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Fines Reform Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
General
The Fines Reform Bill 2014 provides for the appointment of the Director,
Fines Victoria, to provide for the collection and enforcement of infringement
fines and court fines. The Bill also includes amendments to the
Infringements Act 2006 and the Sheriff Act 2009 and consequential
amendments to the Magistrates' Court Act 1989, the Sentencing Act 1991
and other Acts.
Background
The Fines Reform Bill 2014 delivers on the Government's commitment to
overhaul the current infringement system and introduce a new model for the
collection and enforcement of fines in Victoria. The new model established
by the Bill will allow for the collection and enforcement of fines using
administrative powers, yet making clear to people who fail to pay fines that
payment is an obligation, not an option. For those people experiencing
disadvantage and hardship, the Bill will introduce a new scheme for dealing
with fine-related debt to operate in addition to existing options that have been
strengthened.
The Bill will underpin a streamlined administrative system with uniform
processes for the collection and enforcement of fines in Victoria. It will
allow for the introduction of consistent and efficient processes for the
management of court and infringement fines, and will improve the
accessibility of that service for the community.
571218 1 BILL LA INTRODUCTION 7/5/2014
In particular, the Bill will--
· establish a single administrative model for the collection and
enforcement of infringement fines and court fines;
· make payment options, engagement with the system, and
access to justice quicker, easier and more cost-effective for
people with fines;
· enable the consolidation of infringement fines and court fines
into single manageable accounts;
· reduce the administrative and hearing workloads of the courts;
· make it more affordable for victims of crime to enforce
compensation orders by waiving some prescribed Sheriff
warrant fees;
· improve civil warrant execution powers to enable better
enforcement of victims compensation orders and civil
judgment debts; and
· expand the use of sanctions available to enforce compliance
with the law.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill. The main purposes of the Bill
are to provide for the appointment, powers and functions of the
Director, Fines Victoria and to provide for the collection of
court fines and infringement fines by the Director and to
provide for the enforcement of court fines and infringement
fines under one Act.
The Bill also makes amendments to the Infringements Act
2006, the Sheriff Act 2009 and consequential amendments to
other Acts.
Clause 2 Subclause (1) provides that the Bill will commence on a day or
days to be proclaimed.
Subclause (2) provides that if a provision of the Bill does not
come into operation before 30 June 2016, it comes into
operation on that day.
2
The default date for the Bill is longer than 12 months after the
Bill is expected to receive Royal Assent to allow for operational
and ICT infrastructure to be put in place and to enable
consultation with the courts, enforcement agencies and other
stakeholders. The courts and enforcement agencies will need
time to make changes in order to transition to the new model.
Clause 3 Subclause (1) sets out the definitions that apply across the Bill.
PART 2--DIRECTOR, FINES VICTORIA
Clause 4 establishes the role of Director, Fines Victoria.
Clause 5 sets out the functions and powers of the Director, including--
· to manage the collection of court fines;
· to enforce registered infringement fines and registered
court fines;
· to oversee and monitor and make recommendations about
infringement activity and enforcement agencies' internal
review processes;
· to manage payment arrangements for natural persons and
bodies corporate;
· to engage appropriately skilled and experienced persons
and bodies to act as the Director's agent for the purposes
of carrying out functions and powers in relation to
payment arrangements;
· to issue work and development permits and monitor the
operation of that scheme, including providing
accreditation to agencies and health practitioners to
participate in the scheme; and
· any other powers or functions conferred or imposed on
the Director by the Bill or under any other Act.
Clause 6 provides that the Director has all the powers necessary or
convenient to carry out his or her functions.
Clause 7 allows for staff to be employed if necessary to enable the
Director to perform his or her functions. Staff are public sector
employees under Part 3 of the Public Administration Act
2004.
3
Clause 8 provides that the Director may, by instrument, delegate his or
her powers, functions or duties (other than the power of
delegation) to a person employed under clause 7 who has the
appropriate skills and experience to carry out those functions.
The Director may also delegate any powers or functions relating
to payment arrangements under Part 5 of the Bill (other than the
power of delegation) to a public sector employee or a person
with appropriate skills and experience.
Clause 9 provides that the Director may waive or reduce enforcement
costs or any other fees payable if satisfied that it is appropriate
to do so. The Director may not waive or reduce the fees if they
were imposed by a court in relation to a court fine.
Subclause (4) requires that if the fees are reduced, the reduced
amount must be paid within 21 days after the date of the notice.
Clause 10 Subclause (1) provides that the Director has standing to appear
in court in a proceeding under clauses 30 and 165 of the Bill, or
Part 3B of the Sentencing Act 1991. The Director may also
appear in any proceeding if required by a court.
Subclauses (3) and (4) provide that, despite this standing, the
absence of the Director does not prevent an order being made
by the court and the Director is not required to attend at a
proceeding specified in subclause (1).
PART 3--MANAGEMENT FOR COLLECTION AND
ENFORCEMENT OF FINES BY DIRECTOR
Division 1--Application of Part
Clause 11 provides that this Part does not apply to infringement notices
issued in respect of a child. Schedule 3 to the Children, Youth
and Families Act 2005 deals with these infringement notices.
Division 2--Referral for collection and registration of court fines
Clause 12 provides that this Division does not derogate from any powers
of a court pursuant to the Sentencing Act 1991.
Clause 13 provides that a court fine imposed on an offender is referred to
the Director for collection and management unless the court
otherwise orders. The referral occurs when the court makes an
4
order imposing a fine and the Director must manage and collect
the fine in accordance with terms specified in the order.
Subclause (2) provides that an offender can either pay the fine
at the court on the day the order is made, or to the Director any
day after that.
Subclause (3) provides that an instalment order or a time to pay
order must be managed and collected in accordance with the
terms specified by the court in the order. Subclause (4) allows
the Director to manage and collect a court fine in the same way
that a payment arrangement would be managed under the Bill.
Clause 14 requires the Director serve a court fine collection statement on
an offender as soon as a court fine is referred to the Director.
A court fine collection statement must be in writing and must
contain the details of the court fine, specify that failure to
comply will result in enforcement action, summarise the
enforcement action and contain any prescribed information.
Clause 15 provides that, unless a court otherwise orders, a court fine is
registered with the Director for enforcement if an offender fails
to pay the fine by the due date, or fails to comply with an
instalment order, a time to pay order or a payment arrangement.
Division 3--Registration of infringement fines for enforcement
Clause 16 sets out the circumstances under which an enforcement agency
may register an infringement fine with the Director for the
purposes of enforcement. Those circumstances are that the
relevant infringement offence must not be non-registrable and
not less than the prescribed minimum infringement fine amount.
Finally, a number of criteria must also be fulfilled, including
that a penalty reminder notice has been served and expired, the
person has defaulted in full payment or defaulted on a payment
plan or payment arrangement, the enforcement agency has not
commenced proceedings in relation to the offence and, in the
case of a number of offences under the Road Safety Act 1986,
the Melbourne City Link Act 1995 and the EastLink Project
Act 2004, the person was the responsible person in relation to
the vehicle involved in the offence.
5
Clause 17 provides that, in most circumstances, an infringement fine must
be registered with the Director for enforcement within 6 months
of the offence having been committed. The section sets out a
number of exceptions to that rule, whereby the 6 months is
calculated from, for example, the date of service of the
infringement notice, or the date of cancellation of a payment
plan or payment arrangement, rather than the date of the
offence.
Clause 18 provides that clause 17 of the Bill has effect despite the usual
statutory limitations within which proceedings for an offence
may be commenced, such as section 7(1) of the Criminal
Procedure Act 2009.
Clause 19 entitles the Director to rely upon the accuracy of the
information provided by the enforcement agency upon
registration of an infringement fine and entitles the Director to
assume that the details are true and correct.
Clause 20 provides that the Director may determine that enforcement of a
registered infringement fine under the Bill is not appropriate.
The section precludes the Director making such a determination
if any of the following has occurred--
· a seven-day notice has been served and has expired;
· a person becomes a declared director;
· an attachment of earnings direction or attachment of
debts direction is made; or
· a land charge has been recorded.
Subclause (3) provides that, if the Director makes a
determination under this clause, the registered infringement fine
is deregistered. Subclause (4) requires the Director to provide
written notice to an enforcement agency advising that the
Director has determined that enforcement of the registered
infringement fine is not appropriate.
Clause 21 provides that, on receipt of notification that the Director has
determined not to enforce a registered infringement fine, an
enforcement agency may withdraw the infringement notice and
either take no further action or issue an official warning to the
person, or can commence proceedings against the person.
6
Division 4--Notices of final demand
Clause 22 provides that an enforcement agency may make a request that
the Director not serve a notice of final demand for a registered
infringement fine any time before such a notice is served.
Clause 23 requires the Director to serve a notice of final demand on a
person at the person's authorised address, or any alternative
address, before any enforcement action is taken to enforce a
registered fine.
Clause 24 provides that a notice of final demand must be in writing and
state that enforcement action may be taken if the person fails to
pay the registered fine or an instalment order or a payment
arrangement in relation to the registered fine within 21 days,
provide a summary of the enforcement action available, detail
the options available to the person and provide any other
prescribed information.
Subclause (2) allows the Director to attach to the notice of final
demand any other registered fines that relate to that person, but
failure to do so does not invalidate the notice.
Clause 25 provides that the issuance of a notice of final demand in relation
to a number of offences under the Road Safety Act 1986, the
Transport (Compliance and Miscellaneous) Act 1983 and the
Marine (Drug, Alcohol and Pollution Control) Act 1988 does
not mean the person is taken to have been convicted of the
offence and that the person is not liable to any further
proceedings for the offence.
This section also makes clear that neither the issuance of a
notice of final demand nor payment in accordance with a notice
of final demand in any way affects or prejudices any civil claim
arising out of the incident.
Subclause (2) requires any payment received as a result of
issuing a notice of final demand to be paid into the
Consolidated Fund unless it is required to be paid into another
fund by the instrument or Act that creates the infringement
offence.
Subclause (3) provides that the issuance of a notice of final
demand does not prevent the incurring of traffic infringement
demerit points in relation to the incident.
7
Division 5--Fines of bodies corporate
Clause 26 provides that a fine owed by a body corporate becomes a debt
due and payable to the State upon registration with the Director
for enforcement, and the Director is authorised to recover the
amount payable in any court.
Subclause (2) requires the Director to allocate money recovered
from a body corporate to the payment of any outstanding
registered fines, from oldest to newest.
Subclause (3) provides that any overpayment may be directed to
payment of other outstanding fines, if the body corporate
consents, or refunded to the body corporate.
This clause does not apply if a body corporate is complying
with a payment arrangement in respect of the fine.
Clause 27 sets out the options open to the Director when dealing with a
registered fine of a body corporate. The Director may either
recover the fine as a debt under clause 26 or enforce the fine
under the Bill, or a combination of both provided that no more
than the amount of the fine is recovered.
Subclause (2) provides that the Director is prevented from
recovering the fine as a debt if the body corporate is complying
with an attachment of earnings direction or an attachment of
debts direction, or an enforcement warrant has been issued.
Subclause (3) provides that if the Director enforces a registered
fine as a debt, other enforcement action may be taken or
continue at the same time other than enforcement action under
an enforcement warrant.
Clause 28 precludes an enforcement warrant from being issued for a fine if
any proceeding to recover the fine as a debt has been
commenced.
Clause 29 provides that the Director may serve a declared director notice
on a person who, based on the records of the Australian
Securities and Investments Commission, was a director of a
body corporate that received a fine, and either was de-registered
after the commission of the offence to which the fine related or
execution of an enforcement warrant against the body corporate
has failed to satisfy the full amount of the fine.
8
The declared director notice must state that the person is a
declared director, is jointly and severally liable for the fine and
has 28 days to apply to the Magistrates' Court for an order under
clause 30 of the Bill that the person is not a declared director.
If an order is not made by the Magistrates' Court, the person
becomes a declared director and, 28 days after service of the
notice, the Director may take enforcement action against that
person in relation to the fine.
Clause 30 sets out the process by which a person served with a declared
director notice can apply to the Magistrates' Court for an order
that the person is not a declared director and is not liable to pay
the fines of the relevant body corporate.
An application to the court must be made within 28 days of
service of the declared director notice and the Director must be
provided with a copy of the application. The Director may not
take enforcement action against the person until the application
has been determined by the court.
The court may make an order that a person is not a declared
director if satisfied that--
· at the time of the commission of the offence the person
was unable to fulfil the person's duties as a director due
to illness or for some other good reason preventing the
person carrying out director's duties under the
Corporations Act; or
· the person took all available reasonable steps to ensure
the fine was paid, or other appropriate action was taken.
If the court does not make an order, the person remains a
declared director.
Subclause (5) requires the Magistrates' Court to notify the
Director of the outcome of an application under this clause if
the Director did not appear at the hearing of the application.
9
PART 4--ENFORCEMENT REVIEW
Clause 31 provides that the enforcement review process contained within
Part 4 does not apply to specified infringement offences under
the Road Safety Act 1986, the Transport (Compliance and
Miscellaneous) Act 1983 and the Marine (Drug, Alcohol and
Pollution Control) Act 1988.
Subclause (2) provides that, in respect of applications for
enforcement review made on the basis of a person being
unaware that the person had been served with an infringement
notice, Part 4 does not apply to specified infringement offences
under the Road Safety Act 1986, the Melbourne City Link
Act 1995, the Transport (Compliance and Miscellaneous)
Act 1983, the Marine (Drug, Alcohol and Pollution Control)
Act 1988 and the EastLink Project Act 2004.
Part 4 does not apply to a registered court fine.
Clause 32 sets out the grounds and application requirements for an
enforcement review application. An application may be made
to the Director to review the decision to serve an infringement
notice and enforce an infringement fine on the following
grounds--
· that the decision was contrary to law or involved a
mistake of identity;
· that special circumstances apply to the person;
· that exceptional circumstances apply in relation to the
infringement offence; or
· that a person was unaware that an infringement notice had
been issued.
Subclause (2) allows an application for enforcement review to
be made by a representative of the person on whom the notice
of final demand has been served with that person's consent.
Subclause (3) specifies what an application for enforcement
review should contain. The application should, at a minimum,
be in writing, state the grounds on which the application is
made, and provide the applicant's current address.
10
Subclause (4) provides the timeframe within which an
application may be made. An application cannot be made
after--
· expiry of the seven-day notice period;
· a person has become a declared director;
· an attachment of earnings or attachment of debts
direction has been made;
· a land charge has been recorded;
· property has been seized under a vehicle seizure and
sale notice; or
· an infringement fine has been paid.
Clause 33 provides for limitations on the making of applications for
enforcement review as follows--
· only one application may be made in relation to any one
infringement offence if the basis for the application is
that the decision was contrary to the law, involved a
mistake of identity or that the conduct should be
excused due to exceptional circumstances;
· two applications may be made in relation to any one
infringement offence if the basis for the application is
that special circumstances exist;
· if the application is based on being unaware of the
infringement notice is made in relation to any one
infringement offence, the application must be made
within 14 days of the person becoming aware of the
infringement notice.
Subclause (4) prevents the Director from considering an
application for enforcement review based on the person being
unaware of the infringement notice, if the person fails to update
the person's authorised address within 14 days of changing
address.
Subclause (5) provides that an application based on the person
being unaware of the infringement notice does not preclude that
person making an application for enforcement review on any of
the other grounds.
11
Clause 34 makes provision for the Director to request additional
information and requires an applicant to provide that
information within 14 days of service of the request, or within
any extended timeframes approved by the Director provided
that the period of the extension does not exceed 3 months and
that the applicant is notified in writing of any extension of time.
