Echo Issue Outline: copyright Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney
Should wheel clamping by private firms be banned in Victoria?
In August, 1995, the Victorian Government had the all-party Community Development Committee investigate wheel clamping as conducted by private firms within Victoria.
The Committee will present its recommendations to the Victorian Parliament when sitting resumes in March, 1996.
It is widely expected that these recommendations will either be that private companies be prohibited from wheel clamping or that strict regulations be applied to control their mode of operation.
Some Victoria Police and informal motorist groups favour a complete ban. Others, including some of the major private wheel clamping companies, favour a strict regulatory code and the licensing of operators. The RACV's position has been variously reported as either favouring banning or regulation.
Background
Wheel clamping and vehicle towing appear to have been introduced into Victoria in 1992, though one newspaper report claims that Private Parking Services began operation in Victoria in October, 1990.
Private wheel clamping companies typically contract to particular landowners or leasees and guarantee them unimpeded access to their parking sites.
The company may charge a fee for this services, in the case of Private Parking Services somewhere between $100 and $500 a year. They then make the bulk of their profits through fees imposed on motorists before their impounded or clamped vehicles are released.
At least one company, Mr Clampit, charged property owners nothing for their service and made their profit entirely from fees imposed on motorists.
The fees typically ranged from $180, as charged by Private Parking Services, to $400, as charged by Mr Clampit.
Mr Clampit ceased operation in early November.
Evidence presented to the Community Development Committee suggested that private clamping companies have operated with less controversy in other Australian states than they have in Victoria.
Arguments supporting wheel clamping by private companies
Those who support the practice of wheel clamping by private companies maintain that it is a necessary means of protecting a property-owner's rights.
They state that without wheel clamping a business which had constructed or leased parking space for the use of its staff and clients could find its right to the use of this land violated and could also suffer further financial loss as clients went elsewhere because parking was not available.
This case has been put by a spokesperson for Private Parking Services Pty Ltd, who has stated, by way of example, `A restaurant owner in South Melbourne pays $20,000 to the council so that his customers can park. Instead the car-park is full of people going somewhere else. What about his rights?'
One of the owners of Private Parking Service, Mr Graeme Edwards, has further stated, `Every civilised country in the world has wheel clamping. To not do so condones trespass and the right to break the law in relation to parking on private property.'
It has been claimed that once the general public accepts that a car park owner or leasee has the right to protect his or her property, than the need for clamping firms becomes more apparent.
Those who hold this view maintain it is not reasonable to expect car park owners to police their properties themselves.
If a property owner damages a vehicle in removing or impounding it then he or she may be liable for the cost of the repairs.
Those who support the use of private clamping agencies maintain that it is better for the property-owners to use a private firm rather than run the risk of damaging the car by breaking into it themselves.
According to supporters, these private clamping agencies are better equipped to remove unauthorised vehicles without damage.
On the question of the scale of fine imposed on motorists before their vehicles will be released, supporters of the clamping companies maintain that they charge no more than what is required to recover their costs and make a reasonable profit.
Charges in Victorian range from $160 to $400. The company charging at the highest rate, Mr Clampit, has defended its charges, maintaining that `for security reasons' it employed teams of three when impounding cars.
Car clampers stress the cost of the clamping equipment, which is sometimes damaged by motorists in their attempts to remove clamps, and their labour costs.
Mr Colin Stone, the manager of Mr Clampit, has stated, `If we were cowboys or rip-off merchants we could charge several thousand dollars. But all we charge is what it costs to run the business - and a slight profit. I'm not in business to lose money.'
It has further been claimed that wheel clampers are under no obligation to warn motorists that they are parking in a private area.
This point has been made by Mr Graeme Edwards, co-owner of Private Parking Services, who went on to say that though his company did erect signs the law did not require it to do so.
Wheel clampers and those who contract them argue that vehicle clamping and removal are legal actions.
Those who support wheel clamping by private companies refer to English common law for its justification.
The law, distress damage feasant, dates back to the 1700s and allows landowners to tie up cattle which have strayed onto their land and eaten crops. Under this law the cattle could be held until the damage caused had been paid for.
