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TASMANIA
__________
POLICE POWERS AND RELATED LEGISLATION
(EVASION) BILL 2017
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Repeal of Act
PART 2 - POLICE POWERS (VEHICLE INTERCEPTION) ACT 2000
AMENDED
4. Principal Act
5. Section 11A amended (Evading police)
PART 3 - POLICE OFFENCES ACT 1935 AMENDED
6. Principal Act
7. Section 37G amended (Requirement of owner or registered
operator to provide details)
8. Section 37N amended (Clamping and confiscation of vehicles)
9. Section 37O amended (Period of clamping or confiscation for
first prescribed offence)
10. Section 37P amended (Period of clamping or confiscation for
second prescribed offence)
11. Section 37Q amended (Period of clamping or confiscation for
third or subsequent prescribed offence)
12. Sections 37QA and 37QB inserted
[Bill 20]-VI
37QA. Period of clamping or confiscation for evasion
vehicle
37QB. Evasion vehicle may be forfeited
13. Section 37T amended (Notice of clamping or confiscation to be
given)
14. Section 37VA inserted
37VA. Content of notice for evasion offence
15. Section 37ZC amended (Unclamping or recovery of vehicle
clamped or confiscated for prescribed offence)
PART 4 - YOUTH JUSTICE ACT 1997 AMENDED
16. Principal Act
17. Section 3 amended (Interpretation)
2
POLICE POWERS AND RELATED LEGISLATION
(EVASION) BILL 2017
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
2 May 2017
(Brought in by the Minister for Police, Fire and Emergency
Management, the Honourable Marinus Theodoor Hidding)
A BILL FOR
An Act to amend the Police Powers (Vehicle Interception)
Act 2000, the Police Offences Act 1935 and the Youth
Justice Act 1997
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Police Powers and
Related Legislation (Evasion) Act 2017.
2. Commencement
This Act commences on a day to be proclaimed.
[Bill 20] 3
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 3 Part 1 - Preliminary
3. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which it
commences.
4
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
Part 2 - Police Powers (Vehicle Interception) Act 2000 Amended s. 4
PART 2 - POLICE POWERS (VEHICLE
INTERCEPTION) ACT 2000 AMENDED
4. Principal Act
In this Part, the Police Powers (Vehicle
Interception) Act 2000* is referred to as the
Principal Act.
5. Section 11A amended (Evading police)
Section 11A of the Principal Act is amended as
follows:
(a) by omitting the penalty from subsection
(1) and substituting the following
penalty:
Penalty: In the case of -
(a) a first offence, either or
both of the following:
(i) a fine of not less
than 10 penalty
units and not more
than 100 penalty
units;
(ii) imprisonment for
a term of not more
than 2 years; and
*No. 46 of 2000
5
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 5 Part 2 - Police Powers (Vehicle Interception) Act 2000 Amended
(b) a second offence, either or
both of the following:
(i) a fine of not less
than 20 penalty
units and not more
than 100 penalty
units;
(ii) imprisonment for
a term of not more
than 2 years; and
(c) a third or subsequent
offence, either or both of
the following:
(i) a fine of not less
than 20 penalty
units and not more
than 100 penalty
units;
(ii) imprisonment for
a term of not less
than 6 months and
not more than 2
years.
(b) by inserting the following subsection
after subsection (2):
(2A) The driver of a vehicle must not
take action to avoid apprehension
or interception by a police officer,
who is exercising his or her
powers or performing his or her
6
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
Part 2 - Police Powers (Vehicle Interception) Act 2000 Amended s. 5
functions under any Act, if, at the
time the driver takes the action -
(a) the vehicle being driven
by the driver is stolen; or
(b) the driver is driving the
vehicle recklessly, or
negligently, within the
meaning of section 32 of
the Traffic Act 1925; or
(c) the driver is driving the
vehicle -
(i) while alcohol is
present in his or
her breath or
blood in
contravention of
section 6 of the
Road Safety
(Alcohol and
Drugs) Act 1970;
or
(ii) while an illicit
drug is present in
his or her breath
or blood in
contravention of
section 6A of the
Road Safety
(Alcohol and
Drugs) Act 1970;
or
7
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 5 Part 2 - Police Powers (Vehicle Interception) Act 2000 Amended
(d) the driver is driving the
vehicle -
(i) while his or her
driver licence has
been suspended or
cancelled; or
(ii) while he or she is
disqualified from
driving; or
(e) the driver is taking the
action to avoid
apprehension, or
interception, by a police
officer as a result of the
driver having -
(i) committed an
offence within
Appendix A or
Appendix B of the
Criminal Code; or
(ii) breached an FVO
or PFVO under
the Family
Violence Act
2004; or
(iii) contravened a bail
order under the
Bail Act 1994; or
(f) other prescribed
circumstances apply.
