Thursday, June 30, 2011

OWNERSHIP OVER MAORI KNOWLEDGE TO BE DECIDED

SHABNAM DASTGHEIB

The Waitangi Tribunal is to release findings tomorrow on the legal place of Maori culture and identity and claims of ownership over native flora and fauna.

The Wai 262 inquiry will make non-binding recommendations to the Government about claims of ownership over Maori knowledge and native flora and fauna which claimants believe are guaranteed under the Treaty of Waitangi.

The first claim was brought against the Crown in 1991 by six iwi and hearings ran from 1997 to 2007.

The claimants say the Crown breached article two of the Treaty which granted Maori exclusive and undisturbed ownership of their lands and property, including all taonga.

Claims say the Crown failed to protect Maori rights of authority and guardianship over indigenous flora and fauna, Maori cultural heritage and traditional knowledge.

These contemporary issues have not been looked at before.

The findings will look at customary Maori and English common law as it applies to native flora and fauna and how flora and fauna was dealt with when the Crown purchased Maori land.

The report will also examine scenery preservation and protected areas, inland waterways and the role of Maori in habitat transformation.

The inquiry also covers areas of Maori knowledge and intellectual property as well as education systems and the Maori language.

The chapter on the health of te reo Maori was released in pre-publication last October and made numerous recommendations, including a massive bolstering of power for the Maori Language Commission, which the tribunal says should be able to censure and 'name and shame' government agencies, councils or schools that are not doing enough to revitalise te reo.

- The Dominion Post

http://www.stuff.co.nz/national/politics/5218449/Ownership-over-Maori-knowlege-to-be-decided

ROAD SAFETY AMENDMENT (HOON DRIVING) BILL

ROAD SAFETY AMENDMENT (HOON DRIVING) BILL

Statement of compatibility

Mr PALLAS (Minister for Roads and Ports) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act:

In accordance with section 28 of the Charter of Human Rights and Responsibilities, I make this statement of compatibility with respect to the Road Safety Amendment (Hoon Driving) Bill 2010.

In my opinion the Road Safety Amendment (Hoon Driving) Bill 2010, as introduced to the Legislative Assembly, is compatible with the human rights protected by the charter. I base my opinion on the reasons outlined in this statement.

Overview of the bill

The bill:

a) extends the vehicle impoundment, immobilisation and forfeiture scheme in part 6A of the Road Safety Act 1986 to the following offences:

i. driving with a blood or breath alcohol content of 0.10 or higher (for the second or subsequent time) contrary to sections 49(1)(b), (f) or (g) of the Road Safety Act 1986; and

ii.

driving with drugs present in blood or oral fluid (for the second or subsequent time) contrary to sections 49(1)(bb), (h) or (i) of the Road Safety Act 1986; and

iii. unlicensed driving (for the second or subsequent time) contrary to section 18(1) of the Road Safety Act 1986 (except in


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circumstances where the person merely failed to renew their driver licence or permit);

b) strengthens the way the motor vehicle impoundment, immobilisation and forfeiture scheme in part 6A of the Road Safety Act 1986 operates with respect to the following offences:

i. disqualified driving (for the second or subsequent time) contrary to section 30(1) of the Road Safety Act 1986; and

ii.

driving at 70 kilometres per hour or more over the applicable speed limit (or 170 kilometres per hour or more where the speed limit is 110 kilometres per hour) contrary to rule 20 of the road rules or section 65B of the Road Safety Act 1986; and

iii. dangerous driving under section 64(1) of the Road Safety Act 1986 in circumstances where a vehicle is driven at 70 kilometres per hour or more over the applicable speed limit (or 170 kilometres per hour or more if the speed limit is 110 kilometres per hour);

c) enables police under part 6A of the Road Safety Act 1986 to immediately immobilise or impound a motor vehicle for seven days upon detection of a tier 1 relevant offence or a tier 2 relevant offence;

d) provides that, under part 6A of the Road Safety Act 1986, on a finding of guilt for:

i. a second or subsequent 'tier 2 relevant offence'; or

ii. any 'tier 1 relevant offence'--

e) the court must, on the application of the police, order immobilisation or impoundment of the relevant motor vehicle for 28 days;

f) facilitates the use of steering wheel locks as a new method of motor vehicle immobilisation;

g) provides police with additional powers to search premises for the purposes of locating and accessing a motor vehicle that is to be impounded, immobilised or forfeited;

h) provides that when an impoundment or immobilisation order or a forfeiture order is sought with respect to a motor vehicle, the police may concurrently apply for a search warrant to facilitate access to the vehicle;

i) provides police with power to question adult persons as to the whereabouts of a motor vehicle to facilitate the impoundment, immobilisation or forfeiture of that vehicle;

j) facilitates the sale or disposal of forfeited motor vehicles and uncollected impounded motor vehicles by extinguishing third-party interests;

k) ensures that applications for --exceptional hardship-- to avoid orders for the immobilisation, impoundment or forfeiture of a motor vehicle are granted only in appropriate cases; and

l) amends the Melbourne City Link Act 1995 to provide the minister administering that act with power to revoke, in whole or in part, a road declaration made under that act.

Human rights issues

Section 12 -- Freedom of movement

Section 12 of the charter provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

Extension of vehicle impoundment, immobilisation and forfeiture scheme to certain drink-driving, drug-driving and unlicensed-driving offences

The bill provides that part 6A of the Road Safety Act 1986 will apply to three new categories of offences which were not previously subject to vehicle impoundment, immobilisation or forfeiture. These include:

a) driving with a blood or breath alcohol content of 0.10 or higher (for the second or subsequent time) contrary to sections 49(1)(b), (f) or (g) of the Road Safety Act 1986;

b) driving with drugs present in blood or oral fluid (for the second or subsequent time) contrary to sections 49(1)(bb), (h) or (i) of the Road Safety Act 1986; and

c) unlicensed driving (for the second or subsequent time) contrary to section 18(1) of the Road Safety Act 1986 (except in circumstances where the person merely failed to renew their driver licence or permit).

The imposition of impoundment, immobilisation or forfeiture sanctions with respect to a motor vehicle restricts the use of that vehicle for transport purposes and therefore engages the right to freedom of movement.

However, the right to freedom of movement is not limited because the affected person(s) are free to use other forms of transport such as walking, cycling and public transport. In addition, if an affected person continues to hold a driver licence or permit, then that person is free to drive an alternate vehicle.

It is noted that in many cases the imposition of an impoundment or immobilisation sanction will not directly affect the offender's ability to drive a vehicle because that person is already prohibited from driving a motor vehicle. The person may be unlicensed (and disqualified from applying for a licence) or may have had his or her licence or permit suspended. For example, in the case of repeat drink and drug-driving offences, the offender's licence or permit will be suspended or cancelled under part 5 or part 7 of the Road Safety Act 1986.

It is also noted that it is generally possible for persons substantially affected by the imposition of vehicle immobilisation, impoundment or forfeiture sanctions to make an application on the grounds of --exceptional hardship-- for


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either the release of the relevant vehicle or to prevent the immobilisation, impoundment or forfeiture of the vehicle from occurring. If a successful application is made, then the vehicle can continue to be used for transport purposes.

Revocation of road declarations

The insertion of a power in the Melbourne City Link Act 1995 to revoke a road declaration engages the right to freedom of movement because the revocation or partial revocation of a road declaration means that the affected land will cease to be a public highway and therefore public rights of access to the land will be altered. In the present case, the power to revoke a road declaration or part of a road declaration is restricted to areas of land that are surplus to the requirements of City Link.

