2010 THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Attorney-General) Crimes (Sentence Administration) Amendment Bill 2010 Contents Page 1 Name of Act 2 2 Commencement 2 3 Legislation amended 2 4 Application--pt 3.1 Section 10 (2), except notes 3 5 Application--ch 5 Section 39, new note 3 6 New chapter 6A 3 7 New chapter 19 45 Schedule 1 Consequential amendments 47 Part 1.1 Bail Act 1992 47 J2009-568 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page Part 1.2 Court Procedures Act 2004 47 Part 1.3 Court Procedures Rules 2006 48 Part 1.4 Crimes (Sentencing) Act 2005 48 Part 1.5 Crimes (Sentencing) Regulation 2006 49 Part 1.6 Magistrates Court Act 1930 49 Part 1.7 Road Transport (Driver Licensing) Act 1999 51 Part 1.8 Road Transport (General) Act 1999 51 Part 1.9 Supreme Court Act 1933 52 Part 1.10 Victims of Crime Act 1994 52 contents 2 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Attorney-General) Crimes (Sentence Administration) Amendment Bill 2010 A Bill for An Act to amend the Crimes (Sentence Administration) Act 2005, and for other purposes The Legislative Assembly for the Australian Capital Territory enacts as follows: J2009-568 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 1 Name of Act 2 This Act is the Crimes (Sentence Administration) Amendment 3 Act 2010. 4 2 Commencement 5 This Act commences on 1 July 2010. 6 Note The naming and commencement provisions automatically commence on 7 the notification day (see Legislation Act, s 75 (1)). 8 3 Legislation amended 9 This Act amends the Crimes (Sentence Administration) Act 2005. 10 Note This Act also amends the following legislation (see sch 1): 11 · Bail Act 1992 12 · Court Procedures Act 2004 13 · Court Procedures Rules 2006 14 · Crimes (Sentencing) Act 2005 15 · Crimes (Sentencing) Regulation 2006 16 · Magistrates Court Act 1930 17 · Road Transport (Driver Licensing) Act 1999 18 · Road Transport (General) Act 1999 19 · Supreme Court Act 1933 20 · Victims of Crime Act 1994. page 2 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 4 Application--pt 3.1 2 Section 10 (2), except notes 3 substitute 4 (2) A reference in this section to a court sentencing an offender to 5 imprisonment includes-- 6 (a) an entity prescribed by regulation sentencing an offender to 7 imprisonment; and 8 (b) a court ordering the imprisonment of a fine defaulter under 9 section 116ZK. 10 5 Application--ch 5 11 Section 39, new note 12 insert 13 Note This chapter also applies to a fine defaulter for whom a periodic 14 detention period is set under ch 6A (Court imposed fines) (see 15 s 116ZL (5)). 16 6 New chapter 6A 17 insert 18 Chapter 6A Court imposed fines 19 Part 6A.1 General 20 116A Definitions--ch 6A 21 In this chapter: 22 administrative fee means the administrative fee mentioned in 23 section 116G. Crimes (Sentence Administration) Amendment Bill 2010 page 3 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 default--a person defaults in paying a fine (or any relevant 2 administrative fee in relation to the fine) if the person fails to pay 3 any part of the amount payable by-- 4 (a) the due date stated in the relevant penalty notice; or 5 (b) if a default notice has been issued in relation to the fine--the 6 date stated in the default notice; or 7 (c) if the person has an arrangement approved under section 116K 8 for the fine--the date required under the arrangement. 9 default notice means a notice in force under section 116H and 10 includes any variation under section 116K. 11 earnings redirection order--see section 116Y (2). 12 enforcement officer means-- 13 (a) the sheriff, a deputy sheriff or a sheriff's assistant under the 14 Supreme Court Act 1933; or 15 (b) a person appointed by the chief executive as an enforcement 16 officer for this chapter. 17 Note 1 For the making of appointments (including acting appointments), see 18 the Legislation Act, pt 19.3. 19 Note 2 In particular, an appointment may be made by naming a person or 20 nominating the occupant of a position (see Legislation Act, s 207). 21 examination hearing means an examination hearing under 22 section 116T. 23 examination notice--see section 116P. 24 examination warrant--see section 116R. page 4 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 fine means-- 2 (a) a fine payable under a fine order under the Crimes (Sentencing) 3 Act 2005; or 4 (b) a fee or charge payable to the Territory that is imposed by a 5 court in a proceeding for an offence; or 6 (c) costs payable to the Territory under a court order in a 7 proceeding for an offence; or 8 (d) a levy imposed under the Victims of Crime (Financial 9 Assistance) Act 1983; or 10 (e) a victims services levy imposed under the Victims of Crime 11 Act 1994; or 12 (f) an amount payable under a reparation order under the Crimes 13 (Sentencing) Act 2005 to-- 14 (i) the Territory; or 15 (ii) a person in relation to whom a reparation order 16 agreement mentioned in section 116ZQ is in force; or 17 (g) a financial penalty imposed, other than under the Crimes 18 (Sentencing) Act 2005, in relation to an offence. 19 fine defaulter means a person who defaults in paying a fine (or any 20 relevant administrative fee in relation to the fine). 21 fine enforcement order means an order of the Magistrates Court 22 under section 116X for the enforcement of a fine. 23 outstanding fine, in relation to a person, means the total of-- 24 (a) the whole or any part of a fine that the person is liable to pay; 25 and 26 (b) the whole or any part of an administrative fee that the person is 27 liable to pay in relation to the fine. Crimes (Sentence Administration) Amendment Bill 2010 page 5 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 penalty notice means a notice in force under section 116C and 2 includes any variation under section 116K. 3 property seizure order--see section 116ZA. 4 registrar means the registrar of the Magistrates Court and includes a 5 deputy registrar of the court. 6 reminder notice means a notice mentioned in section 116J. 7 territory entity--see the Auditor-General Act 1996, dictionary. 8 voluntary community work order--see section 116ZE. 9 young fine defaulter means a fine defaulter who was under 18 years 10 old when the offence to which the fine relates was committed. 11 116B Payment of fine 12 A fine is payable under this chapter to the Territory (through the 13 registrar or the chief executive). 14 Part 6A.2 Penalty notices, default notices 15 and payment arrangements 16 116C Registrar to send penalty notice 17 (1) If an offender is liable to pay a fine as a result of a conviction or 18 order by the Supreme Court-- 19 (a) the registrar of the Supreme Court must give the registrar a 20 copy of the conviction or order; and 21 (b) the registrar must give the offender a penalty notice for the 22 fine. page 6 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (2) If an offender is liable to pay a fine as a result of a conviction or 2 order by the Magistrates Court, the notice of the conviction or order 3 required by the Magistrates Court Act 1930, section 116I 4 (Consequences of conviction in absence of defendant) or 5 section 141 (1) (b) (Minute of decision and notice to defendant) 6 must contain a penalty notice for the fine. 7 (3) A penalty notice for a fine must-- 8 (a) state the amount of the fine and the due date for payment; and 9 (b) if the fine is payable by instalments--specify the amount of 10 each instalment; and 11 (c) state that if the fine or any instalment is not paid by the due 12 date for payment the offender is liable for the administrative 13 fee under section 116G in addition to the outstanding amount 14 of the fine; and 15 (d) state that, under section 116K, the chief executive may, on 16 written application made before the due date for payment, 17 approve an alternative arrangement about payment of the fine; 18 and 19 (e) state the obligation to notify the registrar of the offender's 20 address, and any change of address, under section 116D. 21 Note A penalty notice may be varied under s 116K (Payment arrangements). 22 116D Offender to give registrar details of address 23 (1) An offender on whom a fine is imposed must give the registrar 24 details of his or her home address and postal address within 7 days 25 after the day the fine is imposed. 26 Maximum penalty: 5 penalty units. Crimes (Sentence Administration) Amendment Bill 2010 page 7 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (2) An offender who is liable to pay a fine and who changes his or her 2 home address or postal address before the fine and any relevant 3 administrative fee are paid must give the registrar details of the new 4 address within 7 days after the day the change happens. 