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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
The Bill repeals existing statutory provisions relating to the imposition and
enforcement of fines (including those relating to penalty notices) that are
contained in various Acts and consolidates those provisions, with the
modifications required by the new enforcement procedures, in a new Act.
The Bill also applies the new enforcement procedures to forfeited monetary
bail and recognizances.
The main features of the new procedures for the enforcement of fines are as
follows:
(a)
A State Debt Recovery Office is established to take charge of
manage the new fine enforcement procedures.
(b)
The new procedures are applied to fines imposed by any court for any
offence and to fines payable under penalty notices for any offence.
Fines are to be referred to the State Debt Recovery Office for
enforcement action if they are not paid by their due date. The fine
defaulter is notified by that Office of the enforcement action that will
be taken if the fine is not paid.
If the fine is not paid, the Roads and Traffic Authority will suspend or
cancel any driver's licence or vehicle registration of the fine defaulter
(for both traffic and other offences).
If enforcement action cannot be taken by the Roads and Traffic
Authority or it is unsuccessful, the State Debt Recovery Office will
authorise civil enforcement of the fine (including the seizure of the fine
defaulter's property by the Sheriff).
If civil enforcement action is not or is unlikely to be successful, a
community service order will be served on the fine defaulter.
If the fine defaulter does not comply with the community service order,
a warrant will be issued (except in the case of children) for the
imprisonment of the fine defaulter, either full-time or by way of
periodic detention.
The new procedures will be applied to existing fines but an amnesty
period will be provided to enable fine defaulters to pay their fines
before the new procedures are applied.
Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 defines words and expressions used in the proposed Act.
Clause 4 defines fine so as to include a monetary penalty imposed by a
court for an offence or an amount payable under a penalty notice following
an order of the State Debt Recovery Office for its enforcement. Fine does not
include costs or any monetary forfeiture or compensation awarded by a court
in criminal proceedings (which may be enforced under the proposed Act as a
civil debt).
Explanatory note page 2
Part 2
Fines imposed by courts
This Part (clauses 5-18) deals with the procedure for payment of court fines
and related matters.
Means to pay fine. A court is required to have regard to the means of
the accused when it fixes the amount of a fine.
Payment details. A fine imposed by a court is payable within 28 days
after it is imposed.
Notification of fine. The person on whom the fine is imposed is to be
notified of the fine, the arrangements for payment and the action that
may be taken under the proposed Act to enforce the fine.
Time to pay. A court registrar may allow further time to pay the fine
on the application of the person.
Enforcement order. If payment of the fine is not made by the due
date, a court fine enforcement order may be made against the person
by the State Debt Recovery Office. If the person does not pay the
amount (including enforcement costs) within 28 days, enforcement
action authorised by the proposed Act may be taken (see Part 4).
Withdrawal of enforcement order. A court fine enforcement order
may be withdrawn if an error has been made.
Part 3
Penalty notices
This Part (clauses 19-56) deals with penalty notice procedures and related
matters. The procedure is as follows:
(a)
Breach of statutory provision. A person is alleged to have committed
an offence under a statutory provision for which a penalty notice may
be issued (see Division 2 and Schedule 1).
(b)
Issue of penalty notice. A penalty notice is issued under the relevant
statutory provision. The notice requires payment of a specified
monetary penalty, unless the person alleged to have committed the
offence elects to have the matter dealt with by a court (see Division 2
and Schedule 1).
(c)
Penalty reminder notice. If the penalty is not paid, a penalty reminder
notice is issued. The person who is alleged to have committed the
offence may elect to have the matter dealt with by a court (see
Division 3).
Explanatory note page 3
(d)
Enforcement order. If payment of the specified monetary penalty is
not made and the person does not elect to have the matter dealt with by
a court, a penalty notice enforcement order may be made against the
person (see Division 4). If the person does not pay the amount
(including enforcement costs) within 28 days, enforcement action
authorised by this Act may be taken in the same way as action may be
taken for the enforcement of a fine imposed on a person after a court
hearing for the offence (see Part 4).
(e)
Withdrawal of enforcement order. A penalty notice enforcement
order may be withdrawn if an error has been made (see Division 4).