The act of revoking road declarations that apply to surplus land will allow that land to be used for alternative purposes. The altering of rights of public access to certain parcels of surplus land does not limit the right to freedom of movement because the public will still be able to move freely within Victoria, including travel along City Link and adjacent roadways.

Section 13(a) -- Privacy

Section 13(a) of the charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

Extension of vehicle impoundment, immobilisation and forfeiture scheme to certain drink-driving, drug-driving and unlicensed-driving offences

The bill provides that certain drink-driving, drug-driving and unlicensed-driving offences are to become subject to the motor vehicle impoundment, immobilisation and forfeiture scheme in part 6A of the Road Safety Act 1986.

If a vehicle is to be impounded, immobilised or forfeited due to the commission of one of these offences, then the search and seizure powers set out in division 2 of part 6A (search and seizure without a warrant) and division 4 of part 6A (search and seizure with a warrant) will apply. The exercise of search and seizure powers engages the right to privacy.

However, the exercise of the abovementioned search and seizure powers are authorised by law and, for the reasons given below, are not exercised in an arbitrary manner. Therefore the right to privacy is not limited by this reform.

The exercise of the search and seizure powers are confined to those circumstances where there is a reasonable belief that a vehicle of interest is located at particular premises. Furthermore, a number of safeguards are in place to ensure that the search and seizure powers are exercised appropriately. Where a vehicle is seized under division 2 of part 6A (without a search warrant), a senior police officer must review the circumstances of the impoundment or immobilisation within 48 hours, to ensure that there were reasonable grounds for impounding or immobilising the vehicle. Also, appeal rights are available to persons whose interests are substantially affected by the impoundment or immobilisation and they may apply to the Magistrates Court for an order that the motor vehicle be released on the ground that the impoundment or immobilisation is causing, or will cause, exceptional hardship to the applicant or another person.

Where a search is conducted under a search warrant issued under division 4 of part 6A, an application for the search warrant must be made to the Magistrates Court and may only be made where the police believe on reasonable grounds that the motor vehicle of interest is or may be in or on specified premises within the next 72 hours. The person that executes the warrant must report back to the Magistrates Court as to the outcome of the execution of the warrant.

Expanded search powers

The bill provides police officers with additional powers to search premises without a search warrant. These include the ability:

a) to enter a motor vehicle for the purpose of affixing a steering wheel lock immobilisation device; and

b) solely for the immobilisation, impoundment or forfeiture of a vehicle under part 6A of the Road Safety Act 1986:

i. to enter on land and enter any part of a building where vehicles are stored (excluding parts of buildings or dwellings used for residential purposes);

ii. to open any unlocked doors or panels or open unlocked places and move (but not take away) anything that is not locked or sealed to get access to the vehicle; and

iii. to search the premises to locate a vehicle that is reasonably believed to have been used to commit a --tier 1 relevant offence-- or a --tier 2 relevant offence-- if the premises are:

the garage address of the vehicle; or

another premises where the vehicle is believed to be present.

The exercise of these search and entry powers engages the right to privacy. However, the exercise of these powers are authorised by law and will be exercised only in limited circumstances as described above. The powers are quite limited and carefully tailored to the purpose for which they are necessary, that is, gaining access to a vehicle in order to immobilise or impound it or to seize a vehicle that is to be forfeited to the Crown. For example, where the police exercise the abovementioned search and entry powers with respect to business premises, entry will only be permitted during business hours. Therefore the right to privacy is not limited by this reform.

Police power to question adult persons as to whereabouts of a vehicle

The police power to question adult persons as to the whereabouts of a vehicle may engage the right to privacy.

However, the exercise of that power will be authorised by law and will not be exercised in an arbitrary manner. The exercise of the power is constrained to the narrow purpose of locating a vehicle that is to be immobilised, impounded or forfeited. Furthermore, any information provided to the police cannot be used against the person providing the information in any civil or criminal proceedings (other than where it is alleged that the person has provided information to the police that is false or materially misleading). Since the questioning powers are authorised by law and, for the reasons given above, cannot


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be exercised arbitrarily, the right to privacy is not limited by this reform.

Section 15(2) -- Freedom of expression

Section 15(2) of the charter provides that every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether orally, in writing, in print, by way of art or in another medium chosen by him or her.

Police power to question adult persons as to whereabouts of a vehicle

Given that the right to freedom of expression includes a right to not be compelled to express information, the power of police to question adult persons as to the whereabouts of a vehicle engages the right to freedom of expression.

Section 15(3) of the charter provides that the right to freedom of expression may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons or for the protection of national security, public order, public health or public morality.

In this case, the purpose of the limitation of the right to freedom of expression is to assist police in locating vehicles that are to be immobilised, impounded or forfeited. This is necessary to impose sanctions on offenders to prevent and discourage unsafe driving behaviour that threatens public safety on Victoria's road network.

Therefore, the restriction of the right to freedom of expression is appropriately limited on 'public order' grounds in accordance with section 15(3) of the charter. The reasonableness of that restriction is further considered below.

(a) the nature of the right being limited

The right to be limited is the right to not be compelled to express information. Information is required to be provided if the person is an adult and if they have relevant knowledge as to the whereabouts of the relevant vehicle.

(b) the importance of the purpose of the limitation

The limitation is very important because it will assist police to locate vehicles for the purpose of vehicle impoundment, immobilisation and forfeiture when confronted with uncooperative persons who are concealing or are complicit in the concealment of the location of the relevant vehicle and are thereby thwarting the imposition of an important road safety sanction.

(c) the nature and extent of the limitation

The limitation of the right to freedom of expression is confined to requiring the expression of information as to the whereabouts of a specified vehicle. This is therefore a very narrow limitation. Furthermore, the use of the information that is provided is tightly controlled. That information cannot be used in any civil or criminal proceedings against the person who provided the information (other than where it is alleged that the person has provided information to the police that is false or misleading in a material respect).

(d) the relationship between the limitation and its purpose

The limitation is directly linked to its purpose which is to protect public safety.

(e) any less restrictive means reasonably available to achieve its purpose

The proposed measure has become necessary because police have repeatedly been frustrated by offenders who deliberately conceal the location of relevant vehicles to prevent the imposition of immobilisation, impoundment and forfeiture sanctions. There are no less restrictive means of achieving the stated purpose.

Section 20 -- Property rights

Section 20 of the charter provides that a person must not be deprived of his or her property other than in accordance with law.

Extension of vehicle impoundment, immobilisation and forfeiture scheme to certain drink-driving, drug-driving and unlicensed-driving offences

The bill provides that certain drink-driving, drug-driving and unlicensed-driving offences will become subject to the vehicle impoundment, immobilisation and forfeiture scheme in part 6A of the Road Safety Act 1986, and therefore the search and seizure powers set out in divisions 2 and 4 of part 6A of the Road Safety Act 1986 will apply with respect to vehicles used in the commission of those offences (or a substitute vehicle). Furthermore, the restrictions on the sale, disposal, registration and transfer of registration of a vehicle set out in division 3 of part 6A will apply to the relevant vehicle.

Both the exercise of search and seizure powers and the sale, disposal and registration restrictions engage the right to property.