5 Maximum penalty: 5 penalty units. 6 (3) An offender who is liable to pay a fine must give the registrar 7 evidence of his or her home address and postal address if required to 8 do so by the registrar. 9 Maximum penalty: 5 penalty units. 10 116E Registrar may ask other people for details of offender's 11 address 12 (1) The registrar may, in writing, ask a relevant person to give the 13 registrar any details held by the person about an address of a stated 14 offender who is liable to pay a fine. 15 (2) The relevant person must comply with the request as far as 16 practicable. 17 (3) In this section: 18 relevant person means-- 19 (a) the chief police officer; or 20 (b) the housing commissioner; or 21 (c) the chief executive (however described) of-- 22 (i) an administrative unit; or 23 (ii) ACTEW Corporation Limited; or 24 (iii) a territory entity prescribed by regulation. page 8 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116F Doubtful service 2 (1) This section applies if-- 3 (a) a document has been served on an offender for this chapter 4 otherwise than by personal service; and 5 (b) the registrar is satisfied that-- 6 (i) the document has not come to the knowledge of the 7 offender; or 8 (ii) doubt exists whether the document has come to the 9 knowledge of the offender. 10 (2) The registrar must not take any further action under this chapter in 11 relation to the offender unless-- 12 (a) the document has been served again on the offender in the way 13 the registrar considers appropriate; and 14 (b) the registrar is satisfied that the document has come to the 15 knowledge of the offender. 16 116G Liability for administrative fee 17 If any part of a fine payable by an offender remains unpaid after the 18 due date stated in the penalty notice for the fine, the offender is 19 liable to pay to the Territory, in addition to the amount of the fine 20 that remains unpaid, the administrative fee determined under the 21 Court Procedures Act 2004, part 3 (Court and tribunal fees). 22 116H Default notice 23 (1) If an offender defaults in paying a fine, the chief executive must 24 send the fine defaulter a default notice. 25 (2) However, the chief executive must not send the default notice to the 26 fine defaulter until 28 days after the due date for payment of the 27 fine. Crimes (Sentence Administration) Amendment Bill 2010 page 9 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116I Form of default notice 2 (1) A default notice must include the following: 3 (a) details about the fine to which the notice relates including the 4 following: 5 (i) the offence for which the fine was imposed; 6 (ii) the date on which the fine was imposed; 7 (iii) the amount of the fine imposed; 8 (iv) the due date for payment of the fine; 9 (v) if the fine was ordered to be paid by instalments--the due 10 dates for payment; 11 (vi) the outstanding amount of the fine; 12 (vii) the administrative fee payable for the fine; 13 (viii) the default to which the notice relates; 14 (b) a statement that an arrangement for the fine defaulter to pay the 15 fine may, on application, be approved by the chief executive 16 under section 116K; 17 (c) a statement that the chief executive will commence fine 18 enforcement action against the defaulter if-- 19 (i) the fine and administrative fee is not paid in full; and 20 (ii) an arrangement is not approved under section 116K for 21 the fine or, if an arrangement is approved, the defaulter 22 fails to comply with the arrangement; page 10 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (d) a list of the following fine enforcement measures that may or 2 must be imposed on the defaulter if the chief executive 3 commences fine enforcement action: 4 (i) suspension of the defaulter's driver licence; 5 (ii) if the defaulter is the responsible person (or a responsible 6 person) for a vehicle--suspension of the vehicle's 7 registration; 8 (iii) notifying a credit reporting agency about the default; 9 (iv) an order allowing the outstanding amount of the fine to 10 be deducted from the defaulter's earnings or account with 11 a financial institution or both; 12 (v) seizure and sale of the defaulter's property; 13 (vi) a voluntary community work order; 14 (vii) imprisonment; 15 (e) a statement of the obligation of the defaulter to notify the 16 registrar of any change of address under section 116D. 17 (2) The chief executive may specify in a default notice particulars about 18 a fine defaulter's property or financial circumstances that must be 19 set out in any application by the defaulter for approval of an 20 arrangement under section 116K. 21 Note A default notice may be varied under s 116K (Payment arrangements). 22 (3) In this section: 23 responsible person, for a vehicle--see the Road Transport 24 (General) Act 1999, section 10 and section 11. Crimes (Sentence Administration) Amendment Bill 2010 page 11 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116J Reminder notice 2 (1) The chief executive must send a reminder notice to a fine defaulter 3 14 days after sending a default notice to the defaulter if-- 4 (a) the outstanding fine has not been paid; and 5 (b) no arrangement has been approved under section 116K for the 6 fine or, if an arrangement has been approved, the defaulter 7 failed to comply with the arrangement. 8 (2) The reminder notice must be sent to the fine defaulter's last known 9 address. 10 116K Payment arrangements 11 (1) The chief executive may, on application, approve in writing an 12 arrangement for-- 13 (a) further time for the payment of all or part of an outstanding 14 fine; or 15 (b) payment of all or part of an outstanding fine by instalments. 16 (2) An arrangement under subsection (1) may also be made for an 17 amount that is overdue for payment under a previous approved 18 arrangement. 19 (3) To the extent to which an approved arrangement is inconsistent with 20 an order about payment of the fine made by the court that imposed 21 it, the arrangement prevails. 22 (4) An application for approval of an arrangement must-- 23 (a) be in writing; and 24 (b) state the grounds on which it is made; and 25 (c) be given to the chief executive by the due date for payment 26 stated in the current penalty notice or default notice for the 27 fine; and page 12 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (d) for an offender to whom a default notice has been sent-- 2 contain any particulars requested by the chief executive in the 3 notice. 4 (5) An offender may not make an application under this section in 5 relation to a fine if the offender is subject to a voluntary community 6 work order, or committed to imprisonment, in relation to the fine. 7 (6) If an approval of an arrangement concerns a fine for which a penalty 8 notice or default notice has been given to an offender, the chief 9 executive must-- 10 (a) vary the current penalty notice or default notice in accordance 11 with the approval; and 12 (b) give the offender a copy of the notice as varied. 13 Part 6A.3 Fine enforcement action 14 Division 6A.3.1 Reporting fine defaulters 15 116L Application--pt 6A.3 16 This part applies if-- 17 (a) a default notice and reminder notice have been sent to a fine 18 defaulter in relation to a fine; and 19 (b) 28 days after the default notice was sent-- 20 (i) the outstanding fine has not been paid; and 21 (ii) no arrangement has been approved under section 116K 22 for the fine or, if an arrangement has been approved, the 23 defaulter has failed to comply with the arrangement. Crimes (Sentence Administration) Amendment Bill 2010 page 13 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116M Chief executive to notify road transport authority 2 (1) The chief executive must give written notice to the road transport 3 authority with the following information: 4 (a) the fine defaulter's name, home address and date of birth; 5 (b) the offence for which the defaulter was convicted; 6 (c) the amount of the fine imposed for the offence; 7 (d) a statement that the fine and administrative fee for the fine 8 have not been paid in full; 9 (e) if the defaulter has failed to comply with an arrangement 10 approved under section 116K for the fine--a statement to that 11 effect. 