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|The purpose of this bill is to improve the recovery of debts, strengthen debt management processes and streamline the debt payment processes in the Northern Territory, timely considering the debate we have just completed. |
The Fines and Penalties (Recovery) Act establishes the Fines Recovery Unit, the Territory’s debt collection agency which is given the powers under the act to enforce court fines and penalties imposed by way of infringement notices. As of 18 March 2015 over 63 000 individual fine defaulters owed in access of $58m. Given the amount of debt outstanding, it is clear that the current measures are insufficient and are failing to encourage people to pay their debts and outstanding fines.
This government is committed to responsible fiscal management through a more proactive approach to pursuing the Territory’s debt. It is important that sanctions are pursued against fine defaulters so that they are encouraged to pay their debts and be held accountable for their actions.
In order to improve the effectiveness of the Fines Recovery Unit and provide other mechanisms for enforcement, the Fines and Penalties (Recovery) Amendment Bill will implement the following new enforcement measures:
1. publication of the Northern Territory’s top fine defaulters on a website
2. immobilisation of motor vehicles owned or used by fine defaulters who continue to evade the Fines Recovery Unit, and
3. extension of cessation of business orders to individuals in order to provide the motor vehicle registrar with the power to refuse to perform any of the function in relation to fine defaulters.
The new enforcement measures will be aimed at those high-end defaulters owing $10 000 or more who blatantly disregard their obligation to pay despite being more than capable to do so. It will not be targeted at those members of the community who take responsibility for their actions and pay their fines or those suffering financial hardship. However, those people who commit offences and refuse to pay will face the increasingly harsh enforcement measures. Although this government will be taking a hard-line approach with fine defaulters, we accept that for many reasons there may be many individuals who are unable to pay their fines by the due date. If this is the case there are alternate options available with the Fines Recovery Unit regularly implementing flexible payment plans for those who are unable to pay their fines in full.
Given this option is available there is no excuse for defaulters to refuse to cooperate. The Fines and Penalties (Recovery) Amendment Bill inserts a new Division 7A into Part 5 of the Fines and Penalties (Recovery) Act which will provide the Fines Recovery Unit with the power to immobilise a fine defaulter’s vehicle. Similar to other enforcement sanctions under the Fines and Penalties (Recovery) Act, the immobilisation of a defaulter’s vehicle will be at the discretion of the Fines Recovery Unit, although it should be noted the targets for wheel clamping will be repeat high-end defaulters who owe more than $10 000.
Division 7A has been drafted to allow for the immobilisation of fine defaulters’ vehicles to be outsourced for the task to be carried out by an immobilisation officer, being a bailiff, the deputy director of the Fines Recovery Unit or another person approved by the director. If the task is outsourced then the director of the Fines Recovery Unit will retain discretion and make any decision regarding the appropriateness of the immobilisation.
The new section 66C will provide for the immobilisation of a fine defaulter’s vehicle for a period not exceeding seven 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 redrafted to ensure that they remain technologically neutral and will be applicable even if the technology of wheel clamping is superseded by other means of vehicle immobilisation. Upon the application of an immobilisation device, section 66C(3) will require a notice to be affixed to the vehicle advising of the immobilisation and outlining how the defaulter can seek to have the removal of the immobilisation.
The new section 66G provides the person authorised to apply or remove an immobilisation device with the power to enter any premises for the purposes of applying or removing an immobilisation. However, the provision will only allow entry to residential premises occupied by the fine defaulter by a bailiff without consent. Only then will the bailiff be able to enter those parts of the premises that are not a residential building, for example, a bailiff will be authorised to access driveways or carports for the purposes of applying and removing an immobilisation device.
If the immobilisation officer is not a bailiff they may not enter residential premises without consent and if the premises is only occupied by a person, other than a fine defaulter, then an immobilisation officer, whether a bailiff or otherwise, may not enter without consent. This application of the provision means that if a fine defaulter lives in a share house or unit which shares common property, a bailiff will not be authorised to enter the part of the premises which is solely occupied by other persons without consent, but will be able to access areas of common property.
The new section 66K will also provide the immobilisation officer with protection from criminal or civil liability for an act done in good faith in the exercise of power, or performance of a function as an immobilisation officer. In order to ensure the safety of the defaulter and any other person, the new section 66D will provide that the vehicle must not be immobilised if the vehicle could be a safety or traffic hazard; the safety of the driver or other occupants may be at risk, for example, an isolated location; or whether it is otherwise inappropriate.
