MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

FINES AND PENALTIES (RECOVERY) AND OTHER LEGISLATION AMENDMENT Bill 2011

                                      			SERIAL NO 181  

EXPLANATORY STATEMENT

GENERAL OUTLINE

The purpose of this Bill is to make amendments to the Fines and Penalties (Recovery) Act (the Act) and the Fines and Penalties (Recovery) Regulations (the Regulations).

The Bill will:

·	provide for the Fines Recovery Unit (FRU) to enforce the payment of moneys owing to victims under a court order for compensation or restitution; 
·	provide a formal basis for enforcement agencies to enter into time to pay arrangements prior to the commencement of the penalty enforcement process; 
·	allow the FRU to request the Registrar of Motor Vehicles (the Registrar) to impose cessation of business sanctions on fine defaulters who are bodies corporate;
·	clarify that the amount payable under an enforcement order includes the costs associated with issuing a courtesy letter; 
·	extend the limitation period for enforcing unpaid infringement notices and for commencing proceeding where a person elects to go to court in relation to an alleged offence;
·	increase the default rates for paying off fines through imprisonment and community work; and
·	facilitate the implementation of, and ensure consistency with, the Service and Execution of Process Amendment (Interstate Fine Enforcement) Act 2010 (Cth).

The Bill also makes minor amendments to the Sentencing Act and consequential amendments to the Motor Vehicles Act.

NOTES ON CLAUSES

Part 1 			Preliminary Matters

Clause 1.	Short title

Clause 1 is a formal clause which provides for the citation of the Bill.  The Bill when passed may be cited as the Fines and Penalties (Recovery) and Other Legislation Amendment Act 2011.

Clause 2.	Commencement

Clause 2 outlines when the Bill, once passed, will commence operation.  The Bill will commence on a day fixed by the Administrator by Gazette notice.

Part 2 		Amendment of Fines And Penalties (Recovery) Act 

Clause 3.	Act amended

Clause 3 provides that Part 2 of the Bill will amend the Act.

Clause 4.	Section 3 amended

Clause 4(1) expands the scope of the Act to monies payable to a state or another territory of the Commonwealth under an order of a court in proceedings for an offence.  

Clause 4(2) clarifies that, in relation to section 3(1)(d) of the Act, monies payable to a person under an order of a court in proceedings for an offence includes monies payable under an order of a court in another State or Territory.

Clause 5.	Section 5 amended

Clause 5(1) makes a minor drafting amendment to delete the words ‘unless the contrary intention appears’ from section 5 of the Act.

Clause 5(2) inserts the terms ‘courtesy letter’ and ‘order for restitution or compensation’ into section 5, the definition section.  The definition of courtesy letter will be set out at section 15(1) of the Act and the definition of order for restitution or compensation will be set out at section 6(1)(da) of the Act. 

Clauses 5(3) and 5(4) make minor drafting amendments to the definition of law enforcement officer.

Clause 6.	Section 6 amended

Clause 6 expands the definition of ‘fine’ in section 6 of the Act to include a court order for restitution or compensation. 

Clause 6 inserts a new paragraph (da) into section 6(1) of the Act, which defines an order for restitution or compensation as an order for restitution by monetary forfeiture or monetary compensation made by a court in proceedings for an offence.  The definition is intended to include an order for restitution or compensation under sections 88 or 89 of the Sentencing Act and an order for monetary compensation under section 89 of the Youth Justice Act.

Clause 7.	Sections 12A and 12B inserted

Clause 7 inserts new sections 12A and 12B into the Act.

Section 12A(1) provides for a person to apply to an enforcement agency for further time to pay the penalty under an infringement notice. 

Section 12A(2) provides that the application for time to pay may be made at any time before a penalty enforcement order is made in relation to the penalty under the infringement notice.

Section 12A(3) provides that the enforcement agency may require the applicant to provide information or documents in support of the application.

