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2010
LEGISLATIVE ASSEMBLY FOR
THE
AUSTRALIAN CAPITAL TERRITORY
CRIMES (SENTENCE
ADMINISTRATION) AMENDMENT BILL 2010
EXPLANATORY
STATEMENT
Circulated by authority of
Simon Corbell MLA
Attorney
General
The Crimes (Sentence Administration) Amendment Bill introduces a new
system for the enforcement of court-imposed fines. This new system will
strengthen the Territory’s ability to recover outstanding fines by
providing a number of new enforcement options. The new enforcement options will
also be beneficial for people who default on fines in that there will be a
number of new steps between defaulting on a fine and discharging that debt by
way of imprisonment.
The Bill provides the following options to assist in
the recovery of court-imposed fines:
• instalment
plans;
• income assessment through written notice or under
warrant;
• the seizure and subsequent sale of personal
property;
• negative reporting to a credit
provider;
• financial institution deduction
orders;
• garnishee orders;
• voluntary community work orders;
and
• imprisonment.
This Bill also allows an entity that has
had a reparation order made in their favour enter into an agreement with the
Chief Executive to have that order enforced through the new Chapter 6A. Where
this occurs, compensation owing under a reparation order will be treated as an
outstanding fine for the purposes of enforcement.
Detail
Part 1 — Preliminary
This is a technical clause that names the short title of the Act. The name of the Act would be the Crimes (Sentence Administration) Amendment Act 2010.
Clause 2— Commencement
This clause enables the Act to
commence on 1 July 2010.
Clause 3— Legislation amended
This is a technical clause
stating that the primary Act being amended is Crimes (Sentence
Administration) Act 2005. This clause also identifies other Acts that are
being incidentally amended. A full list appears in Schedule 1.
Clause 4— Application-pt 3.1 Section 10(2), except notes
This
clause ensures that part 3.1 of the
Crimes (Sentence
Administration) Act 2005 applies to a person imprisoned under the new
section 116ZK.
Clause 5— Application- ch 5 Section 39, new note
This clause
inserts a new note into section 39 of the Crimes (Sentence Administration)
Act 2005 to ensure that this section applies to a person who has been
sentenced to periodic detention under the new section 116ZL.
Clause 6— New chapter 6A
This clause inserts a new chapter
6A into the Crimes (Sentence Administration) Act 2005. This chapter
contains a comprehensive legislative framework for the new fine enforcement
system.
Part 6A.1 General
116A
The new section 116A
contains a number of definitions relevant to the interpretation of provisions in
the new Chapter 6A.
116B
The new section 116B provides that a
fine imposed by a court is payable in accordance with any provisions under this
Chapter to the Territory. Under this Chapter, the Territory can be represented
by either the registrar of the Magistrates Court or the Chief Executive.
Part 6A.2 Penalty notices, default notices and payment
arrangements
116C
This section provides that where an offender
is convicted of an offence in the Supreme Court and is given a fine as part of
that conviction, the registrar of the Supreme Court must give the registrar of
the Magistrates Court a copy of the conviction or order. When the registrar of
the Magistrates Court receives such a copy, the registrar must then issue the
offender with a penalty notice for the fine. The Magistrates Court is the court
that administers fines in the Territory.
This section also provides that
where an offender is convicted of an offence in the Magistrates Court and is
given a fine as part of that conviction, the notice of conviction or order
required by the Magistrates Court Act must contain a penalty notice.
Subsection (2) makes reference to sections 116I and 141(1)(b). These sections
require a written record of a conviction to be given to an offender if the
conviction was made when the offender was not present in court (s.116I) or when
the offender was present in court (s.141(1)(b)).
This section also
states the required content of a penalty notice. A penalty notice issued by the
Magistrates Court must:
• state the amount of the fine and the due date
for payment;
• specify the amount of each instalment if
applicable;
• state that if the fine or any instalment of the fine is
not paid by the due date, the offender is liable for an administrative fee in
addition to any outstanding amount of the fine. The administrative fee is
provided for in the new section 116G.
• state that upon application
made before the due date for payment of a fine, the Chief Executive may approve
an arrangement about payment of the fine. An arrangement can allow further time
to pay an amount outstanding or approve payment by instalments. Arrangements are
provided for in the new section 116K.
• state that an offender has an
obligation to notify the registrar of any change of address. If an offender does
not notify the registrar of a change of address, they are liable for further
penalty. The requirement to notify the registrar of a change of address is
provided in the new section 116D.
116D
This section requires an
offender on whom a fine is imposed to give the registrar details of his or her
home address and postal address within 7 days of the fine being imposed. If an
offender on whom a fine is imposed does not give the registrar details of his or
her home address and postal address, they commit an offence.
This section
also requires an offender on whom a fine is imposed who changes his or her
address before the entire fine and any relevant administrative fee is paid to
give the registrar details of the new address within 7 days after the change
occurs. If an offender who has not paid the fine and any administrative fee does
not give the registrar the details of the new address within 7 days of the
change, they commit an offence.
This section also requires a person to
give evidence of his or her home address or postal address is the registrar so
requires.
The purpose of this section is to ensure an offender’s
records are kept up to date to enable the effective administration of the fine
imposed by the court.
116E
This section provides that the
registrar may write to a relevant person and ask the person for any details held
by the person about an address of an offender who is liable to pay a fine. A
relevant person must comply with the registrar’s request as far as
practicable.
This section defines a relevant person as:
• the
chief police officer;
• the housing commissioner; or
• the
chief executive of an administrative unit, ACTEW Corporation Limited or a
territory entity prescribed by regulation.
The definition of relevant person
encompasses people in positions within particular agencies that are likely to
have information about an offender’s address details. The agencies
mentioned are government or government owned
agencies.
116F
This section applies if a document has not been
served on a person by way of personal service. Personal service is defined in
rule 6405 of the Court Procedure Rules 2006.