Subclause (5) clarifies that if the applicant fails to provide the
required information within time, the Director may conduct the
review without the information, or may accept the late
information and complete the review with that information.
Clause 35 requires the Director to consider an application for enforcement
review by reviewing the decision to serve an infringement
notice and determine whether enforcement should proceed
under the Act. Such a review must be undertaken in a
reasonable time.
Clause 36 outlines that, while an application for enforcement review is on
foot, enforcement action that had been applied before the
application for review was received may continue to be applied.
However no further enforcement action can be applied until the
review is complete.
Subclause (2) clarifies that, in respect of applications made on
the basis of a person being unaware of the issue of an
infringement notice, all enforcement action must be suspended
until the review is complete and the applicant is notified of the
review.
Clause 37 specifies that on completion of a review, the Director may--
· confirm the enforcement agency's decision to serve an
infringement notice and that enforcement under the Act
should proceed; or
· cancel enforcement of the infringement fine and refer
the matter back to the enforcement agency.
The Director must notify the parties within 21 days of making
the decision.
12
Clause 38 provides that where an enforcement agency received notice of
cancellation of enforcement of an infringement notice, the
agency has 28 days to--
· withdraw the infringement notice and take no further
action;
· withdraw the infringement notice and issue an official
warning; or
· withdraw the infringement notice and commence
proceedings to prosecute the offence in court.
An enforcement agency must notify the applicant of the
decision.
Subclause (2) provides for the cancellation of the registration of
an infringement penalty as an infringement fine and the waiver
of any additional fees or penalties added to an infringement
penalty if the Director cancels the enforcement of an
infringement fine due to a person being unaware that an
infringement notice had been served. The Director must refer
the matter back to the enforcement agency for further action
that may include the withdrawal of the infringement notice.
Clause 39 extends the time frame for an enforcement agency to commence
proceedings by 6 months after the date of notification by the
Director of a decision to cancel enforcement of an infringement
fine under clause 37(2)(b).
Clause 40 outlines that where enforcement of an infringement notice is
confirmed, the person must pay the infringement fine or enter
into a payment arrangement within 21 days of receiving notice
of the confirmation.
Clause 41 provides that neither the Director nor an enforcement agency is
prevented from reviewing a decision to serve or enforce an
infringement notice on any other basis than those set out in this
Part.
13
PART 5--PAYMENT ARRANGEMENTS
Clause 42 provides that a person (including a child or a declared director)
or a body corporate may apply to the Director for a payment
arrangement to pay an infringement fine or court fine. A body
corporate cannot apply for a payment arrangement if the
director of the body corporate is a declared director.
An application for a payment arrangement may not be made
after the expiry of the seven-day notice in respect of an
infringement fine or court fine, or after the seizure of property
from a body corporate under an enforcement warrant.
A child is prevented from applying for a payment arrangement
following the registration of an infringement penalty with the
Children's Court.
Clause 43 allows an enforcement agency to refer an infringement fine to
the Director for management by way of a payment arrangement
at the request of the person to whom the infringement fine
relates.
Clause 44 requires the Director to provide written notification to an
applicant of a decision to refuse an application for a payment
arrangement.
Subclause (2) requires the Director to provide written
notification of a decision to refuse a referral from an
enforcement agency for a payment arrangement to the
enforcement agency and the person who requested the referral.
Upon notification of the Director's refusal of an application for
a payment arrangement, the person liable to pay the fine has
21 days to either pay the fine or take other action available
under the Bill or the Infringements Act 2006.
Clause 45 provides that the Director may offer a proposed payment
arrangement upon receipt of an application by a person under
clause 42 or a referral from an enforcement agency under
clause 43.
14
Subclause (2) specifies that if a court makes an instalment order
or a time to pay order and orders that the court fine be managed
by payment arrangement, the Director must offer a proposed
payment arrangement to the person in accordance with the
terms specified in the court order.
Subclause (3) provides that the Director may take into account a
person's financial circumstances and whether a person has any
dependents when deciding whether to offer a proposed payment
arrangement.
The Director may make a payment arrangement subject to any
conditions determined necessary for compliance with the
payment arrangement, particularly in respect of payment
amounts and the length of the arrangement.
A person may reject a proposed payment arrangement by
notifying the Director and may request the Director to offer a
proposed payment arrangement on new terms and conditions.
If a request is received, the Director may offer a proposed
payment arrangement or refuse to offer another proposed
payment arrangement.
Clause 46 provides that a payment arrangement can include one or more
infringement fines or court fines, and may allow for payment by
either or both instalments and an extension of time to pay.
Clause 47 provides that a payment arrangement commences when the
Director receives the first payment under the arrangement by
the due date.
Clause 48 sets out the circumstances in which an infringement fine or
court fine may be removed from a payment arrangement.
Under subclause (1) a person subject to a payment arrangement
may request the removal of a fine from a payment arrangement.
Subclause (2) allows an enforcement agency to request the
Director to remove an infringement fine from a payment
arrangement where the infringement notice relating to that
infringement fine is withdrawn.
15
Subclause (3) provides that any money paid under a payment
arrangement in respect of an infringement fine or court fine that
is removed is to be allocated to the oldest remaining debt under
the payment arrangement or, if the payment arrangement is
completed, refunded to the debtor. However, a refund is not
available if, at the time the infringement fine or court fine is to
be removed from the payment arrangement, the fine has been
paid in full and the offence has been expiated.
Clause 49 provides that a person subject to a payment arrangement may
ask the Director to cancel it at any time.
The Director is required to cancel the payment arrangement
upon receiving such a request and must notify the person of the
cancellation in writing.
Subclause (3) provides that any money paid under a payment
arrangement that is cancelled is to be allocated to the oldest
infringement fine or court fine under the payment arrangement
before it was cancelled or, if the payment arrangement is
completed, refunded to the person. However, a refund is not
available if, at the time the payment arrangement is cancelled,
the relevant fine has been paid in full and the offence has been
expiated.
Clause 50 provides that the Director may, in the Director's discretion, vary
the terms of a payment arrangement upon application by the
person subject to the payment arrangement.
Subclause (3) requires the person who has applied for variation
of a payment arrangement to continue to comply with the
existing terms of the payment arrangement until the Director
makes a decision to either vary the payment arrangement or
refuse the application.
The Director is required under subclause (4) to notify the person
in writing of a decision to either vary the payment arrangement
or refuse the application.
If an application to vary is refused, the terms of the payment
arrangement continue as before.
16
Clause 51 makes it clear that, if a person wants to add a new infringement
fine or court fine to the person's payment arrangement, the
person must apply for a new payment arrangement rather than a
variation.
Clause 52 provides that the Director may add an infringement fine or court
fine to a person's payment arrangement by making a new
payment arrangement with that person in accordance with the
process for offering proposed payment arrangements under
clause 45.
Subclause (2) requires the Director to make a new payment
arrangement to add a court fine to a payment arrangement if the
court orders that the court fine is to be managed by payment
arrangement.
Clause 53 sets out that money received under a payment arrangement must
be allocated in order of priority based on the date of the
infringement fine or court fine, from oldest to newest. The only
exception to this rule is for court fines if the court has ordered
that a different priority of payment will apply. Subclause (3)
requires the Director to notify a person of an overpayment and
may, with the consent of the person, pay other fines owed by
the person. If consent is not provided, the Director must refund
the overpayment to the person.
Clause 54 requires the Director to be provided with the current contact
details for a person subject to the payment arrangement by--
· an enforcement agency which refers an infringement
fine to the Director for management under a payment
arrangement; and
· a court that makes an instalment order or a time to pay
order and orders the fine to be managed by the Director
by way of a payment arrangement.
Subclause (3) provides that it is sufficient compliance if the
enforcement agency or the court confirms the contact details for
the person and provides it to the Director at the time of referring
the matter to the Director.
17
The Director must provide the last known contact details for a
person subject to a payment arrangement to an enforcement
agency or a court in the event that the person defaults under the
payment arrangement, requests the removal of an infringement
fine or court fine from the payment arrangement or requests the
cancellation of the payment arrangement.
Clause 55 extends the period for commencing a proceeding for an
infringement offence if the infringement fine to which the
offence relates is being managed under a payment arrangement.
If the person subject to the payment arrangement defaults on a
payment and the payment arrangement is cancelled, a
proceeding may be commenced within 6 months from the date
of cancellation.
If the person subject to the payment arrangement removes an
infringement fine from the payment arrangement, a proceeding
may be commenced within 6 months from the date of the
infringement fine being removed.
If the person subject to the payment arrangement cancels a
payment arrangement, a proceeding may be commenced within
6 months from the date of cancellation.
If the person subject to the payment arrangement does not make
the first payment in accordance with the arrangement, a
proceeding may be commenced within 6 months from the due
date of the first payment under that proposed payment
arrangement.
Clause 56 provides that a person defaults in a payment under a payment
arrangement if the Director does not receive payment within
14 days after the due date of the payment.
Subclause (2) requires the Director to send written notification
to the person advising of the default, that the payment
arrangement will be cancelled within 14 days of the notice if
payment is not received, and that upon cancellation, the
outstanding infringement fine or court fine will be enforced by
other action available under the Bill.
18
Clause 57 provides that if a payment arrangement is cancelled by request
or on default, or infringement fines or court fines have been
removed from the payment arrangement, any remaining
outstanding infringement fine or court fine may be enforced
using other enforcement action available under the Bill.
Clause 58 provides that a person is taken to be paying a registered
infringement fine, for the purposes of determining whether a
demerit point applies, on making the first payment under a
payment arrangement that includes that infringement fine even
though that payment may not relate to that specific infringement
fine.
PART 6--ORAL EXAMINATION AND PRODUCTION OF
INFORMATION
Clause 59 provides that the Director (by making a production of
information direction) may direct a fine defaulter to produce a
statement of financial circumstances or attend before the
Director to answer questions regarding the fine defaulter's
financial circumstances.
Clause 60 provides that it is an offence for a fine defaulter, without lawful
excuse, not to comply with a production of information
direction. The maximum penalty is 60 penalty units.
Clause 61 provides that the Director must not disclose any information
obtained by a production of information direction, except if the
Director reasonably believes that the disclosure is necessary for
the purposes of a payment arrangement, taking enforcement
action against a fine defaulter under the Bill, or to assist the
sheriff to take enforcement action against a fine defaulter under
the Bill, or the Sheriff Act 2009.
Clause 62 provides that if the Director has made a production of
information direction and the fine defaulter has failed to comply
with that direction, the Director may apply to the Magistrates'
Court for a summons to be issued to a fine defaulter for oral
examination, for the purposes of taking enforcement action
against a fine defaulter under the Bill.
19
Clause 63 sets out that on the application of the Director under clause 62,
the Magistrates' Court may issue a summons for a person to
attend before the Court for oral examination. Subclause (2)
provides that a summons must--
· be in writing;
· state the time, date and place of the oral examination;
· contain a statement that a warrant for arrest may be
issued against the person under the Magistrates' Court
Act 1989 for failure to comply;
· require the person to provide to the Magistrates' Court,
on or before the day of the oral examination, a written
statement containing prescribed personal details setting
out the financial circumstances of the person and any
documents in support of the financial details;
· contain any other prescribed details.
Clause 64 sets out what happens if a person fails to attend an oral
examination. The Magistrates' Court may issue a warrant to
arrest the person in accordance with the Magistrates' Court
Act 1989. The warrant must be directed to the sheriff or a
police officer and specify a time and a place for the oral
examination. A person arrested under a warrant to arrest may
be released on bail if the person undertakes to attend for oral
examination at the time and place specified in the warrant.
PART 7--ATTACHMENT OF EARNINGS DIRECTIONS AND
ATTACHMENT OF DEBTS DIRECTIONS
Division 1--Attachment of earnings direction
Clause 65 provides that the Director may make an attachment of earnings
direction in respect of a fine defaulter if the Director is satisfied
that the fine defaulter owes fines (which may be one registered
fine or many registered fines) not less than the attachment of
earnings threshold.
Subclause (3) provides for an attachment of earnings direction
to remain in force even if the fines outstanding fall below the
threshold including where the Director varies the attachment of
debts direction.
20
Clause 66 requires the Director to serve notice of an attachment of
earnings direction on the fine defaulter in respect of whom the
direction is made and on the person to whom the direction is
directed, stating that an attachment of earnings direction has
been made and that the fine defaulter within 14 days of service
of the notice, may apply to the Director for the direction to be
varied on hardship grounds.
Clause 67 provides that the Director may request additional information
from the fine defaulter regarding the fine defaulter's financial
circumstances before making an attachment of earnings
direction. The information must be given to the Director no
later than 14 days after the Director's request, or a longer period
specified by the Director provided that it does not exceed
3 months. Enforcement action is suspended during this period.
If the Director does not receive the additional requested
information within the required time, the Director, in his or her
discretion, may make an attachment of earnings direction based
on the information available to the Director at that time.
Clause 68 provides that a fine defaulter has 14 days from service of a
notice of an attachment of earnings direction to apply to the
Director to vary or cancel a direction. The Director may vary or
cancel a direction if he or she is satisfied that the fine defaulter
would suffer financial hardship or the fine defaulter's earnings
would fall below the protected level of income.
Clause 69 Subclause (1) provides that it is an offence for an employer not
to remit to the Director any earnings deducted at the intervals
specified in the attachment of earnings direction.
Subclause (2) provides that it is an offence for an employer to
not advise the Director if a fine defaulter ceases to be an
employee within 14 days of the employment ceasing.
Subclause (3) provides that it is an offence to not keep accurate
records of amounts deducted under an attachment of earnings
direction.
Subclause (4) provides that it is an offence to not provide the
Director with records of amounts deducted under an attachment
of earnings direction if the Director makes a written request to
the employer. The maximum penalty for contravening an
offence in this clause is 60 penalty units.
21
Clause 70 provides that, the Director may vary, cancel or suspend an
attachment of earnings direction on his or her motion, on the
application of the fine defaulter, or on the application of an
employer to whom the attachment of earnings direction is
directed. Notification of the variation, cancellation or
suspension of an attachment of earnings direction must be
provided by the Director to the fine defaulter and the employer.
Clause 71 provides that an attachment of earnings direction ceases to have
effect if it is cancelled or if the fine is paid in full. The Director
must provide written notice of the cessation of an attachment of
earnings to the fine defaulter and to the employer as soon as
possible.
Subclause (3) removes any liability on an employer if the
employer continues to comply with the direction at any time
before the expiration of seven days after the day on which the
notice of the cessation is served on the employer.
Clause 72 provides that it is an offence if an employer fails to take all
reasonable steps to comply with an attachment of earnings
direction. The maximum penalty for this offence is 60 penalty
units.
Clause 73 Subclause (1) provides that an employer must not dismiss or
injure an employee or alter an employee's position to the
prejudice of the employee because an attachment of earnings
direction has been made in respect of the employee or the
employee is required to make payments under an attachment of
earnings direction. The maximum penalty for this offence is
60 penalty units.
Subclause (2) provides that if the Magistrates' Court convicts a
person for an offence under subclause (1), the Court may order
that any lost wages be reimbursed to the employee and that the
employee be reinstated in the employee's former position or in a
similar position.
Subclause (3) provides that any amount ordered by the
Magistrates' Court to be reimbursed may be recovered from the
convicted person in the same manner as the penalty to which
that person is liable under subclause (1) and may be included in
the same warrant.
22
Subclause (4) sets out that an attachment of earnings direction
may apply to the earnings paid by the Crown, by a statutory
authority representing the Crown or out of the Consolidated
Fund.