12 (2) The chief executive must give the road transport authority written 13 notice if-- 14 (a) the outstanding fine is paid; or 15 (b) the chief executive approves an arrangement under 16 section 116K for payment of the outstanding fine; or 17 (c) the outstanding fine is remitted under section 116ZO 18 (Remission of fine by chief executive) or section 313 19 (Remission of penalties); or 20 (d) the outstanding fine is discharged because the fine defaulter 21 has completed a voluntary community work order under 22 division 6A.3.7 or served a period of imprisonment under an 23 order under division 6A.3.8; or 24 (e) the conviction or order that gave rise to the liability to pay the 25 fine is quashed or set aside. page 14 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116N Chief executive to notify credit reporting agency 2 (1) The chief executive must give written notice to a credit reporting 3 agency with the following information: 4 (a) the fine defaulter's name, home address and date of birth; 5 (b) a statement that a fine and administrative fee the defaulter was 6 liable to pay have not been paid in full; 7 (c) if the defaulter failed to comply with an arrangement approved 8 under section 116K for the fine--a statement to that effect; 9 (d) that the defaulter was notified by the chief executive that his or 10 her personal information would be given to a credit reporting 11 agency if he or she failed to pay the fine. 12 (2) The chief executive must give the credit reporting agency written 13 notice if-- 14 (a) the outstanding fine is paid; or 15 (b) the chief executive approves an arrangement under 16 section 116K for the fine; or 17 (c) the outstanding fine is remitted under section 116ZO 18 (Remission of fine by chief executive) or section 313 19 (Remission of penalties); or 20 (d) the outstanding fine is discharged because the fine defaulter 21 has completed a voluntary community work order or served a 22 period of imprisonment under an order under section 116ZK; 23 or 24 (e) the conviction or order that gave rise to the liability to pay the 25 fine is quashed or set aside. Crimes (Sentence Administration) Amendment Bill 2010 page 15 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (3) A credit reporting agency must-- 2 (a) if the agency receives information about a fine defaulter under 3 subsection (1)--include the information in the records used by 4 the agency as part of its credit reporting business; and 5 (b) if the agency receives information about a fine defaulter under 6 subsection (2)--remove any information received about the 7 defaulter under subsection (1) from the records used by the 8 agency as part of its credit reporting business. 9 (4) In this section: 10 credit reporting agency--see the Privacy Act 1988 (Cwlth), 11 section 6 (1). 12 credit reporting business--see the Privacy Act 1988 (Cwlth), 13 section 6 (1). 14 Division 6A.3.2 Examining fine defaulter's financial 15 circumstances 16 116O Examination by chief executive 17 The chief executive may conduct an examination of a fine defaulter 18 under this division to determine-- 19 (a) the financial position of the defaulter; and 20 (b) what fine enforcement action (if any) should be taken against 21 the defaulter. 22 116P Examination notice 23 (1) The chief executive may serve a notice (an examination notice) on 24 a fine defaulter if the chief executive considers that information in 25 documents sought under the notice would assist the chief executive 26 to make a determination under section 116O. 27 Note The Legislation Act, pt 19.5, deals with service of documents on 28 individuals and corporations. page 16 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (2) An examination notice may require the fine defaulter to produce to 2 the chief executive, within 14 days after the date of the notice and at 3 a time and place stated in the notice, a document or documents 4 stated in the notice. 5 (3) The chief executive may allow the fine defaulter to satisfy the 6 requirement to produce a document by providing oral information 7 about any document required to be produced under the notice. 8 (4) An examination notice in relation to a fine must not be served on a 9 fine defaulter if the defaulter would be required to comply with the 10 notice within 6 months after having complied with an earlier 11 examination notice for the same fine. 12 116Q Examination notice--content 13 An examination notice may require the fine defaulter to produce a 14 document with any or all of the following: 15 (a) details about any account the defaulter has with a financial 16 institution, including the balance of the account; 17 (b) details about the defaulter's income; 18 (c) details about any cash the defaulter possesses or has access to; 19 (d) details about any other property the defaulter owns or has a 20 legal or equitable interest in; 21 (e) details about any debts owing to the defaulter; 22 (f) the amount of money the defaulter reasonably needs for living 23 expenses; 24 (g) whether the defaulter has any dependents and, if so, the amount 25 of money the defaulter needs to provide for them; 26 (h) the hardship (if any) that would be caused to the defaulter as a 27 result of paying the fine; Crimes (Sentence Administration) Amendment Bill 2010 page 17 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (i) the hardship (if any) that would be caused to anyone else as a 2 result of the defaulter paying the fine; 3 (j) relevant information relating to matters mentioned in this 4 section. 5 116R Examination warrant--issue 6 (1) If the chief executive believes on reasonable grounds that a fine 7 defaulter served with an examination notice has not complied with 8 the notice, the chief executive may apply to the registrar for a 9 warrant (an examination warrant) for the arrest of the defaulter. 10 (2) The registrar may refuse to consider the application until the chief 11 executive gives the registrar all the information the registrar requires 12 about the application in the way the registrar requires. 13 (3) The registrar may issue an examination warrant for a fine defaulter 14 only if satisfied that the defaulter was served with an examination 15 notice under section 116P and-- 16 (a) the defaulter, without reasonable excuse, failed to comply with 17 a requirement of the notice; or 18 (b) the defaulter-- 19 (i) provided information that was false or misleading in a 20 material particular; or 21 (ii) omitted something without which the information was 22 misleading. 23 (4) An examination warrant authorises an enforcement officer to-- 24 (a) arrest the fine defaulter named or otherwise described in the 25 warrant; and 26 (b) bring the defaulter before the registrar. page 18 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116S Examination warrant--contents and execution 2 (1) An examination warrant must-- 3 (a) name or otherwise describe the fine defaulter whose 4 apprehension is authorised by the warrant; and 5 (b) state briefly the reason for its issue; and 6 (c) require an enforcement officer to arrest the defaulter and bring 7 him or her before the registrar to be examined at an 8 examination hearing; and 9 (d) be expressed to end not later than 3 months after the day it is 10 issued. 11 (2) An enforcement officer executing the warrant-- 12 (a) may, with necessary assistance and force, enter any premises to 13 arrest the fine defaulter named or otherwise described in the 14 warrant; and 15 (b) must use not more than the minimum amount of force 16 necessary to arrest the defaulter and remove him or her to the 17 place stated in the warrant; and 18 (c) may ask a police officer to help in the exercise of the 19 enforcement officer's powers under the warrant; and 20 (d) must, before removing the defaulter, explain to him or her the 21 purpose of the warrant; and 22 (e) must bring the defaulter immediately before the registrar; and 23 (f) if the defaulter is under a legal disability--must tell a parent or 24 guardian of the defaulter about the arrest; and 25 (g) must tell the chief executive of the defaulter's arrest. Crimes (Sentence Administration) Amendment Bill 2010 page 19 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (3) A police officer asked by an enforcement officer to help execute the 2 warrant must give the enforcement officer the reasonable help the 3 enforcement officer requires, if it is practicable to give the help. 4 (4) The enforcement officer must immediately release a fine defaulter 5 arrested under an examination warrant if the officer believes on 6 reasonable grounds that the defaulter-- 7 (a) has, before or after being arrested, complied with the 8 requirements of the examination notice that gave rise to the 9 examination warrant; or 10 Example 11 A defaulter may comply with an examination notice requirement after being 12 arrested if someone else helps the defaulter to comply with the requirement 13 while the defaulter is under arrest. 