Police Offences Amendment Bill 2025

[3.29 p.m.]

Ms BURNET (Clark) - Honourable Speaker, I rise to speak to the Police Offences Amendment Bill 2025, and this is the first time I have given a contribution, even though this has come to the House on other occasions. I'll make my contribution quite short, but I want to make a few points.

The bill comprises various changes to existing offences and creation of a new offence of road rage. It delivers on a series of promises made as part of the 2030 Strong Plan, and I quote, to:

… crack down on hooning, road rage and vehicle theft to make our communities and roads safer.

But I suppose the underlying question is will this bill actually be able to deliver on that?

I'll start at clause 8 of the bill and will try to make some points on how this might impact people who may be disadvantaged as a result of the distribution of population across Tasmania and the impacts which are real, I will also acknowledge that the impacts on victims of crime, if you like, are also real.

If we go to clause 8, the clause doubles the penalty for stealing a car, or procuring the hire of a use of a motor vehicle by means of fraud or misrepresentation. This penalty of doubling the fine is questionable. Does it really warrant doubling the fine?

Clause 9 introduces the offence of road rage. Police claim they need the additional offence because sometimes the incident doesn't fit into the existing offences of dangerous driving, or reckless driving, or damage to the property. The bill provides the police, through clause 12, the power to clamp a vehicle that has been involved in road rage.

If the minister wants 'to provide legislative recognition of the serious impacts of road rage incidents to … victim and the public', is that he should legislate to make road rage an aggravating circumstance, which warrants a greater penalty? It does not need to be made a new offence to achieve this. This is what New South Wales, Queensland and WA have done. In those states, road rage has been made an aggravating circumstance in legislation. In WA and Queensland there is no separate offence of road rage.

Returning to the bill at hand: it is [inaudible] set out in subclause (1) sub subclause (v), which is not covered by existing offence provisions, where alarm, distress, apprehension, or fear, are caused the victim. So the objection is not so much with penalising those results, it's the conduct which is sought to be penalised that I have concerns with, and these are set out in subclause 2(a). We're talking about penalising offensive, or profane gestures, and profane, or insulting words, which is pretty minor in the scheme of things.

I'm not talking about tailgating, and then pulling up next to someone, and threatening to kill them. Of course, conduct like this might warrant the creation of a separate offence, but that is not what has been presented to the parliament. According to the bill before us today, an offence could be committed by simply honking your horn a few times, or swearing at another driver in the heat of the moment because they almost caused an accident.

Just because a person is in their car when they make offensive and profane gesture, or utter profane or insulting words, because of this new offence, they face the risk of having their vehicle clamped or confiscated for three months if it is their first offence, or six months or 12 months or longer, if they have been convicted of prescribed offences previously.

This offence as currently drafted casts a very broad net for conduct, which will lead, or can lead, if this act is passed, to the ability to clamp or confiscate a car and arrest a person without a warrant.

My office sought advice from the department as to what other jurisdictions have created regarding this offence. I was told it was only New South Wales, ACT and WA. In New South Wales, the offence provision is against the Road Transport Act 2013, section 118 subsection 2:

A person must not drive a motor vehicle on a road in a manner that menaces another person, if the person ought to have known that the other person might be menaced.

Menaces generally requires the victim to perceive a threat of harm and for the driver to ought to have known the victim would feel threatened by their behaviour. The identical provision applies in the ACT, which is section 8 of the Road Transport (Safety and Traffic Management Act) 1999.

Both in the ACT and New South Wales, the offence provisions make clear the threat to the victim needs to be related to damage to their property or injury to them. Both of these offences have been criminalised in those jurisdictions for more than a decade. In other words, it's not a new problem.

Western Australia does not have a separate offence of road rage as such. Rather, it is seen as an aggravating circumstance, which can accompany offences of damaging property or assault, which can result in an order for confiscation of the offender's vehicle or if they drive dangerously. Queensland and New South Wales have explicitly included it as an aggravating factor in their sentencing legislation. The advantage of this is that it enables the parliament to express to the judiciary that this is an aggravating feature of offending.

There is an important protection in the New South Wales and ACT offence provisions that are lacking here, which is that in order to meet the threshold of a criminal offence it must be capable of causing the victim to apprehend a threat of personal injury or damage to their property. Driving past another driver and gesticulating or shouting would not meet this threshold in New South Wales and the ACT, nor should it.

This offence is drafted far too broadly and this was also the view of Tasmania Legal Aid. On its own, it might not be so objectionable, but because it will become an offence to which mandatory sentencing can apply, an offence to which police will be given power to clamp or confiscate a vehicle in circumstances where they have been provided only with a statement of complaint, the parliament should oppose the creation of this offence.

There's concern too with clauses 10 and 11. Clause 10 doubles the penalty for failing to comply with a notice of demand. I believe what's missing in some of the discussions so far is how severe or otherwise this increase of fine might be and also the penalty. I think it's somewhat of an overreach.

Clause 11 doubles the fine and maximum imprisonment for the offence of hooning and doubles the maximum disqualification period from two years to four years, which is such an overreach. If you think about, as I said before, we have a very dispersed population in Tasmania, a lot of people rely on their vehicles. Some people do the wrong things. There's no doubt about it. Some people do things at particular times of their lives that they might regret further down the track. When there is such a penalty like doubling this from two years to four years for disqualification period, there is a spectrum too of people who do fall foul of the law and do some stupid things.

If we look at clause 13 which extends the power of police who want to clamp or confiscate a vehicle. Currently they must catch the offender red-handed in the act, whereas this bill enables them to clamp if they have reasonable grounds to believe a relevant offence has been committed.

I go now to clause 21. Currently, if a person is convicted of three specified related offences, including hooning, reckless driving, dangerous driving or some other offences, such as protesting, the court can order forfeiture of their vehicle. This change requires the court to order the forfeiture.

The effect of this clause 21, is to take away the sentencing discretion of the court. Taking the discretion away from the court is highly problematic because it removes the court's ability to tailor the sentence to meet the specific case before them. When justice is stripped of discretion, it becomes blind not only to prejudice, but also to mercy, nuance and circumstance. It will remove the court's ability to prevent injustice by using their discretion not to order forfeiture of a vehicle when the circumstances do not warrant it. So, perhaps the minister could answer some questions relating to that, as to whether I'm interpreting that in the right way.

In relation to some of the comments by stakeholders, Tasmania Legal Aid do not support the changes increasing the maximum penalties. They were particularly concerned by the drafting of the road rage offence, which appears to have been rectified, but also suggests it's simply not necessary. They say that provision sets the bar too low. The law society have made the same point, as has TasCOSS, noting the consequences that can flow from this offence, including clamping, which is of great concern as to the veracity of this punishment.

Tasmania Legal Aid opposes the powers given to police to clamp vehicles even if they don't find the vehicles offending. The reason is that clamping is effectively a punishment, and so it should only be used when there is no reasonable doubt it has been used to commit an offence. There are only two ways this can occur: a finding of guilt by the court or the person is found offending by police. The doubling of penalties is opposed by TLA, the law society and TasCOSS as being disproportionate to the seriousness of the offending.

In summary, there are some unobjectionable clauses in this bill, but there are also some clauses which have unnecessarily increased the penalty for offences, and I'm particularly concerned about some of these clauses that really do go beyond what is reasonable. I think this parliament should be making decisions and suggestions in any change of law that are reasonable, that don't go beyond what is a suitable penalty. I think, unfortunately, this bill does discriminate and will really discriminate against those people who are in situations where they really probably regret or will regret falling foul of the law.