However, the right to property is not unlawfully or arbitrarily interfered with. The limitations placed on the sale, disposal, registration and transfer of registration of a vehicle are authorised by law and are only imposed in narrow circumstances where certain serious road safety offences are alleged to have been committed.

Expanded search powers

The bill provides police with additional powers to search premises without a search warrant. These include the ability:

a) to enter a motor vehicle for the purpose of affixing a steering wheel lock immobilisation device; and

b) solely for the immobilisation, impoundment or forfeiture of a vehicle under part 6A of the Road Safety Act 1986:

i. to enter on land and enter any part of a building where vehicles are stored (excluding parts of buildings or dwellings used for residential purposes);

ii. to open any unlocked doors or panels or open unlocked places and move (but not take away) anything that is not locked or sealed to get access to the vehicle;


Page 3579

iii. to search the premises to locate a vehicle that is reasonably believed to have been used to commit a 'tier 1 relevant offence' or a 'tier 2 relevant offence' if the premises are:

the garage address of the vehicle; or

another premises where the vehicle is believed to be present.

The exercise of these search and entry powers engages the right to property. However, the exercise of those search and entry powers are authorised by law and will not be exercised in an arbitrary manner. For example, where the police exercise the abovementioned search and entry powers with respect to business premises, entry will only be permitted during business hours. Therefore the right to privacy is not limited by this reform.

Extinguishing security interests to facilitate the sale or disposal of a forfeited or uncollected impounded vehicle

The bill provides that security interests in forfeited vehicles and uncollected impounded vehicles will be extinguished to facilitate the sale or disposal of those vehicles. The extinguishment of a security interest engages the right to property. However, the right to property is not limited because the extinguishment of the security interests is authorised by law and only occurs in narrow circumstances where a vehicle has been forfeited to the Crown or where a vehicle has been impounded but not collected by the registered operator. Furthermore, although security interests will be extinguished, the persons holding those interests will, where the vehicle is fit for sale, still be eligible to have their interests paid out when the proceeds of sale are distributed according to the current priority order set out in section 84ZS of the Road Safety Act 1986.

Section 24(1) -- Fair hearing

Section 24(1) of the charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Seven-day impoundment or immobilisation of vehicles upon detection of an offence

The imposition of vehicle impoundment or immobilisation for seven days (rather than the current 48-hour period) by a police officer limits the right to a fair hearing since a form of punishment is being imposed for alleged criminal behaviour before any finding of guilt by an independent tribunal such as a court.

It is submitted however, that, for the reasons given below, the limitation is reasonable and demonstrably justified in a free and democratic society.

(a) the nature of the right being limited

The right to a fair hearing implicitly requires that no punishment for criminal behaviour be imposed unless charges are brought and they are determined by a competent, independent and impartial court or tribunal after a fair and public hearing. The imposition of a vehicle impoundment or immobilisation sanction for seven days under division 2 of part 6A of the act occurs prior to any finding of guilt by a court and therefore limits the right to a fair hearing.

(b) the importance of the purpose of the limitation

During the period from January 2003 to November 2004, hoon driving behaviour contributed to 41 serious collisions in which 28 people were killed. This revelation was a significant impetus for the creation of the Victorian vehicle impoundment scheme. It has been acknowledged since the commencement of the scheme that immediate sanctions for hoon driving offences play a critical role in discouraging unsafe driving behaviour.

The imposition of vehicle impoundment or immobilisation for seven days upon the detection of a 'tier 1 relevant offence' or a 'tier 2 relevant offence' by police allows for the immediate removal of an unsafe driver from the road and also provides a significant deterrent to that person and other drivers from engaging in unsafe driving behaviour.

(c) the nature and extent of the limitation

The limitation of the right to a fair hearing is constrained by a number of safeguards to ensure that it is not imposed inappropriately. Firstly, section 84M of the act provides that any decision to impose a 7 day impoundment or immobilisation sanction must be reviewed by a senior police officer within 48 hours of the impoundment or immobilisation being imposed.

Secondly, appeal rights exist under section 84O of the act where a person substantially affected by the seven-day impoundment or immobilisation sanction can seek the release of the vehicle on exceptional hardship grounds. It is acknowledged that even if an urgent appeal application was submitted to the Magistrates Court immediately after the imposition of the impoundment or immobilisation, it would be unlikely that the court would hear and determine the appeal immediately. Therefore a successful appeal would most likely result in a shortening of the seven-day impoundment or immobilisation rather than complete avoidance of the sanction.

Thirdly, section 84R of the act provides that in the event that a person is found not guilty of the alleged offence (or any other 'tier 1 relevant offence' or 'tier 2 relevant offence' arising out of the same single set of circumstances) or where charges are not proceeded with, the Crown is liable to refund any designated costs paid by any person and the motor vehicle (if not already recovered by the registered operator or any other person entitled to the possession of it) must be immediately released without any designated costs payable by the person seeking recovery of the vehicle.

(d) the relationship between the limitation and its purpose

The limitation of the right to a fair hearing is directly linked with its primary purpose which is to protect the public from unsafe drivers.

(e) any less restrictive means reasonably available to achieve its purpose

It would be possible to factor in some delay period before the impoundment or immobilisation could take effect to ensure that the right to appeal under section 84O could be exercised prior to the sanction taking effect. However this would reduce


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the effectiveness of the legislation in deterring unsafe driving practices.

Section 25(1) -- Right to be presumed innocent

Section 25(1) of the charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

Seven-day impoundment or immobilisation of vehicles upon detection of an offence

The imposition of vehicle impoundment or immobilisation for seven days (rather than the current 48-hour period) prior to any finding of guilt by a court engages and also limits the right to be presumed innocent since a sanction is being imposed by police officers for alleged criminal behaviour without any formal finding of guilt.

It is submitted however, that, for the reasons given below, the limitation is reasonable and demonstrably justified in a free and democratic society.

(a) the nature of the right being limited

The right to be presumed innocent implicitly requires that no punishment for alleged criminal behaviour be imposed until a person is proven guilty according to law.

The imposition of a vehicle impoundment or immobilisation sanction for seven days under division 2 of part 6A of the act occurs prior to any finding of guilt by a court and therefore limits the right to be presumed innocent.

(b) the importance of the purpose of the limitation

The imposition of vehicle impoundment or immobilisation for seven days upon the detection of either a 'tier 1 relevant offence' or a 'tier 2 relevant offence' by police allows for the immediate removal of an unsafe driver from the road and also provides a significant deterrent to that person and other drivers from engaging in unsafe driving behaviour.

(c) the nature and extent of the limitation

The limitation of the right to be presumed innocent is constrained by a number of safeguards. Firstly, section 84M of the act provides that any decision to impose a seven-day impoundment or immobilisation must be reviewed by a senior police officer within 48 hours of the impoundment or immobilisation being imposed.

Secondly, appeal rights exist under section 84O of the act where a person substantially affected by the seven-day impoundment or immobilisation sanction can seek the release of the vehicle on exceptional hardship grounds. It is acknowledged that even if an urgent appeal application was submitted to the Magistrates Court immediately after the imposition of the impoundment or immobilisation sanction, it would be unlikely that the court would hear and determine the appeal straight away. Therefore a successful appeal would most likely result in a shortening of the seven-day impoundment or immobilisation rather than complete avoidance of the sanction.