Section 12A(4) provides that when dealing with the application for time to pay, the enforcement agency must comply with any requirements prescribed by regulation and have regard to any relevant guidelines under section 114 of the Act.

Section 12A(5) provides that the decision of the enforcement agency about the application is final and may not be appealed against, reviewed or called into question in any court or tribunal.

Sections 12A(6) and (7) provide that the FRU may enter into an arrangement with an enforcement agency to act on the enforcement agency’s behalf in dealing with an application for time to pay.  Where such an arrangement is made, references in section 12A to an enforcement agency are taken to include the FRU.

Section 12B(1) provides that an enforcement agency has discretion to enter into a time to pay arrangement in relation to a penalty under an infringement notice.  

Sections 12B(2) and 12B(3) provide that, under a time to pay arrangement, the enforcement agency may:
·	extend the time for payment of the whole penalty (including the prescribed cost of the courtesy letter where applicable); or 
·	allow the penalty (including the prescribed costs of the courtesy letter where applicable) to be paid by instalments in the amounts and at the times specified in the time to pay arrangement by the enforcement agency.

Section 12B(4) provides that if an instalment is not paid by the specified time, the remaining instalments become due and payable unless the enforcement agency decides otherwise.

Section 12B(5) allows for an arrangement allowing time to pay to be amended or revoked on another application by the person or on the enforcement agency’s own initiative.  It also provides that the arrangement allowing time to pay is cancelled if a penalty enforcement order is issued.

Section 12B(6) provides that where the FRU has entered into an arrangement with an enforcement agency to act for the agency under section 12A(6), a reference in section 12B to an enforcement agency is taken to include the FRU.

Clause 8.	Section 13 amended

Clause 8 amends section 13 to provide that if the penalty under an infringement notice is paid within the time allowed under a time to pay arrangement pursuant to section 12B, the alleged offence is expiated.

Clause 9.	Section 14 amended

Clause 9 amends section 14 to provide that enforcement action may be taken under the Act if a penalty amount is not paid within the period specified in the infringement notice or within the further time allowed under a time to pay arrangement, unless the infringement notice is withdrawn. 

Clause 10.	Section 15 amended

Clause 10(1) amends section 15(1) to take into account the amendments relating to time to pay arrangements for infringement notices.  Clause 10(1) amends section 15(1) to provide that if the amount of the penalty is not paid by the due date or the further period allowed under a time to pay arrangement pursuant to section 12B, a courtesy letter may be served.

Clause 10(2) inserts new sections 15(3) and 15(4) into the Act, to provide that the FRU may enter into an arrangement with an enforcement agency under which the FRU acts for the agency in issuing and withdrawing courtesy letters.  If the FRU enters into such an arrangement, a reference in section 15 to an appropriate officer is taken to include a reference to the FRU.

Clause 11.	Section 19 amended

Clause 11 amends section 19 to take into account the amendments relating to time to pay arrangements for infringement notices.  Clause 11 amends section 19 to provide that if the amount of the penalty (and prescribed costs) is paid by the date specified in the courtesy letter or the further time allowed under section 12B, the alleged offence is expiated and no further proceedings can be taken in relation to the offence unless the courtesy letter is withdrawn.

Clause 12.	Section 22 amended

Clause 12 inserts new subsection (2) into section 22 of the Act.  New section 22(2) provides that where proceedings for prosecuting the offence would be required to be commenced within a period of 12 months or less, and a person elects under section 21 of the Act for the matter to be dealt with by a court, then proceedings must be commenced within 12 months after the offence is alleged to have been committed.  

Where the period during which proceedings for prosecuting the offence must be commenced is longer than 12 months, and a person elects under section 21 of the Act for the matter to be dealt with by a court, proceedings must be commenced before the expiry of that period.

Clause 13	Section 26 amended

Clause 13 makes amendments to section 26(2) of the Act for consistency with the drafting in new section 12B(2) of the Act.  

