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2012
THE LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
ROAD TRANSPORT (GENERAL) (INFRINGEMENT
NOTICES) AMENDMENT BILL 2012
EXPLANATORY
STATEMENT
Circulated by
Amanda Bresnan MLA
Introduction
This explanatory statement relates to the Road
Transport (General) (Infringement Notices) Amendment Bill 2012 (the Bill) as
presented to the Legislative Assembly. It has been prepared in order to assist
the reader of the bill and to help inform debate on it. It does not form part of
the bill and has not been endorsed by the Assembly.
The Statement must to
be read in conjunction with the bill. It is not, and is not meant to be, a
comprehensive description of the bill. What is said about a provision is not to
be taken as an authoritative guide to the meaning of a provision, this being a
task for the courts.
Overview of changes
The Bill proposes
to amend the Road Transport (General) Act 1999 (the Act) so that the
administering authority[1] may in
certain circumstances allow:
- flexible payment options for traffic
infringement penalties, and
- reinstatement of a person’s drivers
licence that was suspended for non-payment of fines.
The purpose of the
amendments is to ensure that the ACT’s system of traffic infringement
administration can take into account the circumstances of disadvantaged and
vulnerable people and the potentially devastating impact that fines and licence
suspension can have on their lives. The changes proposed in the Bill are
expected to result in more socially just outcomes, reduce the number of people
who drive while their licence is suspended, and increase the number of people
who engage with the fine payment system - ultimately increasing the amount of
fines that are recovered.
The existing system
The current
system of traffic infringement administration is inflexible and does not
appropriately consider the circumstances of disadvantaged and vulnerable people
in the ACT, such as people with low income, disabilities, drug addiction or
homelessness. Its application can result in harsh and unjust outcomes.
Currently, a person who receives a traffic infringement notice has a
prescribed amount of time to pay the infringement
penalty.[2] If a person fails to pay a
traffic infringement notice within the prescribed time the person’s
drivers licence is automatically
suspended.[3] It can only be
reinstated when the fine is paid in full (or if the person successfully contests
liability).
For a person who cannot pay the fine, there are limited
options available in the period before their licence is suspended for
non-payment:
• They may go to court to challenge liability for the
offence, or to plead guilty. In this case, the court may order flexible payment
options. The requirement to go to court can be expensive, difficult, and risks
the imposition of a higher penalty. This is a particular disincentive for people
who already have limited means.
• They can request the
administering authority to withdraw an infringement
notice.[4] However, this also results
in withdrawal of the fine as well as any demerit points associated with the
offence. It would usually apply to individuals who make representations based on
a good driving record,[5] not to
disadvantaged individuals who may have difficulties paying the fine on time.
• A person can request the administering authority to grant up to
6 months additional time to pay the
notice.[6]
In addition to the
limited payment options available before licence suspension, the system is too
rigid once a person’s licence is suspended. Following suspension, the
person cannot apply for an extension of time to pay, for instalments, for a
restricted licence, or to have their licence reinstated while they pay off the
fine. The time to dispute the fine in Court and to seek a Court ordered
instalment plan will have passed. The person cannot regain their licence until
the fine is paid in full.
For low income or other disadvantaged people,
once their licence is fine-suspended, it can be very difficult to get it back.
The situation is compounded by the fact that people often rely on their drivers
licence to access employment, income, support and housing. The consequences of
the fine system can cause a spiral of disadvantage, resulting in lost employment
and even resulting in homelessness. Numerous examples have been documented by
ACT community organisations.
In the ACT, the circumstances of some
disadvantaged people mean they are not able to pay traffic infringements within
the time limit, or even within a much longer time. In some cases, a
person’s circumstances mean that they are not aware of or do not respond
to a traffic infringement notice until the time period has already expired. This
is most likely to be people who already suffer a disadvantage such as illness,
disability or addiction.
Other jurisdictions in Australia already permit
the administering authority to afford flexibility for infringement payments, as
well as to reinstate fine-suspended licences while the payments are being
made.[7]
Proposed changes
In summary, the changes proposed in the Bill would
allow:
1. Payment of fines by instalments: The Bill would allow
people to apply to the administering authority to pay a traffic infringement
fine in instalments (over a period that can be longer than 6 months). A person
could also apply for this option after their licence has been fine-suspended.
