July 30, 2012

Government Crackdown on 'Hooning' Offenders

On 3 July 2012, the Queensland LNP Government announced that it will introduce tougher ‘anti-hooning’ provisions into the Police Powers and Responsibilities Act 2000 (Qld) (the Act), implementing a LNP State Election Policy to strengthen these laws.  The Police Minister, the Hon Jack Dempsey MP, said that illegal street racing, burnouts, donuts, drifting and speeding are highly dangerous activities and could harm local families and businesses.  These actions could also have fatal consequences.  
Even at low speeds, hooning behaviour can cause the driver to lose control of the vehicle, leave the road and hit a fixed object or a pedestrian.
Existing Motor Vehicle Impoundment Schemes in Queensland
Currently, Chapter 4 of the Act contains Vehicle Impoundment Schemes for Prescribed Offences (popularly known as ‘hooning’ offences), enabling Queensland Police and the court to impound or confiscate a vehicle depending on the type of offence and number of repeat offences.
What Motor Vehicle Offences are ‘Hooning’ Offences?
The motor vehicle offences that constitute ‘hooning’ are what the Act calls ‘type 1’ and ‘type 2’ motor vehicle related offences.
Type 1 offences are those motor vehicle offences of a more serious kind and are any of the following in circumstances involving a speed trial, race or burnout:
  • dangerous operation of a vehicle;
  • careless driving;
  • participation in speed trials or races;
  • starting or driving a vehicle making unnecessary noise or smoke.
Type 2 offences are any of the following:
  • driving an uninsured/unregistered vehicle;
  • certain unlicensed/disqualified driving;
  • driving with a blood alcohol concentration (BAC) above 0.15%; or failing to provide a specimen of breath etc. and driving under related suspensions;
  • driving an illegally modified vehicle.
Current ‘Hooning’ Offence Penalties
Motor vehicles involved in hooning offences are liable to be:
  • impounded for 48 hours for a first type 1 offence; or a second type 2 offence within 3 years;
  • impounded for up to 3 months for a second type 1 offence; or a third type 2 offence within 3 years;
  • forfeited to the State for any subsequent offence within 3 years.  The Police Commissioner may sell the vehicle or dispose of it in an appropriate way. 
Queensland Police’s 2010‐2011 Annual Statistical Review (p 145) shows that in 2010‐2011, there were 616 Type 1 vehicle impoundments (down 15% on 2009‐2010) and 6,970 Type 2 impoundments (a 12% decrease on 2009‐2010).  Its 2010-2011 Annual Report (p 43) notes that 2,794 of the 7,586 vehicles that were impounded in 2010‐2011 were eligible for a court order for a 3 month impoundment or forfeiture.
As part of the LNP Government’s commitment to crack down on repeat hoons, 11 cars were auctioned off on the Gold Coast in July 2012.  Each of those vehicles had been forfeited by a repeat offender caught committing type 2 hooning offences.

Proposed Government Amendments
The proposed amendments to the ‘hooning’ provisions of the Act include:
  • a person committing a first hooning offence will have his/her motor vehicle clamped at the offender’s expense for 3 months.  It is intended that clamping will be used instead of impounding to help police cut red tape and save the time it takes to arrange tow trucks and impounds.  The NSW Parliament recently amended its ‘hooning laws’ (effective 1 July 2012) to make some changes to its vehicle sanctions scheme.  The new provisions allow number plate confiscation (NCC) as an alternative to impoundment.  Wheel clamping was removed from the vehicle sanctions regime.  When introducing the legislation into the NSW Legislative Council, the Police Minister said that NCC was replacing clamping because the clamping trial (which began in September 2008) had raised unanticipated practical issues.  For instance, police had to rely on third party contractors due to lack of availability of clamping agents (particularly in remote areas).  Clamping did not save time for police because officers needed to visit the address of the offender to ascertain suitability of the site for placing the clamped vehicle.  The Minister said that the 12 month trial had resulted in only 12 vehicles being clamped;
  • further offences within the following five years will result in the vehicle being forfeited and it will then be sold or crushed;
  • allowing police to issue an infringement notice (ticket) for a type 2 ‘pre-impoundment’ offence rather than proceeding by way of Notice to Appear or arrest.  A ‘pre-impoundment’ offence is a first type 2 offence as a first offence does not result in impoundment but triggers the start of a scheme where the vehicle may be impounded for a further type 2 offence.
On 20 June 2012, the Government introduced the Criminal Law Amendment Bill 2012 (Qld).  Among other amendments, it seeks to insert into s 754 of the Act, a minimum penalty of a $5,000 fine for evading police with the maximum penalty to remain at a $20,000 fine or 3 years imprisonment.  (Under a proposed amendment contained in the recently introduced Penalties and Sentences and Other Legislation Amendment Bill, these fines would increase by 10%.)  The Bill also seeks to provide that upon conviction of such an offence, the court must disqualify a person from driving for up to 2 years.  The proposal also implements another LNP election commitment in its ‘Putting the Brakes on Hoons’ policy.  The Explanatory Notes (p 2) to the Bill comment that the amendments respond to a June 2011 Crime and Misconduct Commission report stating that the most common penalty imposed on a single charge of this offence was a $300 fine and licence disqualification occurred only in around one in five cases.  The Explanatory Notes (p 2) said that these sentences are ‘not commensurate with the risk posed by those who evade police’.
The Government has also indicated its ongoing support for the HOONWatch hotline (13HOON) for local residents to report hooning behaviour.

Previous Government’s Proposed Legislation
In January 2012, the Queensland Parliamentary Library published a Research Brief considering the laws proposed by the previous Bligh Government (which lapsed when Parliament was dissolved pending the March 2012 election).  That legislation sought, among other things, to raise the initial impoundment period from 48 hours to 7 days; allow the police to automatically impound a vehicle for 28 days for certain repeat offences; and introduce high end speeding as a type 2 offence.

Comparative Legislation
There is no Australia-wide uniform scheme for motor vehicle impoundments and there is considerable variation across jurisdictions.  Direct comparison among jurisdictions is problematic due to differences in qualifications, hardship exceptions and the offences that qualify as ‘hooning’.  The table below provides merely a very basic picture of the current impoundment and forfeiture schemes in each state and territory.

Maximum Motor Vehicle Impoundment Laws in Australian States and Territories (at July 2012)
Source: NL Leal, ‘Illegal street racing and associating (hooning) behaviours’, PhD thesis, CARRS – Q, Queensland University of Technology, October 2010, p 30, Table 2.1, ‘Maximum length of vehicle impoundment period’ and ‘Prescribed period for repeat offences’, updated by Queensland Parliamentary Library and Research Service (QPLRS) Research Officers, Maggie Lilith and Nicolee Dixon.
* Clamping can be extended to up to 3 months.  The SA legislation distinguishes between ‘prescribed offences’ and ‘forfeiture offences’, the latter including more serious offences (street racing, dangerous driving causing death or injury, and dangerous driving to evade police).  Tasmania’s scheme also covers ‘evading police’ and, in Victoria, driving after being directed by police to stop is also a ‘hooning offence’.  

 Key Documents

Nicolee Dixon
General Distribution Research, Research and Information Service
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