Clause 14. 	Section 28 amended

Clause 14(1) amends to section 28(4) to provide that the FRU’s functions include to act on behalf of enforcement agencies to recover amounts due to those agencies. 

Clause 14(2) expands the functions of the FRU to also include:
·	the recovery of monies payable to a person under an order for restitution or compensation; and
·	acting for a state or another territory of the Commonwealth to enforce a fine imposed by a court of the state or territory in relation to a body corporate if a request has been made under Part 6 of the Act; and
·	acting for a state or another territory of the Commonwealth to enforce a fine imposed by a court of the state or territory where a request has been made to the FRU under the Service and Execution of Process Act 1992 (Cth). 

Clause 15.	Section 35 amended

Clause 15(2) amends section 35(2) of the Act to clarify that ‘outstanding penalty under an infringement notice’ includes the amount of a penalty that:
·	has not been paid within the time specified in the courtesy letter sent in relation to the infringement notice; or
·	in accordance with arrangements made under section 12B(2) for further time to pay the penalty.

Clause 15(1) amends the definition of ‘outstanding fine’ in section 35(2) so that the definition follows the same structure as the definition of ‘outstanding penalty under an infringement notice’. 

Clause 16. 	Section 37 amended

Clause 16 makes amendments to section 37 of the Act, which sets out the conditions that must be met before an enforcement agency can apply to the FRU for a penalty enforcement order. 

Clause 16(1) amends section 37(1)(c) to clarify that an enforcement order may be applied for if:
·	the due date specified in the courtesy letter has passed; or
·	if further time to pay has been allowed, the arrangements for payment have not been complied with.

Clause 16(2) amends section 37(1)(d) of the Act to clarify that a matter can be referred to the FRU when the penalty, which includes the prescribed costs in relation to the issue of a courtesy letter, has not been paid.  This amendment clarifies that the FRU is able to enforce the prescribed costs in relation to the issue of a  courtesy letter.

Clauses 16(3) and (4) extend the period within which an enforcement agency can refer a matter to the FRU for enforcement to:
·	12 months; or 
·	where the period within which proceedings for prosecuting the offence must be commenced is longer than 12 months, that period. 

Clause 16(5) makes minor drafting amendments to sections 37(1)(a) and 37(1)(b) of the Act.
Clause 17.	Section 45 amended

Clause 17 inserts a new section 45(3) into the Act which provides that, if an annulment of a penalty enforcement order is granted, a matter must be listed with the Court of Summary Jurisdiction in relation to the alleged offence within six months of the annulment being granted.  

Clause 18.	Section 60 amended

Clause 18 amends section 60(3) of the Act to require the Registrar of Motor Vehicles (or the FRU acting on behalf of the Registrar) to notify a fine defaulter in writing about suspension of their licence to drive under section 60 of the Act.  

Clause 18 also inserts new subsection (3A) into section 60 of the Act which provides that the failure of a notification to reach the fine defaulter does not affect the suspension. 

Section 25 of the Interpretation Act applies to the requirement to give written notice and provides that where a document is sent by prepaid post to the recipient at the recipient’s address (as recorded for a law in force in the Territory), it is taken to be served when it would have been delivered in the ordinary course of post. 

Clause 19.	Section 61 amended

Clause 19 amends section 61(3) of the Act to require the Registrar of Motor Vehicles (or the FRU acting on behalf of the Registrar) to notify the fine defaulter in writing about suspension of their vehicle registration under section 61 of the Act.  

Clause 19 also inserts a new subsection 3A into section 61 of the Act which provides that the failure of a notification to reach the fine defaulter does not affect the suspension.

Section 25 of the Interpretation Act applies to the requirement to give written notice and provides that where a document is sent by prepaid post to the recipient at the recipient’s address (as recorded for a law in force in the Territory), it is taken to be served when it would have been delivered in the ordinary course of post. 

