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INFRINGEMENTS BILL 2005

                       Infringements Bill

                        Introduction Print

              EXPLANATORY MEMORANDUM


                               Clause Notes

                      PART 1--PRELIMINARY
Clause 1   sets out the main purposes of the Bill, which are to provide for a
           new framework for the issuing, serving and enforcement of
           infringement notices, and to amend the Magistrates' Court Act
           1989, the Road Safety Act 1986 and the Subordinate
           Legislation Act 1994.

Clause 2   states that the Bill will come into operation on 1 July 2007 if it is
           not proclaimed earlier. The new system is substantially expected
           to operate from mid-2006. A maximum of one extra year is
           included in this commencement provision to allow for the
           contingency of a later start date in relation to any component of
           the Bill.

Clause 3   defines key terms used in the Bill.

Clause 4   provides that the Bill is to be read and construed as one with the
           Magistrates' Court Act 1989, including definitions of terms not
           defined in this Bill.

Clause 5   provides that the Attorney-General, after consultation with any
           other Minister whose area of responsibility may be affected by
           the guidelines, may make guidelines with respect to the offences
           and level of penalty suitable for being subject to infringement
           notices under the new Act or any other legislation.
           The guidelines may also relate to the administration of the new
           Act, including a model code of conduct for issuing officers, the
           criteria to be considered in relation to a payment plan, such as
           eligibility criteria, internal reviews, the use of records kept by
           enforcement agencies of any infringement notices or official
           warnings, and the provision of information relating to
           infringement offences to the Attorney-General. The Attorney-
           General must publish the guidelines in the Government Gazette.

                                      1
551264                                      BILL LA INTRODUCTION 16/11/2005

 


 

Clause 6 provides that for the purposes of ensuring the effective administration of the new Act, an enforcement agency must provide the Attorney-General with prescribed statistical information at prescribed intervals or as required by the Attorney-General by written notice. Clause 7 provides that the new Act applies to infringement offences that are prescribed to be "lodgeable infringement offences" enforceable under the new Act. Parts 1, 2, 3 and 13 (other than clauses 165 and 166) of the new Act, which deal with the process before enforcement, apply to all infringement offences, whether prescribed or not. However, the new Act does not apply to the enforcement of offences against local laws by infringement notice under section 117 of the Local Government Act 1989 (other than parking infringements under the Road Safety Act 1986). The new Act also does not apply to the enforcement of an offence for which an infringement notice or a penalty notice within the meaning of Schedule 2A to the Children and Young Persons Act 1989 could be issued in respect of a child. PART 2--INFRINGEMENT NOTICES Division 1--Official Warnings Clause 8 provides that an issuing officer may serve a person with an official warning rather than issue an infringement notice if the officer believes on reasonable grounds that a person has committed an infringement offence and that it is appropriate in all the circumstances to serve an official warning. An issuing officer must observe any policy of the relevant enforcement agency in relation to official warnings in respect of an infringement offence. For example, an enforcement agency may decide as a matter of policy that it is inappropriate to issue official warnings for certain offences. An issuing officer must also have regard to any guidelines made by an enforcement agency in relation to official warnings. The official warning must be in writing and contain the prescribed details. Nothing in this clause limits an issuing officer's power to exercise his or her discretion to issue or not issue an infringement notice. Clause 9 provides that an enforcement agency may make and publish enforcement agency guidelines and policies in respect of the use of official warnings for infringement offences. 2

 


 

Clause 10 provides that an official warning does not affect the power of an issuing officer or enforcement agency to commence proceedings against a person served with an official warning, or to serve an infringement notice, to take no further action, or to take any other action permitted under the new Act or the Act or regulations establishing the offence. Clause 11 provides that an official warning must be withdrawn if proceedings are to be commenced or an infringement notice is to be served in respect of the offence against the person on whom the warning was served. A withdrawal of an official warning, which must be in writing and contain the prescribed details, must be served on the person to whom the official warning has been served. The official warning may be withdrawn at any time before the expiry of the prescribed period. Division 2--Infringement Notices Clause 12 sets out the methods by which an infringement notice may be served. Clause 13 sets out the form of an infringement notice, including requirements that the notice must be in writing, contain prescribed details and state that the person is entitled to defend any proceedings in Court. If the notice is in respect of an offence that requires additional steps to be taken, applies a graduated penalty or results in any other penalty in addition to the infringement penalty being incurred, it must contain the relevant prescribed further details. Clause 14 provides that an infringement penalty must be paid within the period specified in the infringement notice, being not less than 28 days after an infringement notice has been served. Clause 15 provides that an enforcement agency may accept late payment of an infringement penalty if the notice has not been withdrawn and, in the case of a lodgeable infringement offence, has not been lodged with an infringements registrar. Clause 16 provides that a person served with an infringement notice may elect to have the infringement offence heard in Court. In the case of a lodgeable infringement offence, the person may elect to go to Court at any time before an enforcement order is made. For any other infringement offence, the person may elect to go to Court at any time before the expiry date for bringing a proceeding in relation to the offence. 3

 


 