This law is currently being used to support the actions of landowners who have vehicles, such as motor cars, removed from their property.
It is further being used to support the imposition of recovery fees or fines on offending motorists. Supporters of wheel clamping see these fines as reparation for damages incurred by property owners through the expense involved in removing trespassers from their land.
It has been claimed that this application of the distress damage feasant principal has been supported in New Zealand, where a court has ruled that the property owner could clamp or tow and charge the car owner.
Mr Nick Pane, a barrister representing Private Parking Services, has stated, `The law as it stands has not been tested in a superior court in Victoria, but three times in the Victorian Magistrates' Court it has been found that Private Parking Services are acting legally.'
(There are those who have argued that a recent magistrate's finding in favour of a former Melbourne Lord Mayor, Mr Trevor Huggard, after his car had been clamped and towed away, has set a precedent against wheel clamping and cast doubt on the legality of the practice.
However, the magistrate, Mr Michael O'Dwyer, stated, `The decision applies in this case and to no other.'
What set the circumstances of the Huggard case apart was that the clamping company acted without the authorisation of the former car park leasees [who no longer had any claim on the site and had informed the clamping company of this], and further, Mr Huggard was, at the time his car was seized, conducting business with the current leasees of the car park and so was entitled to use the parking space.
Private Parking Services, the company involved, admitted they had made an error, however, this was not seen by the magistrate nor by the company as automatically casting doubt on the legality of their other, owner-authorised operations.)
Arguments opposing wheel clamping by private companies
There are two sets of arguments usually offered against wheel clamping as practised by private companies in Victoria.
The first set of criticisms challenges the legality of the action.
The second set of criticisms refers to the manner in which many private companies conduct their business and suggests that their actions are often improper.
On the question of legality, it has been argued that the English common law provision, distress damage feasant, is now archaic, referring as it does to farmers' actions in response to wandering cattle in circumstances that pertained over 200 years ago.
It has also been argued that actions that may currently be appropriate in regard to livestock have no necessary application in regard to parked motor vehicles.
A barrister, Mr Robert Squirrel, who has challenged clamping companies in court after his own car was clamped, has claimed that distress damage feasant does not apply and further that the principle has never been adequately tested in a Victorian court.
With regard to how the law is applied in other Commonwealth countries, Mr Squirrel has noted that though a New Zealand court appears to have endorsed an application similar to that currently seen in Victoria, a Canadian Court interpreted the law differently.
A further legal complication arises from the fact that even distress damage feasant only allows the landowner to impound trespassing animals and demand compensation, it does not allow another party to take that action and demand a fee of the person who, in this case, has had their vehicle impounded.
According to this line of argument, while it is possibly legal for the car park owner to seize offending vehicles and demand compensation of their owners, it is not legitimate for a third party to do this, especially when the fees charged for the release of the car are the clamping companies' profits and are not passed on to the landowner.
There have also been suggestions that for private companies to impound vehicles in this way may constitute theft and blackmail. Other suggestions have included that clamping and towing could be in breach of the Fair Trading Act, or its federal counterpart, the Road safety Act.
As a supposed indication of a growing perception that the actions of clampers are illegal, it has been noted that the attitude to wheel clampers being adopted by Victoria Police appears to have shifted.
Initially members of Victoria Police claimed they were unable to intervene in what was a civil matter, more recently some officers have been ready to intervene on behalf of motorists, to the point of calling the fire brigade and having wheel clamps removed.
Chief Inspector Tim Cartwright told the Community Development Committee investigating wheel clamping that the present civil law was unclear and further that the manner in which it was currently being applied could lead to violence.
The second major objection to the practices of private wheel clamping companies is the way in which they are carried out.
Among these objections is that motorists have their vehicles clamped when they have parked in areas that have not been clearly designated as private parking.
One of the more frequent criticisms made of wheel clamping is that it occurs on parking sites where there are either no signs to indicate that it is private property or such signs as there are are inadequate.
A further complaint relates to the size of the fines which motorists have to pay in order to have their vehicles released. These typically range from $180 to $400.