Clause 20. 	Section 62 amended

Clause 20 inserts new subsections (1) to (4) into section 62 of the Act.  

New section 62(1) provides that section 62 allows the FRU to take enforcement action by refusing to perform a function in relation to a body corporate which is a fine defaulter.  

New section 62(2) lists the functions that the Registrar may refuse to perform in relation to such  a fine defaulter.  These include:
·	register or renew the registration of a vehicle;
·	grant a motor vehicle trader’s licence, or renew such a licence;
·	grant a temporary licence under section 137 of the Motor Vehicles Act; 
·	grant or renew a pastoral vehicle permit in relation to a vehicle owned by the fine defaulter;
·	issue a number plate to the fine defaulter; and
·	a function prescribed by regulation.

New section 62(3) provides that the Registrar of Motor Vehicles (or the FRU acting on behalf of the Registrar) must notify the fine defaulter in writing that the Registrar has taken enforcement action mentioned in section 62(2) in relation to the fine defaulter.

New section 62(4) provides that the failure of a notification to reach the fine defaulter does not affect enforcement action taken under section 62.

Section 25 of the Interpretation Act applies to the requirement to give written notice and provides that where a document is sent by prepaid post to the recipient at the recipient’s address (as recorded for a law in force in the Territory), it is taken to be served when it would have been delivered in the ordinary course of post. 

Clause 21.	Section 76 amended

Clause 21 will insert a new subsection (1A) into section 76 of the Act to provide that a community work order cannot be made under Part 5, Division 9 of the Act in relation to an order for restitution or compensation.

Clause 22.	Section 105 amended

Clause 22 removes orders for compensation and restitution from the definition of ancillary money orders in section 105 of the Act. 

Clause 23.	Section 113 amended

Where money is paid under an enforcement order, any money received by the FRU is to be allocated in the order set out in section 113(1).

Clause 23 inserts a new paragraph (aa) into section 113(1) of  the Act, which has the effect of requiring that where money is received by the FRU, it should first be used to pay out any orders for restitution or compensation. 

Clause 24.	Section 114 amended

Clause 24 amends section 114 to provide the Minister with power to make guidelines in relation to time to pay arrangements.

Clause 25.	Section 115 amended

Clause 25(1) amends the heading of section 115  to ‘FRU may pay out money collected on behalf of other person or body’.  This clarifies that the provision relates to money collected on behalf of entities and individuals. 

Clause 25(2) inserts a new subsection (1A) into section 115 of  the Act which provides that where money is recovered under an order for restitution or compensation, the FRU must pay the money received under the order to the person or body identified in the order as the recipient of an amount to be paid under the order, unless the person or body cannot be located after reasonable attempts have been made to locate the person or body. 

Clause 26.	Part 10, Division 1 heading inserted 

Clause 26 creates a new Division 1 within Part 10 of the Act, which is headed ‘Savings and transitional matters for Fines and Penalties (Recovery) Act 2001’.

Clause 27.	Part 10, Division 2 inserted

Clause 27 creates a new Division 2 within Part 10 of the Act, which is headed ‘Transitional matters for Fines and Penalties (Recovery) and Other Legislation Amendment Act 2011’. 

Clause 27 inserts new section 123 into the Act which set out the transitional provisions relating to orders for restitution or compensation.  

New section 123(1) provides that where a person already owes an amount under an order for restitution and compensation, the Registrar of the court may refer that matter to the FRU.  

New section 123(2) provides that the FRU has the power to:
·	enter into arrangements with the person to extend the time for payment of the amount or to pay the amount by instalments; or
·	make a fine enforcement order.

New section 123(3) provides that if, in relation to the amount, a warrant has been issued under the Justices Act, Sentencing Act or Youth Justice Act but has not been executed, the warrant is cancelled on the making of the fine enforcement order. 

New section 123(4) notes that if a matter is not referred to the FRU under subsection (1), then sections 94 to 96 of the Sentencing Act continue to apply, as in force immediately before the commencement day, in relation to the matter.