( f )
Annulment of enforcement order. A penalty notice enforcement
order may, on application, be annulled by the State Debt Recovery
Office or, if the Office refuses the application, by a Local Court. If the
order is annulled, the alleged offence may be heard and determined by
the Local Court (see Division 5).
Part 4
Fine enforcement action
This Part (clauses 57-104) deals with the action to be taken for the
enforcement of fines. The procedure is as follows:
Service of fine enforcement order. Notice of the fine enforcement
order is served on the fine defaulter and the fine defaulter is notified
that if payment is not made enforcement action will be taken.
Driver's licence or vehicle registration suspension or cancellation.
If the fine is not paid within the period specified, the Roads and Traffic
Authority suspends any driver's licence, and may cancel any vehicle
registration, of the fine defaulter. If the driver's licence of the fine
defaulter is suspended and the fine remains unpaid for 6 months, the
Roads and Traffic Authority cancels that driver's licence.
Civil enforcement. If the fine defaulter does not have a driver's
licence or a registered vehicle or the fine remains unpaid after 6
months, civil action is taken to enforce the fine, namely, a property
seizure order, a garnishee order or the registration of a charge on land
owned by the fine defaulter.
Community service order. If civil enforcement action is not
successful, a community service order is served on the fine defaulter.
Explanatory note page 4
(e)
Imprisonment if failure to comply with community service order. If
the fine defaulter does not comply with the community service order, a
warrant of commitment is issued to a police officer for the
imprisonment of the fine defaulter (except in the case of children). The
fine defaulter may apply to serve that period of imprisonment by way
of periodic detention.
(f)
Fines payable by corporations. The procedures for fine enforcement
(other than community service orders and imprisonment) apply to fines
payable by corporations.
Part 5
Reciprocal enforcement of fines against bodies
corporate
This Part (clauses 105-108) transfers from the Criminal Procedure Act 1984
uniform State and Territory provisions relating to the reciprocal enforcement
of fines imposed on bodies corporate.
Part 6
Civil enforcement--costs and other payments
This Part (clauses 109 and 110) deals with the enforcement of costs,
forfeiture, compensation and similar orders in connection with criminal
proceedings. It applies the same enforcement procedures as those that apply
to the enforcement of judgment debts in civil proceedings.
Part 7
Enforcement of monetary bail or recognizances
This Part (clauses 111 and 112) deals with the forfeiture of bail and
recognizances. It applies the enforcement procedures for fines to the
enforcement of forfeited monetary bail and recognizances.
Part 8
State Debt Recovery Office
This Part (clauses 113-118) deals with the establishment, functions and
management of the State Debt Recovery Office. The Office is established as a
corporation under the control of a Director. In addition to its functions in
connection with the management of the new fine enforcement procedures, the
Office has functions in connection with the collection of other Crown debts.
Police officers and government agencies and utilities will be required to
provide the office with available information about the criminal record,
address or assets of a fine defaulter for the purposes of fine enforcement.
Explanatory note page 5
Part 9
Miscellaneous
This Part (clauses 119-132) contains miscellaneous provisions, including:
(a)
the issue of guidelines by the Minister on the exercise of the functions
of the State Debt Recovery Office and other bodies and officials under
the proposed Act (clause 120),
(b) the requirement that fines be paid into the Consolidated Fund unless
another Act otherwise provides (clause 121),
(c)
the power of a court to direct that a portion of a fine (not exceeding
one-half) be paid to the prosecutor (clause 122),
(d) the continuation of the power of the Governor to remit fines (clause
123),
(e) the repeal of legislation being replaced by the proposed Act (clause
129),
(f)
the consequential amendment of other Acts (clause 130 and
Schedule 2).
Schedules
Schedule 1 lists the statutory provisions under which penalty notices are
issued.
Schedule 2 contains consequential amendments to other Acts.
Schedule 3 contains savings, transitional and other provisions. The Schedule
provides that the new procedures for fine enforcement apply to existing fines
but provides an amnesty period to enable fine defaulters to pay their fines
before the new procedures are applied.
Explanatory note page 6