Clause 74 provides that the earnings of an employee may be calculated in
accordance with the regulations.
Clause 75 provides that where a fine defaulter has two or more employers,
the Director may treat any of the employers as the only
employer of the person, or treat any two or more of the
employers as joint employers of the person.
Clause 76 provides that money received under an attachment of earnings
direction must be allocated by the Director in order of priority
based on the date of registration of a fine with the Director with
the amount outstanding under the oldest fine being paid out
first. The order of priority applies to all attachment of earnings
directions regardless of the origin of the fine included in a
direction.
Subclause (3) sets out that if an employer overpays the amount
to which the attachment of earnings direction applies by making
payments after the direction is satisfied, the Director may
refund the overpayment to the fine defaulter or, with the consent
of the fine defaulter, apply the overpayment to other
outstanding registered fines that were not included in the
attachment of earnings direction.
Clause 77 provides that if the Director makes an attachment of earnings
direction, any enforcement action against the fine defaulter is
suspended. Suspension of any enforcement action ceases if the
attachment of earnings direction is cancelled.
Division 2--Attachment of debts direction
Clause 78 provides that, subject to Division 2, the Director may make an
attachment of debts direction in respect of a fine defaulter if the
Director is satisfied that the fine defaulter owes fines (which
may be one registered fine or many registered fines) not less
than the attachment of debts threshold.
23
Subclause (3) provides for an attachment of debts direction to
remain in force even if the fines outstanding fall below the
attachment of debts threshold including where the Director
varies the attachment of debts direction.
Subclause (4) provides that an attachment of debts direction
must not be made unless the debt is due or accruing to the fine
defaulter from the garnishee and the garnishee is within
Victoria.
Subclause (5) provides that an attachment of debts direction
may be made at the discretion of the Director or on the
application of the fine defaulter.
Clause 79 provides that an amount standing to the credit of a fine defaulter
in an account in a bank or a co-operative is, for the purposes of
clause 78(3)(a), a debt due or accruing to the fine defaulter,
despite any of the following conditions not being satisfied--
· that a demand or notice is required before money is
withdrawn;
· that a personal application must be made before money
is withdrawn;
· that a deposit book be produced before money is
withdrawn;
that a receipt for money deposited in the account must be
produced before money is withdrawn.
Clause 80 requires a copy of an attachment of debts direction to be served
on the garnishee, the fine defaulter and the bank or co-operative
holding the fine defaulter's account as soon as possible after the
attachment of debts direction is made. An attachment of debts
direction binds the debts to which it applies upon service of the
direction.
Clause 81 provides that the garnishee or any other person may dispute the
liability to pay the debt by applying to the Director within
14 days of service of the attachment of debts direction for a
determination of liability.
24
Clause 82 Subclause (2) provides that it is an offence for a bank or a
co-operative, to which clause 82 applies, to not deduct from the
account held by the fine defaulter in respect of whom the
attachment of debts direction has been made, the amount
specified in the direction on receipt of a deposit made by a
garnishee.
Subclause (3) provides that it is an offence for a bank or
co-operative to which clause 82 applies to not pay the money
deposited by a garnishee into a fine defaulter's account to the
Director within 2 days after the deposit is made by the
garnishee.
Subclause (4) provides that it is an offence for a bank or
co-operative to which clause 82 applies to not ensure that the
fine defaulter is unable to access the money deposited by the
garnishee until the money is deducted for payment to the
Director as specified in the attachment of debts direction.
The maximum penalty for an offence against clause 82(2), (3)
or (4) is 60 penalty units.
Clause 83 sets out that a fine defaulter must advise the Director in writing
if the garnishee discontinues the payment of the debt attached
by the direction, or the fine defaulter closes the account into
which payments of the debt are made, or the fine defaulter
arranges for the garnishee to pay the debt into the another
account.
Clause 84 provides that the Director may vary, cancel or suspend an
attachment of debts direction on his or her motion or on the
application of the fine defaulter. Notification of the variation,
cancellation or suspension of an attachment of debts direction
must be provided by the Director to the fine defaulter and the
garnishee.
Clause 85 provides that it is an offence for a person to whom an
attachment of debts direction is directed to fail to take all
reasonable steps to comply with the direction. The maximum
penalty for this offence is 60 penalty units.
25
Clause 86 provides that money received under an attachment of debts
direction must be allocated by the Director in order of priority
with the amount outstanding under the oldest fine being paid
out first. The order of priority applies to all attachment of debts
directions managed by the Director and regardless of the origin
of the fine included in a direction.
Subclause (3) sets out that if a person overpays the amount to
which the attachment of debts direction applies by continuing
payments after the direction is satisfied, the Director may
refund the overpayment to the fine defaulter or, with the consent
of the fine defaulter, apply the overpayment to other
outstanding registered fines that were not included in the
attachment of debts direction.
Clause 87 sets out that if the Director makes an attachment of debts
direction, any enforcement action against the fine defaulter is
suspended. Suspension of any enforcement action ceases if the
attachment of debts direction is cancelled.
PART 8--DRIVER AND VEHICLE SANCTIONS
Clause 88 provides that Part 8 applies to all fines for which a notice of
final demand has been issued, irrespective of whether the fine
involves a vehicle. The Director is empowered to take action
against a fine defaulter under Part 8 in addition to any other
action available, and may make more than one direction under
Part 8.
Clause 89 provides that the Director may direct VicRoads to do one or
more of the following in relation to a fine defaulter--
· suspend, not grant or not renew a driver licence of the
fine defaulter;
· suspend or not renew a vehicle registered to the fine
defaulter;
· not transfer to any other person a vehicle registered to
the fine defaulter;
· not register a vehicle to the fine defaulter.
26
Clause 90 provides that if the Director directs VicRoads to impose a
sanction on a fine defaulter under clause 89, the Director may
include any subsequent registered fine in that direction until the
direction ceases to apply under clause 91.
Clause 91 provides that the Director must direct VicRoads to cease the
application of a driver and vehicle sanction when one of the
following occurs--
· payment in full of the amount outstanding;
· a payment arrangement is made;
· an attachment of earnings direction or attachment of
debts direction is made;
· enforcement review results in enforcement cancellation;
· property is seized sufficient to satisfy the amount
outstanding;
· the person is arrested under the Bill;
· all enforcement warrants have been recalled and
cancelled;
the Director, in his or her discretion, considers that the
application of a sanction is no longer an appropriate
enforcement mechanism.
Clause 92 provides that the cessation of any suspension of, or direction not
to renew, a driver licence or registration of a vehicle in
accordance with the Bill does not affect the suspension of that
licence or registration under any other Act or law and may
operate concurrently with a period of suspension or non-
renewal under the Road Safety Act 1986.
Clause 93 provides that any provision of a contract is void to the extent
that it purports to limit or exclude the liability of an insurer
under a contract of insurance in the event of the suspension of a
driver and vehicle sanction pursuant to a direction by the
Director under Part 8.
Clause 94 provides a power to the Director to direct VicRoads to cancel
the registration of a vehicle where the registered operator of that
vehicle is a deregistered body corporate.
27
PART 9--CHARGES OVER LAND AND SALE OF REAL
PROPERTY
Clause 95 provides that the Director may serve a notice of intention to
charge land on a person who has a registered fine (which may
be one registered fine or many registered fines) totalling not
less than the prescribed land charge threshold. The notice
must contain any prescribed particulars and must be served
personally on a person or in the case of a body corporate, at the
registered office of the body corporate.
Clause 96 authorises the Director to apply to have a land charge recorded
by the Registrar of Titles provided a notice of intention to
charge land has been served and the person has failed to pay the
registered fine within 7 days of the service of that notice.
The land charge may be made regardless of whether the person
is the sole owner or joint owner of the land.
Clause 97 sets out the process by which the Director may apply for the
recording of a land charge.
The Director may lodge an application with the Registrar of
Titles that describes the land to be charged and states the
amount of the outstanding fine. On receipt of such an
application, the Registrar of Titles must then record the land
charge in the Register.
Once recorded, the amount of the registered fine is a charge on
the land held by the person until the amount is recovered and
the charge is removed the person dies or the charge is otherwise
removed.
A certificate of title for the land is not required to be submitted
in order to have the land charge recorded.
Clause 98 provides that the Director must apply to have the recording of
the land charge removed if the registered fine is paid, the person
dies, the land charge should otherwise be removed, or the
Director is of the view that it is no longer appropriate for the
charge to remain on the land.
To remove a land charge, the Director must lodge with the
Registrar of Titles an application that describes the land and
requests the removal of the recording of the land charge.
Upon receipt of such an application, the Registrar of Titles
28
must remove the recording of the land charge in the Register,
which has the effect of removing the land charge.
A certificate of title for the land is not required to be submitted
in order to have the land charge removed.
Clause 99 provides that the Registrar of Titles may make any recording in
the Register necessary as a result of this Part of the Bill.
Clause 100 requires the Director to give written notice to a fine defaulter
and any other person who has a registered interest in land the
subject of a land charge that the land is charged with the amount
outstanding, or of the removal of a land charge.
Clause 101 authorises the Director to serve a notice of intention to sell
charged land on all persons registered as having an interest in
the charged land if a land charge has been recorded for at least
28 days.
Subclause (2) sets out the requirements for a notice of intention
to sell charged land as follows--
· the notice must be in writing and contain the prescribed
particulars;
· the notice must be served on the person or at the
registered office of the body corporate; and
the notice must state the amount of the outstanding registered
fine owing at the date of the notice, the address and method for
payment and that failure to pay the amount within 14 days of
service of the notice will result in the Director applying to the
Supreme Court for an order to sell the land.
Clause 102 provides that the Director may apply to the Supreme Court for
an order for the sale of charged land if a notice of intention to
sell charged land has been served and 14 days have passed since
that service without payment being received.
The Supreme Court may then make an order for the sale of the
land by the Director if satisfied that it is appropriate to do so.
Clause 103 provides that the sale of charged land under this Part is to be
treated as a sale by mortgagee pursuant to section 77 of the
Transfer of Land Act 1958. The charge is to be treated as a
registered mortgage and the Director as the mortgagee,
29
however, the requirement in that section relating to the giving of
notice does not apply.
Clause 104 requires a fine defaulter, registered proprietor or occupier of
land that is the subject of a land sale order to provide reasonable
access to that land for the purposes of its sale.
Subclause (2) requires the fine defaulter to provide the Director
with any information about the land that is known by the fine
defaulter or may reasonably be obtained.
Clause 105 provides for the priority in which the proceeds of the sale of
charged land pursuant to a land sale order of the Supreme Court
are to be applied.
PART 10--ENFORCEMENT WARRANTS
Clause 106 provides that the Director may apply to a registrar for an
enforcement warrant to be issued against a fine defaulter.
Subclause (2) provides that upon receipt of an application from
the Director, a registrar may issue an enforcement warrant if
satisfied that the fine defaulter falls into one of the following
categories--
· a notice of final demand was served on the fine
defaulter and the fine defaulter failed to comply with the
notice by paying the registered fine or taking other
action within the time specified in the notice; or
· if a payment arrangement was made with the fine
defaulter in respect of the registered fine, the fine
defaulter defaulted on the payment arrangement; or
· the fine defaulter was released on a community work
permit under clause 152(b) of the Bill and failed to
report to the community corrections centre specified in
the community work permit within the required time; or
· the fine defaulter has other unsatisfied enforcement
warrants.
Subclause (3) provides that an enforcement warrant issued
under clause 106(2)(c) in respect of a fine defaulter who
breached the reporting condition of a community work permit is
not subject to the requirement that a seven-day notice be served
on the fine defaulter prior the execution of the enforcement
30
warrant. Subclause (3) also provides that an enforcement
warrant issued under subclause (2)(c) must not be endorsed,
direct or authorise the person executing the warrant to release
the fine defaulter on a community work permit under Part 13 of
the Bill.
Subclause (4) provides that a registrar may endorse an
enforcement warrant with a direction that any natural person
arrested must be released on bail as specified in the
endorsement.
Subclause (5) provides that if a registrar endorses an
enforcement warrant under subclause (4), the registrar must fix
the terms of the endorsement including the amounts in which
the principal and sureties, if any, are to be bound and the
amount of money or value of any security to be deposited.
Clause 107 provides that on issue of an enforcement warrant, the
enforcement warrant fee is payable by the fine defaulter against
whom the enforcement warrant is issued and may be included in
the enforcement costs and certain costs in the enforcement
warrant.
Subclause (2) provides that any prescribed fee in respect of the
execution of an enforcement warrant forms part of the lawful
costs of execution of the warrant.
Clause 108 provides that the Director may apply to a registrar for the recall
and cancellation of an enforcement warrant.
Subclause (2) requires the registrar to recall and cancel the
enforcement warrant specified in the application of the Director
on receipt of that application.
Subclause (3) provides that the registrar may issue a fresh
enforcement warrant for the same purpose as that for which the
recalled and cancelled enforcement warrant was issued, unless
the Director requests the registrar not to issue a fresh
enforcement warrant.
Clause 109 sets out the different authorisations to which an enforcement
warrant may be subject.
Subclause (1) provides that an enforcement warrant may
authorise the person to whom the warrant is directed to, when
executing the warrant--
31
· break, enter and search any residential or business
premises occupied by the fine defaulter for any personal
property belonging to the fine defaulter; and
· seize any personal property belonging to the fine
defaulter and sell the property seized if the outstanding
amount specified in the enforcement warrant is not paid
by the fine defaulter.
Subclause (2) sets out the authorisation that an enforcement
warrant may be subject to if the person named in the warrant is
a fine defaulter, including a fine defaulter who was subject to a
community work permit. The person to whom the enforcement
warrant is directed is authorised to break, enter and search for
the fine defaulter named in the warrant in any place where the
fine defaulter is suspected to be and to arrest the fine defaulter.
Subclause (3) provides that nothing in clause 109 requires the
person to whom an enforcement warrant is directed to break and
enter a property for the purpose of finding and seizing personal
property, or in the case of a fine defaulter who is a natural
person, before arresting the person to break and enter a property
to find and seize personal property belonging to the fine
defaulter.
Subclause (4) provides that despite subclause (3)(b), a fine
defaulter must not be arrested unless the person executing the
warrant has a reasonable belief that there is not sufficient
personal property of the fine defaulter to cover the amounts
specified in the enforcement warrant together with all lawful
costs of execution.
Clause 110 sets out the actions that a person who has executed an
enforcement warrant by arresting a fine defaulter must take.
This clause does not apply to a fine defaulter who has failed to
report as required under clause 152(b) of the Bill.
A fine defaulter arrested in respect of a registered infringement
fine may be dealt with under Part 13 of the Bill or delivered to a
prison or police gaol to be dealt with under Part 14 of the Bill.
If neither of these options is available, the fine defaulter must be
brought before the Magistrates' Court to be dealt with according
to law and if this is not practicable, the fine defaulter must be
released on bail in accordance with the endorsement on the
enforcement warrant.
32
A fine defaulter who is arrested in respect of a registered court
fine must be brought before the sentencing court that imposed
the court fine within 24 hours of being arrested to be dealt with
under Part 3B of the Sentencing Act 1991. If it is not
practicable to bring the fine defaulter before the sentencing
court, the fine defaulter must be released on bail in accordance
with the endorsement on the enforcement warrant.