New section 123(5) defines the term commencement day for the purposes of section 123 as meaning the day on which section 27 of the Fines and Penalties (Recovery) and Other Legislation Amendment Act 2011 commences.

Clause 28.	Act further amended

Clause 28 provides that the Schedule to the Bill has effect.  The Schedule makes a number of minor amendments to the Act which reflect the current drafting style. 

Part 3 	Amendment of Fines and Penalties (Recovery) Regulations

Clause 29.	Regulations amended

Clause 29 provides that Part 3 amends the Regulations. 

Clause 30.	Regulation 14 amended

The Act allows a fine defaulter to pay off the amount owing under a penalty enforcement order by undertaking community work.  Regulation 14 sets out the amount that will be satisfied for each hour of community work performed.  Clause 30 increases that amount from $12.50 to 0.25 of the monetary value of a penalty unit.    

Clause 31.	Regulation 15 amended

Division 5 of Part 10 of the Act provides that enforcement may occur by way of imprisonment.  Regulation 15 sets out the amount that will be satisfied for each day of imprisonment.  Clause 31 increases that amount from $100 per day to 2 penalty units.  The amount in regulation 15 is referred to in section 26 of the Sentencing Act and sections 92 and 134 of the Youth Justice Act.

Part 4 	Amendment of Other Legislation 

Division 1 	Amendment of Motor Vehicles Act

Clause 32.	Act amended

Part 4, Division 1 amends the Motor Vehicles Act.
	
Clause 33.	Section 102 amended	

Clause 33(1) amends section 102(2A) of the Motor Vehicles Act to clarify that, if requested by the FRU, the Registrar:
·	must suspend the licence to drive of an individual who is a fine defaulter; or
·	may suspend the registration of a vehicle of which the fine defaulter is a registered owner; or
·	may refuse to perform, in relation to a body corporate that is a fine defaulter, a function mentioned in section 62(1A),
until the FRU advises the Registrar that the enforcement order has been satisfied or requests the Registrar to lift the suspension or cease refusing to perform a function in relation to the fine defaulter.

Clause 33(2) amends section 102(7) of the Motor Vehicles Act to provide that the Registrar must provide written notice in relation to an action taken, as well as a decision made, under section 102. 

Clause 33(3) inserts a new subsection (7A) into section 102 of the Motor Vehicles Act to provide that if the decision made or action taken by the Registrar referred to in section 102(7) arises from a request by the FRU in section 102(2A), the FRU may give written notice on behalf of the Registrar.

Division 2  	Amendment of Sentencing Act 

Clause 34.	Act amended

Part 4, Division 2 amends the Sentencing Act.

Clause 35.	Section 92 amended

Clause 35 amends section 92(c) so that an order made under Part 5 Division 1 of the Sentencing Act no longer needs to specify the time within which the order must be paid where the order is for monetary compensation or monetary restitution.  Pursuant to section 23(1) of the Act, the time for payment of restitution or compensation orders will be 28 days after the order is made.

Clause 36.	Section 94 amended 

Clause 36 amends section 94(1) so that section 94 only relates to the extension of time for an order for restitution.  Time to pay arrangements in relation to orders for compensation and monetary restitution are now provided for in the Act.

The note in relation to section 94(1) clarifies that an extension of time to pay, and enforcement of payment of, an order under Part 5, Division 1 of the Sentencing Act for the payment of money by way of restitution or compensation is dealt with by the FRU under the Act.

Clause 37	Sections 95 and 96 repealed

Clause 37 repeals sections 95 and 96 of the Sentencing Act.  These provisions are no longer required in the Sentencing Act as the powers and functions set out in the provisions will now be exercised by the FRU under the Act. 

Schedule 	Fines and Penalties (Recovery) Act further amended

The Schedule further amends the Act with minor consequential amendments and in accordance with current drafting style.