It has been suggested that fines of this size, particularly those at the upper end of this range, are excessive and may be beyond the motorist to meet, leaving him or her without the use of their car.
There have also been suggestions that the $400 fine is imposed with a view not so much to what is appropriate as with regard to the maximum withdrawal that can be made within a single day from an automatic teller machine.
Finally it has been argued that the manner of the operators is frequently abusive or intimidating and likely, in some instances, to lead to a breach of the peace.
Solicitor, Mr John O'Callaghan, speaking before the Committee Development Committee on behalf of some 600 `victims' of clamping who had contacted him, claimed that there was a criminal element operating within the wheel clamping industry. He suggested that some motorists had been threatened and that some women had been sexually intimidated.
The Victorian Attorney General has referred with concern to claims that some operators behaved in an `intimidating, confrontational and at times threatening manner.'
In regard to claims that the wheel clamping industry needs to be not so much banned as regulated, its critics maintain that it is beyond regulation.
Former Melbourne Lord Mayor, Mr Trevor Huggard, whose car was illegally impounded for two days, has claimed, `No amount of legislation or regulation could properly protect motorists from what is obviously just get-rich-quick schemes for the people behind clamping companies.'
Further implications
The precise implications of this issue will depend in part on whether the Victorian Government decides in August to ban or regulate wheel clamping.
If the decision is to regulate, then much will depend on how effective the regulations are in stamping out what are the perceived problems in the vehicle clamping industry.
Popular feeling against the practice of wheel clamping appears to be very strong and any attempt to regulate it would have to be accepted as appropriate and able to be well implemented.
If the decision is to ban wheel clamping by private firms then the question becomes, `How are the interests of property owners to be protected?'
Included among the suggestions made is that local councils would take on an increased role in enforcing penalties imposed on illegal parkers and further that the extent of the fines imposed for illegal parking might be increased.
Again, these measures are unlikely to be popular with the motoring public and it will be interesting to note whether they too, if implemented, spawn significant popular protest.
It will also be interesting to note whether the role the City of Melbourne currently plays in employing contractors to tow vehicles away from clearways will come under investigation.
It was claimed in The Herald Sun of September 2, 1995, that `The City of Melbourne has seized the revenuing-raising opportunity and expanded the number of city streets with long clearway times.'
Sources
The Age
3/9/95 page 3 news item by John Elder, `Clamping company gets to grips with court case'
11/10/95 page 3 news item by David Adams and Gabrielle Costa, `Huggard awarded $22,446 damages'
4/12/95 page 11 analysis by Caroline Overington, `Clamp down'
5/12/95 page 3 news item by Sian Watkins, `Clamping should be banned, say police'
5/12/95 page 15 editorial, `Clamp down on clampers'
6/12/95 page 4 news item by Sian Watkins, `Clampers welcome regulation'
12/12/95 page 3 news item by Sian Watkins, `Wheelclampers unfairly vilified, says owner'
19/12/95 page 1 news item by Clare Kermond, `State to clean up clamping: inquiry chairman'
The Herald Sun
2/9/95 pages 15, 16 and 17 analysis by Michael Gleeson, `Gotcha, clampers on the prowl'
11/10/95 page 4 news item by Emma Miller, `Sham clampers ordered to pay'
2/12/95 page 22 editorial, `Clamping down on clamping'
5/12/95 page 3 news item by Annemarie Mitchell, `Police call for ban on clamps'
21/1/96 page 1 news item, `Wheel clamp ban'
21/1/96 page 4 news item by David Wilson, `State likely to ban wheel clamping'
21/1/96 page 4 news item by Kelly Ryan, `Clamper rejects legal threat'
21/1/96 page 40 editorial, `Cheers to clamp ban'
What they said ...
`Every civilised country in the world has wheel clamping. To not do so condones trespass and the right to break the law in relation to parking on private property'
Mr Graeme Edwards, co-owner of Private Parking Service
`No amount of legislation or regulation could properly protect motorists from what is obviously just get-rich-quick schemes for the people behind clamping companies'
Former Melbourne Lord Mayor, Mr Trevor Huggard, whose car was illegally impounded for two days