2. Payment of fines by community work or social development program:
The Bill would allow people in financial hardship or with special
circumstances to apply to the authority to pay off a traffic fine by undertaking
community work or a social development program. A person could also apply for
this option after their licence has been fine-suspended.
3. Waiver
of fines in special circumstances: The Bill would allow people to apply to
the authority to have a traffic fine waived. This will only be granted where the
applicant has special circumstances (such as disability or homelessness), cannot
pay the fine and is unlikely to ever be able to pay the fine, and is not
suitable to undertake community work or a social development
program.
4. Option to have licence reinstated: The Bill gives the
Road Transport Authority the power to re-instate a person’s fine-suspended
licence. This is permitted where a person has been granted one of the new
flexible payment options (instalments or community work) and is complying with
the arrangement. If the applicant does not comply with the requirements of this
payment undertaking, the authority may reinstate the
suspension.
5. Option to apply for review of decisions: The Bill
will allow applicants who were refused one of the above options to apply for
review of the decision to the ACT Civil and Administrative Tribunal.
Human rights, delegation, and financial issues
The new options
for flexible payment require an applicant to provide details of their financial
circumstances and other ‘special circumstances’ to the administering
authority. This could be considered a limitation on the right to privacy under
the Human Rights Act 2004.
It is considered that the requirement to
provide this information is a reasonable and proportionate limitation on the
right. The only information required is information relevant to the
administering authority’s decision to grant or not to grant the applicant
an option to make a flexible payment. It only applies to applicants who choose
to apply for special consideration based on their circumstances. The information
is required in the context of providing a benefit to the applicant – that
is, allowing them to make payments in a way that takes account of their
circumstances.
The Bill also affords discretion to the authority that
administers traffic infringements, allowing them to decide whether applicants
are eligible for flexible payment options or waiver. It is considered that these
discretions are sufficiently defined with reference to the circumstances
relevant to the decision in each case. It should be noted that the Bill makes
each of these discretionary decisions reviewable decisions in the ACT Civil and
Administrative Tribunal.
It is also noted that changes in the Bill
could be perceived as a form of discrimination, given they afford the benefits
of flexible payment options and licence reinstatement to a certain class of
people: those who are on low incomes or are socially disadvantaged. Providing
these benefits is intended to address an inequality in the system of traffic
fine administration. The changes recognise that assisting people who are
currently disadvantaged by the system will better protect human rights more
generally.
The Bill has no significant financial impacts, but may
result in minor administrative costs associated with managing the new payment
options.
Notes on Clauses
Clause 1 - Name of
Act
This clause is a formal provision setting out the name of the
proposed Act.
Clause 2 - Commencement
This clause explains that
the proposed Act will commence on a day fixed by the Minister by written notice.
If the Minister does not fix a commencement day the Act will automatically
commence 6 months from the Act’s notification day. This period will allow
time to make administrative arrangements to allow the flexible payment options
and to approve community work and social development programs.
Clause
3 - Legislation Amended
This clause is a formal provision to identify
that the Bill amends the Road Transport (General) Act 1999, the Road
Transport (Driver Licensing) Act 1999 and the Road Transport (General)
Regulation 2000.
Clause 4 - Additional information in infringement
notices - New section 26 (1) (ba)
The new section ensures that
infringement notices will contain information about the options for paying by
instalments/discharging/waiving an infringement notice penalty.
Clause 5 - New section 26 (2) (ba)
The new section ensures
that infringement notices will contain information about how to apply to pay by
instalments/discharge/waive an infringement notice
penalty.
Clause 6 - New sections 28A to 28D
New
Section 28A - Payment of penalty by instalments
New section 28A allows a
person served with an infringement notice or reminder notice to apply to the
administering authority for payment of all or part of the penalty by
instalments.
While the existing option for an extension of time is
limited to 6 months (s28), section 28A allows the payment of instalments over a
time that may be longer than six months. This recognises that some people may
have very limited means and may need a longer time to pay.
The intention
is to establish an administrative scheme for instalment plans. This will save
people having to access the courts to seek a flexible payment option, which
saves court time and reduces the risk of applicants incurring additional costs.
