The Transport and Infrastructure Committee has examined the Land Transport (Wheel Clamping) Amendment Bill and recommends that it be passed with the amendments shown.

This bill seeks to amend the Land Transport Act 1998 to protect motor vehicle users from unreasonable fees charged by some operators of immobilising devices such as wheel clamps.

The bill would:

• regulate the maximum fee an operator could charge

• make it an offence for an operator to charge more than the maximum fee

• make it an offence for an operator to fail to remove the clamp or arrange for its removal

• make these offences enforceable by the Police.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

For clarity, we propose changing the order of some provisions within the bill.

In the bill as introduced, clause 4 would insert new section 98C (which we propose renumbering as 98D) setting out the requirements on operators of immobilising devices. However, the requirements would not apply to road controlling authorities (such as territorial authorities) who are enforcement authorities under the Act and able to issue infringement notices. This exclusion is achieved by reference to the definition of “road”, which we found somewhat indirect. For clarity, we recommend amending clause 4 to include new paragraphs (a) and (b) in new section 98D(1).

These provisions would make it clear that the requirements would not apply to parking places that are controlled by enforcement authorities who can issue infringement notices for parking offences. We believe it is worth making clear that the bill is not intended to provide a framework for these authorities to use immobilising devices as an enforcement action.

The bill aims to protect vehicle users by regulating the maximum fee an operator can charge for the removal of an immobilising device. Proposed new section 98E(4) (numbered 98C(9) in the bill as introduced) would make it clear that the offence provision created by section 98D(4) would not prevent matters from being brought before the Disputes Tribunal. We recommend amending new section 98E to include new subsections (5) and (6). The first of these would mean that an operator could not claim more than the prescribed amount of $100 in a dispute before the Disputes Tribunal.

Our proposed new subsection (6), however, states that subsection (5) would not affect any proceedings relating to damage to an immobilising device that was caused by its removal from a motor vehicle.

Section 98D(5)(b) would protect a person in charge of a motor vehicle from civil or criminal liability for the removal of an immobilising device provided the removal caused as little damage to the device as reasonably possible. The intent of our new subsection (6) is that an operator who claimed an amount for unnecessary or wilful damage to an immobilising device should not be limited by subsection (5).

In the bill as introduced, new section 98C(3) states that an operator must be reasonably available to respond to a request for removal of a device. (With our restructuring, this would now be new section 98D(3).)

We considered specifying a timeframe in which an operator would be required to respond to a motorist and remove a device. However, we do not think it appropriate for this to be in primary legislation, and consider that it would be better managed by regulations. This would allow more flexibility, as a single approach for all operators may not be practicable, or possible, in all parts of the country.

We therefore recommend including subsection (3) in proposed new section 98E. This would require reference to regulations, if any are made, when considering whether an operator had complied with new section 98D(3).

We also recommend amending clause 6 to insert new section 167(1)(me). This would authorise the Governor-General to make regulations prescribing criteria for the purpose of considering whether an operator has complied with new section 98D(3).

Many submitters commented that they thought signage requirements should also be regulated under this bill. We considered doing so, but note that this could only relate to immobilising devices, as signage relating to towing and breach notices would be out of the bill’s scope.

We believe that regulating signage only for immobilising devices could disadvantage motorists, as the signage would not need to include information for other methods of enforcement for private parking. We note, however, that future legislation could be brought to address this issue.