FINES REFORM AMENDMENT ACT 2017 (NO. 59 OF 2017) - SECT 5 New Part 2B inserted

FINES REFORM AMENDMENT ACT 2017 (NO. 59 OF 2017) - SECT 5

After Part 2A of the Fines Reform Act 2014 insert —

" Part 2B—Family violence scheme

Division 1—Family violence scheme applications

        10M     FVS application

    (1)     A natural person may apply to the Director for a determination that the person is an FVS eligible person for the purposes of the family violence scheme.

    (2)     An FVS application may be made by a person acting on behalf of the FVS applicant.

    (3)     This section does not apply to a person who applies for enforcement review under section 32 if the enforcement review application is made, and not withdrawn, on the basis of family violence (the person is a victim of family violence and the family violence results in the person being unable to control conduct which constitutes an offence).

Note

See paragraph (d) of the definition of special circumstances .

        10N     Form of FVS application

An FVS application must—

        (a)     be in writing; and

        (b)     state the grounds on which the application is made; and

        (c)     provide the FVS applicant's address for service; and

        (d)     refer to the infringement fine to which the application relates; and

        (e)     include any other prescribed information.

        10O     FVS application to be made before certain enforcement related events

An FVS application must be made before any of the following occur in respect of the infringement offence referred to in the application—

        (a)     a seven-day notice has expired;

        (b)     an attachment of earnings direction or an attachment of debts direction has been made;

        (c)     a land charge has been recorded;

        (d)     property has been seized under a vehicle seizure and sale notice;

        (e)     the infringement fine has been paid.

        10P     Additional eligible infringement offence during FVS application

    (1)     If an FVS applicant receives an infringement notice for an FVS eligible offence that was committed after an FVS application is made, but before the determination of the FVS application, the FVS applicant may request that the Director add the offence to the FVS application.

    (2)     A request under subsection (1) must contain sufficient information to identify the FVS eligible offence that is to be added to the FVS application.

        10Q     Request for additional information

    (1)     The Director by written request may request an FVS applicant to provide any additional information the Director requires to determine the FVS application.

    (2)     The FVS applicant—

        (a)     must provide the additional information requested by the Director under subsection (1) within 14 days of service of the request; or

        (b)     may request, in writing, an extension of time to provide the additional information, if additional time is required.

    (3)     If an FVS applicant requests additional time under subsection (2)(b), the Director may—

        (a)     grant an extension of time not exceeding 3 months from the service of the original request for that information to be provided; or

        (b)     refuse to extend the time for the provision of the additional information.

    (4)     If the Director grants an extension of time under subsection (3)(a), the Director must inform the FVS applicant, in writing, of the period of the extension.

    (5)     If an FVS applicant fails to provide the information requested under subsection (1) to the Director within the time required (including any extended period), the Director—

        (a)     may determine the FVS application without the additional information; or

        (b)     if the FVS applicant provides the additional information to the Director out of time, the Director may—

              (i)     accept that late information; and

              (ii)     determine the FVS application with that late information.

        10R     Verification of information supplied in FVS application

    (1)     The Director may specify how any information supplied to it in an FVS application is to be verified.

    (2)     Without limiting subsection (1), the Director may require that information be supplied in the form of, or be verified by, a statutory declaration.

        10S     Suspension of enforcement action for infringement offence the subject of FVS application

    (1)     If an FVS application is made, the Director must direct an enforcement agency to suspend any enforcement action under this Act against the FVS applicant in respect of each FVS eligible offence referred to in the FVS application.

    (2)     A direction under subsection (1) must—

        (a)     include notice of—

              (i)     the FVS application; and

              (ii)     the suspension of enforcement action; and

        (b)     specify that enforcement action against the FVS applicant is suspended for the period specified in the direction.

    (3)     The suspension of enforcement action under subsection (1) begins from the time that the FVS application is made and ends on the later of—

        (a)     in the case of the Director having determined that the FVS applicant is not an FVS eligible person, the date of that determination; or

        (b)     in the case of the Director having determined that the FVS applicant is an FVS eligible person, the date of withdrawal of the infringement notice for the FVS eligible offence under section 10U(2)(a).

    (4)     Enforcement action for an infringement offence committed by an FVS applicant after an FVS application is made is not suspended, unless—

        (a)     the infringement offence is added to the application pursuant to a request under section 10P(1) and the enforcement agency is given notice of the FVS application; or

        (b)     the FVS applicant makes another FVS application that includes the infringement offence and an enforcement agency is given notice of the other FVS application.