This clause does not apply to certain more serious offences which are subject to a different procedure, i.e. offences to which sections 89 and 89A to 89D of the Road Safety Act 1986, section 215C of the Transport Act 1983, and sections 61A and 61B of the Marine Act 1988 apply. Clause 17 provides that at any time before an enforcement order is made, an enforcement agency may, in the case of a lodgeable infringement offence, refer a matter to Court. For any other infringement offence, an enforcement agency may elect to refer a matter to Court at any time before the expiry date for bringing a proceeding in relation to the offence. This clause does not apply to certain more serious offences which are subject to a different procedure, i.e. offences to which sections 89 and 89A to 89D of the Road Safety Act 1986, section 215C of the Transport Act 1983, and sections 61A and 61B of the Marine Act 1988 apply. Clause 18 provides that an enforcement agency may withdraw an infringement notice for a lodgeable infringement offence at any time before an enforcement order is made, and for any other infringement offence, at any time before the expiry date for bringing a proceeding in relation to the offence. An infringement notice may be withdrawn even if the infringement penalty has been paid. If the infringement notice relates to an offence requiring additional steps to be taken, it cannot be withdrawn in order to commence proceedings if the person has paid the infringement penalty and taken the additional steps. If an infringement notice is withdrawn, any infringement penalty and prescribed costs already paid must be refunded. This clause does not apply to certain more serious offences which are subject to a different procedure, i.e. offences to which sections 88, 89 and 89A to 89D of the Road Safety Act 1986, section 215C of the Transport Act 1983, and sections 61A and 61B of the Marine Act 1988 apply. Clause 19 sets out the form of a withdrawal notice, which must be in writing, contain the prescribed details and state how the enforcement agency intends to proceed in respect of the infringement offence. Clause 20 provides that the withdrawal of an infringement notice does not affect any other procedure or action that can be taken under the new Act. 4

 


 

Division 3--Internal Reviews Clause 21 provides that this Division does not apply to an infringement notice or offences to which sections 89A to 89D of the Road Safety Act 1986, section 215C of the Transport Act 1983 or sections 61A and 61B of the Marine Act 1988 apply. Clause 22 provides that a person who has been served with an infringement notice may apply to an enforcement agency for review of the decision to issue the notice on the grounds that the decision was contrary to law, involves a mistake of identity, meets the "special circumstances" criteria, or the conduct should be excused having regard to any exceptional circumstances. An application for internal review may be made, in the case of a lodgeable infringement offence, at any time before the infringement penalty is lodged, and for any other infringement offence, at any time before the expiry date for bringing a proceeding in relation to the offence. The notice must be in writing, state the grounds on which the decision should be reviewed and provide the applicant's current address. Clause 23 provides that an enforcement agency may request from the applicant any additional information it requires to conduct a review. If the enforcement agency does so, it must suspend the review for a period not exceeding 21 days, and the applicant must provide the additional information within 14 days of service of the request. If no information is received, the review must proceed without the additional information. Clause 24 states that if an enforcement agency receives an application for review, it must suspend any procedures in relation to enforcement until the review is complete and the applicant is sent advice of the outcome. The enforcement agency must ensure that the review is conducted by a person who was not involved in making the original decision to issue the infringement notice. An enforcement agency must review a decision and advise the applicant of the outcome within the prescribed time, with the addition of 21 days to this prescribed time if the enforcement agency requests additional information. If these requirements are not met, the infringement notice is deemed to be withdrawn. 5

 


 

Clause 25 provides that after reviewing a decision, an enforcement agency may confirm the decision to issue an infringement notice, withdraw the notice, withdraw the notice and issue an official warning in its place, alter or vary any additional steps provided the alteration or variation is consistent with the Act or regulations establishing the offence, waive all or any fees, approve a payment plan or do any combination of these actions. In the case of a review of a special circumstances application, an enforcement agency may confirm the decision to serve an infringement notice, withdraw the infringement notice and serve an official warning in its place, or withdraw the notice. If the enforcement agency confirms the decision to serve in this case, it must refer the matter to Court. Clause 26 provides for the time within which a person is required to pay an infringement penalty after a decision is confirmed under clause 25(1)(a). This clause does not apply where the decision is confirmed and special circumstances apply to the person. Clause 27 states that if a person elects to have a matter heard in court while a review is in progress, the review is terminated when the person so elects. Division 4--Penalty Reminder Notices Clause 28 provides that this Division does not apply to an infringement notice or offence to which sections 89A to 89D of the Road Safety Act 1986, section 215C of the Transport Act 1983 or sections 61A and 61B of the Marine Act 1988 apply. Clause 29 provides that an enforcement agency may serve a penalty reminder notice if an infringement penalty has not been paid within the period specified in the infringement notice or, if an application for internal review has been made and no previous penalty reminder notice has been served, within the time specified in clause 26. If a payment plan applies, a penalty reminder notice may be served if it appears that the person has cancelled the plan, removed a penalty and costs from the payment plan, or is in default. The time for payment is then extended for 28 days after service of the penalty reminder notice. A penalty reminder notice must be in writing and contain the prescribed details. 6

 


 

Clause 30 provides that a person served with a penalty reminder notice may elect to have the matter heard in Court. A person who elects to do so must serve a written statement to that effect on the relevant enforcement agency within 28 days of being served with the penalty reminder notice. Division 5--Expiation and Demerit Schemes Clause 31 sets out exceptions to the principle of expiation: sections 66, 89 and 89A to 89D of the Road Safety Act 1986, section 215C of the Transport Act 1983 and sections 61A and 61B of the Marine Act 1988. Clause 32 provides that the person on whom an infringement notice has been served expiates the offence by paying the infringement penalty and any costs within the specified period, including the period for late payment. In the case of an infringement notice involving additional steps, a person has expiated the offence when the penalty and costs are paid, and the additional steps are complied with. Clause 33 provides that if a person expiates an offence, no further proceedings may be taken nor any conviction recorded. The payment of an infringement penalty is not to be taken as an admission of guilt in relation to the offence or an admission of liability for the purpose of any civil claim or proceeding, and must not be referred to in any sentencing report. Clause 34 provides that the expiation of an infringement offence does not prevent the incurring of demerit points under section 25 of the Road Safety Act 1986 or section 181B of the Transport Act 1983. Clause 35 provides that payment of an infringement penalty by instalments has the same effect as a full payment in relation to any demerit system. Division 6--Cancellation of Certain Infringement Notices Clause 36 states that this Division does not apply to an infringement notice to which sections 67 or 89B of the Road Safety Act 1986, section 87A of the Melbourne City Link Act 1995, section 215D of the Transport Act 1983 or section 61B of the Marine Act 1988 apply. 7