It will allow people the ability to pay fines off over time when otherwise they
would struggle to pay them without facing significant hardship.
An
applicant with a Centrelink Health Care Card or Pensioner Concession Card, or a
Department of Veterans’ Affairs Pensioner Concession Card or Gold Card is
automatically eligible to pay by instalments. Holders of these cards are already
recognised as being suitable for financial assistance such as cheaper medicines
under the Pharmaceutical Benefits Scheme. The administering authority retains
discretion in relation to non card holders to allow instalment plans if it is
justified by the person’s financial circumstances.
An applicant
must apply within 28 days of the infringement notice or reminder notice –
the usual period for payment under the Act. However, the administering authority
may accept applications outside of this time if satisfied on reasonable grounds
that there are circumstances why the application could not be made within the 28
day period. The authority is afforded a broad discretion here, recognising that
there are many circumstances that could justify someone not applying within the
time limit. These could include temporary circumstances such as injury/illness
or absence from the jurisdiction, or more permanent circumstances such as
homelessness or disability.
Importantly, the possibility of applying for
an instalment plan beyond the usual 28 days will allow applicants the ability to
pay off their fine via instalments even if their license has been
fine-suspended. Under new section 48A, a person may have their licence returned
while they are paying the fine. This will allow them to use their vehicle to
access income. Section 48A(2) refers to section 28A, ensuring that the Road
Transport Authority has the ability to revoke a suspension if satisfied the
person is paying the suspension in compliance with an instalment arrangement.
This addresses a problem in the existing scheme whereby a person who
failed to pay an infringement notice in time has no way to access an instalment
payment plan.
Section 28A(4) allows for a person to nominate a maximum
amount that the authority can automatically deduct from fortnightly Centrelink
benefits to pay off the fine. This allows the use of Centrepay, which is
Centrelink’s free direct bill-paying service. It is an option that many
Centrelink recipients use to help them budget.
New Section 28B and
28C - Discharging penalty by community work or social
development
program
New section 28B allows a person served with an infringement
notice or reminder notice to apply to the administering authority to discharge
the penalty by undertaking approved community work or an approved social
development program.
These programs would be rehabilitative and/or
beneficial to the community. This would include activities such as volunteer
work for community organisations, medical or mental health treatment in
accordance with a health plan, counselling, mentoring, education or skills
courses, and drug or alcohol treatment.
This new option recognises that
that there are some people in the community who simply cannot pay their
infringement penalties, and that for some people, it will be more appropriate to
discharge their penalty through community work or social development program. It
will enable people on low incomes to discharge fines and avoid the serious
consequences that can result from having their licence fine-suspended. It also
allows people on low incomes or with other special circumstances the opportunity
to be engaged in the community, receive support, and learn new
skills.
The Bill permits the Minister to approve community work or social
development programs (section 28C). It is expected that individuals or community
groups will apply for approval of these programs and that the ACT Government,
community groups, health practitioners or other organisations would cooperate to
approve various community work or social development programs for this purpose.
The Minister may also set, via notifiable instrument, the rate at which a
program discharges the penalty.
The new option allows the administering
authority to allow payment via community work or social development programs. An
option already exists for people to discharge Court-ordered fines through
community work; however this option is only available for traffic infringements
if a person goes to Court and disputes the fine.
The administering
authority may allow an application if satisfied on reasonable grounds that it is
justified by the applicant’s financial circumstances and/or special
circumstances. ‘Special circumstances’ are defined to cover limited
circumstances: mental or intellectual disability, disease or illness; physical
disability, disease or illness; addiction to drugs, alcohol or another
substance; domestic violence; and homelessness, or living in crisis or
transitional or supported accommodation.
As with section 28A, an
applicant must apply within 28 days of the infringement notice or reminder
notice. The administering authority may accept applications outside of this time
if satisfied on reasonable grounds that there are circumstances why the
application could not be made within the 28 day period. This allows people the
possibility of discharging their penalty via community work/social development
program once their licence has already been fine-suspended. As with the
instalments option, new section 48A allows the authority to return
someone’s licence while the person is discharging the fine via community
work or a social development program.