Clause 111 sets out the actions that a person who has arrested a fine
defaulter who failed to report as required under clause 152(b) of
the Bill must take. These include causing the fine defaulter to
be brought before the Magistrates' Court within 24 hours of
being arrested to be dealt with according to law. If it is not
practical to bring the fine defaulter before the Magistrates'
Court, the fine defaulter is to be released on bail in accordance
with the endorsement on the enforcement warrant, or safely
conveyed to prison or a police gaol to be dealt with under
Part 14 of the Bill.
Clause 112 provides that if a person imprisoned following the execution of
an enforcement warrant has any other unsatisfied enforcement
warrants outstanding, the person executing the enforcement
warrant is not required to serve any notice or search for or seize
any personal property of that person.
Clause 113 provides that a person arrested pursuant to an enforcement
warrant may be discharged from custody on bail under
section 10 of the Bail Act 1977.
Clause 114 provides that an enforcement warrant must be in the prescribed
form.
Clause 115 provides that an enforcement warrant, other than an
enforcement warrant issued against a body corporate, may be
directed to the sheriff, a named police officer, generally all
police officers, the Corrections Commissioner or any other
person authorised by law to execute an enforcement warrant.
An enforcement warrant issued against a body corporate must
be directed to the sheriff.
An enforcement warrant directed to the sheriff may be issued by
the registrar in electronic form by entering into the register kept
by the Magistrates' Court for that purpose the type of
enforcement warrant, the date of issue and the prescribed
information. After its issue, an enforcement warrant cannot be
33
altered, amended or varied unless authorised by this or another
Act.
Subclause (5) provides that an enforcement warrant directed to
the sheriff, if the sheriff directs, may be executed by a named
bailiff or generally by all bailiffs, by a named police officer or
generally by all police officers, or by all prison officers.
Where the sheriff gives a direction the person to whom it is
directed is authorised to do all things that the person would have
been directed and authorised to do by the original enforcement
warrant if it had been directed to that person.
An enforcement warrant directed to a named police officer may
be executed by any police officer, and an enforcement warrant
directed to a named bailiff may be executed by any bailiff.
Clause 116 provides that a person authorised to execute an enforcement
warrant that is directed to the sheriff may when executing the
warrant against a natural person who is a fine defaulter also
execute any unexecuted enforcement warrants that are not
directed to the sheriff.
Clause 117 provides that multiple enforcement warrants outstanding against
a fine defaulter, may be consolidated by the sheriff into one
execution copy.
Clause 118 provides that a person executing an enforcement warrant may
serve on the fine defaulter or a person who is in possession of
any personal property of the fine defaulter, a notice informing
that person that they are responsible for the safe-keeping of the
personal property seized. The person must also be informed
that it is an offence to interfere with, dispose of or remove that
property, or to deface or remove any mark indicating that it had
been seized.
Clause 119 provides that no action to execute an enforcement warrant
issued against a fine defaulter who is a natural person must
commence unless the fine defaulter has been served with a
seven-day notice containing prescribed details and the sheriff
has made a demand for payment. If a seven-day notice is
served on a fine defaulter by a person other than the sheriff, a
demand for payment is not to be made when a seven-day notice
is served.
34
A seven-day notice must include a warning that on the expiry of
the 7 days the enforcement warrant may be executed resulting
in the seizure of property belonging to the fine defaulter or the
arrest of the fine defaulter unless the fine defaulter has paid the
registered fine, applied for enforcement review or made a
payment arrangement.
Clause 120 provides that during the 7 days after the service of the seven-
day notice, a person authorised to execute an enforcement
warrant may seize and take possession of personal property of
the fine defaulter but leave the personal property where it is
situated unless the person executing the warrant believes it is
necessary to avoid the property being disposed of or removed.
If personal property is removed by the person executing the
enforcement warrant, that person must complete a written
statement that sets out the reasons for taking this action and file
it with the Director and registrar.
Clause 121 provides that after the expiry of the seven-day notice period, the
Sheriff must make a demand for payment on the fine defaulter
in respect of whom the warrant has been issued, and any step
may be taken in the execution of the enforcement warrant.
The enforcement warrant must not be executed against the fine
defaulter if the fine defaulter has applied for or obtained a
payment arrangement, or made an application for enforcement
review that has not been determined.
Clause 122 provides that if, before an enforcement warrant is issued and
part of the registered fine is paid, the amount specified in the
enforcement warrant must be reduced by the amount paid.
If part of the amount specified is paid or levied on personal
property after the issue, but before the execution of an
enforcement warrant, the person executing the enforcement
warrant must amend the execution copy and forward the amount
paid or levied to the Director and notify the registrar.
Clause 123 provides that the rules, practice and procedure operating in
respect of warrants to seize property to enforce orders made by
the Magistrates' Court in civil proceedings under the
Magistrates' Court Act 1989 will apply with respect to the
seizure of property under enforcement warrants with any
necessary modification. The interests of any persons in any
property seized under an enforcement warrant must also be
dealt with in the same manner as if the property had been seized
35
under a warrant to seize in a civil proceeding for the payment of
money under the Magistrates' Court Act 1989. The fine
defaulter against whom an enforcement warrant is issued may
provide signed written consent allowing the seizure of personal
property that is used by that fine defaulter primarily as a means
of transport, notwithstanding section 42 of the Supreme Court
Act 1986, which provides that certain types of property must
not be seized.
The proceeds of any sale of property seized must be applied
towards the amounts specified in the enforcement warrant and
costs, then to any unexecuted enforcement warrants, with any
remaining amount being returned to the fine defaulter.
Clause 124 An enforcement warrant remains in force until the amount
outstanding under the enforcement warrant is paid in full, the
outstanding amount is recovered following the execution of the
enforcement warrant or the enforcement warrant is cancelled
under clause 108.
Clause 125 An enforcement warrant is stayed if a payment arrangement has
been made or an attachment of earnings or debt direction has
been made. An enforcement warrant that is stayed under this
clause of the Bill remains issued and enforceable until the
Director applies for the enforcement warrant to be recalled and
cancelled under clause 108 if the fine defaulter complies with a
payment arrangement or an attachment of debts direction or an
attachment of earnings direction. The stay ceases if the fine
defaulter defaults on a payment arrangement or an attachment
of debts direction or an attachment of earnings direction.
PART 11--DETENTION, IMMOBILISATION AND SALE OF
MOTOR VEHICLES
Clause 126 provides that Part 11 applies if an enforcement warrant has been
issued against a registered operator of a motor vehicle, whether
or not a seven-day notice has been served on that person.
The sheriff or police officer is empowered to take action under
Part 11 in addition to other available enforcement action.
Clause 127 empowers the sheriff or a police officer to detain, immobilise or
remove the motor vehicle of a registered operator against whom
an enforcement warrant has been issued where that vehicle is
intercepted, found parked or left standing. This clause applies
36
despite Part 10 and anything to the contrary in an enforcement
warrant.
Clause 128 sets out the powers of the sheriff or a police member to detain,
immobilise or seize a motor vehicle, including stopping a motor
vehicle, breaking and entering a motor vehicle, seizing keys,
starting a motor vehicle, entering premises or anything
reasonably necessary to detain, immobilise or seize a motor
vehicle.
Clause 129 provides that if a motor vehicle is removed to a convenient
place, the vehicle must be towed by a tow truck unless it is
possible for a police officer or sheriff to drive the vehicle.
Clause 130 provides that if the sheriff or police officer detains or
immobilises an unattended motor vehicle, a notice must be
attached to the windscreen which states that the vehicle has
been detained or immobilised because the registered operator is
a person against whom an enforcement warrant has been issued.
The contact details for the sheriff must also be included in the
notice. If the unattended motor vehicle is removed, the sheriff
must report the removal to a police officer and provide the
police officer with the registration details for that motor vehicle.
Clause 131 provides that a motor vehicle that has been detained or
immobilised by the sheriff or a police officer must be returned
to the registered operator if any of the following occurs before
the expiry of the prescribed period--
· the amount outstanding in the enforcement warrant and
any costs associated with the vehicle's detention,
immobilisation or impoundment is paid in full;
· a payment arrangement is made in respect of every
enforcement warrant to which the immobilisation or
detention applies and the person has commenced
making payments;
· an attachment of earnings direction or attachment of
debts direction is made;
· an application for enforcement review results in
enforcement cancellation;
· sufficient property is seized to satisfy the amount
outstanding;
37
· the person is arrested pursuant to the Bill;
· the enforcement warrant is recalled and cancelled;
· the sheriff considers that it is otherwise appropriate to
release the vehicle.
This clause also provides that the registered operator is liable
for any costs incurred as a result of the detention,
immobilisation or impoundment of the vehicle.
Clause 132 provides that the sheriff may seize and sell the motor vehicle or
any item left in it if, after the prescribed period, an amount
remains outstanding under an enforcement warrant issued
against the registered operator. The sheriff must serve a notice
on the registered operator at least 14 days prior to exercising a
power of sale which informs the registered operator that the
vehicle has been seized and may be sold unless the amount
outstanding under the enforcement warrant is paid in full within
14 days. The sheriff must also publish a notice of intention to
sell in a newspaper at least 14 days before exercising a power of
sale.
Clause 133 enables a person other than the registered operator to recover a
motor vehicle or item detained, immobilised or seized under
Part 11 if the person can provide satisfactory evidence to the
sheriff that the person was entitled to possession of the vehicle
or item at the time it was detained, immobilised or seized.
This clause also provides that the registered operator is liable
for any costs incurred in the detention, immobilisation or
impoundment of the vehicle.
Clause 134 enables the sheriff to return a vehicle or an item which has been
detained, immobilised or seized if the costs of sale and the
amount outstanding under the enforcement warrant are greater
than the value of the vehicle, or if the vehicle is of negligible
monetary value.
Clause 135 provides how the proceeds of sale of a motor vehicle are to be
applied in order of priority and provides in relation to the
application of the Personal Property Securities Act 2009 of the
Commonwealth.
38
Clause 136 provides that section 42 of the Supreme Court Act 1986,
which provides that certain types of property must not be
seized, does not apply, so that the sheriff or police officer may
detain or immobilise, or seize and sell, a motor vehicle even if
that motor vehicle is primarily used by that person as a means
of transport.
Clause 137 provides that a person who buys a motor vehicle or an item
under Part 11 acquires good title if the person buys the vehicle
or item in good faith and without notice of any defect in the
title. The sheriff is not liable in respect of a sale of a motor
vehicle or item unless the sheriff had notice, or might by
reasonable inquiry have ascertained, that the vehicle or item
was not the property of the registered operator.
Clause 138 makes it an offence, the maximum penalty for which is
60 penalty units, for an unauthorised person to tamper with or
remove the means by which a motor vehicle has been detained,
immobilised or seized.
PART 12--REMOVAL OF NUMBER PLATES
Clause 139 provides that Part 12 applies if an enforcement warrant has been
issued against a registered operator of a motor vehicle, whether
or not a seven-day notice has been served on that person in
respect of the enforcement warrant. The sheriff and police
officers are empowered to take enforcement action under
Part 12.
Clause 140 provides a power to remove a motor vehicle's number plates if a
police officer intercepts the motor vehicle of a registered
operator against whom an enforcement warrant has been issued,
or if the sheriff or a police officer finds the motor vehicle
parked or left standing.
Clause 141 provides that if the sheriff or a police officer removes number
plates, a notice must be attached to the windscreen of the motor
vehicle. The notice is to state that the number plates have been
removed because the registered operator of the motor vehicle is
a person against whom one or more enforcement warrants have
been issued, the registration number of the motor vehicle and
the contact details of the sheriff. The Director must be notified
of the removal of number plates.
39
Clause 142 provides that if the Director is notified that number plates have
been removed, the Director must notify VicRoads of the
removal and may direct VicRoads to suspend the registration of
the motor vehicle.
Clause 143 provides that VicRoads must immediately suspend the
registration of a motor vehicle if directed to do so by the
Director under clause 142(b).
Clause 144 provides that the sheriff or police officer must keep any number
plates removed from a motor vehicle under clause 140 in safe
custody. It also provides that it is not an offence under the
Road Safety Act 1986 to leave a vehicle whose registration has
been suspended under clause 143 standing on a highway.
Clause 145 provides that number plates removed from a motor vehicle
under clause 140 must be returned to the registered operator by
the sheriff or police officer at the direction of the sheriff if--
· the amount outstanding under the enforcement warrant
is paid;
· the registered operator makes a payment arrangement in
respect of every enforcement warrant to which the
removal of number plates applies and has paid any
deposit, number of instalments, equivalent lump sum
payment, or other like condition reasonably required for
the lifting of the sanction;
· an attachment of earnings direction or an attachment of
debts direction is made in relation to the registered
operator;
· an application for enforcement review results in
enforcement cancellation;
· property is seized sufficient to satisfy the amount
outstanding under the enforcement warrants;
· the registered operator is arrested under the Bill;
· the Court has recalled and cancelled the enforcement
warrant;
· the sheriff, in his or her discretion, considers that it is
otherwise appropriate to return the number plates.
40
Clause 146 provides that number plates removed from a vehicle under
Part 12 may be reaffixed by the sheriff or a police officer if the
sheriff considers it appropriate to do so or if it is necessary for
other enforcement action under the Bill.
Clause 147 provides that the Director must be notified by the sheriff or a
police officer if number plates are returned to a registered
operator under clauses 145 or 146. Once notified, the Director
must direct VicRoads to cease the suspension of the registration
of the motor vehicle and VicRoads must do so.
Clause 148 provides that the cessation of the suspension of the registration
of a motor vehicle does not affect any other suspension of that
registration, and that the period of suspension may be
concurrent with a period of suspension under the Road Safety
Act 1986.
Clause 149 provides that any provision of a contract is void to the extent
that it purports to exclude the liability of an insurer in the event
of the suspension of a motor vehicle under Part 12.
PART 13--INFRINGEMENT OFFENDER COMMUNITY
WORK PERMITS
The Part creates new arrangements for unpaid community work to be carried
out by infringement offenders with outstanding enforcement warrants in
respect of registered infringement fines.
Clause 150 provides that the Part applies if an infringement offender
consents to perform unpaid community work under a
community work permit. It sets out the upper monetary limit of
outstanding registered infringement fines under an enforcement
warrant above which a permit may not be issued. When issuing
a permit, the sheriff must be satisfied that the person has
capacity to perform unpaid community work and is reasonably
unlikely to contravene the conditions of a permit.
The sheriff, in determining if he or she is satisfied the
infringement offender is unlikely to contravene a community
work permit, may consider any contravention by the
infringement offender of other community permits or orders
imposed on them under the Sentencing Act 1991.
41
Clause 151 provides that, subject to clause 150, if the sheriff arrests an
infringement offender under an enforcement warrant and an
infringement offender elects to perform unpaid community
work in respect of outstanding registered infringement fines
under that enforcement warrant, the sheriff may release the
offender on a community work permit in accordance with the
terms of the enforcement warrant and the regulations.
The permit must specify the outstanding amount and the
number of hours required to be worked.
Clause 152 sets out the conditions that apply to community work permits
including that the infringement offender performs unpaid
community work as directed by the Secretary for a period
determined in accordance with clause 155.
The condition that an infringement offender must report to a
specified community corrections centre within 2 clear working
days after the issue of the community work permit is subject to
a direction that may be made under clause 153 by the Secretary
that the infringement offender report no more than 14 days after
the issue of the community work permit.
Clause 153 provides that under clause 153(1) the Secretary can direct that
an infringement offender must report to a community
corrections centre specified within the community work permit
no later than 14 days after the permit was issued. A direction
made under this clause extends the reporting condition under
clause 152(b).
An infringement offender can apply to the Secretary for a
direction under clause 153(1) within 7 days of a community
work permit being issued.