If the registrar is
satisfied that the document has not come to the knowledge of the offender, or
doubts whether the document has come to the knowledge of the offender, the
registrar must not take any further action under this chapter. Further action
can be taken if the document is served on the offender again and the registrar
is satisfied the document has come to the knowledge of the offender.
116G
This section provides that if after the due date for the
payment of a fine there is any amount outstanding, the offender must pay an
administrative fee determined under the Court Procedures Act 2004 in
addition to the outstanding amount of the fine.
116H
This
section provides that if a person defaults on a fine, the Chief Executive must
send that person (the fine defaulter) a default notice. A person defaults on a
fine (or any relevant administrative fee) if the person fails to pay the entire
amount owing by the due date stated in the relevant penalty notice, default
notice or date required in accordance with a payment arrangement with the Chief
Executive.
Under this section, the Chief Executive must not send a
default notice until 28 days after the due date for payment of the fine and any
relevant administrative fee.
116I
This section details the
information that must be included on a default notice.
A default notice
must:
• include details about the fine including the offence for which
the fine was imposed, the date the fine was imposed, the amount of the fine
imposed, the due date for payment, the due dates for payment by instalment if
applicable, the outstanding amount of the fine, the administrative fee payable
as a result of defaulting on the fine and the default to which the notice
relates;
• explain that a payment arrangement may, on application to
the Chief Executive, be approved in accordance with the new section
116K;
• explain that if a payment arrangement is not approved by the
Chief Executive and the fine remains unpaid, the Chief Executive will commence
enforcement action;
• list the enforcement measures that may or must be
imposed against the defaulter. These enforcement measures
are
o suspension of drivers licence and/or vehicle
registration
o reporting the default to a credit reporting agency
which could negatively effect the person’s credit rating
o an
order allowing an outstanding amount to be deducted from the defaulter’s
earnings, bank account or both
o the seizure and subsequent sale of
personal property
o the imposition of a voluntary community work
order
o imprisonment.
• explain the fine defaulter’s
obligation to notify the registrar of any change of address in accordance with
the new section 116D.
The enforcement measures are further explained in
relevant sections.
A default notice can also specify details regarding a
fine defaulter’s property or financial circumstances that are required if
a fine defaulter wants to make an application for a payment arrangement under
the new section 116K.
116J
This section provides that if after
14 days of being sent a default notice a person has not paid the outstanding
fine or entered into a payment arrangement with the Chief Executive, the Chief
Executive must send the person a reminder notice to the person’s last
known address.
116K
This section provides that the Chief
Executive may approve an application for a payment arrangement for either:
• further time to pay an outstanding amount of a fine or
administrative fee (including an instalment of such an amount);
or
• payment of an outstanding amount of a fine or administrative fee
pay instalment.
This approval must be in writing.
An arrangement for
further time to pay can also be made for an overdue amount under a previous
arrangement.
If the Chief Executive approves a payment arrangement for
further time to pay a fine or instalment and that arrangement is inconsistent
with an order about the payment of the fine made by the court that imposed the
fine, the court order has no effect. This reflects the change of responsibility
for the administration of the fine from the originating court to the Chief
Executive.
An application for a payment arrangement must be made in
writing. Also, an application must include certain information. An application
must state the grounds on which the application is made and must be given to the
Chief Executive by the due date stated in the current penalty notice or default
notice. If an applicant has defaulted on a fine, the application must also
include any information about the person’s property or financial
circumstances if requested to do so in the default notice that was sent to the
person.
An application for a payment arrangement for a fine cannot be
made under this section if an offender is subject to a voluntary community work
order or a term of imprisonment in relation to the fine.
If a payment
arrangement in relation to a fine for which a penalty notice or default notice
has been issued is approved, the chief executive must update the penalty notice
or default notice to reflect any relevant terms of the agreement. An updated
copy of the penalty notice or default notice must be given to the
applicant.
Part 6A.3- Fine enforcement action
Division
6A.3.1 Reporting fine defaulters
116L
This section provides
that Part 6A.3 applies to person who has been sent a default notice and reminder
notice and has not paid a fine after 28 days of the default notice being sent or
entered into a payment arrangement. Part 6A.3 also applies to a person who has
entered into a payment arrangement but has not complied with the
arrangement.
116M
This
section provides that the Chief Executive must give written notice to the road
transport authority if a fine defaulter does not pay an outstanding amount 28
days after being sent a default notice. After receiving notice from the Chief
Executive, the road transport will suspend the fine defaulter’s drivers
licence or prevent a person from holding a drivers licence if they do not
currently hold one. If a person is a responsible person of a motor vehicle, the
road transport authority may also suspend the vehicle registration.
The
written notice given to the road transport authority must include the following
information:
• the defaulter’s name, home address and date of
birth;
• the offence for which the fine defaulter was
convicted;
• the amount of the fine imposed;
• a statement
that the outstanding fine has not been fully paid; and
• a statement
that the defaulter has not complied with a payment arrangement approved under
the new section 116K if this is applicable.
The Chief Executive must give
further notice to the road transport authority if the outstanding fine is paid,
the Chief Executive approves an arrangement under section 116K, the outstanding
fine is remitted, the outstanding fine is discharged because the person
completed a voluntary community work order or served an appropriate term of
imprisonment or if the conviction that gave rise to the fine is quashed or set
aside. If the road transport authority receives such further notice, all
suspensions of licence or registration must be
lifted.
116N
This section provides that the Chief Executive
must give written notice to a credit reporting agency if a fine defaulter does
not pay an outstanding amount 28 days after being sent a default notice.
The written notice given to the credit reporting agency must include the
following information:
• the defaulter’s name, home address and
date of birth;
• a statement that the fine defaulter has not paid a
fine that they were liable to pay;
• a statement that the defaulter has
not complied with a payment arrangement approved under the new section 116K if
this is applicable; and
• a statement confirming that the defaulter was
made aware that their details could be given to a credit reporting agency if
that person failed to pay a fine for which they were liable.