An applicant must provide the
authority with details of either their financial circumstances or special
circumstances (or both). This information is required so that the authority can
make a decision on the application.
It should be noted that undertaking
community work/social development will only discharge the fine and not any
demerit points incurred for the offence (see new Consequential Amendment [1.1]
below).
New Section 28D - Waiver of penalty
New section 28D
allows a person served with an infringement notice or reminder notice to apply
to the administering authority for waiver of the infringement notice penalty,
and of any additional charge incurred through a reminder notice. The waiver is
only for the fine, not for any demerit points incurred for the offence (see new
Consequential Amendment [1.1] below).
A waiver will only be available in
limited circumstances, which are set out in the Bill. Essentially, these
circumstances describe a person who can never pay the fine, is unsuitable for
community work/social development program, and is affected by special
circumstances. These will be the most vulnerable people in the community, who
are least able to avail themselves of payment options, and who are likely to
remain in their difficult situation long term.
It is expected that many
of these people will make applications with assistance from a support person. An
application must set out both the financial circumstances of the person and
their special circumstances. These circumstances are required for the authority
to make a decision whether it is appropriate to waive the penalty.
Unlike the other flexible payment options, waiver is not subject to an
application time limit. This recognises that the most vulnerable people are also
those least likely to engage with the authority within the time limit, and it
ensures they still have an option once their licence is suspended.
If a
person whose licence is fine-suspended is granted a waiver, their licence will
be reinstated as if the fine had been discharged (see clause 7), provided that
there is no other reason for it to remain suspended (such as suspension due to a
loss of demerit points).
Clause 7 - Revocation of suspension
- Section 47 (1) (b)
This clause ensures that a person’s licence
must be reinstated by the Road Transport Authority once the person has
discharged the full amount of the fine by attending community work or social
development program, or if the fine has been waived.
Clause 8 - New
section 48A - Revocation of suspension by road transport authority
This
new section gives the Road Transport Authority the power to reinstate a
person’s fine-suspended licence. This is permitted where a person has been
granted one of the new flexible payment options (instalments or community work)
and is complying with the arrangement.
If the applicant does not comply
with the requirements of the payment undertaking, the authority may reinstate
the suspension after giving notice to the person and waiting at least 10 days.
This ensures that the person does not unknowingly drive while their licence is
suspended. The ability to reinstate the suspension ensures that people comply
with a payment/discharge undertaking and that it can be enforced.
This
new power recognises that people in hardship will often need a vehicle in order
to earn income, or to attend any community work or social development program.
It ensures that the person can use the vehicle while they are complying with
their fine payments or community work order or social development program. In
this way it also operates as an incentive for people to comply with payments.
The ability to reinstate a licence will reduce the number of people who drive
while suspended (which then leads to even greater penalties) as well as allowing
people to continue to be employed, productive, and self sufficient.
Consequential Amendment [1.1] - Section 13A (1) (c), Road
Transport (Driver Licensing) Act 1999
This amendment requires the
Road Transport Authority to record any relevant demerit points in the demerit
points register when a person is granted the option to pay by
instalments/discharge/waive the infringement notice penalty. This ensures that
anyone seeking to use the new options established in the Bill will still accrue
demerit points for the offence. The flexible options are only to assist a person
to pay, not to allow them to escape demerit points.
Consequential
Amendment [1.2] Reviewable decisions - Schedule 2, new part 2.2 - Road
Transport (General) Act 1999
This clause makes each of the new
decisions established in the Bill decisions that can be reviewed by the ACT
Civil and Administrative Tribunal. This also ensures that a person has a right
to be given reasons for each of the decisions.
[1] The administering authority is
either ACT Police or the Road Transport Authority, depending on the
offence.
[2] 28 days, plus a
further 28 days following a reminder notice, plus 10 days from the date of a
suspension notice.
[3] Section 44,
Road Transport (General) Act
1999.
[4] Section 30, Road
Transport (General) Act
1999.
[5] Explanatory
Memorandum, Road Transport (General) Bill
1999.
[6] Section 28 Road
Transport (General) Act
1999.
[7] For examples, see the
State Debt Recovery Office in NSW, or Fines Victoria.