FINES AND PENALTIES (RECOVERY) AMENDMENT BILL 2015 Explanatory Statement

2015
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

ATTORNEY-GENERAL AND MINISTER FOR JUSTICE

Fines and Penalties (Recovery) Amendment Act

SERIAL NO. 129

EXPLANATORY STATEMENT

The purpose of the Fines and Penalties (Recovery) Amendment Bill 2015 is to improve debt recovery, streamline debt management and payment processes under the Fine and Penalties (Recovery) Act.

The Bill also seeks to strengthen enforcement sanctions by introducing immobilisation and ‘naming and shaming’ provisions, and extending
‘cessation of business’ provisions to individuals.

Consequential amendments to the Anti-Discrimination Act will also be made in order to prohibit discrimination against a person that has been listed as a fine defaulter under the new ‘naming and shaming’ provisions.

This 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) Amendment Act 2015.

This clause provides that the Act will commence on a day fixed by the Administrator by Gazette notice.

This Part of the Bill will amend the Fines and Penalties (Recovery) Act.

Clause 4. Section 5 amended

This clause amends section 5 of the Fines and Penalties (Recovery) Act to insert definitions for new terms ‘authorised person’, ‘immobilisation officer’ and ‘immobilisation period’.

‘authorised person’ is defined as a bailiff and the Director or the Deputy Director [of the Fines Recovery Unit] appointed under section 29(2) of the Act. The term ‘bailiff’ is already defined in section 5 of the Fines and Penalties (Recovery) Act to include a member of the Police Force.

‘immobilisation officer’ is defined as an ‘authorised person’ or a person authorised by the Director under new section 66B of the Act. Accordingly, a bailiff, the Director or Deputy Director or a person authorised, in writing, by the Director, can be an immobilisation officer.

The full definition for ‘immobilisation period’ is contained in new section 66C(1)(a).

This clause inserts a new section 6A. This is a standard clause which provides that Part IIAA of the Criminal Code applies to an offence against the Fines and Penalties (Recovery) Act. Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof.

Clause 6. Section 11 amended

This clause amends the offence contained in section 11 of the Fines and Penalties (Recovery) Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.

Amended section 11 provides for the offence of contravening a requirement to provide identification information, made by an officer issuing an infringement notice. This is a strict liability offence, with a reasonable excuse defence.

This clause amends the offence contained in section 33 of the Fines and Penalties (Recovery) Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.

Amended section 33 provides for the offence of contravening a requirement to provide identification information, made by an officer of the Fines Recovery Unit. This is a strict liability offence, with a reasonable excuse defence.

Clause 8 of the Bill repeals section 34 of the Act which provides for the offence of giving false or misleading information. Clause 16 of the Bill inserts new section 109A which replaces the offence at section 34 with a new general misleading information offence.

This clause amends section 41 of the Fines and Penalties (Recovery) Act, consequential to the insertion of new section 78A, to include bailiff fees for the service of a community work order as an enforcement cost, payable by the fine defaulter. This section applies to penalties imposed by way of infringement notice.

This clause amends section 53 of the Fines and Penalties (Recovery) Act, consequential to the insertion of new section 78A, to include bailiff fees for the service of a community work order as an enforcement cost, payable by the fine defaulter. This section applies to fines imposed by a court.

This clause amends section 55 of the Act, consequential to the insertion of new section 78A, to require the inclusion of information regarding bailiff fees for the service of a community work order, in the notice to a fine defaulter advising of the making of an enforcement order.

This clause amends section 62 of the Act to omit the specification of ‘body corporate’ from the condition precedent necessary before the Registrar of Motor Vehicles may take enforcement action (at the request of the Fines Recovery Unit) by way of ‘cessation of business’ against a fine defaulter.

This amendment will extend the operation of ‘cessation of business’ to individuals in order to provide the Motor Vehicle Registrar with the power to refuse to perform any functions in relation to all fine defaulters, not just bodies corporate.

The clause also inserts news subsection 62(1)(aa) to list functions that can be specifically refused towards individual fine defaulters (i.e. refusing to issue or renew a licence to drive).

The clause also amends section 62(2)(a) to include the transfer of registration of a vehicle as a function that the Motor Vehicle Registrar can refuse to perform.

Prior to 2012, a cessation of business order could be applied to individuals, however, the provision was amended by the Fines and Penalties (Recovery) and Other Legislation Amendment Act 2011 to apply solely to bodies corporate. The amendment was made in response to a number of concerns regarding the application of the provision to individuals. These concerns have been addressed and, in order to encourage defaulters to pay their debt, the provision will be amended so that it may again, apply to individuals.