After
receiving notice from the Chief Executive, a credit reporting agency must
include the information received about a fine defaulter in the records used as
part of the agency’s credit reporting business. The purpose of this
provision is to negatively affect a fine defaulter’s credit rating so as
to provide an incentive to pay an outstanding amount.
The Chief Executive
must give further notice to the credit reporting agency if the outstanding fine
is paid, the Chief Executive approves an arrangement under section 116K, the
outstanding fine is remitted, the outstanding fine is discharged because the
person completed a voluntary community work order or served an appropriate term
of imprisonment or if the conviction that gave rise to the fine is quashed or
set aside. If the credit reporting agency receives such further notice, the
agency must remove any information received about a fine defaulter from the
records used as part of the agency’s credit reporting business.
The
definition of a credit reporting agency is a corporation that carries on a
credit reporting business. This definition can be found in the section 6(1) of
the Commonwealth Privacy Act 1988.
The definition of credit
reporting business can also be found in section 6(1) of the Commonwealth
Privacy Act 1988. A credit reporting business is a business that involves
the preparation or maintenance of records containing personal information
relating to individuals for the purpose of providing to other persons
information on an individual’s:
• eligibility to be provided
with credit;
• history in relation to credit; or
• capacity to
repay credit.
Division 6A.3.2 Examining fine defaulter’s
financial circumstances
116O
This section provides that the
Chief Executive may conduct an examination of a fine defaulter in accordance
with this division. The purpose of the examination is to determine a fine
defaulter’s financial position and what fine enforcement action should be
taken against the fine defaulter. If the Chief Executive does not need further
information to determine a defaulter’s financial circumstance or what fine
enforcement action should be taken, it is not a requirement for the Chief
Executive to examine the defaulter.
116P
This section provides
that the Chief Executive may serve an examination notice on a fine defaulter if
the Chief Executive thinks that doing so would assist in making a determination
about the defaulter’s financial circumstances and possible enforcement
action to take. The service of the examination notice must be in accordance with
Part 19.5 of the Legislation Act 2001 which deals with the service of
documents.
The examination notice may require the fine defaulter to
produce any document stated in the notice. Any document requested by the Chief
Executive must be submitted within 14 days after the date of the notice at a
time and place stated in the notice. The fine defaulter may provide oral
information about one or more documents stated in the examination notice if the
Chief Executive approves.
An examination notice cannot be served on a
fine defaulter if the defaulter would be required to comply with the examination
notice within 6 months of complying with a previous examination notice for the
same fine. This does not prevent an examination notice from being served on a
fine defaulter within 6 months of complying with a previous examination notice
so long as the required date of compliance on the latest examination notice does
not fall within the 6 month period.
116Q
This section details
the type of information in documents that may be required to be produced by an
examination notice. This includes:
• details about any bank account the
person owns including the balance of the account. This can include a joint
account;
• details about the defaulter’s
income;
• details about any cash the defaulter possesses or has access
to;
• details about any other property the person owns or has a legal
or equitable interest in;
• details about any debts owing to the
defaulter;
• the amount of money the defaulter reasonably needs for
living expenses;
• whether the defaulter has any dependants and, if so,
the amount of money the defaulter needs to provide for them;
• the
hardship (if any) that would be caused to the defaulter as a result of paying
the fine;
• the hardship (if any) that would be caused to anyone else
as a result of paying the fine; and
• relevant documents relating to
matters mentioned in this section.
116R
This section provides
that where the Chief Executive reasonably believes that a defaulter has not
complied with an examination notice, the Chief Executive may apply to the
registrar for a warrant for the arrest of the defaulter. This warrant is known
as an examination warrant.
The registrar may refuse an application for an
examination warrant until the Chief Executive provides the registrar with all
the information required by the registrar.
The registrar can only issue
an examination warrant for the arrest of a fine defaulter if the defaulter was
served with an examination notice and the defaulter failed to comply with the
notice without a reasonable excuse or the defaulter provided false or misleading
information or omitted something that caused information to be misleading.
An examination warrant authorises an enforcement officer to arrest the
fine defaulter named in the warrant and bring the defaulter before the
registrar. An enforcement officer means a sheriff, deputy sheriff or a
sheriff’s assistant under the Supreme Court Act 1930 or a person
appointed as an enforcement officer by the Chief
Executive.
116S
This
section provides the contents of an examination warrant. An examination warrant
must name or otherwise describe the fine defaulter who is to be apprehended and
briefly state the reason for the issue of the warrant. An examination warrant
must also require an enforcement officer to arrest the defaulter named in the
warrant and bring that defaulter before the registrar to be examined at an
examination hearing. An enforcement warrant must end 3 months or less after the
date of its issue.
This section also provides details about the execution
of an examination warrant. An enforcement officer executing an examination
warrant may enter any premises using necessary assistance and force to arrest
the defaulter named in the warrant. An enforcement officer can also use force to
arrest the defaulter named in a warrant however this force must not be more then
the minimum amount required. An enforcement officer can also ask a police
officer to help when executing an enforcement warrant.
Before removing a
fine defaulter in accordance with an examination warrant, an enforcement officer
must explain the purpose of the warrant to the defaulter and must bring the
defaulter before the registrar immediately. If the defaulter is under a legal
disability, the enforcement officer must tell a parent or legal guardian of the
arrest. People under the age of 18 are under a legal disability. An enforcement
officer must also notify the Chief Executive when an arrest is
made.
Where a police officer is asked to assist in the enforcement of an
examination warrant, the police officer must assist the enforcement officer
where it is practicable to do so.
If an enforcement officer believes that
a fine defaulter has complied with the requirements of the examination notice
after being arrested, the enforcement officer must release the defaulter
immediately. This could occur if a third person assists the defaulter in
complying with an examination notice while the defaulter is in custody. An
enforcement officer must also release a defaulter if the defaulter cannot be
brought before the registrar immediately.
