In its official comment on the draft regulations on the Sanral Act published in the Government Gazette last month, the Automobile Association (AA) questions the authority given to “peace officers” to impound or confiscate possessions.
In section 3 of the draft regulations it states that these officers may “impound or confiscate any document or tag” listed in the draft regulations which “appears to be or which that employee suspects to be invalid or which has been or appears to have been unlawfully altered or defaced or which is being put to unlawful use”.
In its submission the AA says that this regulation directly impacts on a person’s constitutional right of privacy and not to have their possessions seized.
“Giving an employee the power to impound or confiscate is aligned with the power to seize an article belonging to an individual. Currently the Criminal Procedure Act provides that an article may only be seized by virtue of a search warrant that has been issued by a magistrate, justice, judge or judicial official,” the AA says.
The only circumstances under which an article may be seized from a person without his/her consent and without a search warrant is if an authorised person on reasonable grounds believes that a search warrant will be issued to him/her and that the delay in obtaining a warrant would defeat the object of the search. The proposed regulation does not provide any exceptions of this sort and is constitutionally questionable.”
This also applies to the clause that allows the officers to search vehicles.
If and when an article is impounded or confiscated the regulations only require the officer to issue a receipt, which the AA finds “absolutely unacceptable”.
“The minimum requirement in this regard should be that a legal document fully describing the item and the circumstances under which it was seized be issued to a motorist. The document should be substantial enough to allow a motorist to use it in any dispute relating to the confiscation of his/her article,” the AA states.
The association also does not like the inference that e-tags should be in all vehicles. It contends that the section of the draft regulations which gives the peace officers the power to demand from any person to produce a licence or any other document or “tag” infers that tags should be acquired and thus any reference to “tag” should be removed.
“There is no legal requirement for a person to acquire a tag. The decision to buy a tag or not is a constitutional right of the consumer and therefore any reference to a “tag” must be deleted,” the AA states.
Furthermore the association complains about the acceptability in the regulations that peace officers are only required to be in “partial uniform” and that a name tag is the only method of identification required.
The regulations gives power to officers where they “reasonably suspect” that there are outstanding tolls, other surcharges, fees, fines or penalties that they may ask the motorist to pay these fees before using the road.
The AA says that two issues need clarification in this regulation.
“What would make an employee suspect that there are outstanding tolls or other surcharges, fees, fines or penalties? Proof of this would need to exist firstly, and secondly such proof would need to be furnished to the driver of the vehicle in printed form. There needs to be a clear definition of what constitutes a “surcharge”, a “fee” and a “penalty” in respect of the Act,” the AA states.
Only 20 days were given for public comment and the AA voiced its concern that this is shorter than the normal 30 days usually given. The AA asked that the period for public comment be extended.