Section 62 is to be read in conjunction with section 64 and new section 95(7)(b) which require the Registrar of Motor Vehicles to cease enforcement action if requested by the Fines Recovery Unit, notwithstanding any outstanding debt if the defaulter enters into an instalment plan. Accordingly, a cessation of business order will be lifted as soon as:

This clause amends the offence contained in section 66 of the Fines and Penalties (Recovery) Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.

Amended section 66 provides for the offence of selling or otherwise transferring an interest in a vehicle, for which the fine defaulter is the registered owner, without written approval, while the registration of the vehicle is suspended under the Act.

The fault element for section 66(1A)(a) is intention and the fault element for section 66(1A)(d) is recklessness. Strict liability applies to sections 66(1A)(b) and (c).

Clause 11 of the Bill inserts new Divisions 7A and 7B into Part 5 of the Fines and Penalties (Recovery) Act, which will provide the Fines Recovery Unit with the power to implement a number of new enforcement sanctions against fine defaulters, namely:

(b) ‘naming and shaming’ fine defaulters by publishing their details on a publicly accessible website.

In accordance with new section 66A the Fines Recovery Unit may seek to immobilise a defaulter’s vehicle if:

(a) the defaulter has not paid their debt in full by the due date (whether the original due date or the extended due date following the grant of additional time to pay); or

(c) the debt exceeds the amount prescribed by regulation (in accordance with new regulation 11A, this sum will be $10,000); and

(d) the defaulter is the registered owner (or one of the registered owners) of a motor vehicle.

Division 7A, particularly new section 66B, has been drafted to allow for the immobilisation of fine defaulters vehicles to be outsourced and for the task to be carried out by an immobilisation officer, being a bailiff, Director or Deputy Director of the Fines Recovery Unit or another person authorised, in writing, by the Director. It should be noted, however, that if the task is outsourced, the Director of the Fines Recovery Unit will still retain discretion and make any decision regarding the appropriateness of immobilisation.

New section 66C provides for the immobilisation of fine defaulter’s vehicle for a period not exceeding 7 days through the attachment of a device, such as a wheel clamp, or by any other means approved by the Director of the Fines Recovery Unit. Although the provisions will initially be enforced through wheel clamping, the provisions have been drafted to ensure they remain technologically neutral and will still be applicable even if the technology of wheel clamping is superseded by another means of immobilising a vehicle.

Upon application of an immobilisation device section 66C(3) requires a notice to be affixed to the vehicle advising of the immobilisation and outlining how the defaulter can seek the removal of the immobilisation.

New section 66G provides the person authorised to apply or remove an immobilisation device with the power to enter any premises for the purpose of applying or removing an immobilisation. However, if the occupier of residential premises has not consented to entry, and the occupier is the fine defaulter, an immobilisation officer who is a bailiff may enter premises (excluding residential buildings). Accordingly, a bailiff is authorised to access driveways and carports of residential premises occupied by the fine defaulter, without consent. However, if the immobilisation officer is not a bailiff then they may not enter residential premises without consent, whether they be occupied by the fine defaulter or another person. If the premises are solely occupied by a person, other than the fine defaulter, then an immobilisation officer may not enter without consent. The application of this provision means that, if the fine defaulter lives in a share house or unit which shares common property, a bailiff will not be authorised to enter any part of the premises which is solely occupied by other persons, without consent. However, the bailiff will be authorised to access areas of common property, for example driveways and carports, without consent, for the purpose of applying or removing an immobilisation device. In order to protect the occupier, the provision also requires the immobilisation officer to produce their authorisation to the occupier if requested.

New section 66K, will provide protection from civil or criminal liability for immobilisation officers who have acted in good faith, in the exercise of a power or performance of a function as an immobilisation officer.

In order to ensure the safety of the defaulter and any other person, new section 66D provides that a vehicle must not be immobilised if:

(b) the safety of the driver and any other occupants may be at risk (for example, at an isolated location); or

New section 66E ensures that the fine defaulter can access an immobilised vehicle during the immobilisation period (for example, to retrieve personal possessions).

In accordance with new section 66F the immobilisation will be released before the end of the immobilisation period if:

(b) the immobilisation will cause undue inconvenience to a person other than the fine defaulter (for example, the vehicle may be the only available means of transporting the debtor’s children to and from school); or otherwise

This provision is to be read in conjunction with new section 95(7)(c) which requires the Fines Recovery Unit to remove the immobilisation notwithstanding any outstanding debt, if they enter into an instalment plan.