Thirdly, section 84R of the act provides that in the event that a person is found not guilty of the alleged offence (or any other 'tier 1 relevant offence' or 'tier 2 relevant offence' arising out of the same single set of circumstances) or where charges are not proceeded with, the Crown is liable to refund any designated costs paid by any person and the motor vehicle (if not already recovered by the registered operator or any other person entitled to the possession of it) must be immediately released without any designated costs payable by the person seeking recovery of the vehicle.

(d) the relationship between the limitation and its purpose

The limitation of the right to be presumed innocent is directly linked with its primary purpose which is to protect the public from unsafe drivers.

(e) any less restrictive means reasonably available to achieve its purpose

It would be possible to factor in some delay period before the impoundment or immobilisation could take effect to ensure that the right to appeal under section 84O could be exercised prior to the sanction taking effect. However this would reduce the effectiveness of the legislation in deterring unsafe driving practices. It is important that persons that disregard public safety by committing serious traffic offences are removed from the roads as quickly as possible.

Section 25(2)(k) -- Right to not be compelled to incriminate oneself

Section 25(2)(k) of the charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against oneself or to confess guilt.

Police power to question adult persons as to whereabouts of a vehicle

The bill provides police with power to question adult persons as to the whereabouts of a vehicle. This coercive power engages the right to not be compelled to testify against himself or herself or to confess guilt.

However because the bill also provides an immunity whereby any evidence provided by the questioned individual cannot be used in any civil or criminal proceedings against that person (other than in proceedings where the person is being charged with providing false or materially misleading information) it is submitted that the right to not be compelled to incriminate oneself is not limited.

Conclusion

I consider that the bill is compatible with the Charter of Human Rights and Responsibilities.

Provisions of the bill engage with, but do not limit, rights conferred by sections 12, 13(a), 20 and 25(2)(k) of the charter. The provisions of the bill that limit human rights under sections 15(2), 24(1) and 25(1) of the charter are reasonable and proportionate.

Tim Pallas, MP

Minister for Roads and Ports

Second reading

Mr PALLAS (Minister for Roads and Ports) -- I move:

That this bill be now read a second time.

This bill makes a number of amendments to further enhance the vehicle impoundment scheme set out in


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part 6A of the Road Safety Act 1986 that commenced operation on 1 July 2006. That scheme was introduced by the government to deal with the menace of 'hoon' driving.

The scheme provides for the imposition of vehicle impoundment, immobilisation or forfeiture sanctions. Those sanctions may be imposed for a number of serious road safety offences which currently include:

dangerous driving;

careless driving;

speeding offences where a vehicle is driven at more than 45 kilometres per hour or more over the applicable speed limit (or 145 kilometres per hour or more if the speed limit is 110 kilometres per hour);

deliberately losing traction;

street racing offences;

deliberately or recklessly entering a level crossing when a train is approaching;

refusing to stop when directed by police;

making unnecessary noise or smoke;

not having proper control of a vehicle; and

driving while disqualified (for a second or subsequent time).

The scheme relies on graduated sanctions to punish and deter hoon drivers. A first offence may result in the impoundment or immobilisation of a vehicle for 48 hours. A second offence may, in addition to an initial 48-hour impoundment or immobilisation sanction, result in a further court imposed impoundment or immobilisation sanction of up to three months in total. A third offence can, in addition to an initial 48-hour sanction, result in the court ordering the forfeiture of the vehicle.

Since the scheme commenced operation, over 11 400 motor vehicles have been impounded and 17 vehicles have been forfeited to the Crown. The imposition of vehicle impoundment, immobilisation and forfeiture sanctions for hoon driving offences has proven to be effective in discouraging dangerous driving behaviour.

Up to 15 April 2010, 94 per cent of detections of hoon driving offences were in relation to first-time offenders, 5 per cent of detections related to second-time offenders and 1 per cent of detections related to third-time offenders.

The Road Safety Amendment (Hoon Driving) Bill 2010 will further enhance the vehicle impoundment scheme and extend the road safety benefits that it provides to all Victorians.

One of the key reforms contained in the bill is the extension of the vehicle impoundment scheme to drink and drug driving offences.

Drink driving and drug driving continue to be a significant threat to safety on our roads. Drink driving contributes to around 20 per cent to 30 per cent of driver deaths on Victoria's roads each year.

Drug driving, where one or more illicit drugs are present, is found in approximately 40 per cent of driver deaths each year.

The government's Arrive Alive 2008-2017 road safety strategy contained a commitment to examine tougher sanctions for recidivist drink drivers, including extension of the vehicle impoundment scheme to those offenders.

The first action plan 2008-10 of Arrive Alive included a commitment to review penalties for drink and drug-driving offenders to appropriately reflect the risk to the community and ensure that penalties are aimed at, and are recognised by the community as, achieving improved road safety.

That review has determined that penalties for drink and drug driving are currently inadequate and that the vehicle impoundment scheme should be extended to recidivist drink-driving and drug-driving offenders.

The bill therefore provides that vehicle impoundment sanctions will be available in those cases were a driver is detected with a blood or breath alcohol concentration of 0.10 or higher for a second or subsequent time or where a driver is detected with drugs present in his or her system for a second or subsequent time. The offence of driving unlicensed for a second or subsequent time will also become subject to the vehicle impoundment scheme.

The operation of the vehicle impoundment scheme with respect to these new offences will be altered slightly from the usual graduated approach described in my earlier remarks. A first offence will not result in any vehicle impoundment sanctions because they are already subject to heavy financial and licence loss penalties, and the focus of these impoundment reforms is on recidivist offenders.

However, as with other offences already covered by the vehicle impoundment scheme, a second offence may, in addition to short-term immediate roadside impoundment or immobilisation, result in up to three months vehicle impoundment or


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immobilisation. A third offence may lead to forfeiture of the vehicle to the Crown.

Speeding is another menace on our roads that needs to be tackled with firm action. Speeding and inappropriate travel speeds directly contribute to at least 30 per cent of deaths on Victoria's roads each year. More can be done to further discourage this high-risk behaviour.

The first action plan 2008-10 of Arrive Alive included a commitment to review penalties for speeding to ensure that they more accurately reflect the risk to the community and ensure that the sole objective of these penalties is aimed at, and is recognised by the community as, achieving improved road safety.

That review has determined that tougher sanctions are required for extreme speeding offences.

The bill therefore provides that where a driver is detected driving at 70 kilometres per hour or more over the applicable speed limit or at a speed of 170 kilometres per hour in a 110-kilometres-per-hour speed zone, that driver will face vehicle impoundment or immobilisation sanctions for up to three months for a first offence. Such a sanction is normally reserved for a second offence under the vehicle impoundment scheme. Also, for a second extreme speeding offence, the court will be empowered to order the forfeiture of the vehicle. That sanction is normally reserved for a third offence under the vehicle impoundment scheme.

Driving while disqualified or suspended remains prevalent and a serious threat to road safety. Studies in Victoria have found that disqualified or suspended drivers are overrepresented in high-severity crashes causing injury.

For the years 2005-06 to 2007-08, the average number of persons sentenced in the Magistrates Court for driving while disqualified was 2685 and an average of nearly 5000 persons were sentenced for driving while their drivers licence was suspended. The Sentencing Advisory Council's April 2009 report on driving while disqualified or suspended noted that these offences were the most commonly proved in the Magistrates Court after theft.

Accordingly, the bill will toughen the vehicle impoundment and forfeiture sanctions for disqualified driving offences. It provides that a second offence may result in up to three months vehicle impoundment or immobilisation and a third offence may result in forfeiture of the vehicle. This differs from the current scheme which treats unlicensed driving in a more lenient fashion than other vehicle impoundment offences. The current scheme requires a third offence before three months vehicle impoundment or immobilisation can be imposed and requires a fourth offence before forfeiture sanctions are imposed.