Division 2—Determination of FVS application

        10T     Determination of FVS eligible person

    (1)     The Director may determine that an FVS applicant is an FVS eligible person in respect of an FVS eligible offence if the Director is satisfied that—

        (a)     the FVS applicant was served with an infringement notice in relation to the FVS eligible offence; and

        (b)     the FVS applicant is a victim of family violence; and

        (c)     either—

              (i)     the family violence substantially contributed to the FVS applicant being unable to control the conduct that constituted the FVS eligible offence; or

              (ii)     in the case of an FVS eligible offence that is an operator onus offence within the meaning of Part 6AA of the Road Safety Act 1986 —

    (A)     the FVS applicant was the registered operator of the vehicle at the time of the offence but was not the driver at the time of the offence; and

    (B)     the family violence substantially contributed to the FVS applicant being unable to make a known user statement (within the meaning of Part 6AA of the Road Safety Act 1986 ) in relation to the offence.

    (2)     The Director must determine that an FVS applicant is not an FVS eligible person in respect of the relevant FVS eligible offence if the Director is satisfied that the criteria in subsection (1) are not met.

    (3)     The Director must serve written notice on the FVS applicant of the determination that—

        (a)     the FVS applicant is an FVS eligible person in respect of the relevant FVS eligible offence; or

        (b)     the FVS applicant is not an FVS eligible person in respect of the relevant FVS eligible offence.

    (4)     A determination by the Director under this Part in relation to a person's experience of family violence is not a matter to be taken into account for the purpose of determining the guilt or liability of a person for an offence in any proceeding.

Division 3—FVS eligible persons

        10U     Cancellation, waiver and withdrawal of FVS eligible offence in respect of FVS eligible person

    (1)     Within 21 days of determining that an FVS applicant is an FVS eligible person, the Director must—

        (a)     cancel the registration of each infringement penalty as an infringement fine and cease any enforcement action in respect of the FVS eligible offence; and

        (b)     waive any additional fees and costs that have been added to the infringement penalty under this Act, the  Infringements Act 2006 , or regulations made under those Acts; and

        (c)     direct the enforcement agency to—

              (i)     withdraw the infringement notice for the FVS eligible offence by issuing a withdrawal notice that complies with section 19(a) and (b)(iii) of the Infringements Act 2006 ; and

              (ii)     take no further action in relation to the FVS eligible offence.

    (2)     An enforcement agency that receives a direction under subsection (1)(c) must—

        (a)     withdraw the infringement notice within 28 days of receiving the direction; and

        (b)     notify the Director and the FVS eligible person of the withdrawal of the infringement notice.

    (3)     Subsection (1) does not apply to an FVS eligible offence to which section 10V applies.

        10V     Suspension of enforcement of operator onus offence in relation to FVS eligible person

    (1)     This section applies if—    

        (a)     an FVS eligible offence is an operator onus offence for the purposes of Part 6AA of the Road Safety Act 1986 ; and

        (b)     the FVS eligible person was—

              (i)     the operator (within the meaning of Part 6AA of the Road Safety Act 1986 ) of a motor vehicle; and

              (ii)     not the driver, or in possession or control of that motor vehicle at the time of the offence.

    (2)     Within 21 days of receiving notice from the Director that the FVS applicant is an FVS eligible person, the FVS eligible person may make a written request to the Director for the suspension of enforcement action of an FVS eligible offence to which this section applies.

    (3)     If the Director receives a written request referred to in subsection (2), the Director may suspend any enforcement action that may be taken under this Act and the Infringements Act 2006 against the FVS eligible person in respect of the FVS eligible offence for a period not exceeding 6 months.

    (4)     If the Director suspends enforcement action under subsection (3), the Director may direct that an enforcement agency is to take no enforcement action in respect of the FVS eligible offence during the enforcement suspension period.

    (5)     If the Director suspends enforcement action under subsection (3) and the FVS eligible person makes an effective known user statement (within the meaning of Part 6AA of the Road Safety Act 1986 ), the suspension of enforcement ends.

    (6)     If an effective known user statement referred to in subsection (5) is cancelled under section 84BF of the Road Safety Act 1986 , the Director may refer the FVS eligible offence to the enforcement agency, who may take any action referred to in section 38(1)(a) with respect to the FVS eligible offence.

    (7)     In the circumstances referred to in subsection (8), the Director must—

        (a)     cancel the registration of each infringement penalty as an infringement fine and cease any enforcement action, in respect of the FVS eligible offence; and

        (b)     waive any additional fees and costs that have been added to the infringement penalty under this Act, the  Infringements Act 2006 , or regulations made under those Acts; and

        (c)     direct the enforcement agency to—

              (i)     withdraw the infringement notice for the FVS eligible offence by issuing a withdrawal notice that complies with section 19(a) and (b)(iii) of the Infringements Act 2006 ; and

              (ii)     take no further action in relation to the FVS eligible offence; and

        (d)     notify the FVS eligible person of any action the Director takes under this subsection.

    (8)     For the purposes of subsection (7), the specified circumstances are—

        (a)     the Director has not received a written request from the FVS eligible person referred to in subsection (2); or

        (b)     a written request referred to in subsection (2) has been made and no effective known user statement has been made by the FVS eligible person by the end of the period of enforcement suspension referred to in subsection (3).

    (9)     An enforcement agency that receives a direction under subsection (7)(c) must—

        (a)     withdraw the infringement notice within 28 days of receiving the direction; and

        (b)     notify the Director and the FVS eligible person of the withdrawal of the infringement notice.

Division 4—FVS ineligible persons

        10W     FVS applicant ineligible for family violence scheme

    (1)     If the Director determines that an FVS applicant is not an FVS eligible person in respect of an FVS eligible offence, the Director must give written notice of the determination within 21 days of its making to the enforcement agency.

    (2)     Within 21 days of the Director notifying an FVS applicant that the FVS applicant is not an FVS eligible person, the person liable to pay the fine referred to in the FVS application must—

        (a)     pay the fine, and subject to subsection (3), any related fees; or

        (b)     take any other action in relation to the fine which the person may take under this Act or the Infringements Act 2006 .

    (3)     For the purpose of subsection (2)(a), a person is not liable for any fees related to any fine which is the subject of an FVS application which accrue while the FVS application is being determined.

    (4)     If the Director determines that an FVS applicant is not an FVS eligible person in respect of the relevant FVS eligible offence under section 10T, an enforcement agency may immediately resume enforcement action in relation to the infringement offence.

    (5)     If an enforcement agency which receives notice under subsection (1) commences a proceeding for the alleged offence, the period during which a proceeding for that alleged offence may be commenced is extended by 6 months after the date of notice.

    (6)     Subsection (5) has effect despite section 7(1) of the Criminal Procedure Act 2009 or any other provision of any Act or other instrument providing for the period during which any proceeding must be commenced for an offence alleged to have been committed.

Division 5—Referral of infringement offence to enforcement agency

        10X     Director may refer infringement offence in FVS application to enforcement agency

    (1)     This section applies whether or not a person is an FVS eligible person.

    (2)     Despite anything to the contrary in this Part, the Director may cancel the enforcement of an infringement offence included in an FVS application and refer the matter back to the enforcement agency.

    (3)     In determining whether an infringement offence is to be referred back to the enforcement agency under subsection (2), the Director must consider the following—

        (a)     the number, frequency and nature of the FVS applicant's offences;

        (b)     whether, in relation to each offence—

              (i)     family violence substantially contributed to the FVS applicant being unable to control the conduct that constitutes the offence; or

              (ii)     the offence was an operator onus offence for the purposes of Part 6AA of the Road Safety Act   1986 and the person was the registered operator of the vehicle but was not the driver at the time of the offence;

        (c)     other FVS applications the FVS applicant has previously made.

    (4)     In determining whether an infringement offence is to be referred back to the enforcement agency under subsection (2), the Director may consider any other matter the Director considers relevant.

        10Y     Enforcement agency may prosecute or withdraw infringement notice

    (1)     An enforcement agency to which the Director refers an infringement offence under section 10X(2) may—

        (a)     withdraw the infringement notice by issuing a withdrawal notice under section 19 of the Infringements Act 2006 and—

              (i)     take no further action against the person; or

              (ii)     issue an official warning to the person; or

        (b)     file a charge-sheet charging the offence alleged to have been committed.

    (2)     If an enforcement agency to which the Director refers an infringement offence under section 10X(2) commences a proceeding for the alleged offence by filing a charge-sheet under subsection (1)(b), the period during which a proceeding for that alleged offence may be commenced is extended by 6 months after the date that the Director refers the infringement offence to the enforcement agency.

    (3)     Subsection (2) has effect despite section 7(1) of the Criminal Procedure Act 2009 or any other provision of any Act or other instrument providing for the period during which any proceeding must be commenced for an offence alleged to have been committed.

Division 6—Review of family violence scheme

        10Z     Review of FVS

    (1)     The Minister must cause a review of the operation of the family violence scheme in this Part to be undertaken.

    (2)     The review must commence no later than 2 years after the commencement of the operation of the family violence scheme.

    (3)     The review must review the operation of the family violence scheme in accordance with terms of reference determined by the Minister, including the potential impact on road safety.

    (4)     The person appointed by the Minister to conduct the review must provide a written report to the Minister.".