This section also provides
that an examination warrant continues in force until the warrant is executed
(which occurs when either a fine defaulter is brought before the registrar and
examined or when examination is adjourned), the warrant is set aside by the
registrar and the enforcement officer is told the warrant has been set aside or
at the end of 3 months after the date the warrant is
issued.
116T
This section applies if an examination warrant for
a fine defaulter has been issued and the defaulter is either brought before the
registrar on the warrant or otherwise attends before the registrar.
This
section provides that the registrar must set a date for an examination hearing
and issue an examination hearing subpoena. An examination hearing subpoena will
contain the date of the hearing and require the defaulter to answer questions,
give information and provide produce documents or other things as required.
Once an examination hearing subpoena has been issued, the registrar must
conduct the hearing to determine the financial position of the fine defaulter.
The registrar may adjourn an examination hearing and may require the defaulter
to which the hearing applies to attend an adjourned hearing.
The Chief
Executive must be a party to an examination hearing. If the Chief Executive has
been informed of the date, time and place of an examination hearing or adjourned
examination hearing but does not attend before the registrar, the order for the
examination hearing may be set aside or the examination hearing may be conducted
in the absence of the Chief Executive.
At an examination hearing the
registrar may orally examine or require the production of documents
about:
• the assets, liabilities, expenses and income of the
defaulter;
• any other means the defaulter has to satisfy the
outstanding fine; and
• the defaulter’s financial circumstances
generally.
A fine defaulter being orally examined is done so on oath. Oath
also includes affirmation.
An examination hearing must be conducted by
the registrar and can be conducted in open court or in the absence of the
public.
An examination hearing is a legal proceeding for chapter 7 of
the Criminal Code 2002 which deals with administration of justice
offences. This means that a party to an examination hearing is subject to all
provisions in chapter 7.
116U
This section provides that if a
fine defaulter is required to attend an examination hearing (including an
adjourned examination hearing) and fails to attend, the registrar may issue a
warrant requiring a police officer to apprehend the defaulter and bring the
defaulter before the registrar for examination. A warrant issued under this
section is known as an examination hearing warrant.
The registrar may
only issue an examination hearing warrant if the registrar is satisfied that the
defaulter was aware that he or she was required to attend an examination hearing
and does not have a reasonable excuse for failing to do so.
An
examination hearing warrant can be issued on application from the Chief
Executive or on the registrar’s own accord.
116V
This
section provides the contents of an examination hearing warrant. An examination
hearing warrant must name or otherwise describe the fine defaulter who is to be
apprehended and briefly state the reason for the issue of the warrant. An
examination hearing warrant must also require an enforcement officer to arrest
the defaulter named in the warrant and bring that defaulter before the registrar
to be examined at an examination hearing. An enforcement warrant must end 3
months or less after the date of its issue.
This section also provides
details about the execution of an examination hearing warrant. An enforcement
officer executing an examination hearing warrant may enter any premises using
necessary assistance and force to arrest the defaulter named in the warrant. An
enforcement officer can also use force to arrest the defaulter named in a
warrant however this force must not be more then the minimum amount required. An
enforcement officer can also ask a police officer to help when executing an
enforcement warrant.
Before removing a fine defaulter in accordance with
an examination hearing warrant, an enforcement officer must explain the purpose
of the warrant to the defaulter and must bring the defaulter before the
registrar immediately. If the defaulter is under a legal disability, the
enforcement officer must tell a parent or legal guardian of the arrest. People
under the age of 18 are under a legal disability. An enforcement officer must
also notify the Chief Executive when an arrest is made.
Where a police
officer is asked to assist in the enforcement of an examination hearing warrant,
the police officer must assist the enforcement officer where it is practicable
to do so.
This section also provides that an examination hearing warrant
continues in force until the warrant is executed (which occurs when either a
fine defaulter is brought before the registrar and examined or when examination
is adjourned), the warrant is set aside by the registrar and the enforcement
officer is told the warrant has been set aside or at the end of 3 months after
the date the warrant is issued.
Division 6A.3.3 Fine enforcement
orders – general
116W
This section provides that the
Chief Executive may apply to the Magistrates Court for an order to be made
against a fine defaulter. This order is known as a fine enforcement order. The
Chief Executive may apply for a specific fine enforcement order to be
made.
The Chief Executive can apply to the Magistrates Court for a fine
enforcement order to be made against a defaulter even if the defaulter has not
been served with an examination notice or has not attended an examination
hearing.
An application by the Chief Executive must include a statement
setting out the grounds of the application including the reasons why the Chief
Executive is seeking a particular fine enforcement order if
applicable.
An application must also contain an affidavit from the Chief
Executive detailing the offence for which the original fine relating to the
application was imposed and the steps taken by the Chief Executive to notify the
person on whom the fine was imposed that they had defaulted on the
fine.
If the fine defaulter provided any oral information or documents to
the Chief Executive under an examination notice, the information or documents
must be provided to the court as part of an application.
If the fine
defaulter appeared at an examination hearing, any documents provided to the
registrar or a transcript of oral evidence must also be provided as part of an
application.
116X
This section provides that the Magistrates
Court may make a fine enforcement order against a fine defaulter if an
application to do so has been received from the Chief Executive and it is in the
interests of justice to do so.
A fine enforcement order may contain an
earnings redirection order, a financial institution deduction order or a seizure
and sale order. A fine enforcement order may also contain a combination of the
aforementioned orders.
