Disability Parking & the Complex Enforcement Battle

 

Each year since the campaign began I receive hundreds of messages from the community asking what their rights are and what the responsibilities are of police and councils when it comes to disability parking and reporting it. It is very difficult to answer the question nationally as the issue is covered by all three levels of government and legislations vary state to state, by-laws vary council to council. What is consistent is the fact that ableism continues to hamper our quality of life while this particular facet of disability access is perceived as an unimportant “perk” for the disabled by the community and the only way we can change that is through education.

Meanwhile we have the ongoing battle between Police and Councils over whose responsibility it is and all we want is someone to stand up with us and say No, This is NOT OK. It needs to be an authority because society still treats us like we don’t have the right to speak for ourselves. My biggest obstacle to educating people on the rights, wrongs and responsibilities of it all are keyboard lawyers and the fact that while a website, even from a government department, may say one thing, legislation says another.

So when it comes to reporting an offence of misuse of a disability parking space, who do you call? What a shame we don’t have Ableist Busters right?

Police are the standard go to for majority of cases when it comes to parking under the traffic act as they cover both street parking and off street parking. Off street parking is covered by police – and this is nationally under the Australian National Road Rules legislation that is then adopted and added to by each state – Off street parking is covered when it fits the definition of a road related area. Generally speaking that is a car parking area that even though it may be situated on privately owned land, is generally open to and accessible by the public. For example shopping centre car parks. The exclusion of this is when in a residential building there is a private car parking area of multiple spaces that is within a gate or is clearly signed that the public are not permitted to park there without the authorisation of the owner.

Police may issue infringements in these areas. They are also allowed, under police powers, to enter the area without having to seek permission first. And therein lies the first key difference between Police and Council.

Now this is where it gets really difficult. Each state has varying legislations that cover the same things but written in different ways. I haven’t yet perused all the states legislation to be able to specifically tell you where to find them all but as a study case, I’m using my home state of Queensland.

Police powers and relevant legislation allows them to enter the area, patrol the area, respond to complaints and investigate in the area and issue infringements if deemed necessary. The Transport Operations Road Use Management (Road Rules) Act 1995 specifies that stopping in a parking area marked for people with disabilities without a valid permit is a traffic infringement and can be enforced by police. The Police Powers and Responsibilities Act 2000 specifies their limits of power to be able to enforce this law, where and how it must be done.

So far, Queensland Police, NSW Police and Victoria Police have all confirmed with me that they can and will accept complaints from the public, preferably with evidence, of a disability parking law being broken. However there are some important factors for you to remember when making these reports. You will need to be willing to appear in court as a witness to the event should the offender be issued an infringement and choose to appeal it in the courts. You also need to make the complaint as a non priority complaint unless there is an emergency involved. Please don’t expect to call police and have them come right there and then to write out a parking ticket. There is no guarantee there is a car available in the area at the time and on the list of priorities in respect to the calls police deal with a parking offence is not high up there and nor should we expect it to be. In any event, taking photos, recording any conversations you have with the offender or taking video of the event can all be provided as evidence for the police to investigate. Which they can do under the Police Powers Act.

This is the difference between Police and Council.

All sworn in members of the Police Service are “authorised persons” to issue infringements. They also have the power to investigate and gather evidence which can be provided by the community but they also need to ensure they are able to present a strong enough case to Police Prosecutions should the matter end up in court. So your photos or video need to show the car, having no permit on display and the positioning of the parking.

Councils in Queensland have their power to create by-laws under the Local Government Act 2009. This Act also specifies what an “authorised person” is for the purpose of issuing infringements. These are called Rangers or Compliance Officers. They have the power to issue infringements of council’s by-laws. Council authorised persons must seek permission from the building owner or manager before they are able to carry out checks of compliance to council by-laws before issuing infringements. Council authorised persons can act on reports from the public to inspect or investigate claims of breaches however they must be able to provide the evidence as seen by them to issue an infringement.

What this means is that you can call council to complain about a parking by-law breach and give them the information, but a council authorised person will need to attend to collect the evidence before an infringement can be issued. These can be given on the spot or sent in the post. Council authorised persons do not have the same powers as police when it comes to entering property, investigating a committed offence or other types of enforcement powers. The Authorised Person is the one who will be called to testify their evidence if the person in receipt of the infringement chooses to have the matter heard in court. Council are not represented by Police Prosecutions. They have to foot their own costs in court and if the matter goes in favour of the defendant, they may have to cover their costs too. Councils will rarely let matters of small amounts go to court unless they are absolutely certain the offence occurred within the defence of the law which is why they send out an officer rather than accept third party information.