14 Note An example is part of the Act, is not exhaustive and may extend, 15 but does not limit, the meaning of the provision in which it 16 appears (see Legislation Act, s 126 and s 132). 17 (b) cannot be brought immediately before the registrar. 18 (5) An examination warrant continues in force until whichever of the 19 following happens first: 20 (a) the warrant is executed; 21 (b) the warrant is set aside by the registrar and the enforcement 22 officer is told that the warrant has been set aside; 23 (c) the end of 3 months after the day the warrant is issued. 24 (6) For subsection (5) (a), a warrant is executed when-- 25 (a) the fine defaulter has been brought before the registrar and 26 examined under section 116T; or 27 (b) the examination is adjourned to another day. page 20 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116T Examination hearing before registrar 2 (1) This section applies if an examination warrant for a fine defaulter 3 has been issued and-- 4 (a) the defaulter has been brought before the registrar on the 5 warrant; or 6 (b) otherwise attends before the registrar. 7 (2) The registrar must-- 8 (a) set a date for an examination hearing and, by subpoena, require 9 the fine defaulter to attend before the registrar, at the time and 10 place stated in the subpoena-- 11 (i) to answer questions and give information; and 12 (ii) to produce the documents or other things (if any) stated 13 in the subpoena; and 14 (b) conduct the examination hearing to determine the financial 15 position of the defaulter. 16 (3) The registrar may adjourn an examination hearing from time to time 17 and may, by order, require the fine defaulter to attend an adjourned 18 examination hearing. 19 (4) The chief executive is a party to any proceeding conducted under 20 this section. 21 (5) If the chief executive has been told the date, time and place for the 22 examination hearing, or adjourned examination hearing, but does 23 not attend before the registrar, the registrar may-- 24 (a) set aside the order for the examination hearing; or 25 (b) conduct the examination in the absence of the chief executive. Crimes (Sentence Administration) Amendment Bill 2010 page 21 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (6) At an examination hearing, the fine defaulter may-- 2 (a) be examined orally on oath about-- 3 (i) the assets, liabilities, expenses and income of the 4 defaulter; and 5 (ii) any other means the defaulter has of satisfying the 6 outstanding fine; and 7 (iii) the defaulter's financial circumstances generally; and 8 Note Oath includes affirmation (see Legislation Act, dict, pt 1). 9 (b) be required, by order, to produce any document substantiating 10 anything relevant to-- 11 (i) the assets, liabilities, expenses and income of the 12 defaulter; and 13 (ii) any other means the defaulter has of satisfying the 14 outstanding fine; and 15 (iii) the defaulter's financial circumstances generally. 16 (7) The examination hearing-- 17 (a) must be conducted by the registrar; and 18 (b) may be conducted in open court or in the absence of the public 19 as the registrar directs. 20 (8) An examination hearing before the registrar is a legal proceeding for 21 the Criminal Code, chapter 7 (Administration of justice offences). 22 Note The Magistrates Court Act 1930, s 307 deals with contempt of the 23 Magistrates Court. page 22 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116U Examination hearing warrant--issue 2 (1) This section applies if-- 3 (a) a fine defaulter is required to attend an examination hearing, 4 including an adjourned examination hearing; and 5 (b) the defaulter fails to attend the hearing as required by the order. 6 (2) The registrar may issue a warrant (an examination hearing 7 warrant) ordering an enforcement officer to apprehend the fine 8 defaulter and bring the defaulter before the registrar to be examined 9 at the examination hearing if the registrar-- 10 (a) is satisfied that the defaulter was aware that he or she was 11 required to attend the hearing; and 12 (b) considers that the defaulter does not have a reasonable excuse 13 for not attending the hearing. 14 (3) The registrar may issue the examination hearing warrant on 15 application by the chief executive or on the registrar's own 16 initiative. 17 (4) A fine defaulter apprehended under an examination hearing warrant 18 must be brought before the registrar to be examined at an 19 examination hearing. 20 116V Examination hearing warrant--contents and execution 21 (1) An examination hearing warrant must-- 22 (a) name or otherwise describe the fine defaulter whose 23 apprehension is authorised by the warrant; and 24 (b) state briefly the reason for its issue; and 25 (c) require an enforcement officer to arrest the defaulter and bring 26 him or her before the registrar to be examined at an 27 examination hearing; and Crimes (Sentence Administration) Amendment Bill 2010 page 23 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (d) be expressed to end not later than 3 months after the day it is 2 issued. 3 (2) An enforcement officer executing the warrant-- 4 (a) may, with necessary assistance and force, enter any premises to 5 arrest the fine defaulter named or otherwise described in the 6 warrant; and 7 (b) must use not more than the minimum amount of force 8 necessary to arrest the defaulter and remove him or her to the 9 place stated in the warrant; and 10 (c) may ask a police officer to help in the exercise of the 11 enforcement officer's powers under the examination hearing 12 warrant; and 13 (d) must, before removing the defaulter, explain to him or her the 14 purpose of the warrant; and 15 (e) must bring the defaulter immediately before the registrar; and 16 (f) if the defaulter is under a legal disability--must tell a parent or 17 guardian of the defaulter about the arrest; and 18 (g) must tell the chief executive of the defaulter's arrest. 19 (3) A police officer asked by an enforcement officer to assist in 20 executing the warrant must give the enforcement officer the 21 reasonable help the enforcement officer requires, if it is practicable 22 to give the help. 23 (4) An examination hearing warrant continues in force until whichever 24 of the following happens first: 25 (a) the warrant is executed; 26 (b) the warrant is set aside by the registrar and the enforcement 27 officer is told that the warrant has been set aside; 28 (c) the end of 3 months after the date the warrant is issued. page 24 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (5) For subsection (4) (a), a warrant is executed when-- 2 (a) the fine defaulter has been brought before the registrar and 3 examined under section 116T; or 4 (b) the examination is adjourned to another day. 5 Division 6A.3.3 Fine enforcement orders--general 6 116W Chief executive may apply for fine enforcement order 7 (1) The chief executive may apply to the Magistrates Court for a fine 8 enforcement order against a fine defaulter. 9 (2) An application by the chief executive under this section must 10 include the following: 11 (a) a statement setting out the grounds of the application including, 12 if the chief executive seeks a particular fine enforcement order, 13 the reasons why the chief executive seeks the order; 14 (b) an affidavit from the chief executive setting out-- 15 (i) details of the offence for which the fine forming the basis 16 of the application was imposed; and 17 (ii) details of the steps taken by the chief executive to tell the 18 fine defaulter about the default; and 19 (iii) if any oral information about the defaulter's financial 20 circumstances was given to the chief executive under an 21 examination notice--the information given; 22 (c) if any documents were produced to the chief executive under 23 an examination notice--the documents; 24 (d) if the defaulter appeared at an examination hearing, the 25 following information: 26 (i) if the defaulter produced any documents--the 27 documents; Crimes (Sentence Administration) Amendment Bill 2010 page 25 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (ii) if the defaulter gave oral evidence--a transcript of the 2 evidence. 3 116X Magistrates court may make fine enforcement order 4 (1) The Magistrates Court may, on application by the chief executive, 5 make a fine enforcement order against a fine defaulter if the court is 6 satisfied that it is in the interests of justice to make the order. 7 (2) A fine enforcement order may contain 1 or more of the following 8 orders: 9 (a) an earnings redirection order; 10 (b) a financial institution deduction order; 11 (c) a property seizure order. 