When deciding whether it is in the interests of
justice to make a fine enforcement order against a fine defaulter, the Court
must take into account any information the court has regarding:
• the
defaulter’s income, assets or equitable interest in
property;
• any debts payable to the defaulter;
• any other
means by which the defaulter might pay the fine;
• the
defaulter’s reasonable living expenses including the reasonable living
expenses of any dependants;
• the hardship a fine enforcement order
would cause to the defaulter or a third party affected by the
order;
• the need to give effect to the factor of deterrence that
formed part of the decision of the sentencing court to imposed a fine on the
fine defaulter;
• whether the fine defaulter has the capacity to pay
the fine and is unlikely to have the means to pay the fine in a reasonable
time;
• whether the fine defaulter has knowingly attempted to
misrepresent his or her financial affairs to avoid payment of the fine; or
• any other relevant matter.
It is not necessary for the court to
have all the aforementioned information and only needs to have regard to such
information if the Court possesses it.
A fine enforcement order may be
made in the absence of and without notice to the fine
defaulter.
Division 6A.3.4 Fine enforcement orders – earnings
redirection orders
116Y
This section provides for earnings
redirection orders. For the purposes this section, earnings is defined as any of
the following that are owing or accruing to the fine defaulter:
• wages
or salary or any other amount received under a contract of employment such as
commission, bonus, overtime or allowances;
• an amount received that is
similar in nature to an amount received under a contract of employment for
example, a contract for services; and
• any other amount received, or
the value of a benefit gained, as compensation for services or profit arising
from employment, a contract for services or a position.
Earnings is also
defined as including a pension, benefit or similar payment (which could include
social security benefits), an annuity, an amount payable instead of leave or a
retirement benefit.
Under this section, employer means a person or
company who, as principal rather than as employee or agent, pays or is likely to
pay earnings to a fine defaulter.
This section provides that the court
may make an order requiring an employer of a fine defaulter to deduct an amount
from the defaulter’s earnings and pay that amount in accordance with the
order. A deduction can be in the form of a lump sum or instalments.
For
each payday that an earnings redirection order is in force, an employer must
deduct an amount stipulated in the order from the defaulter’s earnings and
pay that amount to the registrar. An employer is permitted to deduct an extra
amount to cover any administrative costs associated with making a deduction from
the defaulter’s earnings. Any such deduction can be no more than is
usually charged to employees to make periodic deductions or otherwise no more
than is necessary to cover the costs of complying with the order.
Where
an employer makes a deduction in accordance with an order, the employer must be
given notice detailing any deductions.
It is an offence for an employer
to dismiss a defaulter, change a defaulter’s position in a way that
disadvantages the defaulter or discriminate against a defaulter because a
defaulter has an earnings redirection order made against them.
Division 6A.3.5 Fine enforcement orders – financial institution
deduction orders
116Z
This section provides that where a fine
defaulter has an account with a financial institution that has or is likely to
have sufficient funds to satisfy all or part of the defaulter’s
outstanding fine, the court may make a financial institution deduction
order.
A financial institution order can direct a financial institution
to deduct a stated amount, in either a lump sum or instalments, from an account
held by the defaulter and pay the amount in accordance with the order. For each
deduction made from a defaulter’s account, a financial institution may
make an extra deduction to cover the administrative costs associated with making
a deduction. Any such deduction must not be more than is usually charged for
customers making periodic payments or otherwise no more than is necessary to
cover the costs of complying with the order.
Where a financial
institution makes a deduction in accordance with an order, the financial
institution must give the defaulter a notice detailing any deductions.
A
financial institution deduction order must specify the name of the defaulter to
whom the order relates, the name of the financial institution, relevant details
of the defaulter’s account and the amount or amounts to be deducted from
the account.
A financial institution deduction order can be made in
relation to an account jointly held by the fine defaulter and another person or
persons if deemed appropriate by the court.
Division 6A.3.6 Fine
enforcement orders – property seizure orders
116ZA
This
section provides that a court may make an order for the seizure of personal
property belonging to a fine defaulter. This is known as a property seizure
order.
116ZB
This section provides that a property seizure
order authorises the Chief Executive to enter a premises between 7am and 6pm on
the same day if the Chief Executive gives a person present at the premises an
opportunity to allow entry and the person refuses or if there is no one present
at the premises. The Chief Executive can ask a police officer to help enter the
premises.
A property seizure order authorises the Chief Executive to
seize any property found on the premises or a public place that apparently
wholly or partly belongs to the fine defaulter. This does not include clothing,
bedding or other necessities of life. A necessity of life would, for example,
encompass a refrigerator used to store food but would not include a surplus
refrigerator used for drinks. The Chief Executive may also seize any documents
that may prove the defaulter’s title to personal property.
If the
Chief Executive requests the help of a police officer to enter premises, the
police officer must help the Chief Executive if it is practicable to do so. The
police officer may also use reasonable force against a person during the course
of providing help to the Chief Executive. The Chief Executive is only able to
use force against a person if it is reasonable and necessary in the interests of
a person’s safety.
This section provides that where the Chief
Executive seizes any property, the Chief Executive must prepare an inventory of
the property seized. The Chief Executive must also attach to the premises, in a
prominent place, a notice that property has been seized in accordance with the
property seizure order, a copy of the inventory and a notice setting out the
person’s rights to recover the seized goods. The recovery of seized goods
is dealt with in section 116ZD.
Where possible, the Chief Executive must
seize property that may be sold promptly and without necessary expense and that
if sold, would not cause undue hardship to the defaulter or other people.
116ZC
This section provides that the Chief Executive must sell
property seized under a property seizure order and pay the proceeds of the sale
to the registrar. However, seized property may not be sold
unless-
• the holding period for the property has expired;
and
• the Chief Executive has refused an application to return the
property made under section 116ZD; and
• an appeal against the Chief
Executive’s refusal to return property has been withdrawn or
refused.
The holding period is 28 days from the date of seizure.
This
section provides that where possible, property must be sold in an order that is
likely to satisfy an outstanding fine promptly without incurring unnecessary
expense and minimises undue hardship to the defaulter or other people. Where
possible, the property must also be sold at the best price reasonably obtainable
at the time of sale.