 


 

Clause 37 provides that a person may apply to an infringements registrar to have an infringement notice cancelled if the person was not personally served and was not in fact aware that the notice has been served. Such an application must be made within 14 days of the applicant becoming aware of the infringement notice, and be accompanied by a written statement setting out the grounds on which cancellation is sought. If an application is made, an infringements registrar must stay the infringement notice and refer the application to the Court for determination. Upon referral, the Court must provide notice of the time and place of the hearing to the enforcement agency and the applicant. Clause 38 sets out the power of the Court to cancel an infringement notice if it is satisfied that the person was unaware that the infringement notice had been issued. On referral of an application under clause 37, any of the enforcement procedures relating to the infringement penalty are suspended. If the infringement notice is cancelled, any infringement penalty and costs paid must be refunded, any procedure for the enforcement of an infringement penalty and costs must be discontinued, any enforcement order revoked, and any infringement warrant cancelled. This clause does not apply if execution of an infringement warrant has commenced. Division 7--Going to Court--Pre-lodgement Stage Clause 39 provides that if a person elects to have a matter heard in Court, or an enforcement agency refers a matter for hearing in Court under Part 2, the enforcement agency must lodge a notice containing the prescribed information with the Court. The infringement notice is deemed to be a charge, and the Court must allocate a time and place of hearing, return the notice with the prescribed information endorsed with the time and place of hearing to the enforcement agency, and the enforcement agency must serve notice of the time and place of the hearing on the person served with the infringement notice. Any infringement penalty paid by the person must be refunded. Clause 40 provides that if a person elects to have a matter heard in Court, or an enforcement agency refers the matter of a lodgeable infringement notice for hearing in Court under Part 2, the enforcement agency must lodge the prescribed information with the Court. The information is deemed to be a charge, and the Court must allocate a time and place of hearing, return the notice with the prescribed information endorsed with the time and place of hearing to the enforcement agency, and the enforcement agency must serve notice of the time and place of the hearing on the person who was served with the infringement notice. 8

 


 

Clause 41 allows the Court to proceed to hear a lodgeable infringement offence in certain circumstances even though it may not otherwise proceed because-- · the defendant was not served with notice of the details of the hearing; and · the Court is not satisfied that the defendant knew about the hearing details; or · the Court is satisfied that the defendant knew about the hearing details but is not satisfied that the defendant would not be prejudiced by the non-service. The circumstances where the hearing of the offence may proceed are where the Court is satisfied that the defendant is avoiding service of the notice or cannot be found after reasonable search and inquiry. PART 3--PAYMENT PLANS Division 1--Establishment of the Central Payment Plan Facility Clause 42 allows for the Secretary to the Department of Justice to establish and maintain a central payment plan facility. The establishment of a central payment plan facility will alleviate the need for agencies to develop their own systems but does not prevent agencies having their own system. Clause 43 sets out the functions of the Secretary under Part 3 to manage the payment of infringement penalties by payment plans referred by any enforcement agency, to ensure that all infringement penalties and costs referred from any enforcement agency are accommodated in one payment plan for each person, and to apply the payments received under a payment plan in order of priority. Clause 44 sets out the powers of the Secretary to do anything necessary or convenient for or in connection with carrying out the Secretary's functions under Part 3. Without limiting this power, the Secretary may enter into arrangements or agreements with any person or body to act as the Secretary's agent in carrying out any functions under this Part. Clause 45 sets out to whom the Secretary may delegate powers or functions under Part 3. 9

 


 

Division 2--Payment Plans Clause 46 provides that a natural person served with an infringement notice may apply for a payment plan at any time before the infringement penalty is lodged with an infringements registrar in the case of a lodgeable infringement offence, or at any time before the expiry date for bringing a proceeding in relation to other infringement offences. The enforcement agency must offer a payment plan if the person meets the eligibility criteria. Also, an enforcement agency may, in its discretion, offer a payment plan to a person who has applied even if the person does not meet the criteria. Clause 47 provides that payment plans may be arranged for the payment of one or more infringement penalties, and may allow for payment by instalments or for an extension of time to pay or a combination. A payment plan may comprise infringement penalties and prescribed costs in relation to both lodgeable infringement offences and other infringement offences. Clause 48 provides that payment plans commence when the first payment is received, with the plan being cancelled if the first payment is not received within the required time. Clause 49 provides that a person may request that an infringement penalty be added to, or removed from, a payment plan or that the plan be cancelled. If an infringement notice is withdrawn by an enforcement agency, the enforcement agency must request that the corresponding infringement penalty and prescribed costs be removed from a person's payment plan. If an infringement penalty and prescribed costs are removed or a payment plan in cancelled, any money already paid is to be allocated to the oldest infringement notice remaining in the payment plan, or if the removal completes the payment plan, any overpayment is to be refunded. A refund is not available if the infringement penalty and costs have been paid in full. Clause 50 provides that the Secretary or an enforcement agency must allocate money received under a payment plan in order of priority, with the oldest infringement notices being paid out first. The Secretary or enforcement agency must advise the person if there is any overpayment by virtue of the person continuing to pay after the payment plan is completed, and may refund the money or, if the person consents, apply the amount of the overpayment to outstanding infringement notices or enforcement orders. 10

 


 

Clause 51 provides that an enforcement agency must provide the Secretary with the most current contact details for a person to whom a payment plan applies, and sets out the details required to comply with this requirement. It also requires the Secretary to notify the agency of an up-to-date (last known) address of the person if the payment plan is in default or the infringement penalty is removed or cancelled. Clause 52 provides that a person defaults in the payment of a payment plan if payment is not received in accordance with the plan within 14 days or a longer prescribed period after the due date of payment. In this case, the agency or Secretary must send written notice to the person advising that person of the default. Clause 53 provides that if a person takes up a payment plan, the period for commencing proceedings for an alleged offence is extended as follows-- · if the person defaults on a payment in respect of an infringement offence other than a lodgeable infringement offence, by 6 months after the date of the default; · if a person removes an infringement penalty and costs from the plan in respect of an infringement offence other than a lodgeable infringement offence, by 6 months after the date of the removal; · if a person cancels the payment plan in respect of an infringement offence other than a lodgeable infringement offence, by 6 months after the cancellation date. These extensions apply despite section 26(4) of the Magistrates' Court Act 1989 or any other Act or regulation which provides for the period within which proceedings may be commenced for an offence. 11