12 (3) In deciding whether it is in the interests of justice to make a fine 13 enforcement order against a fine defaulter the court must have 14 regard to information the court has about any of the following: 15 (a) the defaulter's income; 16 (b) the defaulter's assets; 17 (c) the defaulter's equitable interest in property; 18 (d) any debts payable to the defaulter; 19 (e) any other means the defaulter has of satisfying the outstanding 20 fine; 21 (f) the defaulter's reasonable living expenses, including the 22 reasonable living expenses of anyone dependent on the 23 defaulter; 24 (g) the hardship a fine enforcement order would cause to the 25 defaulter or any other person affected by the order; page 26 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (h) the need to give effect to the considerations of specific and 2 general deterrence that formed part of the decision of the 3 sentencing court that imposed the fine on the defaulter; 4 (i) whether the defaulter has knowingly attempted to misrepresent 5 his or her financial affairs to evade payment of the fine; 6 (j) any other relevant matter. 7 (4) The court may make a fine enforcement order against a fine 8 defaulter in the absence of, and without notice to, the defaulter. 9 Division 6A.3.4 Fine enforcement orders--earnings 10 redirection orders 11 116Y Fine enforcement order--earnings redirection order 12 (1) In this section: 13 earnings, of a fine defaulter, means any of the following that are 14 owing or accruing to the defaulter: 15 (a) wages or salary, including, for example, any allowance, bonus, 16 commission, fee, overtime pay or other amount received under 17 a contract of employment; 18 Note An example is part of the Act, is not exhaustive and may extend, 19 but does not limit, the meaning of the provision in which it 20 appears (see Legislation Act, s 126 and s 132). 21 (b) an amount that, although not payable under a contract of 22 employment, is analogous to or in the nature of wages or 23 salary, including, for example, an amount received under a 24 contract for services; 25 (c) any other amount received, or the value of any benefit gained, 26 as compensation for services or profit arising from a contract 27 of employment, contract for services or position; Crimes (Sentence Administration) Amendment Bill 2010 page 27 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (d) a pension, benefit or similar payment; 2 (e) an annuity; 3 (f) an amount payable instead of leave; 4 (g) retirement benefit. 5 employer, of a fine defaulter, means a person who, as principal, 6 rather than as employee or agent, pays, or is likely to pay, earnings 7 to the defaulter. 8 (2) The court may make an order (an earnings redirection order) 9 directing the employer of a fine defaulter mentioned in the order to 10 deduct an amount from the defaulter's earnings, in the form of a 11 lump sum or instalments, and pay the amount in accordance with the 12 order. 13 (3) For each payday while an earnings redirection order is in force, the 14 employer-- 15 (a) must deduct from the defaulter's earnings the amount stated in 16 the order and pay it to the registrar; and 17 (b) may deduct from the defaulter's earnings a reasonable 18 administration charge and keep it as a contribution towards the 19 administrative cost of making payments under the order; and 20 (c) must give the defaulter a notice detailing the deductions. 21 (4) Any charge deducted by an employer under subsection (3) (b) must 22 not be more than-- 23 (a) if the employer has an amount the employer usually charges 24 employees for making a periodic payment--that amount; or 25 (b) otherwise--an amount that covers the employer's costs and 26 expenses of complying with the order. page 28 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (5) An employer commits an offence if, because of an earnings 2 redirection order against a fine defaulter, the employer does any of 3 the following: 4 (a) dismisses the defaulter; 5 (b) changes the defaulter's position to the defaulter's 6 disadvantage; 7 (c) discriminates against the defaulter. 8 Maximum penalty: 20 penalty units. 9 Division 6A.3.5 Fine enforcement orders--financial 10 institution deduction orders 11 116Z Financial institution deduction order 12 (1) This section applies if-- 13 (a) a fine defaulter has an account with a financial institution; and 14 (b) the account has, or is likely to have, sufficient funds deposited 15 in it to satisfy all or part of the defaulter's outstanding fine. 16 (2) The court may make an order directing the financial institution to 17 deduct an amount, either as a lump sum or in the form of 18 instalments, from the account of the fine defaulter and pay the 19 amount in accordance with the order. 20 (3) An order under this section must state the following: 21 (a) the name of the fine defaulter to whom the order relates; 22 (b) the name of the financial institution; 23 (c) details of the defaulter's account from which deductions under 24 the order must be made; 25 (d) the amount or amounts to be deducted by the institution. Crimes (Sentence Administration) Amendment Bill 2010 page 29 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (4) For each deduction made from the fine defaulter's account under the 2 order, the financial institution-- 3 (a) may deduct from the account a reasonable administration 4 charge and keep it as a contribution towards the administrative 5 cost of making payments under the order; and 6 (b) must give the defaulter notice detailing the deductions. 7 (5) Any charge deducted under subsection (4) (a) must not be more 8 than-- 9 (a) if the financial institution has an amount it usually charges its 10 customers for making a periodic payment--that amount; or 11 (b) otherwise--an amount that covers the financial institution's 12 costs and expenses of complying with the order. 13 (6) In this section: 14 account includes a joint account. 15 Division 6A.3.6 Fine enforcement orders--property 16 seizure orders 17 116ZA Property seizure order 18 The court may make an order for the seizure of the personal 19 property of a fine defaulter (a property seizure order). 20 116ZB Property seizure order--authority to enter premises etc 21 (1) A property seizure order authorises the chief executive to-- 22 (a) enter any premises stated in the order, between 7 am and 6 pm 23 on the same day, using the force that is necessary and 24 reasonable to enter the premises if-- 25 (i) the chief executive has given a person at the premises an 26 opportunity to allow entry and has been refused entry; or page 30 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (ii) there is no one at the premises; and 2 (b) ask a police officer to help the chief executive enter the 3 premises; and 4 (c) seize any personal property found on the premises or in a 5 public place that-- 6 (i) apparently belongs, entirely or partly, to the fine 7 defaulter; and 8 (ii) does not include clothing, bedding or other necessities of 9 life; and 10 (d) seize and remove any documents that may prove the 11 defaulter's title to any personal property; and 12 (e) place and keep any seized personal property or documents in 13 safe custody for 28 days from the day the property was seized 14 before selling the property; and 15 (f) sell as much of the defaulter's personal property as necessary 16 to satisfy the outstanding fine to which the order relates. 17 (2) A police officer asked by the chief executive under 18 subsection (1) (b) to help the chief executive enter the premises-- 19 (a) must give any reasonable help the chief executive requires if it 20 is practicable to give the help; and 21 (b) may use reasonable force against a person as part of giving the 22 help. 23 (3) However, this section does not authorise the chief executive to use 24 force against a person unless it is reasonable and necessary in the 25 interests of a person's safety. Crimes (Sentence Administration) Amendment Bill 2010 page 31 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (4) If the chief executive seizes any property from premises the chief 2 executive must-- 3 (a) make an inventory of the property seized; and 4 (b) in a prominent place on the premises, attach-- 5 (i) a notice explaining that property has been seized from the 6 premises in accordance with an order of the court under 7 section 116ZA; and 8 (ii) a copy of the inventory of property seized; and 9 (iii) a notice setting out a person's rights under section 116ZD 10 to recover the property seized. 11 (5) As far as possible, the chief executive must seize personal property 12 that the chief executive considers-- 13 (a) may be sold promptly and without unnecessary expense to 14 satisfy an outstanding fine; and 15 (b) if sold will not cause undue hardship to the fine defaulter or 16 other people. 