Clause 154 provides that a community work permit is cancelled if an
infringement offender fails to report as required under
clause 152(b). The Secretary must notify the Director that a
community work permit is cancelled under clause 154(1) within
5 days of that cancellation. The Director may then apply for a
new enforcement warrant to be issued from a registrar against
the infringement offender under clause 106(2)(c).
Clause 155 provides that if the sheriff issues two or more community work
permits for two or more enforcement warrants, the periods of
unpaid community work to be performed under those periods
42
are cumulative. Any unpaid community work under a permit is
to be performed cumulatively with any fine conversion order or
fine default community work order under the Sentencing Act
1991.
Clause 156 sets out the work requirements under a community work permit
and provides that an infringement offender is required to work
for one hour for each 0.2 penalty unit or part of 0.2 penalty unit
of the outstanding registered infringement fines with a
minimum of eight hours and a maximum of 500 hours.
The clause provides that the total number of hours worked in
any 7 day period must not exceed 20 hours but that an
infringement offender may work up to 40 hours in any 7 day
period if the offender requests this and consents in writing.
Clause 157 provides that if it is not convenient for an infringement offender
to report at a place or to a person specified in a community
work permit, for example because the offender has changed his
or her place of residence, the Secretary may direct the
infringement offender to report at another place or to another
person and the infringement offender must report as directed.
Clause 158 provides that the period of a community work permit or other
condition may be suspended by the Secretary if an infringement
offender is ill or in other exceptional circumstances.
Clause 159 provides that a community work permit may be varied or
cancelled on application to the Magistrates' Court either by the
infringement offender or by a person prescribed under the
regulations and that notice must be given to the other party of
such an application. It is envisaged that the persons prescribed
under the regulations will primarily be community corrections
officers who are responsible for administering the community
work permits.
Subclause (4) provides that the Magistrates' Court may vary or
cancel the community work permit on such an application if it is
satisfied that the circumstances of the infringement offender
have materially altered since the permit was issued so that the
infringement offender is unable to comply with a condition of
the permit, or if it is satisfied that the circumstances of the
infringement offender were wrongly stated or inaccurately
presented before the permit was issued, or that the infringement
43
offender is no longer willing to comply with the community
work permit.
Clause 160 provides that it is an offence for an infringement offender to
contravene a condition of their community work permit without
a reasonable excuse. The maximum penalty for this offence is
10 penalty units.
The offence does not apply to the contravention of the condition
under clause 152(b).
Where an infringement offender contravenes a condition of a
community work permit other than the condition under
clause 152(b) without reasonable excuse, the offender may be
proceeded against in the Magistrates' Court any time up to three
years after the date of the offence. On hearing the matter, the
Magistrates' Court may vary, cancel or confirm the community
work permit. Upon cancellation, the Magistrates' Court must
deal with the infringement offender pursuant to clause 165 of
the Bill and must take into account the extent to which he or she
has complied with the community work permit.
Clause 161 provides that during the term of a community work permit, if
part of the registered infringement fines are paid by or on behalf
of the infringement offender, the number of hours of work
which the infringement offender is required to perform must be
reduced proportionately.
Clause 162 provides that where a person contravenes a community work
permit that has commenced, the amount outstanding in
registered infringement fines will be reduced in proportion with
the number of hours worked before the contravention.
PART 14--INFRINGEMENT OFFENDER AND
IMPRISONMENT
The Part states the options available to the Magistrates' Court when an
infringement offender is brought before it under an enforcement warrant in
respect of infringement fines.
Clause 163 provides that the Part applies if an infringement offender is
arrested under an enforcement warrant and the infringement
offender does not consent or is assessed as being unsuitable for
a community work permit or is not issued with a permit within
24 hours of arrest. It also applies where the infringement
44
offender has been issued with a community work permit but
fails to comply with any of its conditions or a prescribed
requirement, or where the permit has been cancelled under
clause 159. The infringement offender will also be dealt with
under this Part if he or she is in custody.
Clause 164 provides that an infringement offender must be brought before
the Magistrates' Court within 24 hours after being arrested
under an enforcement warrant. Where this is not possible, a
date for the infringement offender to appear before the
Magistrates' Court must be fixed and the infringement offender
must be discharged on bail. If a community work permit has
been issued to the infringement offender and the infringement
offender fails to comply with a condition of the permit or any
regulation made for the purposes of this Part or where the
permit has been cancelled, the infringement offender must be
brought before the Magistrates' Court as soon as practicable.
The clause ceases to apply if there are no outstanding registered
infringement fines under the enforcement warrant.
Clause 165 Subclause (1) provides that if the Magistrates' Court is satisfied
under subclause (2) that special circumstances exist or that
imprisonment of the infringement offender would be excessive,
disproportionate or unduly harsh, the Magistrates' Court may
discharge all or part of the outstanding registered infringement
fines, discharge the registered infringement fines in part and
order imprisonment for one day in respect of each penalty unit,
or make an unpaid community work order or adjourn the matter
for a period of up to 6 months.
If the Magistrates' Court is not satisfied of a matter under
subclause (2) the Magistrates' court may order the imprisonment
of an infringement offender for a period of one day in respect of
each penalty unit, or part of a penalty unit in respect of the
amount outstanding under an enforcement warrant.
Subclause (4) provides that where the Magistrates' Court does
make an order under subclause (1)(b) discharging in part any
registered infringement fine, the Magistrates' Court may make
an instalment order or a time to pay order in respect of the
undischarged registered infringement fines.
45
Subclause (5) provides that if the Magistrates' Court makes an
order under subsection (1)(c) or (3) the Magistrates' Court may
issue a warrant to imprison the infringement offender and make
an instalment order for the payment of the outstanding
registered infringement fines. The warrant to imprison the
infringement offender may be executed on the contravention of
any instalment order made under this subclause.
Subclause (6) provides for the Magistrates' Court to issue a
warrant for the arrest of the infringement offender if an order
made under subclause (1)(b) or (4) is contravened by failing to
pay the undischarged registered infringement fines.
Subclause (7) sets out the powers of the Magistrates' Court on
the infringement offender being brought before the Magistrates'
Court on the execution of a warrant to arrest issued under
subclause (6). The Magistrates' Court may confirm the order
made under subclause (1)(b) or (4) or cancel the order made
under subclause (1)(b) or (4).
The Magistrates' Court must in dealing with the infringement
offender under subclause (7) take into account the extent to
which the infringement offender complied with the order made
under subclause (1)(b) or (4) as required under subclause (8).
Clause 166 provides that the Magistrates' Court can vary an instalment
order under clause 165(5)(b) on the application of the
infringement offender if an infringement offender's
circumstances have materially changed or altered since the
instalment order was made or if the circumstances of the
infringement offender were wrongly presented or not accurately
presented to the Magistrates' Court.
Clause 167 provides for the Magistrates' Court to rehear a matter if an order
was made under clause 165(3) to imprison an infringement
offender. The Magistrates' Court may only rehear a matter if at
the time of the hearing the infringement offender has special
circumstances that were not considered or evidence was not
taken into account or before the court so as to make the decision
to imprison the infringement offender excessive,
disproportionate or unduly harsh. When a rehearing application
is filed, the Magistrates' Court must recall and cancel the
warrant to imprison and stay the instalment order. If an
infringement offender fails to appear at the time fixed for the
46
rehearing of matter, the infringement offender may apply for a
rehearing if leave of the court is first obtained.
Clause 168 provides for the Magistrates' Court to cancel an imprisonment
order made under clause 165(3) and exercise any power under
clause 165 if it is satisfied on the balance of probabilities that
the grounds under clause 167(3) are met. If the Magistrates'
Court is not satisfied the Magistrates' Court must confirm the
original order. The Magistrates' Court may also issue a warrant
to imprison under clause 165(5)(a) and lift a stay on an
instalment order made under clause 165(5)(b). The Magistrates'
Court may only rehear a matter once.
Clause 169 provides that if a warrant to imprison has been executed and the
infringement offender is in custody, the infringement offender
may apply for bail if they make an application for rehearing
under clause 167.
Clause 170 provides that, where an infringement offender is granted bail,
an imprisonment order under clause 165(3) is stayed until the
rehearing is determined.
Clause 171 provides that an infringement offender who has been
imprisoned under a warrant to imprison may, on the payment of
the whole or part of the registered infringement fines, be
released from custody if all registered infringement fines are
paid and the offender is not in custody for any other matter.
Where part payment is made, the warrant to imprison must be
amended and at the end of the reduced term, the infringement
offender must be discharged where the offender is not in
custody for any other matter.
Clause 172 provides that the Director must prepare an enforcement and
payment report before a fine defaulter who has been arrested is
brought before the court. The court may adjourn a proceeding
until the report is prepared. The report may state the action
undertaken by the Director or the Sheriff against the
infringement offender or fine defaulter (as the case requires) or
any payments made by the infringement offender or fine
defaulter to satisfy the registered fine.
Clause 173 provides that the Director must file the enforcement and
payment report with the court as soon as practicable.
47
PART 15--GENERAL
Division 1--Information collection
Clause 174 provides that the Director or the sheriff may request in writing
that a specified agency provide required information to the
Director or the sheriff about a person for the purpose of
enforcing a registered fine against that person.
Subclause (3) requires the Director or the sheriff to have taken
all reasonable steps to enforce a registered fine without success
prior to requesting information from a specified agency.
The request by the Director or the sheriff must only contain
sufficient information to enable the specified agency to identify
the person to whom the request relates.
Clause 175 requires a specified agency to comply with a request for
information from the Director or sheriff under clause 174 within
14 days of receiving the request unless the specified agency is a
law enforcement agency, or the specified agency is a public
sector body or a Council and certifies to the Director or sheriff
within 14 days that exceptional circumstances apply that require
the specified agency not to provide the requested information.
A law enforcement agency is not obliged to comply with a
request under clause 174 but has discretion to provide the
information.
Clause 176 provides that the Director may only use the information
provided as a result of a request under clause 174 for the
purpose of enforcing a registered fine against the person whose
information it is.
Clause 177 authorises a credit reporting body to disclose to the Director or
sheriff relevant information about a fine defaulter contained in
the person's credit information upon receiving a written request
for the purpose of taking enforcement action.
Clause 178 authorises the Director or sheriff to request information from
any person or body that may assist in carrying out their duties
for the purpose of enforcement of orders, directions and
warrants under the Bill and provides that a specified
enforcement information agency may give information to the
48
Director or sheriff for use in the enforcement of registered fines,
directions and warrants upon request.
Subclause (3) provides that a person who obtains information as
a result of a request under this clause may use the information
for the purpose of the enforcement of orders, directions and
warrants but is otherwise subject to all other privacy
requirements and restrictions that may apply.
Division 2--Service
Clause 179 provides that where documents are required to be served in this
Bill, they may be served either personally, via post or registered
post or in any other prescribed manner. A document must be
served personally in the case of--
· a seven-day notice;
· a summons for oral examination;
· a notice of intention to charge land;
· a notice of intention to sell charged land; and
· a declared director notice.
An attachment of earnings direction or attachment of debts
direction must be served by post or registered post.
Any document served on a declared director must be addressed
to the registered office address of the body corporate in respect
of which that person is a director.
Any document served by post under the Bill is taken to be
served 7 days after the date specified in the document.
Clause 180 provides that a magistrate may make an order detailing steps
that must be taken to bring a document to a person's attention in
lieu of service if it is impracticable to serve the document in the
manner required under clause 179. The magistrate may specify
in such an order the time the document will be taken to have
been served and may make such an order notwithstanding that
the person to be served is outside Victoria.
Clause 181 provides that service by post of a document is deemed to have
occurred 7 days after the date in the document despite the
document being returned to sender undelivered if the document
was posted to an authorised address or an address given to a
49
court on the referral of a court fine to the Director.
An authorised address is defined as an address recorded in
relation to a person in a register kept by a public statutory body
where the person is required to notify that body of any change
in that address.
Division 3--Other matters
Clause 182 provides that a police officer may, at the request of the sheriff,
assist the sheriff in the execution of the sheriff's functions or
duties under the Bill.
Clause 183 provides that the sheriff may authorise a police officer with the
approval of the Chief Commissioner of Police, to exercise all or
any of the powers, functions or duties of the sheriff under the
Bill, subject to any conditions or limitations as set out in the
authority.
Clause 184 makes it an offence for a person to intentionally provide false or
misleading information in any written statement required under
the Bill. The maximum penalty for this offence is 10 penalty
units.
Division 4--Regulations
Clause 185 provides that the Governor in Council may make regulations for
or with respect to a number of matters required or necessary to
be prescribed to give effect to the Bill.
PART 16--TRANSITIONAL PROVISIONS
Clause 186 provides that Part 16 does not affect the operation of the
Interpretation of Legislation Act 1984 or, except as
specifically provided, from any other transitional provision.
Clause 187 provides that an offence prescribed to be a lodgeable
infringement offence for the purposes of the Infringements Act
2006 is taken to be an infringement offence in respect of which
any outstanding infringement fine may be registered for
enforcement under clause 16.
Clause 188 provides that an infringement penalty that has been lodged with
an infringements registrar under Part 4 of the Infringements
Act 2006, before the repeal of that Part, is taken to be a
50
registered infringement fine and may be enforced under the
relevant provisions of the Bill.
In such a case, the Director must issue a notice of final demand
in respect of each transitioned registered infringement fine
within 28 days of the repeal of Part 4.
Clause 189 provides that an enforcement order notice served in respect of
an enforcement order made under Part 4 of the Infringements
Act 2006 before to its repeal is taken to be a notice of final
demand served in respect of a registered infringement fine and
may be enforced in accordance with the Bill.
Clause 190 provides that an application for revocation of an enforcement
order made under Part 4 of the Infringements Act 2006, but
not considered by an infringements registrar prior to its repeal,
is taken to be an application for enforcement review under the
Bill to be determined by the Director, Fines Victoria.
An application for revocation of an enforcement order referred
to the Court under the same Part before its repeal, that has not
yet been heard and determined, is to be heard and determined
by the Court in accordance with Division 4 of that Part as if it
had not been repealed.
If the Court determines not to revoke the enforcement order, the
infringement penalty is taken to be a registered fine for the
purposes of the Bill and a notice of final demand may be issued
in respect of the fine.
Clause 191 provides that a payment order issued under the Infringements
Act 2006 before the repeal of Part 3 of that Act, is taken to be a
payment arrangement pursuant to the Bill with the same terms
and conditions attached. On default of the payment
arrangement, clauses 56 and 57 apply.
Clause 192 provides that an infringement warrant issued under the
Infringements Act 2006, which has not commenced to be
executed before the repeal of Part 6 of that Act, is taken to be an
enforcement warrant under the Bill and may be executed
accordingly.
Clause 193 provides that a motor vehicle that has been detained,
immobilised or seized but not sold under Part 7 of the
Infringements Act 2006 prior to the repeal of that Part, is taken
to be detained, immobilised or seized under Part 11 of the Bill.
51
Clause 194 requires the proceeds of the sale of a motor vehicle that was
sold under section 101 of the Infringements Act 2006 before
the repeal of Part 7 of that Act to be applied in accordance with
section 104 of that Act as if that section had not been repealed.
Clause 195 provides that an attachment of earnings order made by an
infringements registrar under section 123 of the Infringements
Act 2006, on the repeal of that section, is taken to be an
attachment of earnings direction made by the Director and all
rights and duties that apply to attachment of earnings directions
under the Bill apply.