Where the Chief Executive sells seized property, the
Chief Executive may retain part of the proceeds to cover any reasonable expenses
incurred as a result of the sale. This includes costs associated with storing
property for the holding period.
If the sale of property results in
proceeds that exceed the amount needed to pay the outstanding fine and any costs
incurred by the Chief Executive through selling the property, the excess amount
must be given to any person who had a legal or equitable interest in the
property. Where more then one person had an interest in the property, the excess
amount will be apportioned in accordance with the share of the person’s
interest. For example, if two people owned a motor vehicle in equal shares and
there was an excess amount of $1000 after the sale of the motor vehicle, each
person would receive $500.
116ZD
This section provides that
where the Chief Executive has seized property in accordance with a property
seizure order, a person may apply to have that property returned.
An
application under this section must be made within the holding period that is
applicable to the property in question. The holding period is 28 days from the
date of seizure. An application must also clearly identify the item or items
that are sought to be returned.
An application under this section can be
made by the fine defaulter to whom the property seizure order relates or by
another person. If the applicant is the fine defaulter, the application must
state why the failure to return the property would result in undue hardship or
unfairness to the applicant.
Division 6A.3.6 Voluntary community work
orders
116ZE
This section provides that the Chief Executive may
apply to the Magistrates Court for a voluntary community work order. This order
requires a fine defaulter to undertake community work to discharge an
outstanding fine.
The court can only make a voluntary community work
order if the fine defaulter agrees to the order being made and, if the
outstanding amount for which the defaulter is liable for is compensation under a
reparation order, the entity in whose favour the reparation order is made
agrees.
Furthermore, the court must be of the opinion that no other fine
enforcement order is appropriate and that the defaulter is likely to comply with
a voluntary community work order.
A voluntary community work order cannot
be made if the originating offence for which the fine defaulter received a fine
was a personal violence offence. An offence is a personal violence offence if it
involves causing harm or threatening to cause harm to anyone or a domestic
violence offence.
A voluntary community work order must state the number
of hours required to be worked to discharge the outstanding fine. Where a fine
defaulter undertakes community work in accordance with a voluntary community
work order, the outstanding fine is discharged at a rat of $37.50 per hour
worked.
116ZF
This section provides that voluntary community
work orders are to be administered by the Chief Executive or another entity
authorised by the Chief Executive. It is the responsibility of the administering
entity to decide the kind of work that is to be performed by the defaulter. When
deciding the type of work to be performed, the administering entity must take
into account the defaulter’s ability.
The administering authority
must also decide the hours the defaulter must work, taking into account the
defaulter’s family, work and other relevant commitments. The maximum
number of hours a day community work can be undertaken is eight. Where a fine
defaulter makes a request for a change in the arrangements of a voluntary
community work order, the administering entity must grant the request if it is
reasonable to do so.
116ZG
This section provides that where
work is performed in accordance with a voluntary community work order, a fine
defaulter’s outstanding fine I discharged at a rate of $37.50 per
hour.
116ZH
This section provides that if the entity
administering a voluntary community work order believes on reasonable grounds
that a person has not complied with the order and the person has not requested
an amendment to the conditions of the order, the administering entity must
report the noncompliance to the court.
If the court is satisfied that a
fine defaulter has failed to comply with an order, the court may take no further
action, warn the defaulter about the need to comply with the order, amend the
order or cancel the order. If the court amends or cancels the order, the fine
defaulter must be provided with written notice of the amendment or
cancellation.
If the court cancels the order, the fine defaulter could be
subject to another fine enforcement order, remission of the fine or
imprisonment.
116ZI
This section provides that if a fine
defaulter satisfies the requirements of a voluntary community work order, the
entity administering the order must certify the completion to the court. This is
done by giving the court a certificate of completion.
116ZJ
This section provides that if the defaulter’s
outstanding fine is payed while the person is completing a voluntary community
work order, the order ceases to have effect and the person is no longer in
default of a fine. An example is if a person has five hours of community work
left on an order and that person pays $187.50 as well as any administrative fee,
the person does not need to complete the outstanding hours of work and the fine
is discharged.
Division 6A.3.8
Imprisonment
116ZK
This section provides that if the Chief
Executive applies to have a fine defaulter imprisoned, the Magistrates Court may
order the imprisonment of the fine defaulter.
The Court may only order the
imprisonment of a fine defaulter if:
• all appropriate fine
enforcement action has been taken against a the fine defaulter and there is no
real likelihood of the fine being recovered; and
• the fine has not
been remitted by the Chief Executive as is authorised by section 116ZO of the
Act; and
• if a reparation order is being enforced, the entity in whose
favour the reparation order is made consents to the amount owed being discharged
by way of imprisonment.
Where the Court orders the imprisonment of a fine
defaulter, the Court must also issue a warrant for the person’s
imprisonment in the custody of the Chief Executive in accordance with section 12
of the Act. This means the warrant must be addressed to the Chief Executive and
signed by an authorised person of the Court.
If a fine defaulter’s
outstanding fine is paid to the Territory, or someone acting for the Territory,
before the person is imprisoned, the imprisonment order and associated warrant
for imprisonment no longer have effect and the person must not be taken into
custody.
The length of time a person is to be imprisoned under this
section is the lesser of 1 day of imprisonment for each $300, or part of $300,
of the outstanding fine or 6 months. This means that if a person has an
outstanding fine $1500, the person will be imprisoned for 5 days.
If a
person was a young offender at the time the offence was committed, the length of
imprisonment is to be the lesser of 1 day for each $500, or part of $500, of the
outstanding fine or 7 days. This means that if a person has an outstanding fine
of $1500, the person will be imprisoned for 3 days.
116ZL
This
section provides that where the Court makes an imprisonment order, the Court may
allow all or part of the term of imprisonment to be served by periodic
detention.