17 116ZC Property seizure order--sale of seized property 18 (1) Property seized under a property seizure order must be sold by the 19 chief executive and the proceeds of the sale paid to the registrar. 20 (2) However, seized property may not be sold unless-- 21 (a) the holding period for the property has ended; and 22 (b) if an application under section 116ZD (1) has been made in 23 relation to the property--the chief executive has decided to 24 refuse to return the property to the applicant; and 25 (c) if the chief executive's decision has been appealed under 26 section 116ZD (5)--the appeal has been withdrawn or refused. page 32 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (3) As far as possible, the chief executive must sell personal property-- 2 (a) in the order that the chief executive considers-- 3 (i) is likely to satisfy an outstanding fine promptly and 4 without unnecessary expense; and 5 (ii) minimises undue hardship to the fine defaulter or other 6 people; and 7 (b) at the best price reasonably obtainable, having regard to the 8 circumstances existing when the property is sold. 9 (4) The chief executive may retain part of the proceeds from the sale of 10 personal property under this section to cover the chief executive's 11 reasonable costs of the sale. 12 (5) If property sold under this section results in proceeds that exceed the 13 outstanding fine for which the property was sold, the excess amount 14 must be given to any person who had a legal or equitable interest in 15 the property in proportion to the share of the person's interest. 16 (6) In this section: 17 holding period means 28 days after the day the property was seized 18 by the chief executive. 19 116ZD Property seizure order--restoration application 20 (1) A person may apply to the chief executive in writing for the return 21 of any property seized by the chief executive under a property 22 seizure order. 23 (2) An application under subsection (1) must-- 24 (a) be made within the holding period under section 116ZC for the 25 property to which it relates; and 26 (b) clearly identify the items of property the applicant seeks to 27 have returned (the disputed property); and Crimes (Sentence Administration) Amendment Bill 2010 page 33 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (c) if the applicant is the fine defaulter to whom the seized 2 property relates--state the reasons why a refusal to return the 3 disputed property would cause undue hardship or unfairness to 4 the applicant; and 5 (d) if the applicant is not the fine defaulter--state the following: 6 (i) the reasons why a refusal to return the disputed property 7 would result in undue hardship or unfairness to the 8 applicant; 9 (ii) whether the applicant claims a legal or equitable interest 10 in the disputed property. 11 (3) The chief executive must-- 12 (a) consider an application made under subsection (1); and 13 (b) notify the applicant of the chief executive's decision. 14 (4) In considering whether a refusal to return disputed property to an 15 applicant would result in undue hardship or unfairness to the 16 applicant, the chief executive may take into account the following: 17 (a) the relationship between the applicant and any other person 18 likely to be affected by the loss of the disputed property; 19 (b) if the property can be easily replaced; 20 (c) the value of the property; 21 (d) the applicant's claim over the property; 22 (e) if the applicant was aware of, or party to, the commission of an 23 offence for which a fine was imposed and to which the seizure 24 of the property relates; 25 (f) any other relevant matter. page 34 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (5) If the chief executive refuses the application, the applicant may, 2 within 28 days after the decision, apply to the Magistrates Court for 3 an order for the return of the property. 4 Note If a form is approved under the Court Procedures Act 2004 for this 5 provision, the form must be used (see that Act, s 8 (2)). 6 (6) In considering the application, the Magistrates Court may take into 7 account the matters mentioned in subsection (4). 8 Division 6A.3.7 Voluntary community work orders 9 116ZE Voluntary community work order 10 (1) The chief executive may apply to the Magistrates Court for an order 11 requiring a fine defaulter to perform voluntary community work to 12 discharge an outstanding fine (a voluntary community work order). 13 (2) The court may make a voluntary community work order for a fine 14 defaulter if-- 15 (a) the fine defaulter agrees to undertake voluntary community 16 work under the order; and 17 (b) if the outstanding fine for which the fine defaulter is liable is or 18 includes an amount payable under a reparation order under the 19 Crimes (Sentencing) Act 2005--the entity in whose favour the 20 reparation order was made consents to the reparation order 21 being discharged by a voluntary community work order; and 22 (c) the court is of the opinion that-- 23 (i) it would not be appropriate to make a fine enforcement 24 order; and 25 (ii) the fine defaulter is likely to comply with a voluntary 26 community work order; and 27 (d) the fine defaulter has not been convicted of a personal violence 28 offence. Crimes (Sentence Administration) Amendment Bill 2010 page 35 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (3) The court may inform itself in any way it considers appropriate 2 about a matter mentioned in subsection (2). 3 (4) The order must state the number of hours the fine defaulter must 4 work to discharge the outstanding fine. 5 Note The number of hours is to be worked out at the rate of 1 hour for each 6 $37.50 of the outstanding fine (see s 116ZG). 7 (5) In this section: 8 personal violence offence--see section 216A (5). 9 116ZF Voluntary community work order--administration 10 (1) A voluntary community work order made for a fine defaulter is to 11 be administered by-- 12 (a) the chief executive; or 13 (b) if the chief executive authorises another entity, in writing, to 14 administer the order--the other entity. 15 (2) The entity administering the order must-- 16 (a) decide the kind of work to be performed by the defaulter, in 17 accordance with the defaulter's ability; and 18 (b) decide the hours the defaulter must work (not more than 19 8 hours a day) having regard to the defaulter's family, work 20 and other commitments; and 21 (c) change the arrangements in accordance with any reasonable 22 request of the defaulter. 23 116ZG Voluntary community work order--rate of discharge of 24 outstanding fine 25 A fine defaulter performing work under a voluntary community 26 work order discharges the defaulter's outstanding fine at the rate of 27 $37.50 for each hour of work performed under the order. page 36 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116ZH Voluntary community work order--noncompliance 2 (1) This section applies if-- 3 (a) the entity administering a voluntary community work order 4 believes on reasonable grounds that the fine defaulter has 5 failed to comply with the order; and 6 (b) the defaulter has not asked the entity for an appropriate change 7 in arrangements that would enable the defaulter to comply with 8 the order. 9 (2) The entity must report the failure to the court. 10 (3) If the court is satisfied that the fine defaulter failed to comply with 11 the order, the court may do 1 or more of the following: 12 (a) take no further action; 13 (b) give the defaulter a warning about the need to comply with the 14 order; 15 (c) amend the order; 16 (d) cancel the order. 17 (4) If the court amends or cancels the order, the court must give the fine 18 defaulter written notice of the amendment or cancellation. 19 116ZI Voluntary community work order--certificate of 20 completion 21 If the entity administering a voluntary community work order is 22 satisfied that the fine defaulter has completed the hours of work 23 required to discharge the outstanding fine, the entity must give the 24 court a certificate of completion in relation to the order. Crimes (Sentence Administration) Amendment Bill 2010 page 37 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116ZJ Voluntary community work order--ends if outstanding 2 fine paid 3 If a fine defaulter is subject to a voluntary community work order 4 and an amount is paid to the Territory that completely discharges the 5 outstanding fine, the order ceases to have effect. 