If a person had applied for an attachment of earnings order
under section 123 of the Infringements Act 2006 and that
application had not been determined before repeal of that
section, the Director is authorised to consider the application as
if it were an application made under this Bill.
Clause 196 provides that an attachment of debts order made by an
infringements registrar under section 129 of the Infringements
Act 2006, on the repeal of that section, is taken to be an
attachment of debts direction made by the Director and all
rights and duties that apply to attachment of debts directions
under the Bill apply.
If a person had applied for an attachment of debts order under
section 129 of the Infringements Act 2006 and that application
had not been determined before repeal of that section, the
Director is authorised to consider the application as if it were an
application made under the Bill.
Clause 197 provides that a direction by the sheriff before the repeal of
Part 8 of the Infringements Act 2006 to suspend a driver
licence or the registration of a motor vehicle or trailer, not to
renew a driver licence or motor vehicle registration or not to
transfer registration is taken to be a direction to take that action
by the Director under Part 8 of the Bill.
Clause 198 provides that a community work permit issued to an
infringement offender under section 148 of the Infringements
Act 2006, on and from the repeal of that section, is taken to be
a community work permit issued under Part 13 of the Bill and
is subject to any conditions that apply to a community work
permit under the Bill.
52
Clause 199 provides that a person arrested under an infringement warrant
under Part 12 of the Infringements Act 2006, as in force prior
to the repeal of that Part, but who failed to appear in the
Magistrates' Court is taken on and from that repeal to be an
infringement offender and is required to be dealt with under
Part 14 of the Bill.
Clause 200 provides that, where a sentencing court makes an order against
a person who has defaulted on a court fine imposed before the
commencement of clause 15 of the Bill, a court fine imposed
under the new order may be registered for enforcement under
clause 15 of the Bill, despite the original fine being imposed
before the commencement of that clause.
Clause 201 provides that, on the repeal of Part 6 of the Infringements Act
2006, any reference in any other Act, instrument or other
document to--
· an infringements registrar is taken to be a reference to a
registrar;
· the Infringements Court is taken to be a reference to the
Magistrates' Court for the purposes of the Bill.
Clause 202 authorises the Governor in Council to make regulations of a
transitional nature in respect of the Bill.
Subclause (4) provides that the power to make regulations
dealing with transitional matters is repealed on the second
anniversary of the day on which clause 202 comes into
operation.
PART 17--AMENDMENT OF INFRINGEMENTS ACT 2006
Currently the Infringements Act 2006 provides for the enforcement of
lodgeable infringement offences. The amendments being made by Part 17
of the Bill include the repeal of these enforcement provisions in the
Infringements Act 2006. The Fines Reform Bill will provide for the
enforcement of both infringement fines and court fines.
Part 17 also amends the pre-enforcement aspects of the Infringements Act
2006 as a consequence of the Bill and provides for the work and development
permit scheme.
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Division 1--Amendment of preliminary provisions
Clause 203 amends the purposes of the Infringements Act 2006 set out in
section 1(a) of that Act as a consequence of the amendments
being made to that Act by the Bill. The amended purposes
substituted by clause 203 are to--
· provide a framework for the issuing of and serving of
infringement notices;
· provide a framework for enforcement agencies to
conduct internal reviews of the decision to serve an
infringement notice;
· provide for the payment of infringement penalties by
payment plan; and
· provide for the work and development permit scheme.
Clause 204 amends the definitions section of the Infringements Act 2006.
Paragraph (a) repeals a number of definitions, some of which
are re-enacted in clause 3 of the Bill.
Paragraph (b) substitutes the definition of prescribed costs in
the Infringements Act 2006.
Clause 205 inserts new definitions into section 3(1) of the Infringements
Act 2006 including accredited agency, accredited health
practitioner, eligible person and work and development permit.
These new definitions are in respect of the new work and
development permit scheme being inserted into the
Infringements Act 2006 by clause 218 of the Bill.
Clause 206 amends section 4 of the Infringements Act 2006 to include the
Bill in the list of legislation that must be read as one with the
Infringements Act 2006.
Clause 207 makes amendments to section 7 of the Infringements Act 2006
necessary to remove references made to redundant terminology
(such as lodgeable infringement) and to reflect the reduced
scope of that Act.
Currently the details of any outstanding amount of an
infringement penalty can only be lodged for enforcement under
the Infringements Act 2006 if the infringement penalty is in
respect of a lodgeable infringement offence.
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The Bill removes the requirement for infringement offences to
be prescribed as lodgeable infringement offences. Under the
Bill, any outstanding amount of an infringement fine in respect
of an infringement offence will be eligible for registration and
enforcement unless the infringement offence has been
prescribed to be ineligible for registration (see clause 16 of the
new Principal Bill). The Bill will enable certain offences which
are not suitable for enforcement via Fines Victoria to be
prescribed as non-registrable.
Registration of any outstanding amount will now occur under
the new Principal Bill. The amendments to section 7 reflect the
fact that the Infringements Act 2006 will in future only apply
to infringement penalties in respect of infringement offences at
pre-enforcement stage.
Division 2--Infringement notices
Clause 208 amends section 12(2) of the Infringements Act 2006 to reduce
the timeframe for deemed service of an infringement notice
from 14 days to 7 days.
Subclause (2) amends section 12(3) of the Infringements Act
2006 to provide that an infringement notice served on a person
less than 21 days before the date for payment specified in the
notice is invalid. This reduces the timeframe from 28 days.
Clause 209 amends section 14 of the Infringements Act 2006 to reduce the
minimum timeframe within which a person has to pay an
infringement notice, from 28 days to 21 days.
Clause 210 substitutes section 15(b)(i) of the Infringements Act 2006 to
reflect the transition from lodging an infringement penalty with
an infringements registrar for enforcement, to registration with
the Director for enforcement.
The provision will accordingly enable late payment of an
infringement notice to be accepted by an enforcement agency
where the infringement notice has not been withdrawn and the
penalty has not been registered with the Director, Fines Victoria
for enforcement under clause 16 of the new Principal Bill.
Clause 211 amends section 16 of the Infringements Act 2006 to reflect the
transition from lodgeable infringement offences to registrable
infringement offences.
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The clause provides that a person may elect to have the matter
of the infringement offence heard in court prior to that matter
being registered with the Director, Fines Victoria. In respect of
non-registrable offences, a person may elect to go to court at
any time before expiry of the period for commencing
proceedings.
Clause 212 amends section 17 of the Infringements Act 2006 to reflect the
transition from lodgeable infringement offences to registrable
infringement offences.
The clause provides that an enforcement agency may refer a
matter for which an infringement notice has been served to
court prior to that matter being registered with the Director,
Fines Victoria. In respect of non-registrable offences, an
enforcement agency may refer a matter at any time before
expiry of the period for commencing proceedings.
Clause 213 amends section 18(1) of the Infringements Act 2006 to reflect
the transition from lodging an infringement penalty with an
infringements registrar for enforcement, to registration with the
Director for enforcement. The clause also reflects the transition
from lodgeable infringement offences to registrable
infringement offences.
The provision enables withdrawal of an infringement notice by
an enforcement agency. The amended section 18(1) provides
that, unless the infringement offence is of a kind specified in
paragraph (b) and (c), an enforcement agency may withdraw an
infringement notice at any time before the outstanding amount
of the infringement penalty in respect of a registrable
infringement offence has been registered with the Director,
Fines Victoria. New section 18(1)(b) provides that in the case
of an infringement offence for which an infringement penalty
may be registered under clause 4 of Schedule 3 to the Children,
Youth and Families Act 2005 (as the infringement notice was
served on a child), the infringement notice may be withdrawn at
any time before an enforcement order is made under that
Schedule. New section 18(1)(c) provides that, in the case of a
non-registrable infringement offence, an enforcement agency
may withdraw an infringement notice at any time before the
expiry of the timeframe for commencing proceedings.
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Division 3--Internal reviews
Clause 214 inserts a new section 21(2) in the Infringements Act 2006 to
provide that, in respect of applications for internal review made
on the basis of a person being unaware that they had been
served with an infringement notice, Division 3 of Part 2 does
not apply to specified infringement offences under the Road
Safety Act 1986, Melbourne City Link Act 1995, Transport
(Safety Schemes Compliance and Enforcement) Act 2014,
Marine (Drug, Alcohol and Pollution Control) Act 1988 and
the EastLink Project Act 2004.
This amendment is required as a consequence of the repeal of
Division 6 of Part 2 of the Infringements Act 2006. A person
who is not aware that an infringement notice has been served
can currently apply to an infringements registrar when they do
become aware, to have that infringement notice cancelled.
The amendments being made to Division 3 of the
Infringements Act 2006 will instead enable a person unaware
to apply for internal review.
Clause 215 inserts new paragraph (d) into section 22(1) of the
Infringements Act 2006 to make provision for applications for
internal review to be made on the basis of a person being
unaware that they had been served with an infringement notice.
Subclause (2) amends section 22(2) of the Infringements Act
2006 to reflect the transition from lodging an infringement
penalty with an infringements registrar for enforcement to
registration with the Director for enforcement. The subclause
provides that an internal review application may be made at any
time before the infringement penalty is registered with the
Director, Fines Victoria.
Subclause (3) amends section 22(2)(a)(ii) of the Infringements
Act 2006 to provide that in the case of a non-registrable
offence, the application can be made at any time before expiry
of the time for commencing proceedings.
Subclause (4) inserts new section 22(3) and (4) in the
Infringements Act 2006 to provide the requirements for an
application for internal review on the basis of the applicant
being unaware that an infringement notice had been served.
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Clause 216 makes provision for review by an enforcement agency on the
ground of a person being unaware of an infringement notice
having been served by inserting new section 24(1A) in the
Infringements Act 2006. New section 24(1A) provides that
the enforcement agency must review whether it is likely that,
more than 14 days before making the internal review
application, the person was unaware of service of the
infringement notice. The enforcement agency must also
suspend any procedures that are being used for enforcement
until the review is complete and notice has been served.
Clause 217 amends section 25 of the Infringements Act 2006 which
provides for what an enforcement agency may decide on
review.
Subclause (3) substitutes section 25(3) of the Infringements
Act 2006 to provide that if an enforcement agency confirms a
decision to issue an infringement notice on a special
circumstances application, the person served with the
infringement notice must--
· pay the infringement penalty; or
· apply for a payment plan or payment arrangement; or
· elect to have the matter heard in court; or
· apply for a work and development permit.
Subclause (2) inserts new section 25(2A) to provide that an
enforcement agency may grant or refuse an applicant's
application for internal review on the basis of being unaware.
Subclause (3) also inserts new section 25(4), (5) and (6).
New section 25(4) provides that if an enforcement agency
grants an application under new section 25(2A), a notice
granting the application must be sent to the applicant.
New section 25(5) provides that if a notice has been served
under new section 25(4), the applicant must, within 21 days of
receiving the notice--
· pay the infringement penalty; or
· enter into a payment plan or payment arrangement; or
· nominate another person as being the responsible
person; or
· apply for internal review on another ground; or
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· elect to have the matter heard in court; or
· apply for a work and development permit.
New section 25(6) provides that if an enforcement agency
refuses an internal review application on the basis of being
unaware, the enforcement agency must serve notice and advise
the applicant that the infringement penalty must be paid within
14 days.
Clause 218 inserts a new Division 3A in Part 2 of the Infringements Act
2006 to provide for the introduction of a work and development
permit scheme. The framework of the scheme as set out in the
new division is as follows--
A work and development permit is issued by the Director to an
eligible person. An eligible person is someone to whom special
circumstances apply or who is experiencing acute financial
hardship, and who has been served with an infringement notice.
The work and development permit guidelines made by the
Attorney-General under new section 27K will specify the
circumstances that must be established to satisfy the acute
financial hardship test.
A work and development permit allows a person to expiate an
infringement offence by participating in unpaid work,
undertaking educational, vocational or life skills courses,
undergoing mental health or medical treatment, receiving
financial or other counselling instead of paying the infringement
penalty or fine. An additional option of participating in a
mentoring program exists for persons under the age of 25 years.
An application for a work and development permit is made to
the Director by the accredited agency or accredited health
practitioner willing to take on responsibility for overseeing the
person's progress while on the permit. Applications may only
be made prior to the infringement penalty being registered with
the Director under this Bill. An application must include those
matters specified in new section 27B(3), being the person's
name and address, details of the accredited agency or accredited
health practitioner, details of the infringement offence and
penalty to which the permit will relate, the nature of the
activities proposed to be completed under the permit and the
proposed date of completion of those activities. Once an
application for a work and development permit has been made,
59
any enforcement action against the person is suspended until the
Director decides whether to approve the permit.
The Director has broad discretion to approve an application for
a work and development permit and is only required to be
satisfied that the person applying is eligible.
If the Director approves the permit, all enforcement action
against the person in respect of those infringement penalties or
fines is suspended until the work and development permit is
complete or the permit is cancelled.
Once the work and development permit is completed, the
infringement penalty to which it related is satisfied to the extent
set out in the permit. Where the permit is cancelled or partially
completed, the enforcement agency may take enforcement
action against the person to recover any remaining outstanding
debt. If the permit is only partially completed, the Director is
required to reduce the outstanding infringement penalty amount
owed by the person to reflect the partial completion, and
enforcement action may then be resumed on any remaining
debt.
The Director has the power to vary or cancel a work and
development permit, either of the Director's own motion or on
application by the person subject to the permit or the accredited
agency or accredited health practitioner overseeing the person.
New clauses 27F and 27G set out the process through which
agencies and health practitioners become accredited under the
work and development permit scheme.
An agency that meets the criteria in the work development
permit guidelines or a registered, qualified health practitioner
may apply to the Director for accreditation to supervise persons
under the work and development permit scheme. The term
health practitioner includes a registered medical practitioner,
registered psychologist or a nurse. The application must be in
accordance with the guidelines and any prescribed
requirements.
The Director has broad discretion to approve applications for
accreditation and need only be satisfied that the application is in
accordance with the work and development permit guidelines
and any regulations. Conditions may also be imposed on the
accreditation either by the Director or by the regulations.
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The Director may monitor accredited agencies or health
practitioners to ensure their compliance with the scheme,
particularly in relation to record-keeping, accreditation
conditions and requirements under the Infringements Act
2006, the regulations or the work and development permit
guidelines.
Accredited agencies and health practitioners are required to
keep a record of all relevant information under the scheme for
any work and development permit for which they are
responsible and any other prescribed information.
These records must be provided to the Director upon request.
The Director may revoke the accreditation of an accredited
agency or health practitioner if the agency or health practitioner
fails to comply with a request for information, or if the Director
considers it necessary to do so. In addition, an accredited
agency or health practitioner may surrender its accreditation at
any time by written notification to the Director. If accreditation
is either revoked or surrendered, the Director is required to
notify the person subject to the permit.
The Attorney-General is required to make work and
development permit guidelines published in the Government
Gazette specifying details of how the work and development
permit scheme will operate, including the criteria for the acute
financial hardship test, work-off rates, accreditation criteria,
information required to be included in a permit application and
details of matters to be included in the permits themselves.
New section 27L provides that the State of Victoria is not liable
for persons undertaking a work and development permit or any
loss or damage that may result from it.
Clause 219 amends section 29(3) of the Infringements Act 2006 to reduce
the time to pay an infringement penalty following the service of
a penalty reminder notice from 28 days to 14 days from service
of the penalty reminder notice.