 


 

PART 4--LODGING INFRINGEMENT PENALTIES AND ENFORCEMENT ORDERS Division 1--Lodgement Clause 54 sets out the circumstances in which an enforcement agency may lodge details of an infringement penalty in respect of a lodgeable infringement offence with an infringements registrar. The infringement penalty must not be less than the prescribed minimum infringement penalty amount, full payment must not have been received within 28 days of the issue of the penalty reminder notice and the enforcement agency must not have filed a charge or referred the matter to Court. In the case of infringement notices issued in respect of traffic camera offences to which sections 66 and 87 of the Road Safety Act 1986 applies, or under section 73(1) of the Melbourne City Link Act 1995 or section 204 of the Mitcham-Frankston Project Act 2004, the infringement notice must be issued to the owner of the vehicle or the nominated driver. Clause 55 states that details of an infringement penalty and prescribed costs in respect of a lodgeable infringement offence must be lodged within 6 months of the date of the alleged offence. Where a payment plan is in place, these details must be lodged within 6 months of default under or cancellation of the plan, or removal of an infringement penalty and prescribed costs in respect of a lodgeable infringement offence. Lodgement times are also extended if an infringement notice is cancelled and a new infringement notice is issued under clause 38(4), if an infringement notice is reviewed under Division 3 of Part 2, or if a person has nominated another driver for an offence committed under the Road Safety Act 1986, the Melbourne City Link Act 1995 or the Mitcham-Frankston Project Act 2004. Clause 56 provides that the extension of the period for prosecution under clause 55 has effect despite section 26(4) of the Magistrates' Court Act 1989 or any provision in another Act or regulations providing for a different period during which proceedings must be commenced. Clause 57 provides that an infringements registrar is entitled to rely on the accuracy and truth of the material provided when details of an infringement penalty and prescribed costs are lodged under clause 54. 12

 


 

Clause 58 provides that an enforcement agency may request an infringements registrar not to make an enforcement order in respect of an infringement penalty and prescribed costs lodged under clause 54 at any time before the order is made. Division 2--Enforcement Orders Clause 59 provides that an infringements registrar may make an enforcement order that the person pay the infringement penalty and prescribed costs if the infringements registrar has not received a request from an enforcement agency under clause 58. An enforcement order is deemed to be an order of the Court. Clause 60 provides that on the making of an enforcement order, an enforcement order notice must be sent to the person against whom the order is made. The notice must be in writing and state that an infringement warrant will be issued if the person defaults for more than 28 days in paying the fine or any instalment. It must also include a summary of any other enforcement action or options available under the new Act, and any other prescribed details. Clause 61 sets out the effect of an enforcement order made in relation to an infringement offence. Except for sections 89 and 89A to 89D of the Road Safety Act 1986, section 215C of the Transport Act 1983 or sections 61A and 61BA of the Marine Act 1988, the person subject to the order is not to be taken to have been convicted of the offence. The person is also not liable to any further proceedings for the alleged offence, and the order does not affect any civil proceedings arising out of the same occurrence. Payment in accordance with the enforcement order is not an admission of liability and has no affect on any civil claim. The making of an enforcement order in relation to a traffic infringement offence does not prevent demerit points from accruing and does not prevent the suspension of vehicle registration under a heavy vehicle registration suspension scheme. Clause 62 sets out the circumstances in which an enforcement order expires. These are: when payment in full is made, or, in the case of payment by instalments order where the fine or fines are not paid in full, 5 years after the receipt of the last payment, or in any other case, 5 years after the making of the payment order. If an infringement warrant in respect of the enforcement order, an application for revocation, a declaration against a body corporate or an application for an extension of time under the Melbourne 13

 


 

City Link Act 1995 or the Road Safety Act 1986 has been made or issued, the enforcement order expires within 5 years of the warrant becoming void under Part 6 or the relevant application or declaration being made. If an enforcement order expires as a result of this clause, any outstanding amount ceases to be enforceable or recoverable. Clause 63 provides that an enforcement order that has expired may be reinstated on an infringements registrar's own motion or on the application by the enforcement agency. The fine then becomes enforceable or recoverable as if there had been no expiry. Division 3--Revocation of Enforcement Orders Clause 64 sets out the power of an infringements registrar on his or her own motion to revoke an enforcement order and refer the matter to Court for hearing and determination. In such cases, the infringements registrar must notify the enforcement agency and the person against whom the enforcement order was made that the order has been revoked and referred to Court for hearing, as well as including the reasons why the enforcement order was revoked. An infringements registrar must not revoke an enforcement order in the following cases-- · if property has been seized under an infringement warrant (except a seizure under clause 89); · if a declaration has been made against a director of a body corporate for enforcement against a body corporate; · if a notice of seizure and sale under clause 101(2) has been served on a person; · if an attachment of earnings order or an attachment of debts order has been made; · if an order that land is subject to a charge has been made; or · if a person has been arrested in accordance with Part 12. 14

 


 