In order to deter interference with an immobilised vehicle, new sections 66H and 66J create offences for moving or tampering with an immobilised vehicle or immobilisation device. The offences will carry a maximum penalty of 100 penalty units. The fault element for sections 66H(1)(b) and 66J(1)(b) is intention. Strict liability applies to sections 66H(1)(a) and 66J(1)(a). A reasonable excuse defence has been provided for both offences. Due to the operation of section 43BE of the Criminal Code, the offences will not apply to a person authorised under any other Act to move a vehicle, for example, a Police Officer acting in accordance with Part 5 of the Traffic Regulations.

In accordance with new section 66L the Fines Recovery Unit may ‘name and shame’ a defaulter if:

(a) the defaulter has not paid their debt in full by the due date (whether the original due date or the extended due date following the grant of additional time to pay); or

(c) the debt exceeds the amount prescribed by regulation (in accordance with new regulation 11A, this sum will be $10,000).

In accordance with section 66M(1), when ‘naming and shaming’ a fine defaulter, the Fines Recovery Unit may publish the defaulter’s full name, suburb of residence and amount owing on a publicly accessible website. In order to ensure the safety of the community, section 66M(2) prohibits publication of a fine defaulter’s details if the defaulter is:

(b) a protected person as defined in section 4 of the Domestic and Family Violence Act (being a person whom a Domestic Violence Order is sought or is in force); or

New section 66N will require the Fines Recovery Unit to remove the defaulter’s name from the website if the defaulter pays the outstanding amount in full or otherwise at the discretion of the Fines Recovery Unit. However, this provision is to be read in conjunction with new section 95(7)(d) which requires the Fines Recovery Unit to remove the defaulter’s name notwithstanding any outstanding debt, if they enter into an instalment plan.

Clause 12 of the Bill omits the term ‘bailiff’ from subsections 78(2) and 78(3) and replaces the term with, ‘an authorised person’. The term ‘authorised person’ is defined in clause 4 of the Bill as a bailiff, the Director or the Deputy Director [of the Fines Recovery Unit] appointed under section 29(2) of the Act. The term ‘bailiff’ is already defined in section 5 of the Fines and Penalties (Recovery) Act to include a member of the Police Force.

The provision will allow the Director or Deputy Director, or the Director’s delegate, to serve community work orders when they attend on defaulters in person (for example at the front counter of the Fines Recovery Unit office) and will avoid the engagement of a bailiff if the defaulter is in attendance at the Fines Recovery Unit and is willing to accept the order.

This clause inserts a new section 78A, which provides that the costs and expenses incurred by a bailiff in relation to the service of a community work order are recoverable as an enforcement cost, payable by the fine defaulter. The provision also outlines the process for recovery of such costs. The provision has been mirrored on section 74 of the Act which provides for the recovery of bailiff costs and expenses incurred in relation to civil enforcement action taken under Division 8.

Consequential amendments are also made to sections 41, 53, 55 and 113 of the Act in clauses 9, 10, 11 and 20 of the Bill and Schedule 3 of the Fines and Penalties (Recovery) Regulations in clause 27 of the Bill, to ensure the recovery of bailiff costs as enforcement costs.

This clause amends section 95 of the Act to provide for the suspension of enforcement action, in certain circumstances, if a defaulter enters into a payment plan. Amended section 95 is to be read in conjunction with section 64 and new sections 66F and 66N. Notwithstanding the operation of sections 64, 66F and 66N, which require full payment before the removal of enforcement sanctions, new section 95(7) requires the Fines Recovery Unit to:

(c) advise the Registrar of Motor Vehicles to lift any suspension of the defaulter’s drivers licence or vehicle registration; and

(d) request the Registrar of Motor Vehicles cease enforcement action taken under section 62 (cessation of business).

This provision will ensure that fine defaulters who engage with the Fines Recovery Unit and make arrangements to start paying off their debt are rewarded and that significant enforcement sanctions are immediately removed.

This clause amends the offence contained in section 99 of the Fines and Penalties (Recovery) Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.

Amended section 99 provides for the offence of contravening a requirement to provide identification information, made by a bailiff. This is a strict liability offence, with a reasonable excuse defence.

Clause 16 of the Bill inserts new section 109A, which replaces section 34 of the Act, and provides for two offences covering the provision of misleading information or documentation. Both offences are modelled on the standard ‘misleading information’ offence which is applied across the statute book.