Periodic detention can only be used if:
• it is
suitable and appropriate for the fine defaulter;
• there are
appropriate facilities available at a correctional centre; and
• the
offender signs an undertaking to comply with the periodic detention obligations
contained in section 42 of the Act.
In deciding whether periodic
detention is suitable for a fine defaulter, the Court must consider a report
prepared by the Chief Executive that addresses the matters in section 79 of the
Crimes (Sentencing) Act 2005. These matters include:
• any
dependence on alcohol or a controlled drug;
• any psychiatric or
psychological conditions;
• any medical conditions;
• any
criminal record; and
• employment and personal
circumstances.
The Court must also consider any evidence given by the
person who prepared the report and any medical report about the fine defaulter.
A court cannot set a period of periodic detention for a young fine
defaulter unless that defaulter will be an adult when serving the period of
periodic detention.
The Court must state when the period detention period
starts and ends.
116ZM
This section provides the rate an
outstanding fine is discharged through imprisonment.
A fine defaulter
who was an adult at the time they committed the offence for which a fine relates
discharges that fine at a rate of $300 per day or part of a day of imprisonment.
The maximum period an adult fine defaulter can be imprisoned is 6 months. This
means that a fine defaulter must be released from imprisonment when a fine is
fully discharged or after 6 months.
A fine defaulter who was under the
age of 18 at the time they committed the offence for which a fine relates
discharges that fine at a rate of $500 per day or part of a day of imprisonment.
The maximum period a young fine defaulter can be imprisoned is 7 days. This
means that a fine defaulter must be released from imprisonment when a fine is
fully discharged or after 7 days.
Where a person who was an adult at the
time they committed an offence for a fine relates is serving periodic detention,
the fine is discharged at a rate of $12.50 per hour. This represents $300 per
day for full time custody divided by 24 (number of hours in a day).
Where a person who was under the age of 18 at
the time they committed an offence for a fine relates is serving periodic
detention, the fine is discharged at a rate of $20 per hour. This represents the
$500 per day for full time custody divided by 24 (number of hours in a day) and
rounded down to a whole number.
116ZN
This section provides
that where a person is imprisoned under this chapter, if an amount is paid to
the Territory, or someone acting on behalf of the Territory, that completely
discharges the outstanding amount, the person must be released from custody. If
a person must be lawfully detained on another matter, the person cannot be
released under this section.
Part 6A.4-
Miscellaneous
116ZO
This section provides that the Chief
Executive may remit all or part of fine (including any administrative fee) owed
by a fine defaulter. Any remission must be in writing. The Chief Executive can
only remit a fine if satisfied that a fine enforcement order would not be
effective or appropriate, a voluntary community work order is not possible or
appropriate and it is appropriate in all circumstances to remit the
fine.
When deciding
whether to remit a fine, the Chief Executive must consider:
• any
information known about the fine defaulter’s financial and personal
circumstances;
• the offence for which the fine was
imposed;
• the amount of the fine;
• whether the fine
defaulter has any other outstanding fines; and
• whether the fine
defaulter has engaged in any conduct to frustrate or evade the making or effect
of a fine enforcement order.
When deciding whether to remit a fine, the
Chief Executive may consider anything else the Chief Executive considers
relevant.
A fine may also be remitted by the Executive under section 313
of the Act. The Executive has the same meaning as it does in the Legislation
Act 2001.
116ZP
This section provides that if a
fine defaulter is imprisoned on a matter other then for defaulting on a fine,
the time served in custody for the other matter will also discharge the fine
defaulter’s outstanding fine. If a fine defaulter has more than 1
outstanding fine, the outstanding liability is the total of the fines. This
means that if a person has an outstanding fine of $400 and another outstanding
fine of $200, the outstanding liability will be $600.
A defaulter’s
outstanding fine will be discharged at a rate of $300 per day or part of a day
of imprisonment if the person was an adult at the time the offence resulting in
a fine was committed.
A defaulter’s outstanding fine will be
discharged at a rate of $500 per day or part of a day of imprisonment if the
person was under the age of 18 at the time the offence resulting in a fine was
committed.
For example, if a fine defaulter (who was an adult at the time
the offence was committed) has an outstanding fine of $1500 and the defaulter is
remanded in custody for 5 days on an assault charge, the fine will be discharged
while the defaulter is in remand.
116ZQ
This section provides
that an entity in whose favour a reparation order was made may make an agreement
with the Chief Executive to have that order enforced through this Chapter. This
would mean that compensation owed by an offender to the victim would be treated
as fine that is in default for the purposes of enforcement.
Any amount
recovered under this type of agreement must be paid to the entity in whose
favour the reparation order was made or dealt with in accordance with the
agreement.
Any agreement must be in writing.
116ZR
This
section provides the order in which a fine or outstanding amount that has been
recovered under this Chapter is applied.
116ZS
This section
provides that if an order that resulted in a fine being imposed on a fine
defaulter is quashed or set aside, the registrar must notify the road transport
authority to have any licence or vehicle suspensions lifted and notify any
credit reporting agencies to remove information about the fine
defaulter.
The registrar must also refund any amount paid towards the
fine (including any administrative fee) to the person who paid the amount.
116ZT
This section provides that any person exercising a
function under this Chapter may provide another person exercising a function
under this Chapter any information that is necessary for the exercise of the
person’s function.
116ZU
This section provides that where
the Court makes an order under this Chapter, the Court may attach any conditions
it considers appropriate.
Clause 7— New chapter 19
This clause inserts a new Chapter
19 into the Crimes (Sentence Administration) Act 2005. This is a
transitional chapter.
Chapter 19- Transitional—Crimes (Sentence
Administration) Amendment Act 2010
800
This section provides
that the amendments made by the Crimes (Sentence Administration) Amendment
Act 2010 apply to all court imposed fines regardless of whether the fine was
imposed before or after the commencement of the Act.
