Land Transport (Wheel Clamping) Amendment Bill

Land Transport (Wheel Clamping) Amendment Bill

Government Bill

123—1

Explanatory note

General policy statement

Objective

This Bill amends the Land Transport Act 1998 (the Act) to regulate the maximum fees charged by wheel clamp operators, in order to protect motor vehicle users from unreasonable fees.

Approach taken

The Bill sets a maximum wheel clamping fee of $100 that can be charged in relation to a parking breach in a parking place on a road that is not under the control of an enforcement authority (ie, not a motorway, state highway, or government road or a road under the authority of local government). The Bill is intended to apply to operators who use wheel clamping as an enforcement method on private property, who do not have powers under an enactment to enforce parking. It is not intended to apply to parking enforcement of the public road system, as transport legislation provides a specific regime for enforcement authorities (such as the Police, the New Zealand Transport Agency, and local authorities) to address parking breaches. Nor is the Bill intended to apply to wheel clamping that is authorised by an enactment (such as under freedom camping legislation).

The Bill makes it an offence for a person to charge more than the maximum fee, or to fail to remove, or arrange for the removal of, the wheel clamp. These offences will be enforced by the New Zealand Police.

The Bill provides for the ability to prescribe the maximum fee in regulations.

The Bill is not intended to of itself authorise an operator to apply an immobilising device to a motor vehicle parked in a parking place.

Justification for approach taken

There is no specific legislation regulating wheel clamping as a method of parking enforcement. Rules governing parking rights and enforcement on private land are unclear and seldom tested in the courts. This has meant that motorists are often charged unreasonable fees for the release of their vehicle, and that wheel clamping is often the subject of complaints from motorists.

As the law is not clear on the exact charges that are reasonable, motorists are unlikely to understand in what circumstances they might successfully dispute a fee. Consequently, there are few incentives for wheel clamp operators to charge reasonable fees. Voluntary industry initiatives have not been effective in changing behaviour across the industry.

Departmental disclosure statement

The Ministry of Business, Innovation, and Employment is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The Ministry of Business, Innovation, and Employment produced a regulatory impact assessment in April 2018 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides that the Bill, once enacted, comes into force on the 42nd day after it receives the Royal assent.

Clause 3 states that the Bill amends the Land Transport Act 1998 (the principal Act).

Clause 4 inserts new Part 7A into the principal Act, which comprises new section 98C, the main provision regulating wheel clamping. The following are key definitions in this section:

  • immobilising device means a wheel clamp or any other device that immobilises, or restricts or impedes the movement of, a motor vehicle:

  • operator means a person who has control over an immobilising device:

  • parking place means a place on a road on which a person is able to park their motor vehicle:

  • prescribed amount means the amount prescribed by regulations, but if no regulations are made, the amount is $100:

  • road has the meaning given by section 2(1) but does not include a road under the control of an enforcement authority.

New section 98C(1) provides that that section applies if an operator applies an immobilising device to a motor vehicle parked in a parking place. However, the section does not apply to operators whose actions are authorised by or under an enactment.

New section 98C(2) and (3) sets out the main duties of an operator as follows:

  • an operator must not charge a fee (relating to the removal of the immobilising device or any other matter) that exceeds the prescribed amount; and

  • an operator must be reasonably available to respond to a request relating to the removal of an immobilising device; and

  • an operator must, when requested by the person in charge of the motor vehicle, remove, or arrange for the removal of, the immobilising device; and

  • if no fee is charged, an operator must remove the immobilising device when directed by the person in charge of the motor vehicle.

New section 98C(4) provides that an operator commits an offence if the operator charges a fee that exceeds the prescribed amount or fails to remove an immobilising device as required. The penalty for the offence is a fine not exceeding $3,000, for an individual, or $15,000, for a body corporate. The offence may also be specified as an infringement offence under section 167 of the principal Act. Regulations made under that section may specify infringement fees.

New section 98C(5) provides that if an operator fails to remove the immobilising device as required or fails to be reasonably available after reasonable efforts are made to contact the operator, the person in charge of the motor vehicle—

  • may remove the immobilising device (or arrange for it to be removed); and

  • is not under any civil or criminal liability for the removal (provided that the removal causes as little damage as possible to the immobilising device).