8
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
Part 2 - Police Powers (Vehicle Interception) Act 2000 Amended s. 5
Penalty: In the case of -
(a) a first offence,
either or both of
the following:
(i) a fine of not
less than 20
penalty units
and not more
than 100
penalty units;
(ii) imprisonment
for a term of
not less than
3 months and
not more than
2 years; and
(b) a second or
subsequent
offence, either or
both of the
following:
(i) a fine of not
less than 20
penalty units
and not more
than 100
penalty units;
(ii) imprisonment
for a term of
not less than
6 months and
9
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 5 Part 2 - Police Powers (Vehicle Interception) Act 2000 Amended
not more than
2 years.
(c) by omitting from subsection (3)
"section." and substituting "section or
any person who the police officer has
reasonable grounds for believing has
committed an offence against this
section.";
(d) by inserting the following subsections
after subsection (3):
(3A) In any proceedings for an offence
under subsection (2A) in respect
of a person, if the court
determining the proceedings is
not satisfied that the person is
guilty of that offence but is
satisfied that the person
committed an offence under
subsection (1), the court may find
the person guilty of an offence
under subsection (1) and the
person is liable to punishment
accordingly.
(3B) In any proceedings for an offence
under subsection (1) in respect of
a person, if the court determining
the proceedings is satisfied that
the person is guilty of that
offence, the court is to take into
account when sentencing the
person any convictions the person
has for an offence under
10
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
Part 2 - Police Powers (Vehicle Interception) Act 2000 Amended s. 5
subsection (2A) as if it were a
conviction under subsection (1).
(3C) If a court convicts a person of an
offence under this section and is
imposing a sentence for the
offence at the same time as
imposing a sentence for one or
more other offences, the court -
(a) is not to include a
sentence for the offence
under this section as part
of a general sentence, or
mixed sentence, imposed
under section 11 of the
Sentencing Act 1997 in
respect of the other
offences; and
(b) is to impose a separate
sentence in respect of the
offence under this section.
(e) by omitting subsection (4) and
substituting the following subsections:
(4) Subject to subsection (4B), a
court that convicts a person of an
offence under subsection (1)
must, in addition to the penalty
specified in that subsection,
disqualify the person from
driving for -
(a) in the case of a first
offence, a period of not
11
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 5 Part 2 - Police Powers (Vehicle Interception) Act 2000 Amended
less than 6 months and
not more than 3 years; or
(b) in the case of a second
offence, a period of not
less than 12 months and
not more than 5 years; or
(c) in the case of a third or
subsequent offence, a
period of not less than 2
years and not more than 5
years.
(4A) Subject to subsection (4B), a
court that convicts a person of an
offence under subsection (2A)
must, in addition to the penalty
specified in that subsection,
disqualify the person from
driving for a period of not less
than 2 years and not more than 5
years.
(4B) If the court convicts a person of
an offence under this section and,
at the time of committing the
offence, the person had not
attained the age of 17 years -
(a) subsections (4) and (4A)
do not apply in respect of
the sentencing of the
person for the offence;
and
12
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
Part 2 - Police Powers (Vehicle Interception) Act 2000 Amended s. 5
(b) the court, when
determining a sentence
for the offence in respect
of the person -
(i) must disregard
that a minimum
amount of money,
or term of
imprisonment,
must be imposed
in respect of the
offence; and
(ii) may, in addition to
any other penalty
imposed in respect
of the offence,
disqualify the
person from
driving for a
period not
exceeding 2 years.
13
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 6 Part 3 - Police Offences Act 1935 Amended
PART 3 - POLICE OFFENCES ACT 1935 AMENDED
6. Principal Act
In this Part, the Police Offences Act 1935* is
referred to as the Principal Act.
7. Section 37G amended (Requirement of owner or
registered operator to provide details)
Section 37G of the Principal Act is amended as
follows:
(a) by omitting the penalty from subsection
(1) and substituting the following
penalty:
Penalty: Fine not exceeding 100 penalty
units or imprisonment for a term
not exceeding 12 months, or both.
(b) by omitting subsection (4) and
substituting the following subsection:
(4) It is a defence in proceedings for
an offence under subsection (1),
if the owner or registered
operator establishes that he or she
has taken all reasonable steps to
ascertain the information required
under that subsection but has
been unable to ascertain the
information.