As discussed earlier, the current graduated impoundment scheme sanctions start with the imposition of impoundment or immobilisation of the vehicle by the police for a period of 48 hours. The bill provides that this initial impoundment or immobilisation period will be increased across the board to seven days. This change will apply to all offences to which the vehicle impoundment scheme applies. Increasing the initial impoundment or immobilisation sanction to seven days is expected to further deter dangerous driving behaviour as the immediate negative consequences of that behaviour mount up. In addition, offenders are less likely to able to conceal the sanction (and need to make alternative transport arrangements) from their families and friends who have the potential to intervene and so reduce further offending.

In addition, the bill provides that in all cases where a person appears before the court for an offence for which a three-month impoundment or immobilisation sanction may be imposed, the court will be required, upon a finding of guilt and upon the application of the police, to impose a vehicle impoundment or immobilisation sanction for at least 28 days. This will ensure that strong sanctions are imposed sending a strong message to road users that hoon driving behaviour has serious consequences.

The bill streamlines court processes by allowing the police to apply for a search warrant to facilitate access to the vehicle at the same time that the court imposes an impoundment, immobilisation or forfeiture sanction.

The bill also provides the police with limited powers to search premises without a search warrant for the purposes of locating and accessing a vehicle for the purposes of impoundment, immobilisation or forfeiture of the vehicle.

In recent years, the police have encountered attempts by persons to conceal the location of vehicles to prevent them from being impounded, immobilised or forfeited to the Crown. Such behaviour threatens to frustrate the operation of the scheme and also threatens the important road safety outcomes that the scheme provides. The bill therefore provides police with limited powers to question adult persons as to the whereabouts of a vehicle for the specific purpose of locating a vehicle of interest so that it can be impounded, immobilised or forfeited to the Crown.


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The information provided by questioned persons will be kept in the strictest confidence and protections will be enshrined in the legislation to ensure that the information provided during police questioning cannot be used to the detriment of the questioned person in any civil or criminal proceedings (except where the person has provided false or materially misleading information). This reform will allow the police to do their work more effectively and help to prevent persons from thwarting the law by actively concealing the location of vehicles or refusing to cooperate with the police.

The bill also provides for a new form of vehicle immobilisation that involves the use of a specially designed steering wheel lock that is placed over the steering wheel of the vehicle. The act already provides for vehicle immobilisation with wheel clamps but vehicles immobilised with wheel clamps are difficult to move with a tow truck.

The new steering wheel lock immobilisation method will provide greater flexibility as it has the benefit of allowing an immobilised vehicle to be towed to an alternative location. This may be necessary if, for example, the immobilised vehicle is creating a hazard to road users.

In order to facilitate the use of steering wheel locks for the purpose of immobilising vehicles, the bill provides police with power to enter a vehicle to install the immobilisation device. It also provides that at the end of the immobilisation period, the steering wheel lock must be returned to a designated police station. Steering wheel lock immobilisation is already widely practised in Tasmania and is reported to be working very well.

The bill also contains a number of measures aimed at speeding up the process of selling or disposing of forfeited cars or vehicles that have been impounded but remain uncollected by the owner for an extended period of time.

The act currently provides a clear process for the sale or disposal of these vehicles but delays often arise where a security interest is held over the vehicle. The practice has been to seek the consent of each security interest holder prior to the sale or disposal of the vehicle and this often results in significant delays to the sale process. Where a vehicle has been impounded, storage costs tend to build up over time, and this diminishes the amount of funds that are available to be paid to security interest holders if a vehicle is eventually sold.

In those cases where a vehicle is fit for sale, the act sets out a clear priority system for the distribution of the proceeds of that sale. Government costs associated with the sale, immobilisation and impoundment of a vehicle are paid first. Next, persons that have a security interest in the vehicle are paid. If any proceeds of sale remain, then, in the case of an uncollected impounded vehicle, the proceeds of sale are paid to the owner of the vehicle.

In the case of a forfeited vehicle, the remaining proceeds of sale are paid into the consolidated fund.

In order to facilitate the efficient sale or disposal of vehicles, the bill provides that security interests in vehicles that are to be sold or disposed of will be extinguished. This extinguishment is not absolute, because if the vehicle is sold, the former security interest holders will still be entitled to payments from the distribution of funds according the usual priority system that I have just described. That is, once government costs are paid, they will be next in line. The speedy sale of vehicles will enable Victoria Police to clear vehicles from impoundment areas more quickly. It will also benefit security interest holders, because speedy sale will mean that the cost of vehicle immobilisation and impoundment will be minimised as far as possible. More funds will therefore remain for payment to those persons.

As stated earlier, surplus funds from the sale of forfeited vehicles are paid into the consolidated fund once all government costs are paid and all payments to security interest holders have been made. It is the government's intention that in the future, any surplus funds that make their way into the consolidated fund will be used to assist victims of crime in accordance with the provisions of the Victims of Crime Assistance Act 1996. This assistance plan will be delivered through an administrative arrangement where appropriations for the purpose of assisting victims of crime will be increased by an amount equal to the value of the surplus funds generated. No specific legislative amendments are required for this arrangement to be implemented.

The bill limits the circumstances where an impoundment or forfeiture sanction can be avoided by an offender on 'exceptional hardship' grounds.

The bill provides that applications by offenders to retain their vehicles or for the early release of their vehicles on 'exceptional hardship' grounds will not be considered in those cases where the offender has already been disqualified from driving or has had his or her driver licence or permit suspended due to the severity of the offences that were committed. Also, the bill clarifies the circumstances in which arguments relating to travelling for employment purposes can satisfy the 'exceptional hardship' test.

The bill also amends the Melbourne City Link Act 1995 to provide the responsible minister with power to revoke a road declaration made under that act, in whole


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or in part, in relation to land that is not required for City Link. This will enable surplus land that is not required for City Link to be used for non-road purposes.

The measures in this bill will contribute to the effective and efficient operation of the vehicle impoundment scheme. The passage of this legislation will play an important role in the deterrence of unsafe driving behaviour and will help to make Victorian roads safer for everyone.

I commend the bill to the house.

Debate adjourned on the motion of Mr MULDER (Polwarth).

Mr PALLAS (Minister for Roads and Ports) -- I move:

That the debate be adjourned until 15 September.

Mr McINTOSH (Kew) -- On the question of time I want to make it perfectly clear that to facilitate the government business program -- as I said before in relation to the lost sitting day for the condolence motion for the late Jim Kennan -- the opposition is prepared to shorten the normal adjournment time, which is of course two weeks. However, I emphasise that this should not be taken as a precedent. These are exceptional circumstances in which we are prepared to facilitate the government business program. The fact that the bill is dealing with the scourge of hoon driving also perhaps allows us to -- I should not say enthusiastically, as that will be up to the party room -- willingly look at expediting this bill a little.

Motion agreed to and debate adjourned until Wednesday, 15 September.