801
This
section provides that a regulation may prescribe any transitional matters that
may be necessary or convenient to prescribe because of the enactment of the
Crimes (Sentence Administration) Amendment Act 2010. This section allows
for transitional matters that may have been overlooked or not adequately dealt
with by this Chapter.
802
This section provides that the new
Chapter 19 contained in this clause expires 2 years after the day the Crimes
(Sentence Administration) Amendment Act 2010 commences.
Schedule 1— Consequential Amendments
Part 1.1 Bail Act
1992
1.1
This section substitutes section 37(5) of the
Bail Act 1992 with a new section 37(5). This ensures that the new fine
enforcement provisions contained in this Act are captured by the Bail Act.
1.2
This section changes the reference to
‘Subsection (4)’ in section 37(6) of the Bail Act to
‘Subsection (5)’. This ensures that fines exceeding $50,000 are
still captured by the new fine enforcement provisions contained in this
Act.
Part 1.2 Court Procedures Act 2004
1.3
This
section inserts the Crimes (Sentence Administration) Act 2005 into the
definition of ‘relevant legislation’ into the Court Procedures
Act 2004.
Part 1.3 Court Procedure Rules
2006
1.4
This section omits Division 4.2.4 of the Court
Procedure Rules 2006.
Part 1.4 Crimes (Sentencing) Act
2005
1.5
This section inserts a new section 14(5A) into the
Crimes (Sentencing) Act 2005. The new section 14(5A) provides that if the
Magistrates Court imposes a fine on an offender and the summons for the offence
was served in accordance with section 116B of the Magistrates Court Act
1930, the Court must allow at least 14 days for the offender to pay the
fine. Section 116B of the Magistrates Court Act provides the necessary
processes that must be undertaken in relation to the service of a summons for a
prescribed offence. A prescribed offence is:
• any offence against the
road transport legislation that carries a maximum penalty of 30 penalty units;
or
• any other offence that carries a maximum penalty of 10 penalty
units.
1.6
This section inserts a new section 15A into the
Crimes (Sentencing) Act 2005. The new section 15A provides that the court
may order an offender to provide security for payment of the amount in addition
to allowing time to pay the amount. This security can be with or without
sureties and must be to the satisfaction of the person specified by the court.
Any security must be given, and may be enforced, in accordance with part 3.12 of
the Magistrates Court Act. This part contains a framework for the
provision, recovery and enforcement of security for criminal
matters.
1.7
This section substitutes the existing definition
of ‘fine’ in the Crimes (Sentencing) Act 2005 with the
definition of ‘fine’ contained in the Crimes (Sentence
Administration) Act 2005.
Part 1.5 Crimes (Sentencing) Regulation
2006
1.8
This section inserts a new section 3(e) into the
Crimes (Sentencing) Regulation 2006. The new section 3(e) includes
Volunteering ACT, incorporated under the Associations Incorporation Act
1991, certificate of incorporation A01640 as a criminal justice
entity.
Part 1.6 Magistrates Court Act 1930
1.9
This
section inserts a new note into section 116I of the Magistrates Court Act
1930 that makes reference to the Crimes (Sentence Administration) Act
2005.
1.10
This section inserts a new note into section
141(1) of the Magistrates Court Act that makes reference to the Crimes
(Sentence Administration) Act 2005.
1.11
This section
removes Division 3.9.2 from the Magistrates Court Act. This Division is
replaced by the new fine enforcement provisions contained in this
Act.
1.12
This section inserts a new section 248 into the
Magistrates Court Act. This section provides that ‘security’
means a security under the Crimes (Sentence Administration) Act
2005.
1.13
This section removes the phrase ‘under
this Act (other than chapter 4 (Civil proceedings)) from sections 249 to 253 of
the Magistrates Court Act.
1.14
This section removes
the definition of ‘default notice’ in the Magistrates Court
Act.
1.15
This section substitutes the existing definition
of ‘fine’ with a new definition that refers to section 166A of the
Magistrates Court Act.
1.16
This section removes the
definitions of ‘fine defaulter’, ‘government agency’,
‘outstanding fine’ and ‘penalty notice’ from the
Magistrates Court Act.
1.17
This section provides a new
definition of ‘security’ for part 3.12 of the Magistrates Court
Act. The new definition refers to section 248 of the
Act.
1.18
This section removes the definition of
‘territory entity’ from the Magistrates Court
Act.
Part 1.7 Road Transport (Driver Licensing) Act
1999
1.19
This section substitutes the existing section
37(1)(d) of the Road Transport (Driver Licensing) Act 1999 with a new
section 37(1)(d) that makes reference to the Crimes (Sentence Administration)
Act 2005.
1.20
This section substitutes the existing
section 37(3) of the Road Transport (Driver Licensing) Act with a new
section 37(3) that makes reference to the Crimes (Sentence Administration)
Act 2005.
Part 1.8 Road Transport (General) Act
1999
1.21
This section removes a reference to the
Magistrates Court Act 1930 in section 84 of the Road Transport
(General) Act 1999 and replaces it with a reference to the Crimes
(Sentence Administration) Act 2005.
1.22
This section
removes a reference to the Magistrates Court Act 1930 in section 86(1)(a)
of the Road Transport (General) Act 1999 and replaces it with a reference
to the Crimes (Sentence Administration) Act
2005.
1.23
This section removes a reference to the
Magistrates Court Act 1930 in section 86(1)(b) of the Road Transport
(General) Act 1999 and replaces it with a reference to the Crimes
(Sentence Administration) Act 2005.
Part 1.9 Supreme Court Act
1933
1.24
This section removes section 49A from the Supreme
Court Act 1933.
Part 1.10 Victims of Crime Act
1994
1.25
This section substitutes the existing note in section
24(2) of the Victims of Crime Act 1994 with a new note that refers to the
Crimes (Sentence Administration) Act 2005.