Clause 65 provides that an enforcement agency, a person against whom an enforcement order has been made, or a person on behalf of a person to whom special circumstances apply may apply to an infringements registrar for revocation of the enforcement order. An application for revocation cannot be made in a number of listed circumstances, which are the same as those set out in clause 64. Applications must be filed with an infringements registrar, and, if filed by the person against whom the enforcement order has been made or someone acting on their behalf, must be accompanied by a written declaration setting out the grounds on which revocation is sought. Clause 66 sets out the powers of the infringements registrar to revoke an enforcement order on application by the enforcement agency or by the person against whom an enforcement order has been made. If the enforcement agency applies for revocation in accordance with clause 65, the infringements registrar must revoke the order, which then ceases to have effect. If a person applies, and the infringements registrar is satisfied that there are sufficient grounds for revocation, the infringements registrar must revoke the order, which ceases to have effect. If the infringements registrar is not satisfied that there are sufficient grounds for revocation, he or she must notify the applicant that the order has not been revoked because of insufficient grounds. The infringements registrar may adjourn an application for revocation, or may revoke the enforcement order and cancel the infringement notice, if satisfied that the applicant was not the driver and the applicant has nominated another driver. If the infringements registrar revokes an enforcement order, he or she must notify the enforcement agency and the person against whom the enforcement order was made that the enforcement order has been revoked, and that the matter has been referred to the Court for hearing and determination. An infringements registrar must not revoke an enforcement order if a previous application for revocation has been made. Clause 67 sets out the powers of the infringements registrar to vary the prescribed costs or fees on an infringements warrant. If an infringements registrar varies costs or fees, he or she must notify the applicant that the amount of the penalty as varied must be paid within 28 days. This clause does not apply to special circumstances applications made in accordance with clause 65(1)(c). 15

 


 

Clause 68 provides that where an infringements registrar varies costs or fees, or refuses to revoke an order, the person against whom the enforcement order was made may apply to have the application for revocation referred to Court. The infringements registrar must refer any such application within 28 days of the notice to the Court, and may refer any application more than 28 days and less than 3 months after the date of the notice to the Court. An application cannot be made more than 3 months after the date of the notice. Clause 69 provides that an enforcement agency may request an infringements registrar not to refer a matter to Court under this Part by written notice. Where this occurs, the infringements registrar must ensure that the matter is revoked and not referred to Court and must notify the person accordingly. Division 4--Going to Court under Part 4 Clause 70 provides that the amount of any fine is to be refunded if a matter is referred to Court under this Part or an order is made under clause 72(1). Clause 71 sets out the procedure if a matter is referred to Court under this Part or an order is made under clause 72(1). Unless an enforcement agency requests non-prosecution, an infringements registrar must lodge with the Court prescribed information in respect of the offender, the offence and the enforcement agency, which is deemed to be a charge in respect of the offence lodged in accordance with clause 54(1). The Court must allocate a time and place for hearing of the offence, and serve these details on the enforcement agency and the person subject to the enforcement order at least 14 days prior to the hearing. Clause 72 sets out the procedure for the Court in hearing an application for revocation of an enforcement order. The Court may revoke the enforcement order and hear and determine the matter of the infringement offence. If the Court does not revoke the enforcement order, it must refer the matter back to an infringements registrar for enforcement in accordance with the new Act. Clause 73 provides that the Court may hear and determine the matter if it is satisfied that the defendant is avoiding service of the notice or cannot be found after reasonable search and inquiry. 16

 


 

Clause 74 provides that a person who did not appear at a hearing may apply for a re-hearing to set aside a determination under clause 72(2). On lodging of a notice to apply for a re-hearing, the determination is stayed until the application has been heard. Clause 75 states that a notice of intention to apply for a re-hearing must be served on the relevant infringements registrar at least 14 days before the date of the re-hearing, and must state why the person did not attend the hearing. PART 5--PAYMENT ORDERS Clause 76 sets out the procedure for applying for a payment order. A natural person against whom an enforcement order is made may apply to an infringements registrar in person, in writing or in any other manner approved by the infringements registrar, and must provide the name, address and current financial circumstances of the applicant and the reasons for making the application. An application for a payment order cannot be made in the following cases-- · property is seized under an infringement warrant (other than under clause 89); · an attachment of earnings order or an attachment of debts order has been made; · an order that land is subject to a charge has been made; or · a person has been arrested in accordance with Part 12. Clause 77 sets out the power of the infringements registrar to make payment orders, and the procedure for dealing with infringement warrant fees if a payment order is made. Clause 77(4) provides that while a payment order is in force and is being complied with, the enforcement order operates subject to it and execution of the enforcement order is stayed. Clause 77(5) provides that the payment order may be set aside if false or misleading information has been provided about the applicant's financial circumstances. Clause 78 provides that if a person defaults on a payment order for more than 28 days, the infringements registrar may issue another infringement warrant against the person, subject to a 7 day notice period (unless a seven-day notice has been served on the person in relation to the same fine in the 6 months prior to the default). 17

 


 

Clause 79 provides that an infringements registrar must allocate money received under a payment order in order of priority, with the oldest infringement notices being paid out first. If there is any overpayment by virtue of the person continuing to pay after the payment plan is completed, the infringements registrar may refund the money, or, if the person consents, apply the amount of the overpayment to outstanding infringement notices or enforcement orders. PART 6--INFRINGEMENT WARRANTS Clause 80 provides that an infringements registrar must issue an infringement warrant against a person who defaults for more than 28 days in the payment of a fine relating to an enforcement order notice or (except for a company director to whom a declaration under clause 91 applies) of any payment under a payment order. The infringements registrar may endorse the warrant with a direction that any person arrested must be released on bail, and must fix the terms under such an endorsement. Clause 81 provides that the prescribed fee for an infringement warrant is payable by the person against whom the warrant is issued and may be included in the amounts named in the warrant. Clause 82 provides that an infringement warrant authorises the seizure and sale of personal property or the arrest of the person named in the warrant. If the person executing the warrant cannot find sufficient personal property, he or she is given power to break, enter and search for the person named in the warrant in any place and to arrest the person. The person named in the warrant must not be arrested unless the person executing the warrant has a reasonable belief that there is not sufficient personal property of the person named to cover the outstanding amounts. If a person currently serving a prison term has any unsatisfied infringement warrants outstanding, in executing the infringement warrant there is no requirement to serve any notice on the person. Clause 83 states that the person to whom an infringement warrant is directed must cause the person named in the warrant to be brought before a Court within 48 hours of being arrested to be dealt with according to law or to be released on bail in accordance with the endorsement on the warrant. 18