How infringements are issued and enforced is covered by the State Penalties Enforcement Act 1999 and the State Penalties Enforcement Regulation 2014.

In relation to the controversially promoted Snap Send Solve App used by many councils across Australia, I’ve been doing some research into it’s effectiveness for disability parking offences. I called and spoke with several councils listed as using the app and not one of them stated that they would issue an infringement from the information supplied in a report. They do however state that an authorised officer would be sent to the location where the offence has been reported and investigate. If the vehicle is still there they will take the required evidence and either issue an on the spot infringement or it will be sent in the post.

Snap Send Solve is an app already designed that these councils subscribe to for a fee. Other councils have spent the money to have their own similar apps designed more specifically for their purposes. The apps are intended only for the purpose of collecting information in a faster, easier, more convenient manner than having operators man phones. It allows them to collect enough information to follow up a report that a by-law offence has been committed or to respond to commonly reported issues like pot holes and dumped rubbish without having to keep people tied up on the phone. It was never intended to be used as a sole basis of issuing infringements. A spokesperson for one of the councils said that the legal department would “stop the practice” if they were to find that happening as it would contravene council policy.

None of the councils I spoke to could confirm if any data of any nature was kept in relation to monitoring locations by offence type to see if there was a particular high occurrence area.

Clear as mud? Yep. This is why we get passed from one side to the other continuously.

Who do you call? Unless you spot an officer nearby or it’s an emergency, you don’t. You help us collect data so that we can notify police and councils where they need to patrol by reporting it through the Towit App on your phone or you pass the info on to us via our Facebook page or you collect the required evidence and take it directly to the local police station so that they can investigate. You can also help your local authorities by letting them know where you see the offences occur the most and asking if they can include that area in their patrols. That makes you an activist rather than a slacktivist.

 

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Comments (3)

  1. Andrew

    Reply

    Your frustration with ableism and a lack of options for enforcement is very real, but your explanation of the authority of Police and council officers in relation to road related areas is quite wrong. Both police and council officers can issue infringements based on reports by members of the public, although council officers might be more reluctant to do so, but neither can legally enforce a disabled parking space in a road related area unless that space has been properly gazetted by the local traffic committee. Police might bluff some people by fining them anyway, but it is without any legal basis.
    Gazetted by the local traffic committee means the local MPs, council, road authority and police approve the space, if not then anyone can set up spaces anywhere they like regardless of standards and expect them to be enforced by police, which just doesn’t work.
    For example, you might go up to your local McDonalds car park, which is a road related area, put up some disabled parking signs and paint the correct symbol on the road over all of the parking spaces, people would inevitably park in them without a permit, would that be illegal? Of course not, because you or even the land owner can’t make those decisions, only the traffic committee can.

    • nopermitnopark

      Reply

      Hi Andrew, thank you for trying to correct me but I’m not only correct, I am also up to date on current post 1962 legislation.

      Also, the traffic committee (and I assume you must be referring to those still in existence in councils in NSW & VIC) are only advisory and do not have any decision making powers (ref: RMS Nsw website) and the regulation of installing disability parking in car parks that are not council property comes from The Disability Discrimination Act subordinate legislation Disability Access to Premises (Buildings) Standards, which are currently under review.

      If your belief of the system was correct we’d have 2 issues.
      1) police would be powerless to do anything about the drunk driver in the McDonalds carpark &
      2) All of the media police across the country are doing to inform road users that they CAN and WILL fine you in the McDonalds carpark for parking in a disability bay without a permit is foolish and misinformed. Now my experience is they don’t like to be seen as foolish & misinformed but if you are prepared to tell them then by all means, please do, I’ll get the popcorn.

  2. John Counsel

    Reply

    The solution is definitely education — but not only of the driving public, but politicians (all levels — Commonwealth, State and Local Governments), Police and the media.

    The problem we face is perceptions of our numbers: only 4.5% (national average) of the population holds Disability Parking Permits. Politically insignificant.

    But a whopping 18.5% of all Australians are disabled — and they have families, friends and colleagues.

    That kind of political clout, harnessed for an election campaign, would get the kind of intense attention we need, from all sides of politics.

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