In accordance with the new section 66F and 95(7)(c), the immobilisation will be released if the defaulter pays the outstanding amount in full; the defaulter enters into a payment plan; the immobilisation will cause undue inconvenience to a person other than the fine defaulter, for example, if the vehicle is the only available means of transporting the debtor’s children to and from school; or otherwise at the discretion of the Fines Recovery Unit.
In order to deter interference with an immobilised vehicle, new sections 66H and 66J will create offences for moving or tampering with an immobilise vehicle or immobilisation device, which will carry a maximum penalty of 100 penalty units. Due to the operation of section 43BE of the Criminal Code Act 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.
The bill also inserts a new section 7B into Part 5 of the Fines and Penalties (Recovery) Act to provide the Fines Recovery Unit with the power to name and shame fine defaulters who owe more than $10 000 by publishing their full name, suburb of residence and amount owing on a publicly accessible website. In order to ensure the safety of the community, the names of fine defaulters who are children, protected persons, for whom a domestic violence order is sought in force, or any other person whose safety would be endangered will not be published on the website. The bill will also consequently amend 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.
The new sections 66N and 95(7)(d) will require the Fines Recovery Unit to remove the defaulters name from the website if the defaulter pays the outstanding amount in full, the defaulter enters into a payment plan, or otherwise at the discretion of the Fines Recovery Unit.
The bill will also amend section 62 of the Fines and Penalties (Recovery) Act to extend cessation of the business orders to individuals. Under section 62 the Registrar of Motor Vehicles may, at the request of the Fines Recovery Unit, cease all business of the body corporate which is a fine defaulter.
In order to encourage fine defaulters to pay their debts cessation of business will be extended to individuals and will provide the Motor Vehicle Registrar with the power to refuse to perform one or more of the following functions in relation to a fine defaulter: issue or renew a licence to drive; test the defaulter for the purpose of issuing a licence to drive; register, renew or transfer the registration of a vehicle; grant or renew a motor vehicle trader’s licence; grant a temporary licence under section 137 of the Motor Vehicle’s Act; grant or renew a pastoral vehicle permit; issue a number plate; or a function described by regulation.
Similarly to the new ‘naming and shaming’ and immobilisation provisions, a cessation of business order will be lifted as soon as:
(a) the defaulter pays the outstanding amount in full or
(b) the defaulter enters into a payment plan; or otherwise,
(c) at the discretion of the Fines Recovery Unit.
Prior to 2012, the 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. At the time the amendment addressed concerns that:
(a) the application of a provision to individuals have negative impact on families who shared vehicles; and
(b) it would affect the ability of the defaulters to earn a livelihood if it required the use of a vehicle.
These concerns can be addressed through a discretionary application and removal of the sanction. Prior to seeking the cessation of a business order the Fines Recovery Unit will have full regard to the defaulter’s circumstances and any hardship that the measure may cause to them or their family. Further, as a sanction will be automatically removed upon a defaulter entering into a payment plan, the defaulter merely has to contact the Fines Recovery Unit in order to make the arrangements, and the cessation of the business order will be removed.
This bill will also make a number of other minor amendments to the Fines and Penalties (Recovery) Act to provide for the Bailiff’s cost to be paid in relation to community work orders or for community work orders to be served by a bailiff or the Director or Deputy Director of the Fines Recovery Unit.
The bill also makes a number of consequential amendments to the Fines and Penalties (Recovery) Regulations to prescribe: enforcement fees for the new sanctions; an enforcement fee for bailiff cost incurred when serving community work orders; and the threshold amount for the application of the immobilisation and ‘naming and shaming’.
The bill also converts all offences in the Fines and Penalties (Recovery) Act so they will comply to the principles of criminal responsibilities and Part IIAA of the Criminal Code Act.
Transitional provisions are provided in the bill so that amendments including those relating to offences applying retrospectively to any outstanding debt, whether incurred prior to or after the commencement. The principles of criminal responsibility of Part IIAA of the Criminal Code Act are only applicable to offences committed after the commencement.
The community expects that those who commit offences are punished and the imposition of sanctions under the Fines and Penalties (Recovery) Act ensures the integrity of monetary penalties as effective sanctions for minor offences. The proposed amendments and new enforcement measure will ensure that fine defaulters are aware of the consequences for failing to pay their fine debt, and they are encouraged to pay and to be held accountable for their actions.
Madam Speaker, I commend the bill to the House and table a copy of the explanatory statement.
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