New section 98C(6) sets out the powers of enforcement officers for the purpose of enforcing that section. New section 98(7) applies to a person whose role, in accordance with arrangements made under that section, is to remove an immobilising device from a motor vehicle. The section enables the person to enter and remain in a parking place to carry out that work.

New section 98C(8) clarifies that new section 98C does not of itself authorise a person to apply an immobilising device to a motor vehicle parked in a parking place.

New section 98C(9) provides clarification on the jurisdiction of the Disputes Tribunal.

Clause 5 amends section 116 of the principal Act to enable an enforcement officer to arrest, without warrant, a person who fails to comply with a direction under new section 98C.

Clause 6 amends section 167 of the principal Act to enable regulations to prescribe the maximum amount that an operator may charge.

1 Title

This Act is the Land Transport (Wheel Clamping) Amendment Act 2019.

2 Commencement

This Act comes into force on the 42nd day after the date on which it receives the Royal assent.

3 Principal Act

This Act amends the Land Transport Act 1998 (the principal Act).

4 New Part 7A inserted

After section 98B, insert:

Part 7A Immobilising devices applied to parked motor vehicles

98C Immobilising devices applied to parked motor vehicles

(1)

This section applies if an operator applies an immobilising device to a motor vehicle parked in a parking place, unless the operator’s actions are authorised by or under an enactment.

(2)

The operator—

(a)

must not require the person in charge of the motor vehicle to pay a fee (relating to the removal of the immobilising device or any other matter) that exceeds the prescribed amount; and

(b)

may require the fee to be paid before the immobilising device is removed; and

(c)

must, when requested by the person in charge of the motor vehicle, remove, or arrange for the removal of, the immobilising device—

(i)

as soon as is reasonably practicable after the fee is paid; or

(ii)

if there is no fee, at the direction of the person in charge of the motor vehicle.

(3)

The operator must be reasonably available to respond to a request by the person in charge of the motor vehicle relating to the removal of the immobilising device.

(4)

A person who contravenes subsection (2)(a) or (c) commits an offence and is liable on conviction to a fine not exceeding $3,000, in the case of an individual, or $15,000, in the case of a body corporate.

(5)

If the operator fails to comply with subsection (2)(c) or fails to comply with subsection (3) after the person in charge of the motor vehicle has made reasonable efforts to contact the operator, the person in charge of the motor vehicle—

(a)

may remove or arrange for the removal of the immobilising device from the motor vehicle; and

(b)

is not under any civil or criminal liability for the removal if it causes as little damage to the immobilising device as is reasonably possible.

(6)

For the purpose of enforcing this section, and without limiting section 113, an enforcement officer may remain in a parking place to—

(a)

direct an operator to remove an immobilising device from a motor vehicle within a specified time; and

(b)

remove an immobilising device from a motor vehicle or arrange for its removal.

(7)

A person may enter and remain in a parking place for the purpose of removing an immobilising device from a motor vehicle if an enforcement officer, or the person in charge of the motor vehicle, has arranged, in accordance with this section, for the person to remove the device.

(8)

This section does not of itself authorise an operator to apply an immobilising device to a motor vehicle parked in a parking place.

(9)

To avoid doubt, subsection (4) does not prevent a matter from being brought before the Disputes Tribunal established under section 4 of the Disputes Tribunal Act 1988 for the exercise of that tribunal’s jurisdiction under that Act.

(10)

In this section,—

immobilising device means a wheel clamp or other device that is intended to immobilise a motor vehicle or restrict or impede its movement

operator means a person who has control over an immobilising device

parking place means a place on a road on which a person is able to park their motor vehicle

prescribed amount means the amount prescribed in regulations made under section 167(1)(md), but if no regulations are made, the prescribed amount is $100

road has the meaning given by section 2(1) but does not include a road under the control of an enforcement authority.

5 Section 116 amended (Enforcement of directions)

In section 116(1), replace “113 or section 115” with 98C, 113, or 115”.

6 Section 167 amended (Regulations)

After section 167(1)(mc), insert:

(md)

prescribing, for the purpose of section 98C(2)(a), the maximum amount that may be charged by an operator: