Amendment No. 3 is an alternative to amendment No. 1 and both may be discussed together. It is also proposed that amendments Nos. 2 and 4, and amendments Nos. 5 and 6 may be taken together. All other amendments which are not grouped will be discussed individually.
Road Traffic (No. 2) Bill 2013: Report Stage
I move amendment No. 1:
In page 16, between lines 28 and 29, to insert the following:
"Interference with odometer of mechanically propelled vehicle
14. (1) A person shall not interfere or attempt to interfere with the odometer of a mechanically propelled vehicle.
(2) A person who contravenes, or who procures another person to contravene, subsection (1) commits an offence and is liable on summary conviction to a class C fine or to imprisonment for a term not exceeding 3 months, or to both.
(3) Where a member of the Garda Síochána has reasonable grounds for believing that a person is committing or has committed an offence under this section he or she may arrest the person without warrant.
(4) Where a person is charged with an offence under this section it shall be a defence to show that at the time of the alleged offence the person was acting in good faith in order to test, repair or replace the odometer of the mechanically propelled vehicle.
(5) In this section "odometer", in relation to a mechanically propelled vehicle, means the device that measures and records the distance travelled by the vehicle but does not include an auxiliary device capable of being reset to measure and record individual journeys.".
I am proposing the introduction of a new section 14, which will for the first time make it an offence to tamper with an odometer. It will also address the amendment proposed by Deputy Anthony Lawlor which deals with the same issue. The law at present deals with clocking through the Consumer Protection Act 2007 where it is addressed as part of misleading commercial practices. I understand that the National Consumer Agency has been successful in taking prosecutions against car dealerships for selling or offering the sale of motor vehicles with altered odometer readings, that is, clocked cars. However, this law does not apply in the case of private sales. More to the point, the act of clocking a vehicle in itself is not an offence.
This issue has been raised with me on a number of occasions. It was the subject of a Private Members' Bill in 2012 which was published by Deputy Lawlor. The substance of that Bill has been presented as an amendment by Deputy Lawlor. I thank the Deputy and all others who have raised this issue. I also acknowledge the support of the Minister for Jobs, Enterprise and Innovation, Deputy Bruton, who has given his agreement to this amendment from a consumer policy point of view.
Having considered the position, it is my view there is a gap in the law at present which I have sought to address in this amendment. The new section I am proposing will make it an offence to tamper with an odometer. The penalty for tampering with an odometer or procuring someone else to tamper with one will be three months and-or a class C fine which is a maximum of €2,500 on summary conviction. In his amendment, Deputy Lawlor is proposing significantly more severe penalties. I have discussed my own amendment in some detail with the Office of the Attorney General and I am satisfied that the penalty being proposed in my amendment is proportionate. The wording has been carefully drafted to ensure we do not penalise people who are legitimately accessing odometers - for example, while repairing a vehicle - and also to ensure we do not accidentally include trip counters in our definition of an odometer.
I acknowledge the work of Deputy Lawlor in this regard. At the same time, I believe it is important to get the wording right in legislation. Since the wording I am proposing has been approved by the Office of the Parliamentary Counsel, I ask the House to accept this amendment as proposed.
I welcome the fact the Minister has brought forward an amendment in this regard. This issue has been raised with me and I support the necessity to deal with it. It is a fact that there has been a considerable trade in second-hand cars. Some of the issues relate to cars that are procured outside the State. There is a healthy trade, if that word can be used. It is a word that motor dealerships were less likely to use in the past but, recognising the way the market has gone, many of the bigger dealerships are now importing used cars from outside the State. The ability of dealerships importing such cars to stand over the mileage will be a difficulty. The way in which the Minister has phrased the amendment places the criminal intent on the individual who seeks to interfere with an odometer. I welcome that approach.
This issue has bedevilled the motor trade for many years. It has played on unsuspecting consumers who purchase cars which may appear to be relatively new but in respect of which they may find there is additional mileage on the engines due to tampering that has taken place. I welcome the Minister's approach which we will certainly support.
I certainly welcome this amendment. There is no doubt this has been a problem over the years. Many people have complained about the mileage being adjusted on second-hand cars. There have been considerable improvements in recent years and it is now much harder to tamper with odometers. However, where there is a will do it, someone will find a way.
If the word "mileage" is used instead of "kilometres", does it have any bearing on the legislation? Someone raised this point with me so I am posing the question.
I thank the Minister for his remarks. In 2012, I spoke to him and his Department about this issue, which was brought to my attention by www.cartell.ie. The Minister was quite positive about the Private Members' legislation I put forward and told me at the time that he was not opposing it. I am one of the lucky ones in that, as a result of the Minister's amendment, one Private Members' Bill can now be scratched off the list.
While consumer law may curtail the sale of clocked cars, it does not lessen the offence of clocking and the inherent dangers in that regard for the unsuspecting motorists who purchase such cars. Like Deputy Ellis, I would welcome if the Minister could clarify the situation in relation to the mileage-kilometres issue.
Given that what the Minister proposes to do by way of this amendment addresses the issue raised in my amendment No. 3, I propose to withdraw that amendment.
On Deputy Ellis's question, it makes no difference whether the odometer records miles or kilometres. While odometers in cars purchased in recent years record kilometres, older ones record miles. The term "mileage" is still used in respect of claims for travel expenses even though the distance travelled is recorded in kilometres.
Is there a term which defines "mileage"?
There is less to be claimed now. Is there any chance of an amendment in that regard?
No, definitely not.
I am sure it would find favour in the Minister's Department.
There is no reference in the amendment to "mileage" or "kilometres". To avoid confusion on that issue, the amendment states only that there should be no interference with an odometer.
Amendments Nos. 2 and 4 are related and may be discussed together by agreement.
I move amendment No. 2:
In page 16, between lines 28 and 29, to insert the following:
“Amendment of section 3 of Principal Act
14. Section 3(1) of the Principal Act is amended in the definition of "public service vehicle" by inserting "or combination of vehicles" after "mechanically propelled vehicle".".
These amendments will create new sections 14 and 17. The purpose of the amendments is to resolve an anomaly in the regulatory framework which has come to light in recent months in relation to the use of combination vehicles for the carriage of passengers for reward. In the ordinary course, it is not permissible to carry passengers for reward in trailers. This is prohibited under regulation 39 of the Road Traffic (Construction and Use of Vehicles) Regulations 2003. However, it is open to the RSA to issue a permit under section 13 of the Road Traffic Act 1961 for, among things, the use of a trailer to carry passengers for reward.
A case arose during the course of 2013 in which the Road Safety Authority issued a permit for what is commonly referred to as a road-train. This issue was brought to my attention by Deputy Pat Deering. A road-train is a combination of vehicles comprising a drawing unit and three trailers styled as a train. This is a novelty service aimed mainly at the leisure and tourism market. Members may be familiar with a number of them that are operating around the country. Despite having authorisation from the RSA, the person seeking to develop the new road-train service encountered difficulties in obtaining a public service vehicle licence, which is a requirement under the Road Traffic Act 1961. An Garda Síochána refused to grant a large public service vehicle licence because the regulatory framework for public service vehicles provides only for the grant of such a licence for single vehicles. This was an entirely legitimate and legally correct decision on behalf of the Garda Síochána. However, this decision did highlight that there is shortcoming in the law, which, in the case mentioned, places an unjustifiable obstacle in the way of a new business development that, among other things, has the potential to contribute to our tourism project.
I propose, therefore, to modify the definition of "public service vehicle" in the Road Traffic Act 1961 and the definition of "bus" in the Public Transport Regulation Act 2009 to resolve the anomalies in this legal framework. To cut a long story short this amendment will ensure that the Garda Síochána and RSA are on solid legal grounds in licensing tourist trains, which Members may have seen in Malahide, Kilkenny and other places around the country. The existing licensing framework in this area is ambiguous and these amendments seek to sort out the problem.
While I support in principle what the Minister is trying to achieve, I am concerned that in providing in legislation capacity to deal with an isolated incident we are opening up opportunities which will allow enterprising individuals to compete more effectively with the standard taxi business. Are we in solving one problem creating opportunities for enterprising souls? I accept that is a difficult question to answer at this stage and that we may have to wait and see how the law is manipulated, if that is to happen. I am sure the Minister is prepared to amend the legislation if necessary to contain the scope of what is now being provided for.
I, too, support the amendment in principle. Perhaps the Minister will clarify that this provision relates not to cars but to trailers attached thereto and so on and that, in the context of the promotion of car pooling, this provision will not be an issue.
I thank the Minister for taking on board the concerns that arose last year in the particular case concerned. It was a case of over-the-top bureaucracy. The individual involved was in a position to provide many jobs and a service but because of a technicality could not do so.
Deputy Dooley's question has much to do with the law of unintended consequences. We do not believe that this provision can be used other than for the purpose intended. However, we cannot know that for sure. As a Road Traffic Bill is introduced pretty much every year, if an issue does arise the Bill can be amended. I do not foresee any issues arising but will keep a watchful eye on the situation lest one does arise.
I move amendment No. 4:
In page 18, to delete lines 7 to 9 and substitute the following:
“Amendment of section 2 of Public Transport Regulation Act 2009
17. Section 2 of the Public Transport Regulation Act 2009 is amended in the definition of "bus" by inserting "or combination of vehicles" after "mechanically propelled vehicle".".
Amendments Nos. 5 and 6 are related and may be discussed together by agreement.
I move amendment No. 5:
In page 18, between lines 9 and 10, to insert the following:
“Amendment of section 29 of Act of 2010 - fixed penalty notice
18. Section 29 of the Act of 2010 is amended—
(a) in subsection (11)(e), by deleting "(not being a specified person)", and
(b) in subsection (18A) (inserted by section 9 of the Road Traffic (No. 2) Act 2011), by inserting "or on behalf of" after "issued by".".
These are technical amendments, which were suggested by the Garda Síochána.
I move amendment No. 6:
In page 18, between lines 9 and 10, to insert the following:
“Amendment of section 38 of Act of 2010 - presumptions
19. Section 38(2) of the Act of 2010 is amended—
(a) by inserting "or on behalf of" after "issued by", and
(b) by deleting ", until the contrary is shown".".
I move amendment No. 7:
In page 18, to delete lines 12 and 13 and substitute the following:
“(a) by substituting for subsection (6) the following:
“(6) In proceedings for an offence referred to in subsection (1) it shall be presumed, until the contrary is shown, that—
(a) the electronic or other apparatus used for tendering of evidence was provided, maintained and operated by a member of the Garda Síochána, or a person authorised under an agreement under subsection (7),
(b) the development, production and viewing of records produced by such apparatus was carried out by a member of the Garda Síochána, or a person authorised under an agreement under subsection (7), and
(c) subsection (3) has been complied with.",
The Bill already contains two proposed changes to section 81 of the Road Traffic Act 2010. The Office of the Director of Public Prosecutions has since drawn my attention to a difficulty with section 81 of the 2010 Act, which I now propose to rectify. Section 81 deals with evidence in relation to speeding and certain other offences. The particular problem arising relates to photographs from speed cameras. Where cases go to court, the photographic evidence must be provided to the defendant in advance of the case. As matters stand, evidence in the form of a copy of the photographic evidence is generally automatically sent to the defendant by post. Where defendants appear in person in court, they are sometimes served with the evidence in person prior to commencement of the case. However, this is, as the law stands, no presumption that the evidence has been provided to the defendant. The DPP has found that in some cases defendants deny receiving the evidence or may not turn up in person at court, in which case the evidence cannot be provided to them. This results in delays and unnecessary difficulties in prosecutions.
I have considered the DPP's concerns and have agreed to amend section 81 to allow for a presumption, unless the contrary is shown, that evidence has been provided to the defendant in accordance with section 81. The amendment to section 18 will not affect the original aim of the section. This amendment is to augment the existing presumption in law that electronic apparatus for measuring speeds, such as a camera, is provided and maintained by a member of An Garda Síochána, adding that it is also a presumption that the apparatus is operated by a garda. In addition, I propose to correct an erroneous reference in section 81(9) of the 2010 Act, by way of substituting the reference therein to (3) and (7) with (4) and (7).