Clause 220 amends section 31(b) of the Infringements Act 2006 as a
consequence of the Transport (Safety Schemes Compliance
and Enforcement) Act 2014. Section 31 of the Infringements
Act 2006 provides that Division 5 of Part 2 of that Act
(Exceptions to expiation) does not affect the operation of
specified sections in other Acts. Section 31(b) currently refers
61
to a provision being repealed by the Transport (Safety
Schemes Compliance and Enforcement) Act 2014 and that is
being re-enacted in that Act. Consequently section 31(b) is
being amended to refer to the relevant section in the Transport
(Safety Schemes Compliance and Enforcement) Act 2014.
Clause 221 makes amendments to section 32 of the Infringements Act
2006 relating to expiation necessary as a result of the
introduction of work and development permits by clause 218.
The amendment ensures that if an infringement penalty is
satisfied by completion of a work and development permit, the
offence is expiated.
Clause 222 makes amendments to section 33 of the Infringements Act
2006 relating to expiation necessary as a result of the
introduction of work and development permits by clause 218.
Clause 223 makes changes to section 35 of the Infringements Act 2006
necessary as a result of the introduction of work and
development permits to ensure that demerit points may still be
incurred even if a person is issued a work and development
permit.
Clause 224 repeals division 6 of Part 2 of the Infringements Act 2006 as a
person unaware of an infringement notice having been served
will now be able to seek internal review (see amendments made
by clauses 214 to 217). Currently, a person unaware can apply
to an infringements registrar to have the infringements notice
cancelled.
Clause 225 makes an amendment to the heading of Division 7 of Part 2 of
the Infringements Act 2006 necessary as a result of the change
from lodging infringement notices to registering them with the
Director, Fines Victoria. This Division provides for the election
of a person to go to court to have the matter of the infringement
offence determined by the Court.
Clause 226 makes amendments to the section 40 of the Infringements Act
2006 necessary as a result of the change from lodging
infringement notices to registering them with the Director, Fines
Victoria.
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Clause 227 makes amendments to the section 40A of the Infringements
Act 2006 necessary as a result of the change from lodging
infringement notices to registering them with the Director, Fines
Victoria.
Clause 228 makes amendments to the section 41 of the Infringements Act
2006 necessary as a result of the change from lodging
infringement notices to registering them with the Director, Fines
Victoria.
Division 4--Payment plans
Clause 229 repeals Division 1 of Part 3 of the Infringements Act 2006
which provides for the central payment plan facility and sets out
functions of the Secretary of the Department of Justice in
respect of payment plans. The repeal of Division 1 is required
as the Director will perform the functions currently performed
by the Secretary.
Clause 230 Subclause (1) inserts a new section 46(1A) in the
Infringements Act 2006 to provide that a body corporate
served with an infringement notice may apply to an
enforcement agency for a payment plan.
Subclauses (2) to (7) make amendments to the section 46 of the
Infringements Act 2006 relating to when payment plans are
available, which are necessary as a result of the change from
lodging infringement notices to registering them with the
Director, Fines Victoria.
Subclause (8) inserts a new section 46(6) and (7) in the
Infringements Act 2006. New section 46(6) provides that
where an enforcement agency decides not to offer a payment
plan, the enforcement agency must provide notice that the
person has 21 days to pay before the infringement penalty may
be registered with the Director for enforcement.
New section 46(7) provides that enforcement agencies must
cease any collection activity upon receiving a payment plan
application until the payment plan application is determined.
Clause 231 makes amendments to the section 47 of the Infringements Act
2006 necessary as a result of the change from payment plans
being managed by the Secretary (under the central payment plan
facility) to payment arrangements managed by the Director,
63
Fines Victoria. Payment arrangements are managed by the
Director under Part 5 of the Bill.
Clause 232 substitutes section 48 of the Infringements Act 2006 to provide
for when a payment plan commences. New section 48 provides
that a payment plan commences when an enforcement agency
receives the first payment by the due date for that payment.
Clause 233 substitutes section 49(3) of the Infringements Act 2006 to
provide that where an enforcement agency withdraws an
infringement notice, the infringement penalty and any
prescribed costs must be removed from the person's payment
plan. This mirrors clause 48(3) of this Bill in relation to
payment arrangements.
Clause 234 inserts new sections 49A and 49B into the Infringements Act
2006 to provide for the variation of payment plans and that
where a person applies for an infringement penalty to be added
to their payment plan, a new payment plan must be made.
Clause 235 subclauses (1) to (3) amend section 50 of the Infringements
Act 2006 which relates to the allocation of money received
under a payment plan. The amendments are necessary to
remove references to the Secretary.
Subclause (4) substitutes section 50(3)(a) of the Infringements
Act 2006 to replace references to enforcement orders with
references to notices of final demand.
Clause 236 repeals a redundant section (section 51) of the Infringements
Act 2006, which requires the provision of contact details when
an enforcement agency refers a payment plan for management
by the Secretary.
Clause 237 substitutes section 52 and inserts a new section 52A into the
Infringements Act 2006 relating to default on a payment plan.
The substituted section 52 provides the process for the
cancellation of a payment plan for default. The new
section 52A provides that enforcement action under the
Infringements Act 2006 or the new Principal Bill may be taken
on default, cancellation or removal of an infringement penalty
from a payment plan. The enforcement action available
depends on where in the enforcement lifecycle the infringement
penalty was at at the time the payment plan was originally
made.
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Clause 238 amends section 53 of the Infringements Act 2006 which relates
to extending the period for commencing proceedings for an
infringement offence. Subclause (3) provides that where a
person does not make the first payment in a proposed payment
plan, proceedings must be commenced within 6 months of the
due date for the first payment.
Clause 239 inserts a new Part 3A into the Infringements Act 2006
providing for internal review oversight by the Director, Fines
Victoria.
The new Part provides the Director with the power to--
· make guidelines for enforcement agencies relating to
internal review;
· monitor and oversee enforcement agencies' internal
review processes, including the power to request
specified information;
· make recommendations to enforcement agencies in
relation to their internal review processes and
compliance with the Infringements Act 2006;
· regularly report and make recommendations to the
Attorney-General relating to the Director's oversight
functions.
The Director will also be required to submit an annual report to
the Attorney-General reporting on the outcome of the functions
carried out by the Director under Part 3A.
Division 5--Repeals and further consequential amendments
Clause 240 Subclause (1) provides that Parts 4 to 11, inclusive, of the
Infringements Act 2006 are repealed either because they have
been re-enacted in the Bill or are no longer required.
Subclause (2) provides for the repeal of section 161A if the
Infringements Act 2006 which is not being re-enacted in the
new Principal Bill. Section (3) provides for the repeal of
Part 12 of the Infringements Act 2006.
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Clause 241 amends section 162 of the Infringements Act 2006 which
provides for the service of documents in that Act. Subclause (1)
inserts a note to clarify that documents may be served
electronically. Subclause (2) repeals subsections that are no
longer required. Subclause (3) amends section 162(6) to reduce
the deemed service by post from 14 to 7 days.
Clause 242 reduces the number of days that must pass before a document is
deemed to have been served under section 163A of the
Infringements Act 2006 despite being returned to sender from
14 days to 7 days.
Clause 243 repeals sections 164, 165 and 166 of the Infringements Act
2006 as they are being substantially re-enacted in Part 15 of the
Bill.
Clause 244 repeals certain existing regulation making powers in the
Infringements Act 2006 as they are no longer required in that
Act. As enforcement will now occur under the new Principal
Bill, the regulation making powers repealed by this clause have
been substantially re-enacted in Part 15 of the Bill.
Clause 245 inserts new regulation making powers in the Infringements Act
2006 to provide for regulations to made in respect of work and
development permits.
Clause 246 repeals a number of transitional provisions in the
Infringements Act 2006 that are spent and no longer required.
Clause 247 inserts a new Part 16 in the Infringements Act 2006 to provide
for transitional matters in that Act necessary as a result of the
commencement of the Bill.
The new Part provides that--
· the Infringements Act 2006 and the Bill apply to any
infringement notice whether that notice was issued
before or after the commencement of the Bill.
· the due date for payment contained in an infringement
notice served on a person prior to the commencement of
clause 247 remains the correct due date,
notwithstanding the change to payment periods as a
result of the Bill.
66
· if a matter in an infringement notice served on a person
prior to the commencement of clause 247 is inconsistent
with the Bill, the matter specified in the infringement
notice prevails.
· the due date for payment contained in a penalty
reminder notice served on a person prior to the
commencement of clause 247 remains the correct due
date, notwithstanding the change to payment periods as
a result of the Bill.
· if a matter in a penalty reminder notice served on a
person prior to the commencement of clause 247 is
inconsistent with the Bill, the matter specified in the
penalty reminder notice prevails.
· any application for an internal review made prior to the
commencement of clause 247 that has not yet been
determined is to be decided in accordance with
Division 3 of Part 2 of the Infringements Act 2006 as
if the application was made after the commencement of
clause 247.
· any payment plan made prior to the commencement of
clause 247 that has not yet been completed and was
being managed by an enforcement agency is to continue
on the same terms and conditions and continues to be
managed by the enforcement agency.
· any payment plan made prior to the commencement of
clause 247 that has not yet been completed and was
being managed by the Secretary, is to continue on the
same terms and conditions but will be managed by the
Director, Fines Victoria.
· any application made to an infringements registrar on
the basis that the person was unaware of the
infringement notice and referred to court but not yet
determined before the commencement of clause 247 is
to be determined under Division 6 of Part 2 of the
Infringements Act 2006 as if it had not been repealed.
· any request or application from a person in custody with
infringement warrants under section 161A of the
Infringements Act 2006 before its repeal, to serve a
concurrent period of imprisonment in default of
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payment outstanding infringement fines must be heard
and determined by a court in accordance with
section 161A as if that section had not been repealed.
PART 18--CONSEQUENTIAL AMENDMENTS TO OTHER
ACTS AND REPEAL
Division 1--Associations Incorporation Reform Act 2012
Clause 248 amends section 213(6) and (7)(b) of the Associations
Incorporation Reform Act 2012 to replace references to the
Infringements Act 2006 with references to the Bill.
Division 2--Australian Consumer Law and Fair Trading Act 2012
Clause 249 amends section 45(4) of the Australian Consumer Law and
Fair Trading Act 2012 to add a reference to the Bill in relation
to prohibited debt collection practices.
Division 3--Bail Act 1977
Clause 250 amends section 10(1A), (2) and (3) of the Bail Act 1977 to
substitute references to section of 84(5) of the Infringements
Act 2006 with references to clause 115(5) of the Bill.
Clause 251 substitutes section 27(2)(d) of the Bail Act 1977 to substitute a
reference to section of 84(5) of the Infringements Act 2006
with a reference to clause 115(5) of the Bill in relation to
admission to bail.
Division 4--Children, Youth and Families Act 2005
Clause 252 amends section 581(2) of the Children, Youth and Families
Act 2005 to substitute the reference to the Infringements Act
2006 with a reference to the Bill in relation to the CAYPINS
procedure.
Clause 253 amends clause 3(1)(a), (2)(e) and (2)(f) of Schedule 3 to the
Children, Youth and Families Act 2005 to provide for
payment arrangements made under the Bill in addition to
payment plans made under the Infringements Act 2006 in
relation to the registration of infringement penalties.
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Division 5--Control of Weapons Act 1990
Clause 254 amends section 9A(3)(b) of the Control of Weapons Act 1990
to provide for payment arrangements made under the Bill in
addition to payment plans made under the Infringements Act
2006. Clause 254 also substitutes section 9A(5)(b) so that the
provision refers to section 25(2A)(a) of the Infringements Act
2006 which concerns internal review on the ground that the
person was not aware of the infringement notice.
Division 6--Corrections Act 1986
Clause 255 amends paragraph (ab) of the definition of correctional order in
section 3(1) of the Corrections Act 1986 to substitute a
reference to a community work permit under the Infringements
Act 2006.
Division 7--Criminal Procedure Act 2009
Clause 256 amends section 3 of the Criminal Procedure Act 2009 to--
· insert a note at the foot of the definition of infringement
conviction to provide guidance about when an
infringement notice may take effect as a conviction;
· repeal the definition of infringements registrar as that
office will not exist under the amended Infringements
Act 2006; and
· substitute a reference to infringements registrar with a
reference to the Bill.
Clause 257 amends the note at the foot of section 27 of the Criminal
Procedure Act 2009 to substitute the reference to the
Infringements Act 2006 with a reference to the Bill.
Clause 258 substitutes section 85(1) with a provision that removes the
reference to a lodgeable infringement offence and omits section
71(1)(a) of the Infringements Act 2006 in section 85(2) of the
Criminal Procedure Act 2009.
Clause 259 amends section 328(d) of the Criminal Procedure Act 2009 to
substitute the references to the Infringements Act 2006 with
references to the Bill.
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Division 8--Drugs, Poisons and Controlled Substances Act 1981
Clause 260 substitutes section 80ZB(3)(b) of the Drugs, Poisons and
Controlled Substances Act 1981 to include an updated
reference to an enforcement agency granting an application
under section 25(2A)(a) of the Infringements Act 2006.
Division 9--EastLink Project Act 2004
Clause 261 amends section 218(1) of the EastLink Project Act 2004 to
add a reference to the Bill which, alongside the Infringements
Act 2006. The clause also repeals section 218(2) as it refers
to a lodgeable offence which will no longer exist under the
amended Infringements Act 2006.
Clause 262 amends section 219A(1) and (3) of the EastLink Project Act
2004 to remove the reference to an infringements registrar and
replace a reference to the Infringements Act 2006 with a
reference to the Bill.
The clause also substitutes section 219A(5)(a) and (b) with
paragraph (a) and (ab) to provisions that include references to
processes under the Bill. Paragraph (c) of that section is also
substituted to include a reference to an infringement fine under
the Bill.
The clause amends section 219A(5)(d) to substitute a reference
to an enforcement order with an updated reference to a notice of
final demand and an enforcement warrant.
The clause amends section 219A(6) to omit a reference to the
Secretary and to insert a new paragraph (da) to include a
reference to payment arrangements made under the Bill and
amends paragraph 219A(6)(e) to update references to the
provisions of the Infringements Act 2006.
The clause amends section 219A(7) to replace superseded
references in the Infringements Act 2006 with references to
terms used in the Bill.
The clause inserts a new section 219A(9) to provide for the
suspension of the enforcement of an infringement notice.
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Division 10--Education and Care Services National Law Act 2010
Clause 263 inserts a new section 12(2) in the Education and Care
Services National Law Act 2010 to declare the Bill to be the
infringements law in Victoria for the purposes of enforcing an
infringement notice issued under the Education and Care
Services National Law (Victoria).
Division 11--Graffiti Prevention Act 2007
Clause 264 amends section 24(2) of the Graffiti Prevention Act 2007,
which concerns the forfeiture of graffiti implements, to insert
new paragraph (ca) and (cb) to provide for payment
arrangements made, and notices of final demand served, under
the Bill. This clause also omits a reference to section 59 of the
Infringements Act 2006 in section 24(2)(d) of the Graffiti
Prevention Act 2007 as the former section will be repealed by
the Bill.
Clause 265 amends section 25(1)(d)(ii) of the Graffiti Prevention Act
2007, which concerns the return of seized items where an
infringement notice is cancelled, to substitute a reference to
section 38 of the Infringements Act 2006 to an updated
reference to section 25(2A)(a) of that Act.
Division 12--Heavy Vehicle National Law Application Act 2013
Clause 266 inserts a new section 13(2) in the Heavy Vehicle National Law
Application Act 2013 to declare the Bill to be the Infringement
Notice Offences Law for the purposes of enforcing an
infringement notice issued under the Heavy Vehicle National
Law (Victoria).