*No. 44 of 1935
14
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
Part 3 - Police Offences Act 1935 Amended s. 8
8. Section 37N amended (Clamping and confiscation
of vehicles)
Section 37N of the Principal Act is amended as
follows:
(a) by omitting from subsection (2) "14-day"
and substituting "28-day";
(b) by omitting from subsection (7) "14
days" and substituting "28 days".
9. Section 37O amended (Period of clamping or
confiscation for first prescribed offence)
Section 37O(2) of the Principal Act is amended
by inserting after paragraph (a) the following
paragraph:
(ab) 6 months if the prescribed offence is an
offence against section 11A(2A) of the
Police Powers (Vehicle Interception) Act
2000; or
10. Section 37P amended (Period of clamping or
confiscation for second prescribed offence)
Section 37P of the Principal Act is amended as
follows:
(a) by omitting from subsection (2) "The
vehicle" and substituting "Subject to
subsection (3), the vehicle";
15
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 11 Part 3 - Police Offences Act 1935 Amended
(b) by inserting in subsection (2) "unless
otherwise extended under
section 37T(3)(b)" after "months";
(c) by inserting the following subsection
after subsection (2):
(3) If -
(a) the new prescribed
offence is an offence
under section 11A(2A) of
the Police Powers
(Vehicle Interception) Act
2000; and
(b) the prescribed offence
that the person has
previously been
proceeded against was
also under that
subsection -
the vehicle used in connection
with the new prescribed offence
is to be clamped or confiscated
for a period of 12 months unless
otherwise extended under
section 37T(3)(b).
11. Section 37Q amended (Period of clamping or
confiscation for third or subsequent prescribed
offence)
Section 37Q of the Principal Act is amended as
follows:
16
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
Part 3 - Police Offences Act 1935 Amended s. 11
(a) by omitting from subsection (2) "The
vehicle" and substituting "Subject to
subsection (3), the vehicle";
(b) by inserting the following subsections
after subsection (2):
(3) If the new prescribed offence is
an offence under section 11A of
the Police Powers (Vehicle
Interception) Act 2000 -
(a) the vehicle used in
connection with the new
prescribed offence is to be
clamped or confiscated
until the resolution of all
existing charges against
the person for the new
prescribed offence; and
(b) if the person -
(i) is found guilty of
the new prescribed
offence; and
(ii) has previously
been proceeded
against by way of
complaint under
the Justices Act
1959 in respect of
2 or more offences
under section 11A
of the Police
Powers (Vehicle
17
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 12 Part 3 - Police Offences Act 1935 Amended
Interception) Act
2000 -
the vehicle used in
connection with the new
prescribed offence is
forfeited to the Crown and
the Commissioner may
sell or dispose of the
vehicle, and anything in
or on it, in a way the
Commissioner considers
appropriate.
(4) Subdivisions 3 and 5 do not apply
in respect of a vehicle forfeited to
the Crown by virtue of
subsection (3)(b).
12. Sections 37QA and 37QB inserted
After section 37Q of the Principal Act, the
following sections are inserted in Subdivision 2:
37QA. Period of clamping or confiscation for
evasion vehicle
(1) This section applies if a police officer
reasonably believes that a vehicle has
been used in respect of section 11A of
the Police Powers (Vehicle Interception)
Act 2000 (referred to in this section as
the evasion offence).
(2) The vehicle used in connection with the
evasion offence may be clamped or
18
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
Part 3 - Police Offences Act 1935 Amended s. 12
confiscated until the first of the following
occurs:
(a) the driver of the vehicle at the
time of the evasion offence is
identified;
(b) an application made under
section 37QB in respect of the
vehicle has been determined;
(c) a period of 9 months has elapsed
since the vehicle was clamped or
confiscated under this section and
an application has not been made
under section 37QB in respect of
the vehicle.
(3) If the driver of the vehicle at the time of
the evasion offence has not been
identified and a period of 6 months has
elapsed since the vehicle was clamped or
confiscated under this section, a police
officer may apply to the Court for the
vehicle to be forfeited to the Crown in
accordance with section 37QB.
(4) Nothing in this section prevents the
operation of this Part in respect of a
person or a vehicle if -
(a) the person is the driver of the
vehicle at the time of the evasion
offence; and
19
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 12 Part 3 - Police Offences Act 1935 Amended
(b) section 37O, 37P or 37Q applies
in respect of the person and the
evasion offence.
(5) Subdivisions 3 and 5 do not apply in
respect of a vehicle to which this section
applies.
37QB. Evasion vehicle may be forfeited
(1) In this section -
evasion offence has the same meaning
as in section 37QA;
affected vehicle means a vehicle to
which section 37QA(3) applies.