Last Updated on Wednesday, 12 May 2010

Monday, June 27, 2011

WHAT REALLY GOES ON IN THE HOUSE OF LORDS

Hiding herrings in the Chief Whip's drawer, partying with Playboy Bunny Girls... Britain's most outrageous peer on what REALLY goes on at the Lords

By Jane Fryer 25th June 2011

Robert Washington Shirley, 13th Earl Ferrers, is sitting up very straight in his flowery sitting room. He is immaculate in dove-grey suit, matching socks and canary-yellow tie, boasts a mahogany tan, beautifully slender ankles and a fabulous white clipped moustache that would put Omar Sharif to shame — and is busy barking instructions at the photographer.

‘Is my suit straight? Is my hair sticking up? Don’t, whatever you do, show my ankles! And don’t make me look like an effete old buffer!’

And with that, he grins, gurns, rolls his eyes like a madman, waves his hands around and generally acts the goat.

Practical joker: Earl Ferrers at home in his Norfolk garden

Practical joker: Earl Ferrers at home in his Norfolk garden

Earl Ferrers is 82 years old and might as well have sprung straight from the pages of a P.G. Wodehouse novel.

His title dates from William the Conqueror - ‘the family tree measures 13ft by 30ft, so the only place we can unfurl it is the tennis court’.

He is one of the longest-serving members of the House of Lords (he’s served five Conservative Prime Ministers), has spent a good deal of time playing practical jokes involving rotting fish, ice cubes and drawing pins on his fellow Lords, and claims that his sole legislative legacy was to keep pubs open all day on Sundays - and that was by mistake.

He is also utterly charming, fabulously modest - when the last Labour government culled all but 92 of the hereditary peers, he topped the ballot to stay - and is overflowing with stories, all detailed in his rollicking memoir, Whatever Next?, which has just been published.

Peer's progress: Earl Ferrers accompanies the Queen during the State Opening of Parliament

Peer's progress: Earl Ferrers accompanies the Queen during the State Opening of Parliament

There was the time he found himself at the Department of Trade and Industry, negotiating with Jacques Chirac in Europe about clementines - ‘What did I know about the Great Clementine War? Not a thing!’

Or when he hid a dead herring in the desk of Lord (Bertie) Denham - Chief Whip throughout the Eighties — when the latter was off fishing.

‘I bought it at the fishmongers specially and popped it in his desk. By the time he got back on the Monday, it was terribly smelly. So he screamed and put it in my desk, which I thought was rather childish. So I threw it at him. And he threw it back. Finally, I put it in his briefcase and he went berserk.’

And the dreary ministerial lunch on Alderney that he perked up by challenging his fellow diners to squeeze through a metal coat hanger - ‘the lunch went like a house on fire after that’.

Not forgetting the House of Lords’ jolly to the then newly opened Playboy Club in London’s Park Lane.

‘We’d had a great dinner with Alec Douglas-Home who was the PM and, when he’d gone, Bertie Denham - who’d just become a member - suggested an outing.

Powerful company: Earl Ferrers (far left) with Harold Macmillan (centre) and the Earl of Home early on in his career

Powerful company: Earl Ferrers (far left) with Harold Macmillan (centre) and the Earl of Home early on in his career

‘Lord Carrington, who was the Leader of the Lords, said “Yes please!”, and Michael St Aldwyn, the Chief Whip, thought it was important he accompany the Leader to make sure no harm came to him. Lord Goschen, the Deputy Chief Whip, thought he should go along to keep an eye on the Chief Whip - and I went just for the fun.

‘And what fun! You can argue the rights and wrongs of Bunny Girls, but they are enormously attractive. Fishnet stockings up to here,’ he says, gesturing extravagantly. ‘Very tight basques and cleavage and all that, with rabbits’ ears and powder-puff tails.

‘And they had staggering figures. I can still see Lord Carrington turning round and saying, “Good heavens, it’s just not possible!”

‘It was a very jolly evening and very innocent. But it’s odd because, 40 years later, I can still remember that evening with more pleasure and accuracy than the many bills I helped to place on the statute book.’

Countess Ferrers in 1948

Countess Ferrers in 1948

And there were many. During his 60 years of public service, Earl Ferrers has held ministerial positions in the Ministry of Agriculture, Fisheries and Food, the Home Office, the DTI and the Department of the Environment (‘Argh! The long hair and sandals brigade’), as well as performing stints as Government Whip, Joint Deputy Leader of the Opposition and Deputy Leader of the Lords.

He worked under Harold Macmillan (‘rather distant’), Ted Heath (‘quite prickly’), Margaret Thatcher (‘tremendous person - absolutely terrifying, of course, but awfully kind’) and John Major (‘terribly nice person, but much maligned’).

And if it all sounds worryingly like Yes Minister!, he insists: ‘Yes, it was just like that!’

So was he ever a bit, well, out of his depth? ‘Oh, like mad! Like mad!,’ he says. ‘I was sent to Brussels to negotiate the price of agricultural commodities. Me? Negotiate? I had never negotiated anything more vital than a packet of sweets.

‘And Question Time — arggh! You’re asked a question you’re expecting and, of course, you know the answer, but then there are all the supplementary questions and you don’t have the slightest idea.

‘But at least then people used to ask all sorts of interesting things, such as: “How likely is it that space detritus will fall on the House of Commons?”

‘Now people ask such boring questions. And the supplementary questions go on and on and on . . .’

Robert (Robin) Washington Shirley was born on June 8, 1929, the eldest child and only son of Robert Shirley, 12th Earl of Ferrers and wife Hermione.

Educated at West Downs School, Winchester College — ‘I loved it, but I never came top in anything’ - and Magdalene College, Cambridge, he did his National Service in Malaya in 1949 (‘I spent most of it lost in the jungle’), married Annabel, his beloved wife of 60 years, in 1951 and watched heartbroken when his family seat, Staunton Harold Hall, in Leicestershire, was sold for just £10,000 to pay death duties and taxes the day after his father died (‘it’s now owned by the son of our old butcher - how about that?’)

Great fun: The Earl and Countess Ferrers have been married for 60 years

Great fun: The Earl and Countess Ferrers have been married for 60 years

Annabel was an only child, so her family seat, Ditchingham Hall - a huge Queen Anne mansion with a stuffed bull in the hall and a sugar beet and pea farm attached - came their way.

And so he embraced ‘a life of sugar beet and cow pats’, invented a helium-filled pigeon-scarer shaped like an enormous sparrowhawk, and pioneered an ingenious central heating system fired by bales of straw.

‘It was wonderful,’ he recalls. ‘Ours was the warmest house in Norfolk - and all on just three bales a day in the winter and one in the summer!’

Meanwhile, politics beckoned - ‘I couldn’t have picked two less well-paid professions!’ - and, aged 33 and now a father of five, he joined Harold Macmillan’s government in a role called Lord-in-Waiting.

‘Lord Longford used to say the post was the lowest form of political life.’

The duties were not onerous.

‘One was a Government Whip in the House of Lords, but every six weeks or so you would have a week when you represented the Queen, meeting people at airports - I had a disaster with President Tito of Yugoslavia when Heath and I got stuck the wrong side of the barriers - and saying goodbye to others. You were driven around in a huge Rolls-Royce with a crown on it and took precedence over everyone, even the PM.’

Former Prime Minister John Major arrives for the funeral of former Prime Minister Sir Edward Heath
Former Prime Minister Margaret Thatcher

Who's the boss? Earl Ferrers served under five prime Ministers, including John Major and Margaret Thatcher

Somehow, though, he must have done a good job, because he was constantly busy - despite all the buffoonery, practical joking and taking his eye off the ball during the Licensing Bill’s passage through the Lords.

