84I. Impoundment or immobilisation of a motor vehicle

If a motor vehicle is seized or surrendered in accordance with section 84G or 84H, a member of the police force may—

(a) move, or cause to be moved, the motor vehicle to a holding yard by any reasonable and appropriatemeans and impound it there for the balance of the designated period; or

s. 4

(b) cause themotor vehicle to be immobilised (whether by wheel clamps or any other means) for the balance of the designated period—

and may do anything else reasonably necessary to impound or immobilise the motor vehicle.

84J. Powers of persons authorised by Victoria Police

In exercising powers under this Part a member of the police force may authorise any person to assist him or her to—

(a)enter a motor vehicle;

(b)remove, dismantle or neutralise any locking device or other relevant feature of a motor vehicle;

(c)drive or movea motor vehicle to a holding yard by any reasonable means, including by the use of a tow truck;

(d)cause a motor vehicle to be immobilised (whether by wheel clamps or any other means);

(e)storea motor vehicle in a holding yard;

(f)releasea motor vehicle when authorised by a member of the police force to do so.

84K. Notice to driver and registered operator

(1)As soon as is reasonably practicable after a motor vehicle is impounded or immobilised under this Division, a member of the police force must serve written notice of the impoundment or immobilisation on—

(a)the driver of the motor vehicle; and

(b)if the driver is not the registered operator, the registered operator of the motor vehicle.

s. 4

(2) If the registered operator of the motor vehicle is not the owner or sole owner of the motor vehicle, the registered operator must, as soon as is reasonably practicable, take reasonable steps to serve a copy of the notice served under sub-section(1) on anyowner of the motor vehicle.

Note:See section 93 for how a notice may be served.

84L. Content of notice

A notice undersection 84K must be in a form approved by the Chief Commissioner of Police and must state—

(a)the driver's name; and

(b)the motor vehicle registration number and the make and model of the motor vehicle; and

(d) the relevant offencein respect of which the motor vehicle has been impounded or immobilised;and

(e) the date and time when the motor vehicle is eligible for release;and

(f) the process by which the impounded or immobilised motor vehicle may be released, including—