(2) A police officer may apply to the Court
for an affected vehicle to be forfeited to
the Crown if -
(a) the driver of the affected vehicle
at the time of the evasion offence
has not been identified; and
(b) a period of 6 months has elapsed
since the vehicle was clamped or
confiscated under section 37QA.
(3) If the Court is satisfied that the driver of
the affected vehicle at the time of the
evasion offence has not been identified,
the Court may make an order forfeiting
the affected vehicle to the Crown.
(4) If the Court makes an order under
subsection (4) -
20
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
Part 3 - Police Offences Act 1935 Amended s. 12
(a) the affected vehicle becomes the
property of the Crown; and
(b) any right of a person to enforce a
charge or other security interest
registered under the Personal
Property Securities Act 2009 of
the Commonwealth against a
person other than the State, by
taking possession of the affected
vehicle, is extinguished.
(5) An order under subsection (4) may be
applied for even though the value of the
affected vehicle may be more than the
monetary jurisdiction of the Court.
(6) Before an application for an order under
subsection (4) has been determined, the
owner or registered operator of the
relevant affected vehicle may make a
submission to the Court in respect of the
application that the vehicle should not be
forfeited under the order as the owner or
registered operator has provided all such
information that he or she has as to the
whereabouts of the driver of the affected
vehicle at the time of the evasion
offence.
(7) When determining an application for an
order under subsection (4), the Court is
to take into account all submissions made
under subsection (6) in respect of the
application.
21
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 13 Part 3 - Police Offences Act 1935 Amended
(8) Subdivisions 3, 4 and 5 do not apply in
respect of a vehicle forfeited to the
Crown by virtue of this section.
13. Section 37T amended (Notice of clamping or
confiscation to be given)
Section 37T of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)
"section 37U or 37V" and substituting
"section 37U, 37V or 37VA";
(b) by inserting in subsection (3)(a) "in
respect of the offence" after
"section 37P".
14. Section 37VA inserted
After section 37V of the Principal Act, the
following section is inserted in Subdivision 2:
37VA. Content of notice for evasion offence
A notice of clamping or confiscation in
respect of a vehicle clamped or
confiscated under section 37QA is to
state the following:
(a) the authorised period of clamping
or confiscation;
(b) that each owner and registered
operator of the vehicle is required
to provide all such information
22
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
Part 3 - Police Offences Act 1935 Amended s. 14
that he or she has as to the
whereabouts of the driver of the
vehicle at the time of the offence
in respect of which the car has
been clamped or confiscated;
(c) that an application may be made
to the Court under section 37QB
for an order for the forfeiture of
the vehicle if the driver of the
vehicle is not identified;
(d) that the owner or registered
operator of the vehicle may, at
any time before an application
under section 37QB is heard and
determined in respect of the
vehicle, make a submission that
the vehicle should not be
forfeited under that section;
(e) in the case of a clamping -
(i) that, before the vehicle
may be unclamped, the
person seeking to have it
unclamped will be
required to produce to a
police officer satisfactory
evidence of identity; and
(ii) notice of the offences
(and penalties) under
section 37SA(2) and (3);
(f) in the case of a confiscation -
23
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 14 Part 3 - Police Offences Act 1935 Amended
(i) that, before the vehicle
may be recovered, the
person seeking to recover
it will be required to -
(A) produce to the
person responsible
for the holding
yard satisfactory
evidence of
identity and, if
applicable, written
authority from the
owner or
registered operator
of the vehicle to
collect it; and
(B) pay the costs of
moving the
vehicle to, keeping
the vehicle in and
releasing the
vehicle from the
holding yard; and
(ii) notice of the offences
(and penalties) under
section 37S(1) and (2).
24
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
Part 3 - Police Offences Act 1935 Amended s. 15
15. Section 37ZC amended (Unclamping or recovery of
vehicle clamped or confiscated for prescribed
offence)
Section 37ZC(1)(a) of the Principal Act is
amended by omitting "section 37U or 37V" and
substituting "section 37U, 37V or 37VA".
25
Police Powers and Related Legislation (Evasion) Act 2017
Act No. of
s. 16 Part 4 - Youth Justice Act 1997 Amended
PART 4 - YOUTH JUSTICE ACT 1997 AMENDED
16. Principal Act
In this Part, the Youth Justice Act 1997* is
referred to as the Principal Act.
17. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by
inserting after subparagraph (vi) in paragraph (b)
of the definition of prescribed offence the
following subparagraph:
(via) an offence under section 11A of the
Police Powers (Vehicle Interception) Act
2000; and
*No. 81 of 1997
26 Government Printer, Tasmania