Clause 267 repeals items 13.2 to 13.12 of Part 2 of the Schedule to the
Heavy Vehicle National Law Application Act 2013.
These items are redundant as they amend provisions of the
Infringements Act 2006 that are repealed by the Bill.
Division 12--Magistrates' Court Act 1989
Clause 268 amends section 3(1) of the Magistrates' Court 1989 to insert a
definition of enforcement warrant, repeal redundant definitions
and update a number of references.
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Clause 269 repeals section 16(1A)(m) of the Magistrates' Court Act 1989
in relation to Rules of Court.
Clause 270 amends section 17(2) and (3) of the Magistrates' Court Act
1989 to add references to the Bill.
Clause 271 updates a reference in section 57(1)(g) of the Magistrates'
Court Act 1989 in relation to warrants.
Clause 272 substitutes a new section 58(1)(b) of the Magistrates' Court
Act 1989 to update references to enforcement warrants and to
the Bill.
Clause 273 amends section 60(1) and (2) of the Magistrates' Court Act
1989 to update references to warrants in relation to errors and
defects.
Clause 274 amends the heading of subdivision 2 of Division 6 of Part 4 of
the Magistrates' Court Act 1989 to replace the reference to the
Infringements Act 2006 with a reference to the Bill.
Clause 275 substitutes a new section 99 of the Magistrates' Court Act
1989 in relation to the infringement offence enforcement
procedure under the Bill.
Clause 276 amends section 99A(3) and (4) of the Magistrates' Court Act
1989 to update the references to infringements registrar and the
Infringements Court.
Clause 277 amends section 124B(1)(a) of the Magistrates' Court Act 1989
to update a reference to the Infringements Court to a court under
the Bill in relation to administrative service agreements.
Clause 278 amends section 124C(n) of the Magistrates' Court Act 1989 to
replace the reference to the Infringements Act 2006 with a
reference to the Bill.
Clause 279 amends section 124I(3)(b)(i) of the Magistrates' Court Act
1989 to update a reference to the Infringements Court.
Clause 280 amends section 134(5)(ab) of the Magistrates' Court Act 1989
to update a reference to Part 9 of the Infringements Act 2006
which is replaced by Part 6 of the Bill in relation to oral
examinations.
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Clause 281 amends section 140(1)(b) of the Magistrates' Court Act 1989
to update a reference to the infringements registrar in relation to
regulation making powers under that Act.
Division 14--Marine (Drug, Alcohol and Pollution Control)
Act 1988
Clause 282 amends section 61B(3)(b) of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 to substitute the reference to the
Infringements Act 2006 with a reference to the Bill.
Clause 283 amends section 61C of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 and the heading to that section to
substitute the reference to the Infringements Act 2006 with a
reference to the Bill.
Division 15--Melbourne City Link Act 1995
Clause 284 amends section 86 of the Melbourne City Link Act 1995 and
the heading to that section to insert references to the Bill and
repeals section 86(3) as it refers to a lodgeable infringement
offence which will not exist under the amended Infringements
Act 2006.
Clause 285 amends section 87A(1) and (3) of the Melbourne City Link
Act 1995 to remove the reference to an infringements registrar
and replace a reference to the Infringements Act 2006 with a
reference to the Bill.
The clause also substitutes section 87A(5)(a) with paragraph (a)
and (b) to provisions that include references to processes under
the Bill. Paragraph (d) of that section is also substituted to
include a reference to an infringement fine under the Bill.
The clause amends section 87A(5)(e) to substitute a reference to
an enforcement order with an updated reference to a notice of
final demand and an enforcement warrant.
The clause amends section 87A(6) to omit a reference to the
Secretary and to insert a new paragraph (da) to include a
reference to payment arrangements made under the Bill and
amends paragraph (e) to update references to the provisions of
the Infringements Act 2006.
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The clause amends section 87A(7) to replace superseded
references in the Infringements Act 2006 with references to
terms used in the Bill.
The clause inserts a new section 87A(10) to provide for the
suspension of the enforcement of an infringement notice.
Division 16--Road Safety Act 1986
Clause 286 inserts a definition of Director, Fines Victoria in section 3(1) of
the Road Safety Act 1986.
Clause 287 amends section 5AB(1) of the Road Safety Act 1986 to
substitute a reference to the Infringements Act 2006 with an
updated reference to the Bill.
Clause 288 substitutes subsection 9AA(1) of the Road Safety Act 1986 to
provide that VicRoads must suspend vehicle registration if
directed to do so by the Director, Fines Victoria. The sheriff
previously issued this direction under the Infringements Act
2006.
Clause 289 amends section 9AB of the Road Safety Act 1986 to provide
that VicRoads must cease suspension of registration is
notification is received by the Director, Fines Victoria.
The sheriff previously provided this notification under the
Infringements Act 2006.
Clause 290 substitutes section 9AC of the Road Safety Act 1986 to
provide, in subsection (1), that VicRoads must not grant or
renew the registration of a motor vehicle in the name of a fine
defaulter if directed by the Director, Fines Victoria. The sheriff
previously issued this direction under the Infringements Act
2006.
Subsection (2) contains updated references to the Director,
Fines Victoria and the Bill.
Clause 291 amends section 9AD of the Road Safety Act 1986 to substitute
references to notification the sheriff under the Infringements
Act 2006 with references to notification by the Director, Fines
Victoria under the Bill.
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Clause 292 substitutes section 9AE of the Road Safety Act 1986 to update
references to direction by the sheriff under the Infringements
Act 2006 with references to direction by the Director, Fines
Victoria under the Bill.
Clause 293 amends section 9AF of the Road Safety Act 1986 to replace
references to notification by the sheriff under the
Infringements Act 2006 with references to notification by the
Director, Fines Victoria under the Bill.
Clause 294 inserts new section 9AG in the Road Safety Act 1986 to
provide that VicRoads must send a notice to a body corporate, if
directed to do so by the Director, providing the body corporate
with 14 days within which to provide evidence that it is not a
deregistered body corporate. If that evidence is not received
within 14 days, VicRoads must cancel the registration of the
motor vehicle or trailer. If that evidence is provided, the
registration is not to be cancelled and VicRoads must inform the
Director.
It is not an offence to leave a vehicle on a highway if its
registration has been cancelled under this provision.
Clause 295 amends section 12(1)(c) of the Road Safety Act 1986 to
substitute the reference to Part 8 of the Infringements Act 2006
with Part 8 of the Bill as the former will be repealed by the Bill.
Clause 296 substitutes section 19A of the Road Safety Act 1986 to provide
that VicRoads must not grant or renew a driver licence of a fine
defaulter if directed by the Director, Fines Victoria. The sheriff
previously issued the direction under the Infringements Act
2006.
Clause 297 amends section 19B of the Road Safety Act 1986 to substitute
references to notification by the sheriff under the
Infringements Act 2006 with references to notification by the
Director, Fines Victoria under the Bill.
Clause 299 amends section 30AA of the Road Safety Act 1986 and the
heading to that section to substitute references to the
Infringements Act 2006 with updated references to the Bill.
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Clause 300 amends section 67(1) and (3) of the Road Safety Act 1986 to
substitute references to the infringements registrar within the
meaning of the Infringements Act 2006 with references to the
fines enforcement registrar under the Bill.
Section 67(5) is substituted to updated references to the Bill.
Section 67(6) and (7) are amended to update references to the
Bill. A new section 67(1) is inserted to provide for the
suspension of the enforcement of an infringement notice.
Clause 301 substitutes section 88(3AA)(a) of the Road Safety Act 1986 to
update the references to registration of infringement penalties
with references to the Director under the Bill.
Clause 302 amends section 89B(1) and (1B) of the Road Safety Act 1986
to replace references to the infringements registrar within the
meaning of the Infringements Act 2006 with references to the
fines enforcement registrar under the Bill.
Section 89B(3)(d) is amended to substitute the reference to the
Infringements Act 2006 with a reference to the Bill.
Clause 303 amends section 89BA(1) and (3) of the Road Safety Act 1986
to substitute references to the infringements registrar within the
meaning of the Infringements Act 2006 with references to the
fines enforcement registrar under the Bill.
Clause 304 amends section 89E of the Road Safety Act 1986 and the
heading to that section to substitute the reference to the
Infringements Act 2006 with a reference to the Bill.
Division 17--Sentencing Act 1991
Clause 305 updates a reference to Division 2 of Part 12 of the
Infringements Act 2006 in section 16(2A) of the Sentencing
Act 1991 so that the provision to refers to Part 14 of the Bill.
This clause also amends subclause 16A(1) of the Sentencing
Act 1991 to provide for the application of section 16A(1) of the
Sentencing Act 1991 to court fines registered with the Director
under Part 3 of the Bill.
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Clause 306 repeals section 66 of the Sentencing Act 1991 as the process
for the revocation of an enforcement order under the
Infringements Act 2006 and applications under section 68(1)
of the Infringements Act 2006 are not re-enacted by the Bill.
Clause 307 repeals section 69(5) of the Sentencing Act 1991 as the process
for the revocation of an enforcement order under the
Infringements Act 2006 is not re-enacted by the Bill.
Clause 308 repeals section 69C(4) of the Sentencing Act 1991 as the
process for the revocation of an enforcement order under the
Infringements Act 2006 is not re-enacted by the Bill.
Clause 309 inserts new sections 69FA and 69FB into the Sentencing Act
1991 which set out the powers of a court in respect of fine
defaulters arrested on an enforcement warrant issued under the
Bill in respect of court fines registered with the Director for
enforcement.
Section 69FA provides that a court which sentenced a fine
defaulter who is arrested on an enforcement warrant in respect
of a fine imposed by a court may make an order under
section 69G or 69H of the Sentencing Act 1991 if satisfied that
that the fine was registered for enforcement with the Director
clause 15.
Section 69FB provides for a court to hear and determine a
matter under section 69FA in the absence of an offender
provided that the fine defaulter was arrested on an enforcement
warrant issued under the Bill and released on bail and fails to
attend before the court in accordance with his or her bail.
Proposed subsection (2) provides that the court may hear a
matter and make any order under section 69G or 69H of the
Sentencing Act 1991 if satisfied that an enforcement warrant
issued under the Bill has not been executed within a reasonable
period or no enforcement warrant was issued because the
offender is not in Victoria.
Clause 310 inserts a reference to section 69FA in section 69G(1) of the
Sentencing Act 1991 to provide a court with a power to make
an order under section 69G(2) if a fine defaulter is arrested on
an enforcement warrant issued under the Bill in respect of court
fines registered with the Director for enforcement.
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Clause 311 inserts a reference to section 69FA in 69H(1) of the Sentencing
Act 1991 to provide a court with a power to make an order
under section 69H(2) if a fine defaulter is arrested on an
enforcement warrant issued under the Bill in respect of court
fines registered with the Director for enforcement where the
court did not make an order under section 69G of the
Sentencing Act 1991.
Clause 312 amends section 69ZG of the Sentencing Act 1991 to replace a
reference to the Infringements Act 2006 in relation to
infringement enforcement procedure with a reference to the
Bill.
Division 18--Surveillance Devices Act 1999
Clause 313 amends section 11(2)(d)(iii) of the Surveillance Devices Act
1999 to include a reference to the Bill.
Division 19--Sustainable Forests (Timber) Act 2004
Clause 314 removes a reference made in the Sustainable Forests (Timber)
Act 2004 to the process of cancellation of an infringement
notice by the Magistrates' Court and replaces it with a reference
to the new review powers available to enforcement agencies.
Division 20--Transport (Safety Schemes Compliance and
Enforcement) Act 2014
Clause 315 amends section 96(3)(b) of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 to include a
reference to procedures under the Bill in addition to those
which are set out in the Infringements Act 2006.
Clause 316 amends section 97 of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014 to include a
reference to the Bill.
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PART 19--SHERIFF ACT 2009 AND REPEAL OF AMENDING
PARTS
Division 1--Sheriff Act 2009
Clause 317 amends a number of definitions in the Sheriff Act 2009 to
reflect that infringement warrants under the Infringements Act
2006 are now enforcement warrants under the Bill.
Definitions of enforcement warrant and notice of final demand
have been inserted into the Sheriff Act 2009.
The definitions of enforcement order, enforcement order
notice and infringement warrant are repealed.
Clause 318 amends section 22 of the Sheriff Act 2009 to expand the hours
from 9 a.m. and 5 p.m. to 7 a.m. and 9:30 p.m. that the sheriff
can use force and assistance to enter a premises to execute a
civil warrant.
Clause 319 inserts a new section 22A of the Sheriff Act 2009 to allow the
sheriff to execute a money warrant that is a civil warrant
together with a money warrant that is a criminal warrant
between 9:30 p.m. and 7 a.m.
This amendment expands the sheriff's civil warrant powers, and
facilitates the enforcement of civil orders such as compensation
orders for victims of crime and civil judgment debts.
Clause 320 amends section 26 of the Sheriff Act 2009 consequential to the
change of terminology from enforcement orders to notices of
final demand.
Clause 321 amends section 27 of the Sheriff Act 2009 to reflect the change
in terminology from infringement warrant to enforcement
warrant, and to enable the sheriff to receive payment of the
payable amount under a money warrant (whether civil or
criminal) from a third party unless the person named or
described in the warrant informs the sheriff that he or she does
not consent.
Clause 322 inserts new definitions of applicable money warrant and partly
executed money warrant into section 28 of the Sheriff Act
2009, and amends that section to provide that where the Sheriff
receives whole payment, or part payment, of an enforcement
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warrant or civil warrant from a third party, the person named in
the warrant can apply to have that warrant reinstated within
28 days of receipt of payment.
Clause 323 inserts a new subsection 32(3) of the Sheriff Act 2009 to
prevent the sheriff from recovering reasonable costs and
expenses of executing a warrant until 28 days after a payment is
received by the sheriff under section 27.
Clause 324 amends section 33 of the Sheriff Act 2009 consequential to the
change of terminology from an enforcement order to a notice of
final demand and inserts a new provision requiring the sheriff to
wait 28 days before applying payment received from a third
party under a money warrant to the debt.
Clause 325 amends section 38 of the Sheriff Act 2009 consequential to the
change of terminology from an infringement warrant to an
enforcement warrant. References to the Infringements Act
2006 contained in section 38 of the Sheriff Act 2009 are also
replaced with references to the relevant provisions in the Bill.
Clause 326 makes amendments to section 40 of the Sheriff Act 2009
consequential to the change of terminology from an
infringement warrant to an enforcement warrant.
Clause 327 replaces references to the Infringements Act 2006 contained in
section 41 of the Sheriff Act 2009 with references to the
relevant provisions in the Bill.
Clause 328 inserts a number of new definitions and amends a number of
existing definitions in section 52 of the Sheriff Act 2009.
The provision also repeals section 53(5) as it is no longer
necessary.
Clause 329 inserts a new section in the Sheriff Act 2009 to authorise credit
reporting bodies to disclose relevant information about a person
named in a warrant for the purpose of executing a warrant
against that person.
Clause 330 extends the regulation making power in the Sheriff Act 2009 to
enable regulations to be made about the waiving or refunding of
fees or charges payable in respect of anything done by the
sheriff in the execution of a warrant or other process.
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This power will enable regulations to be made which waive
certain prescribed fees in relation to the enforcement of
compensation orders for victims of crime.
Division 2--Repeal of amending Parts
Clause 331 repeals Part 18 and Part 19 of the Bill on 30 June 2017.
The repeal of Part 18 and Part 19 of the Bill does not affect the
continuing operation of the amendments made by the Bill
(see section 15(1) of the Interpretation of Legislation Act
1984).
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