 


 

Clause 84 provides that an infringement warrant may be directed to the sheriff, a named police member, generally all police members, the Corrections Commissioner or any other person authorised by law to execute an infringement warrant. An infringement warrant directed to the sheriff may be issued by the infringements registrar entering into the Court's computer system his or her name, the date of issue and type of infringement warrant and prescribed particulars. After its issue, such a warrant cannot be varied unless authorised by this or another Act. An infringement warrant directed to the sheriff may, if the sheriff directs, be executed by a bailiff, a named police member or police members generally, or prison officers. An infringement warrant directed to a named police member may be executed by any police member and an infringement warrant directed to a named bailiff may be executed by any bailiff. Clause 85 provides that a person authorised to execute an infringement warrant issued against a natural person that is directed to the sheriff may also execute against the same person any unexecuted infringement warrant that is not directed to the sheriff. Clause 86 provides that multiple infringement warrants outstanding against a person may be consolidated by the sheriff into one execution copy. Clause 87 provides that a person executing an infringement warrant may serve a notice of seizure of property on the person named in the warrant, or a person who is in possession of the named person's personal property, informing that person that they are responsible for the safe-keeping of the 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. The penalty for this offence is 25 penalty units or 6 months imprisonment, or both. Clause 88 provides that no steps shall be taken to execute an infringement warrant unless a seven-day notice containing the prescribed details has been served on the person in respect of whom the warrant has been issued. If the sheriff is authorised to execute the infringement warrant, the sheriff must have made a demand on the person issued with the warrant. The notice must include a warning of all enforcement mechanisms available if the person does not pay the amount, apply for a payment order or apply for revocation within 7 days. 19

 


 

Clause 89 sets out what can be done during the seven-day notice period, including seizure of personal property of the person in respect of whom the infringement warrant has been issued. Seizure must not occur unless a demand has been made under clause 88(1)(b), or a demand for payment of the amount outstanding is made. The person executing the infringement warrant must file a written statement of the reasons for doing so with an infringements registrar. Clause 90 provides that after the expiry of the seven-day notice period, a demand for payment must be made on the person in respect of whom the warrant has been issued, and any step may be taken in execution of the infringement warrant unless the person has applied for or obtained a payment order, or applied for the revocation of an enforcement order. Clause 91 provides that an infringements registrar may declare that a person who was a director of a company at the time when it committed an offence for which an infringement notice was issued is jointly and severally liable for the payment of the fine if there is insufficient personal property of the body corporate to cover the infringement warrant amount and costs. The director must be given 28 days' notice in writing of the infringements registrar's intention to make the declaration and issue the infringement warrant. At the end of 28 days, the infringements registrar must make a declaration and issue an infringement warrant against the director unless-- · the amount outstanding is paid; or · the director satisfies the registrar that he or she reasonably believed that the body corporate would be able to meet any liabilities, or had taken all reasonable steps to ensure that it would be able to meet its liabilities; or · the director applies to the infringements registrar to have the matter referred to the Court. If the matter is referred to Court, the Court may order an infringements registrar to issue an infringement warrant against the director or refer the matter back to an infringements registrar for the making of a declaration. 20

 


 

Clause 92 provides that if, before an infringement warrant is issued, part of the amount named in the warrant is paid, it must be reduced by the amount paid. If part of the amount is paid or levied on personal property after the issue, but before the execution of an infringement warrant, the person executing the infringement warrant must amend the execution copy and forward the amount paid or levied to the infringements registrar. Clause 93 provides that the rules, practice and procedure operating in respect of warrants to seize property in enforcing orders in civil proceedings under the Magistrates' Court Act 1989 will apply with respect to the seizure of property under infringement warrants modified as necessary. The interests of any persons in any property seized under an infringement warrant must also be dealt with in the same manner as if the property had been seized under a warrant to seize in a civil proceeding for the payment of money under the Magistrates' Court Act 1989. The person against whom an infringement warrant is issued may provide signed written consent allowing the seizure of personal property that is used by that person 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 infringement warrant and costs, then to any unexecuted infringement warrants, with any remaining amount being returned to the person. Clause 94 states that an infringement warrant is null and void if it has not been executed within 5 years of being issued. PART 7--DETENTION, IMMOBILISATION AND SALE OF MOTOR VEHICLES Clause 95 provides that this Part applies if an infringement 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 member may take action under this Part in addition to other action under the new Act. Clause 96 provides that if a police member intercepts, or the sheriff or a police member finds parked or left standing a motor vehicle of a registered operator, he or she may detain, immobilise or remove the vehicle, despite Part 6 and anything to the contrary in an infringement warrant. 21

 


 

Clause 97 sets out the powers of the sheriff or a police member to detain, immobilise or seize a motor vehicle. This includes powers of entry into public and private land in certain circumstances for the purposes of this Part. Clause 98 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 99 provides that if a sheriff or police member detains or immobilises an unattended motor vehicle, a notice must be attached to the windscreen setting out contact details of the sheriff and stating that the vehicle has been detained or immobilised because the registered operator is a person against whom an infringements warrant has been issued. If the motor vehicle is removed, the sheriff must report the removal to a police member and provide the police member with the registration details for that motor vehicle. Clause 100 provides that the sheriff or a police member must release the detained vehicle to the registered operator in the following circumstances: if costs are paid in full; a payment order or attachment of earnings or an attachment of debts order comes into effect; a revocation order or application against a refusal to revoke an enforcement order is granted; sufficient property is seized to satisfy the amount outstanding; the person is arrested under this Act; the infringement warrant issued against the person has expired or has been recalled and cancelled; or if the sheriff, in his or her discretion, considers it appropriate. The registered operator is liable for any costs associated with the detention. Clause 101 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 infringement warrant issued against the registered operator. At least 14 days beforehand, the sheriff must serve a notice on the registered operator stating that the vehicle or item has been seized and may be sold unless payment in full is received within 14 days. At least 14 days before exercising a power of sale, the sheriff must publish a notice of intention to sell. Clause 102 provides that a person other than the registered operator may recover a motor vehicle or item seized under this Part if the person can provide satisfactory evidence to the sheriff that the person was entitled to possession of the vehicle or item. 22