These are not new offences, but rather a conversion of the offence previously contained in section 34 to ensure compliance with the criminal responsibility principles in Part IIAA of the Criminal Code. The provision is relocated to Part 9 as this was deemed to be a more appropriate location for the offence.

The offence at section 109A(1) covers the provision of misleading information to a law enforcement officer, authorised person, immobilisation officer or officer of the Fines Recovery Unit, exercising powers or performing functions under or otherwise related to the administration of the Act.

The offence at section 109A(2) covers the provision of misleading documentation to a law enforcement officer, authorised person, immobilisation officer or officer of the Fines Recovery Unit, exercising powers or performing functions under or otherwise related to the administration of the Act.

The fault element for sections 109A(1)(a) and (2)(a) is intention and for sections 109A(1)(c) and (d) and (2)(c) and (d) is knowledge. Strict liability applies to sections 109A(1)(b) and (2)(b).

Section 109A(4) is a standard clause, consistent with other misleading documentation offences across the statute book, and provides that a person does not commit an offence if the person draws the misleading aspect of the document to the official’s attention and, to the extent to which the person can reasonably do so, gives the official the information necessary to remedy the misleading aspect.

Subsection 109A(5) provides definitions for the section in relation to the following terms:

‘acting in an official capacity’ relates to the ability of an official to exercise powers or perform functions under, or otherwise related to the administration of the Act.

‘misleading information’ means information that is misleading in a material particular or due to omission of material particular.

The term ‘law enforcement officer’ is already defined in section 5 of the Fines and Penalties (Recovery) Act as a person exercising law enforcement functions in an official capacity. A list of persons who are included in the definition is also provided in section 5 of the Act.

An ‘authorised person’ is defined in clause 4 of the Bill as a bailiff and the Director or the Deputy Director [of the Fines Recovery Unit] appointed under section 29(2) of the Act. The term ‘bailiff’ is already defined in section 5 of the Fines and Penalties (Recovery) Act to include a member of the Police Force.

Clause 20 Section 113 amended

This clause amends section 113 of the Fines and Penalties (Recovery) Act, consequential to the insertion of new section 78A, to include bailiff fees for the service of a community work order as an enforcement cost, payable by the fine defaulter. The section provides a hierarchy for the allocation of funds to various parties if a defaulter does not satisfy their debt in full and will include payment of bailiff costs in relation to the service of a community work order at the same time as the payment of bailiff costs incurred in relation to other enforcement action.

Clause 21 of the Bill inserts new Division 3 into the Act which contains the transitional provisions for the Fine and Penalties (Recovery) Amendment Act 2015.

New section 125 provides that the amended offence provisions only apply to offences committed after commencement. This means that any offence committed prior to commencement will be captured by the previous offence provisions.

New section 126 provides that all other amendments made by the Fines and Penalties (Recovery) Amendment Act 2015 are to apply to any outstanding debt, whether incurred prior to or after commencement.

These provisions will ensure that all new enforcement sanctions can be applied retrospectively to any outstanding debt, whether incurred prior to or after commencement.

Clause 19 of the Bill amends section 19 of the
Anti-Discrimination Act to prohibit discrimination on the basis that a person has been listed as a fine defaulter under the new
‘naming and shaming’ provisions of the Fines and Penalties (Recovery) Act.

Part 3, Division 2 of the Bill will amend the Fines and Penalties (Recovery) Regulations.

Clause 21 of the Bill inserts a new regulation 11A into the Fines and Penalties (Recovery) Regulations, which prescribes the minimum threshold of $10,000 for the application of new enforcement sanctions, immobilisation and ‘naming and shaming’ under sections 66A and 66L of the Fines and Penalties (Recovery) Act.

This clause consequentially amends regulation 13 of the Fines and Penalties (Recovery) Regulations in accordance with the amendments to section 78 of the Fines and Penalties (Recovery) Act to omit the term, ‘a bailiff’ and replace it with the term, ‘an authorised person’.

Clause 23 of the Bill replaces Schedule 3 of the Fines and Penalties (Recovery) Regulations with an updated schedule, which includes revenue unit amounts for the cost of enforcing new sanctions under Part 5 of the Fines and Penalties (Recovery) Act (namely, immobilisation and ‘naming and shaming’) in addition to enforcement costs for the service of a Community Work Order by a bailiff as provided in new section 78A of the Fines and Penalties (Recovery) Act.

This is a standard clause which provides that the Fines and Penalties (Recovery) Amendment Act 2015 will expire the day after its commencement.

Northern Territory Explanatory Statements

FINES AND PENALTIES (RECOVERY) AMENDMENT BILL 2015