6 Division 6A.3.8 Imprisonment 7 116ZK Imprisonment order 8 (1) The Magistrates Court may, on application by the chief executive, 9 order the imprisonment of a fine defaulter if-- 10 (a) the court is satisfied that all appropriate enforcement action has 11 been taken under this chapter to secure payment and there is no 12 real likelihood of the outstanding fine being paid; and 13 (b) the outstanding fine has not been remitted under 14 section 116ZO (Remission of fine by chief executive) or 15 section 313 (Remission of penalties); and 16 (c) if the outstanding fine for which the fine defaulter is liable is or 17 includes an amount payable under a reparation order under the 18 Crimes (Sentencing) Act 2005--the entity in whose favour the 19 reparation order was made consents to the reparation order 20 being discharged by imprisonment. 21 Note If the court makes an imprisonment order, it must issue a warrant for the 22 imprisonment of the person in the chief executive's custody (see s 12). 23 (2) The order, or any warrant under section 12, must not be given effect 24 if the amount of the outstanding fine is paid to the Territory before 25 the fine defaulter is imprisoned. page 38 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (3) The period for which the fine defaulter must be committed (the 2 imprisonment period) is the lesser of-- 3 (a) the period worked out at the rate of 1 day for each $300, or part 4 of $300, of the outstanding fine; and 5 (b) 6 months. 6 (4) However, for a young fine defaulter, the imprisonment period is the 7 lesser of-- 8 (a) the period worked out at the rate of 1 day for each $500, or part 9 of $500, of the outstanding fine; and 10 (b) 7 days. 11 116ZL Imprisonment--periodic detention 12 (1) The court may, in an imprisonment order made under 13 section 116ZK, set all or part of the imprisonment period to be 14 served by periodic detention. 15 (2) However, the court must not set a periodic detention period for the 16 fine defaulter unless satisfied that-- 17 (a) periodic detention is suitable for the defaulter; and 18 (b) it is appropriate for the defaulter to serve all or part of the 19 imprisonment period by periodic detention; and 20 (c) there are appropriate facilities available at a correctional centre 21 for the defaulter to serve any period of periodic detention set 22 by the court; and 23 (d) the offender has signed an undertaking to comply with the 24 defaulter's periodic detention obligations (see section 42). Crimes (Sentence Administration) Amendment Bill 2010 page 39 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (3) In deciding whether periodic detention is suitable for the fine 2 defaulter, the court must consider-- 3 (a) a report prepared by the chief executive that addresses the 4 matters mentioned in the Crimes (Sentencing) Act 2005, 5 table 79 (Assessment of suitability--periodic detention); and 6 (b) any evidence given by the person who prepared the report; and 7 (c) any medical report about the defaulter. 8 (4) Subsection (3) does not limit the matters the court may consider. 9 (5) The court must not set a periodic detention period for a young fine 10 defaulter unless the periodic detention is served when the young fine 11 defaulter is an adult. 12 (6) When setting a periodic detention period for a fine defaulter, the 13 court must state-- 14 (a) when the periodic detention period starts and ends; and 15 (b) the day the first detention period for the defaulter is to start. 16 (7) Chapter 5 (Periodic detention) applies, with any necessary changes 17 and any changes prescribed by regulation, to a fine defaulter for 18 whom the court sets a periodic detention period under this section. 19 116ZM Imprisonment--rate of discharge of outstanding fine 20 (1) A fine defaulter imprisoned for a period under section 116ZK (3), 21 discharges the outstanding fine-- 22 (a) if the defaulter is committed for less than 6 months--at the rate 23 of $300 for each day or part of a day for which the defaulter is 24 imprisoned; or 25 (b) if the defaulter is committed for 6 months--at the end of the 26 6-month period. page 40 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (2) A fine defaulter imprisoned for a period under section 116ZK (4), 2 discharges the outstanding fine-- 3 (a) if the defaulter is committed for less than 7 days--at the rate of 4 $500 for each day or part of a day for which the defaulter is 5 imprisoned; or 6 (b) if the defaulter is committed for 7 days--at the end of the 7 7-day period. 8 (3) A fine defaulter imprisoned for a periodic detention period 9 discharges the outstanding fine at the rate of $12.50 for each hour or 10 part of an hour for which the defaulter is in periodic detention. 11 (4) However, a young fine defaulter imprisoned for a periodic detention 12 period discharges the outstanding fine at the rate of $20 for each 13 hour or part of an hour for which the defaulter is in periodic 14 detention. 15 116ZN Imprisonment--release if outstanding fine paid 16 (1) This section applies if-- 17 (a) a person is imprisoned under section 116ZK; and 18 (b) an amount is paid to the Territory that completely discharges 19 the outstanding fine. 20 (2) The chief executive must release the person from imprisonment 21 immediately unless the person must otherwise be lawfully detained. Crimes (Sentence Administration) Amendment Bill 2010 page 41 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Part 6A.4 Miscellaneous 2 116ZO Remission of fine by chief executive 3 (1) The chief executive may, in writing, remit all or part of an 4 outstanding fine that a fine defaulter is liable to pay if the chief 5 executive is satisfied on reasonable grounds that-- 6 (a) a fine enforcement order would not be effective to secure 7 payment or is not otherwise appropriate; and 8 (b) a voluntary community work order is not possible or 9 appropriate; and 10 (c) it is appropriate in all the circumstances to remit the fine. 11 (2) In deciding whether to remit a fine, the chief executive-- 12 (a) must consider the following: 13 (i) any information the chief executive has about the fine 14 defaulter's financial and personal circumstances; 15 (ii) the offence for which the fine was imposed; 16 (iii) the amount of the fine; 17 (iv) whether the defaulter has any other outstanding fines; 18 (v) anything the defaulter has done to frustrate, render 19 impracticable or evade the making or effect of a fine 20 enforcement order or voluntary community work order; 21 and 22 (b) may consider anything else the chief executive considers on 23 reasonable grounds is relevant. 24 Note A fine may also be remitted by the Executive under s 313. Also, this 25 Act does not affect the prerogative of mercy (see s 314A). page 42 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116ZP Time served in custody to count 2 (1) If a fine defaulter is imprisoned other than under an order under 3 section 116ZK, the time served is to count toward reducing the 4 amount of any outstanding fines (the outstanding liability) for 5 which the defaulter is liable. 6 (2) If the defaulter has more than 1 outstanding fine, the defaulter's 7 outstanding liability is the aggregate amount of the defaulter's 8 outstanding fines. 9 (3) The defaulter's outstanding liability is reduced at the rate of $300 10 for each day or part of a day for which the defaulter is imprisoned. 11 (4) However, a young fine defaulter's outstanding liability is reduced at 12 the rate of $500 for each day or part of a day for which the defaulter 13 is imprisoned. 14 116ZQ Reparation order agreements 15 (1) An entity (other than the Territory) in whose favour a reparation 16 order was made may make an agreement with the chief executive 17 for the reparation order to be enforceable under this chapter as a 18 fine. 19 (2) A reparation order agreement must be in writing. 20 (3) If a reparation order agreement with an entity is in force, any 21 amount received by the chief executive that is to be applied in 22 payment of a reparation order covered by the agreement must-- 23 (a) be paid to the entity; or 24 (b) otherwise dealt with in accordance with the agreement or any 25 later written direction of the entity. Crimes (Sentence Administration) Amendment Bill 2010 page 43 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116ZR Apportionment of fine amounts 2 Amounts received in payment of an unpaid amount of a fine must be 3 applied towards satisfying the unpaid amount in the following order: 4 (a) an amount payable under a reparation order under the Crimes 5 (Sentencing) Act 2005 to a person in relation to whom a 6 reparation order agreement mentioned in section 116ZQ is in 7 force; 8 (b) an amount payable under a reparation order under the Crimes 9 (Sentencing) Act 2005 to the Territory; 10 (c) a levy imposed under the Victims of Crime (Financial 11 Assistance) Act 1983; 12 (d) a victims services levy imposed under the Victims of Crime 13 Act 1994; 14 (e) a fine payable under a fine order under the Crimes (Sentencing) 15 Act 2005; 16 (f) a financial penalty imposed, other than under the Crimes 17 (Sentencing) Act 2005, in relation to an offence; 18 (g) a fee or charge payable to the Territory that is imposed by a 19 court in a proceeding for an offence; 20 (h) costs payable to the Territory under a court order in a 21 proceeding for an offence. 