 


 

Clause 103 provides that the sheriff may return a vehicle or an item which has been seized to the registered operator or any other person entitled to possession of the vehicle if the costs of sale and the amount outstanding under the infringement warrant are greater than the total monetary value of the vehicle, or the vehicle is of negligible monetary value. Clause 104 sets out how the proceeds of sale of a motor vehicle are to be applied in order of priority. Clause 105 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 member 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 106 provides that a person who buys a motor vehicle or an item under this Part acquires good title if the person buys the vehicle or item in good faith and without notice of any defect in the title. This provision is based on section 83A of the Goods Act 1958 which applies to the sale of property by the sheriff under a warrant. The sheriff is only liable if he or she had notice, or might by reasonable inquiry have ascertained, that the vehicle or item was not the property of the registered operator. Clause 107 makes it an offence for an unauthorised person to tamper with or remove the means by which a motor vehicle has been detained or immobilised, with a penalty of 60 penalty units. PART 8--SUSPENSION OF DRIVER LICENCES AND REGISTRATION OF MOTOR VEHICLE OR TRAILER Clause 108 defines "person in default" for the purposes of this Part. Clause 109 states that this Part applies whether or not the infringement offence in relation to which an infringement warrant has been issued involves a motor vehicle, and that the sheriff may take action under this Part in addition to any other action under the new Act. Clause 110 provides that the sheriff may direct VicRoads to suspend the driver licence of a person in default. The sheriff must give the person at least 7 days notice of the intention to direct VicRoads to suspend the licence unless the person pays the amount outstanding, applies for a payment order or applies for revocation of the enforcement order. 23

 


 

Clause 111 states that the sheriff must notify VicRoads that the suspension of a driver licence has ceased when any of the following occurs-- · payment in full of the amount outstanding; · a payment order comes into effect; · an attachment of earnings order or attachment of debts order is made; · an application for revocation of the enforcement order is granted; · an application against a refusal to revoke an enforcement order is granted; · seizure of sufficient property to satisfy the amount outstanding; · the person is arrested under Part 12; · the infringement warrant has been recalled and cancelled by an infringements registrar; · the infringement warrant has expired; · the sheriff, in his or her discretion, considers that the suspension of the driver licence is no longer an appropriate enforcement mechanism. Clause 112 provides that the sheriff may direct VicRoads to suspend the registration of a motor vehicle if the registered operator of a vehicle is a person in default, provided that the person receives at least 7 days' notice of the intention to direct VicRoads to suspend the registration, unless the person pays the amount outstanding, applies for a payment order or applies for revocation of the enforcement order. Clause 113 states that the sheriff must notify VicRoads that the suspension of the registration of a motor vehicle or trailer has ceased if any of the actions or events set out in the clause occur. Clause 114 provides that the sheriff may direct VicRoads not to renew a driver licence of a person against whom an infringements warrant has been issued, or not to renew the registration of a motor vehicle or trailer if an infringement warrant has been issued against the registered operator, whether or not the person has been served with a seven-day notice. 24

 


 

Clause 115 states that the sheriff must notify VicRoads that the direction not to renew a driver licence or registration under clause 114 has ceased when any of the actions or events set out in the clause occur. Clause 116 provides that if the registered operator of a motor vehicle or trailer is a person in default, the sheriff may direct VicRoads not to transfer the registration of the vehicle or trailer until the sheriff notifies VicRoads that the suspension has ceased in accordance with clause 117. At least 7 days before making such a direction, the sheriff must cause to be served on the registered operator a notice of intention to direct VicRoads not to transfer the registration, (unless the person pays the amount outstanding, applies for a payment order or applies for revocation of the enforcement order), and register an entry of a security interest under Part 3 of the Chattel Securities Act 1987. Clause 117 states that the sheriff must notify VicRoads that the direction not to transfer under clause 116 has ceased when any of the actions or events set out in the clause occur. Clause 118 provides that the cessation of any suspension or direction in relation to a driver licence or vehicle registration in accordance with the new Act does not affect the suspension of that licence or registration under any other Act or law. Clause 119 provides that any provision of a contract is void to the extent that it purports to limit or exclude the liability of an insurer in the event of the suspension of a driver licence or vehicle registration, or the failure to transfer registration, as a result of a sheriff's direction under this Part. PART 9--ORAL EXAMINATION Clause 120 provides that an infringements registrar may issue a summons for oral examination if the infringements registrar has not been provided with sufficient information regarding the financial circumstances of the person to make a payment order, an attachment of earnings order or an attachment of debts order. The summons must state the date, time and place of the examination. It must also state that it is an offence to fail to comply with the summons, and require the person to provide a written statement setting out the person's financial circumstances. 25

 


 