‘I was in charge of making sure the new licensing laws didn’t affect Sundays, but I wasn’t concentrating and missed the second count and it went flying through! Imagine that - I changed the law single-handedly and by mistake, and they never did alter it. I thought I’d be in the most terrible trouble, but they just put it down to a cock-up.’

His stint, however, as Minister for the Environment - where he wrestled with bills concerning bees, bats, tortoises and all manner of endangered species - was not a match made in heaven.

‘All these wretched, interfering people saying you mustn’t chop down wood and you mustn’t burn it because that’s where the lice breed. The lice? Lice have been breeding happily for years!

‘And they tried to put everything - the dung beetle, the bat and all the things I consider a nuisance - on the endangered species list where we immediately forgot about them and they bred like mad.’

Public service: But there are some aspects of the parliamentary process that the Earl does not approve of

Public service: But there are some aspects of the parliamentary process that the Earl does not approve of

He had no truck with global warming, either then or now. ‘Of course there are problems, and of course the world’s always changing,’ he says, ‘but why is it suddenly all going to pack up in 2011? I don’t believe it.

‘And all this palaver about carbon footprints and then everyone jetting off to international meetings to discuss them.’

But through it all, he was unfailingly courteous, extremely hard-working and displayed an unerring ability to jolly up any dreary or unpleasant occasion with his wit and charm.

Such as the time, in 1992, when he was stopped outside Bury St Edmunds for doing 60mph in a 40mph zone and fired off a missive praising the police officer’s ‘height of courtesy, understanding and manners and impeccable conduct when making his arrest’.

Or when, in 1990, fresh from a second hip replacement and in his bright-red dressing gown with his hair standing on end, he came face to face with an intruder in Ditchingham Hall.

‘The chap was going to scarper down the stairs, so I hit him with my crutch. And then again for good measure, and frog-marched him downstairs.

‘Are you a magistrate’s justice?’ he asked, as I called the police.

I said: ‘No.’

‘Thank goodness,’ he replied. ‘I thought you were somebody important.’

‘I didn’t like to tell him I was the Minister in charge of the police — I thought that would be pulling rank.’

Not surprisingly for a man of his generation, Earl Ferrers holds some fairly robust views.

He is a not a fan of today’s political correctness (‘it’s all gone bonkers’) or health and safety madness (‘you can’t walk down a street in case a branch falls on you’).

He is also a firm fan of capital punishment - despite his ancestor, the 4th Earl Ferrers, being hanged by a silken rope for murdering his steward.

The first Earl Ferrers was a ‘vigorous procreator’, had 27 legitimate children and still holds the Guinness Book Of Records title for 51 illegitimate children.

‘But how on earth do they know? Some of these pop star people today could have children all over the place!’

Recently, he has watched with horror as the House of Lords was systematically dismantled by successive governments.

‘They’ve chucked out all the law lords, they’ve disposed of the Lord Chancellor - wonderful man - great gown and all. It’s not just people dressing up for the sake of it. There’s a point to all these traditions - it’s all about the constitution.’

Awful: The Earl is not a fan of current House of Commons speaker John Bercow

Awful: The Earl is not a fan of current House of Commons speaker John Bercow

But it’s John Bercow, the Speaker of the House of Commons, who really gets it in the neck:

‘He’s awful. Just awful!’ says Earl Ferrers. ‘You don’t want to see the Speaker wandering about in a gaudy tie and looking like a geography master, do you?

‘And the other day, when he introduced Barack Obama — “Ladies and Gentleman, I give you the President of the United States . . .” anyone would have thought this was the London Palladium!’

They don’t make men like Earl Ferrers any more. These days he is having a difficult time, what with bad knees, bad hips and the ill health of his beloved Annabel and one of his daughters. But don’t expect a word of complaint.

‘I’m a terrible worrier, but my philosophy, whatever difficulty I’m facing, is to remind oneself how very lucky one is. And I don’t want to sound too soppy, but it’s all been such fun.

‘I’ve got a smashing wife and wonderful children and grandchildren — there’s so much to be grateful for. And I’ve loved my time at the Lords.’

Where it is very much business as usual in the office he still shares with Lord Carrington, Lord Waddington, Lord Wakeham and, of course, Bertie Denham.

‘There are still lots of giggles — we have the most enormous fun.’

And with that we say our farewells. Me, terribly grateful that people like Earl Ferrers still exist. And he, barking at the photographer: ‘Now young man, I hope you haven’t got me in a slouching position!’

Friday, June 24, 2011

NON-PAYMENT OF COUNCIL TAX

Having not paid Council tax since last August 2009 some very interesting facts have emerged. This information has been backed up by others who have uncovered the same routine, in which Councils act completely unlawfully.

After you decide not to pay Council, tax you will receive a ‘Summons’ to the local magistrates Court.

This appears to be a Summons issued by the Court. It bears a royal seal and is “signed” by the Clerk to the Justices for the petty sessional area of xxxx. It states:

“Complaint has this day been made before the undersigned by the London Borough of xxxx. You being a person liable to pay the Council tax and from whom payment of that tax has been duly demanded have not paid the sum as due below.”


“You are therefore Summonsed to appear before the magistrates at xxxx on xxxx at xxxx

“If you do not appear, you may be proceeded against as if you had appeared and dealt with according to the law”.

The first paragraph states that,

“complaint has been made before the undersigned.”

This looked immediately suspicious as the “signature” for Clerk to the Justices seemed to be deliberately deceptive as it was indecipherable, and photocopied onto the document (Part of the signature on this particular Summons was cut off) The other big problem being there was no name printed under the ‘signature.’

Having phoned both the Court and the Council and neither being able to tell me who signed the Summons I put in a freedom of information request to the Councils head of Governance and Law as to who was the acting Clerk to the Justices in the borough. The reply I got indicated that this person definitely did not sign the document. The Council were then instructed that the document was defective as it was not signed by a person known to the Court or the Council.

In the first Notice served on the Councils Head of Revenues and Benefits it was suggested that the Summons was defective. The Head of Revenues and Benefits replied:

“Summonses must be authorised by a Justice of The Peace or Clerk to the Justices and who’s signature appears on the Summons must have personally considered the complaint. As you now know this makes the Summons lawful and not defective as stated in your letter paragraph 5b.”

This is typical of the response from Councils, there is an over confident reply which is completely at odds with the facts. They also refer to Notices as ‘letters.’ There seems to be a cosy arrogance in all the correspondence, and if you nail them on anything they say its their ball and they are not playing! They are compartmentalised within their departments and seem to have no idea or no interest in what is really going on, those higher up the corporate ladder however must know.

Maybe some of my info did sink in as I Noticed that the job of Head of benefits and Revenues was recently being advertised in a local employment agency window!

Yes WE Summons you to Court

The next revelation was even better! It became clear that the Summons document was the same typeface and border as other Council documents. Yes, the Council issue their own Summonses! Now this has been confirmed as fact by Council staff. This is fraud and perjury under the 1911 Perjury Act and a crime under the Administration of Justice Act. Anyone except a Court issuing a document, that appears to be from a Court, is breaking the law.

This was pointed out in the next Notice to the Head of Benefits and Revenues but the reply came from someone else in the department. This seems to be the strategy when difficult questions arise – nobody takes responsibility. The reply stated,

“No further correspondence on the issues you have raised will be entered into.”