22 116ZS Conviction or order quashed or set aside 23 If the conviction or order that gave rise to a person's liability to pay 24 a fine is quashed or set aside, the registrar must, in addition to 25 notifying the road transport authority and relevant credit reporting 26 agency under part 6A.3 refund to the person any amount (including 27 any administrative fee) paid in relation to the fine. page 44 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 116ZT Sharing information 2 A person exercising a function under this chapter may give to 3 another person exercising a function under this chapter information 4 the other person needs for the exercise of the other person's 5 functions under this chapter. 6 Example 7 registrar giving chief executive details of fine defaulter's address 8 Note An example is part of the Act, is not exhaustive and may extend, but 9 does not limit, the meaning of the provision in which it appears (see 10 Legislation Act, s 126 and s 132). 11 116ZU Orders may be made on conditions 12 Subject to this chapter, the court may make an order under this 13 chapter on any conditions it considers appropriate. 14 7 New chapter 19 15 insert 16 Chapter 19 Transitional--Crimes 17 (Sentence Administration) 18 Amendment Act 2010 19 800 Application of amendments 20 The amendments made by the Crimes (Sentence Administration) 21 Amendment Act 2010 apply in relation to all court imposed fines, 22 whether imposed before or after the commencement of that Act. 23 801 Transitional regulations 24 (1) A regulation may prescribe transitional matters necessary or 25 convenient to be prescribed because of the enactment of the Crimes 26 (Sentence Administration) Amendment Act 2010. Crimes (Sentence Administration) Amendment Bill 2010 page 45 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (2) A regulation may modify this chapter (including in relation to 2 another territory law) to make provision for anything that, in the 3 Executive's opinion is not, or is not adequately or appropriately, 4 dealt with in this chapter. 5 (3) A regulation under subsection (2) has effect despite anything else in 6 this Act or another territory law. 7 802 Expiry--ch 19 8 This chapter expires 2 years after the day it commences. page 46 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Bail Act 1992 Part 1.1 Amendment [1.1] 1 Schedule 1 Consequential amendments 2 (see s 3) 3 Part 1.1 Bail Act 1992 4 [1.1] Section 37 (5) 5 substitute 6 (5) If, after the end of 28 days after the day the notice is given, the 7 amount has not been paid the amount may be recovered under the 8 Crimes (Sentence Administration) Act 2005, chapter 6A (Court 9 imposed fines) as if it were a fine within the meaning of that 10 chapter. 11 [1.2] Section 37 (6) 12 omit 13 Subsection (4) 14 substitute 15 Subsection (5) 16 Part 1.2 Court Procedures Act 2004 17 [1.3] Section 12, definition of relevant legislation, new 18 paragraph (ca) 19 insert 20 (ca) the Crimes (Sentence Administration) Act 2005; Crimes (Sentence Administration) Amendment Bill 2010 page 47 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.3 Court Procedures Rules 2006 Amendment [1.4] 1 Part 1.3 Court Procedures Rules 2006 2 [1.4] Division 4.2.4 3 omit 4 Part 1.4 Crimes (Sentencing) Act 2005 5 [1.5] New section 14 (5A) 6 after the notes, insert 7 (5A) If the Magistrates Court imposes a fine on an offender for an 8 offence and the summons for the offence was served in accordance 9 with the Magistrates Court Act 1930, section 116B (Service of 10 summons for prescribed offence), the court must allow the offender 11 at least 14 days for payment. 12 [1.6] New section 15A 13 insert 14 15A Fines--security for payment 15 (1) If a court makes a fine order, the court may, in addition to allowing 16 time for payment of an amount under the order, direct that the 17 offender liable to pay the amount give security, to the satisfaction of 18 the person specified by the court, with or without sureties, for 19 payment of the amount. 20 (2) The security must be given, and may be enforced, in the way 21 provided by the Magistrates Court Act 1930, part 3.12 (Securities in 22 criminal matters). 23 [1.7] Section 69, definition of fine 24 substitute 25 fine--see the Crimes (Sentence Administration) Act 2005, 26 section 116A. page 48 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Crimes (Sentencing) Regulation 2006 Part 1.5 Amendment [1.8] 1 Part 1.5 Crimes (Sentencing) Regulation 2 2006 3 [1.8] New section 3 (e) 4 insert 5 (e) Volunteering ACT, incorporated under the Associations 6 Incorporation Act 1991, certificate of incorporation 7 number A01640. 8 Part 1.6 Magistrates Court Act 1930 9 [1.9] Section 116I, new note 10 insert 11 Note If the defendant is liable to pay a fine, the notice must contain a penalty 12 notice for the fine (see Crimes (Sentence Administration) Act 2005, 13 s 116C (Registrar to send penalty notice)). 14 [1.10] Section 141 (1), new note 2 15 insert 16 Note 2 If the defendant is liable to pay a fine, the notice must contain a penalty 17 notice for the fine (see Crimes (Sentence Administration) Act 2005, 18 s 116C (Registrar to send penalty notice)). 19 [1.11] Division 3.9.2 20 omit Crimes (Sentence Administration) Amendment Bill 2010 page 49 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.6 Magistrates Court Act 1930 Amendment [1.12] 1 [1.12] New section 248 2 in part 3.12, insert 3 248 Meaning of security--pt 3.12 4 In this part: 5 security means a security under the Crimes (Sentencing) Act 2005, 6 section 15A (Fines--security for payment). 7 [1.13] Sections 249 to 253 8 omit 9 under this Act (other than chapter 4 (Civil proceedings)) 10 [1.14] Dictionary, definition of default notice 11 omit 12 [1.15] Dictionary, definition of fine 13 substitute 14 fine, for division 3.9.3 (Reciprocal enforcement of fines against 15 bodies corporate)--see section 166A. 16 [1.16] Dictionary, definitions of fine defaulter, government 17 agency, outstanding fine and penalty notice 18 omit 19 [1.17] Dictionary, new definition of security 20 insert 21 security--for part 3.12 (Securities in criminal matters)--see 22 section 248. 23 [1.18] Dictionary, definition of territory entity 24 omit page 50 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Road Transport (Driver Licensing) Act 1999 Part 1.7 Amendment [1.19] 1 Part 1.7 Road Transport (Driver 2 Licensing) Act 1999 3 [1.19] Section 37 (1) (d) 4 substitute 5 (d) to a court officer for the recovery of a fine (including 6 proceedings under the Crimes (Sentence Administration) 7 Act 2005, chapter 6A (Court imposed fines); or 8 [1.20] Section 37 (3), definition of fine 9 substitute 10 fine--see the Crimes (Sentence Administration) Act 2005, 11 section 116A. 12 Part 1.8 Road Transport (General) Act 13 1999 14 [1.21] Section 84 15 omit 16 Magistrates Court Act 1930, section 153 (1) 17 substitute 18 Crimes (Sentence Administration) Act 2005, section 116N (1) 19 [1.22] Section 86 (1) (a) 20 omit 21 Magistrates Court Act 1930, section 153 (2) 22 substitute 23 Crimes (Sentence Administration) Act 2005, section 116N (2) Crimes (Sentence Administration) Amendment Bill 2010 page 51 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.9 Supreme Court Act 1933 Amendment [1.23] 1 [1.23] Section 86 (1) (b) 2 omit 3 Magistrates Court Act 1930, section 153 (3) 4 substitute 5 Crimes (Sentence Administration) Act 2005, section 116N (3) 6 Part 1.9 Supreme Court Act 1933 7 [1.24] Section 49A 8 omit 9 Part 1.10 Victims of Crime Act 1994 10 [1.25] Section 24 (2), note 11 substitute 12 Note The victims services levy is recoverable under the Crimes (Sentence 13 Administration) Act 2005, ch 6A (Court imposed fines). page 52 Crimes (Sentence Administration) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Presentation speech Presentation speech made in the Legislative Assembly on 2010. 2 Notification Notified under the Legislation Act on 2010. 3 Republications of amended laws For the latest republication of amended laws, see www.legislation.act.gov.au. © Australian Capital Territory 2010 Crimes (Sentence Administration) Amendment Bill 2010 page 53 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au