As far as the suggestion goes that the Council was guilty of fraud and perjury, their response was that they would defend themselves in Court and I would be liable for their costs if they won the case. This makes sense, as in the Borough I live the Court and town hall are on the same Council owned land. If your part of the corporation, everybody Wins!

It now appears that Councils all over the Country issue their own Summonses, they then hire a room in the Court for a ‘bulk hearing.’ The room is not part of the Court, as the Court are not involved (apart from financially). This has also been confirmed by people who work in the Court. As there is no due process being followed here, it would appear the whole procedure is a sham.

Issuing a Summons

If there is a case to be heard in the Court it has to be sent to the Court clerk (or Court manager at County Court) to consider, they then issue a Summons which is sent directly from the Court. As the Council issue the Summons it is not a Court matter, they just make it appear so by inviting (Summonsing) the person to the Court. As this is just a procedural matter for summary judgement (person already liable) and not of course a “hearing” it makes sense for them to do it themselves!

No Liability Order

The Council then state in the follow up documentation, ‘Notice of impending enforcement action’ or ‘Liability Order notification’ – this means a Liability Order was issued against the person, but it’s of course not possible as there was no Court. No Liability Order has been received from the Court by anybody I have met who has stopped paying Council tax. The reason for this is of course because there was no Court. Two corporations are involved, the Council who hire the room in the Court; and Court officials/staff in the Court who are paid by the Council. In many boroughs the Town Hall, Council buildings and Court are on the same land, owned by the Council.

This ‘Notice of impending enforcement action’ or ‘Liability Order notification’ is not a Liability Order. It also makes threats including making you bankrupt in the high Court with all assets frozen; being sent to prison; a charging Order put on your property; and then at the end of this diatribe, appointment of bailiffs. These documents are pretty generic in the different boroughs and presumably represent new powers given to local authorities – they are deliberately intimidating, but enforcing all this is of course a completely different matter.

A Liability Order has to be signed by the Judge or Magistrate and also sealed by Court. It is then sent to the person liable and also the Claimant. If the amount on the Order is not paid within the specified time then the Court can appoint bailiffs on behalf of the Claimant.

Debt collectors not Bailiffs

The Council although unable to produce a real Liability Order, then states that bailiffs have been appointed on behalf of the Council to recover the debt. This is of course impossible as there was no Court, so no bailiffs can be appointed, as they must have an Order from the Court that appointed them.

Bailiffs also have to be reregistered every two years; have an ID number; and give their full name, which can be verified by doing an Internet search. Debt collectors call themselves bailiffs and rely on peoples’ ignorance. Your birth certificate made you a ‘person’ who is ‘liable’ so ‘let he who will be deceived be deceived.’

The corporate nature of the Councils and Courts just means they pretend that bailiffs have been instructed, this is of course not possible so they appoint a debt collection agency who then send out ‘bailiff’ letters. These letters are very threatening in capital letters with a box stating ‘Removal of your goods’ or ‘Bailiff Removal.’

Bailiffs do have certain powers to collect debts, but debt collectors do not! (The powers given to bailiffs can be easily found on the Internet). Debt collectors do claim they are bailiffs and also send out documentation that is unlawful and completely unethical.

The problem with all these ‘bailiff’ letters that I have seen is that none of them bear the Bailiffs full name, certification number and Court Order reference, which of course they must have if they are issued by a bailiff.

This means of course that the debt collection agency is a third party interloper who has purchased or contracted with the Council for the Council tax debt offences. This means that the debt no longer has anything to do with the Council and the debt collector has no real power of enforcement action as a Court was not involved.

Ask your Council for a true copy of a Liability Order and see what happens, things could go VERY quiet.

Return to sender

If you want to have some fun look up the debt collection company on the companies house register and redirect all mail back to the Managing Director (after having served Notice on him or her with fee schedule attached) at their registered address and update your fee schedule on each new envelope that you return.

If you want to read what these computer printout ‘Notices’ say hold them up to a powerful light and you will see it all through the envelope. One thing is for sure, it won’t be signed by a bailiff with the relevant info. Another good idea is to let them know that your fees for handling their deceptive ‘bailiff’ letters will be collected by a debt collection agency! This has to be the next logical step, getting debt collectors onto the debt collectors and Councils.

The Councils only form of redress after this is to go to Court and put a Charging Order on your property if you ‘own’ it or try some other route like trying to get you into Court. If you ignore all this there seems to be little they can do, as they run out of ideas when the robotic paper trail stops. If you are on Benefits or in Council property refusing to pay Council tax, it may not be a good idea, as they can evict you or have Benefits stopped at source.

And finally for your delectation and delight… The unlawful Debtors Notice… Flatulence in contract is an offence.

Along with the document ‘Notice of impending enforcement action’ or ‘Liability Order notification’ the Council also include a ‘Notice’ to debtors, which makes threats and menaces. It also makes unlawful ‘demands’ for information on the reverse. There is also a quote from a local Councilor! The document states:

“It is an offence not to complete and return the enclosed financial information form”. xxxx xxxx Council are now taking legal action against customers who do not return their form fully completed. This legal action will result in a criminal conviction and fine of up to £1000.”

This is of course completely untrue. Other Boroughs just ‘request’ this information, my Council demand it as if it is the law. This ‘demand’ is of course never followed up. Information demanded includes National Ins number; name of employer; address of employer; date of birth; and all details of benefit claims etc. Then there’s part C that states you MUST fill it in. This demands name; email address; telephone number; and then of course you MUST sign it!

These threats are carried on at the bottom of the form saying,

“You will be committing a criminal offence if you do not give the above information and you can be fined up to £1000 pounds, as well as getting a criminal record. The same will happen if you give information that is not true.”

They also state that they would take legal action against anyone who did not fill the form in and that cases had been held in magistrates Court and the debtors receiving fines of £100 plus £85 costs. This is a bare faced lie!

Of course if you were unfortunate or gullible enough to fill in this badly worded junk mail they really have got you. If you filled it in and gave false information that would indeed be an offence. Fraudulence in contract IS an offence, but IGNORING an unlawful piece of paper is not!

One of the other many problems with the form is that the Council is known ONLY as LBWF and it was confirmed in writing that xxxx xxxx Council did not exist! Their corporate office stated this in a freedom of information request. I also included this in my Notice that demanding payment for an organisation which did not exist appeared to be fraudulent. This fact was of course ignored.

Having found out the name of the Council solicitor who put this rubbish together, I stated this would be investigated. Having served Notice on the Head of Governance and Law, (the top lawyer in the Borough), I can say from experience these people do not know how to do their jobs or even know the law, and they just seem to break it when it suits them.

In short there is a lot of noise and threats made which are just hot air in order to scare the public into paying off the banks and the national debt!

For anyone who saw the film “Councils, Courts and Conmen” on YouTube the Order at the end of the film was not a Liability Order, just the amount of liable persons who were ‘Summoned’ to the Court. There was no name on the Order, it was simpler just to make the point that the ‘liability’ was established before the hearing, and of course they had to book Court number 1 because 14 witnesses turned up! This appears to be just part of the huge corporate scam that Councils are involved in. There is much more we have uncovered and will post in due course.

Well that’s the end of the paper trail for now. However, when there is a registered PERSON at your address, you know there is bound to be more!

YouTube: landofthefreeuk

Councils , Courts and Conmen


Councils , Courts and Conmen by landofthefreeuk

http://www.lawfulrebellion.org/2010/04/14/non-payment-of-council-tax/comment-page-1/