Clause 121 provides that if a person fails to attend an oral examination or fails to comply with the summons, an infringements registrar may issue a warrant to arrest the person in accordance with the Magistrates' Court Act 1989. The warrant must be addressed to the sheriff or a police member and specify a time and place for the examination. If arrested, the person may be released upon undertaking to attend for oral examination at a specified time and place. PART 10--ATTACHMENT OF EARNINGS ORDERS AND ATTACHMENT OF DEBTS ORDERS Division 1--Application of Part Clause 122 states that this Part applies where there is an outstanding infringement warrant against a person for not less than the prescribed amount. Division 2--Attachment of Earnings Order Clause 123 provides that an infringements registrar may make an attachment of earnings order in respect of a person if an infringement warrant has been issued against the person, a seven-day notice has been served and has expired without the person paying off the warrant, applying for a payment order or applying for revocation of the enforcement order. However, an attachment of earnings order must not be made if an application for a payment order or revocation has been made but not yet determined or if insufficient information regarding the financial circumstances of the person has been provided to the infringements registrar. The order may be made on the application of the sheriff, an enforcement agency, or the person against whom an infringement warrant has been issued, or on an infringement registrar's own motion. Clause 124 states that an attachment of earnings order must be served on the person in respect of whom the order is made and on the person to whom the order is directed. Clause 125 provides that an infringements registrar may seek information regarding the employment and earnings details of a person in respect of whom an attachment of earnings order is to be made from the person's employer. Clause 126 provides that an attachment of earnings order may be varied, discharged or suspended by an infringements registrar in accordance with the regulations. 26

 


 

Clause 127 makes it an offence if a person to whom an attachment of earnings order is directed fails to comply with the order. A penalty of 60 penalty units or 6 months imprisonment (or both) applies. It is a defence that the person took all reasonable steps to comply with the order. Nothing in this clause affects the powers of the Court or the Supreme Court in relation to contempt of court. Clause 128 makes it an offence for an employer to dismiss an employee or alter the employee's position to the employee's prejudice because an attachment of earnings order has been made or the employee is required to make payments under such an order. A penalty of 5 penalty units applies. The Court may order a person convicted of such an offence to reimburse any lost wages and to cause the employee to be reinstated. Division 3--Attachment of Debts Order Clause 129 sets out when an attachment of debts order can be made: if an infringement warrant has been issued against a person, a seven- day notice has been served and has expired without the person paying the outstanding amount, applying for a payment order or for revocation of the enforcement order. An attachment of debts order must not be made if an application for a payment order or revocation has been made but not yet determined, or unless a debt is due to the person from the garnishee and the garnishee is within Victoria. The order may be made on the application of the sheriff, an enforcement agency, or the person against whom an infringement warrant has been issued, or on an infringement registrar's own motion. Clause 130 states that an attachment of debts order binds the debts to which it applies upon service, and must be served on the garnishee within 7 days of the making of the order. Clause 131 provides that if the garnishee or any other person disputes liability to pay the debt, application may be made to the infringements registrar for a determination of liability within 14 days of service of the order. Clause 132 provides that an attachment of debts order may be varied, discharged or suspended by an infringements registrar in accordance with the regulations. 27

 


 

Clause 133 makes it an offence if a person to whom an attachment of debts order is directed fails to comply with the order. A penalty of 60 penalty units or 6 months imprisonment (or both) applies. It is a defence that the person took all reasonable steps to comply with the order. Nothing in this clause affects the powers of the Court or the Supreme Court in relation to contempt of court. PART 11--CHARGES OVER AND SALE OF REAL PROPERTY Clause 134 provides that this Part applies if a person owes not less than a prescribed amount under an outstanding infringement warrant, and enforcement action through seizure and sale of personal property or suspension of driver licence or vehicle registration, has been unsuccessful, or is not appropriate or possible. Clause 135 provides that the sheriff may apply for an order that an interest in land held by a person subject to an outstanding infringement warrant be made subject to a charge, if the sheriff believes that seizure of personal property is not a reasonably practicable means of satisfying the outstanding warrant. An application may be made whether the person is the sole owner or a co-owner of the land. Clause 136 provides that the Court may make an order that an interest in land be subject to a charge. The Court may make an order if satisfied that there is an outstanding infringement warrant against the person for not less than the prescribed amount, and seizure of personal property is not a reasonably practicable means of satisfying the warrant, and enforcement action through suspension of driver licence or vehicle registration has been unsuccessful, or is not appropriate or possible. Clause 137 provides that as soon as practicable after an order is made charging land, the sheriff must lodge with the Registrar of Titles a copy of the order and an application describing the land to be charged and stating the amount of the charge. The Registrar of Titles must record the charge in the Register kept under the Transfer of Land Act 1958, and the amount outstanding is a charge on the land until the amount is recovered, or the person in respect of whom the order was made dies, or the charge on the land expires or is otherwise removed. 28

 


 

Clause 138 provides that the sheriff may apply to the Court for an order removing a charge over land if the amount outstanding is paid, or the person in respect of whom the order was made dies, or the charge on the land expires or otherwise should be removed, or the sheriff believes that it is no longer appropriate for the charge to remain on the land. Clause 139 provides that the Court may make an order removing a charge over land if the amount outstanding has been paid, or the person in respect of whom the order was made dies, or the charge on the land expires or otherwise should be removed, or in all the circumstances it is no longer appropriate for the charge to remain on the land. Clause 140 provides that as soon as practicable after the Court orders that a charge over land be removed, the sheriff must lodge with the Registrar of Titles a copy of the Court order and details of the land. When this application is lodged, the Registrar of Titles must record the removal of the charge in the Register kept under the Transfer of Land Act 1958. Clause 141 sets out the power of the Registrar of Titles to cancel and create new folios, or make any other recording for the land charged in the Register kept under the Transfer of Land Act 1958. Clause 142 provides that where land is subject to a charge under clause 136, or a charge over land is removed by order under clause 139, the sheriff must notify the owner in writing that the land is charged with the amount stated, or that the charge has been removed as appropriate. Clause 143 provides that the sheriff may apply to the Court for an order permitting the sale of the land if a charge has been recorded for at least 3 months, an amount is owing under the charge, and the sheriff has attempted, but failed to recover the amount owing under the charge. The Court may make an order permitting the sheriff to sell the land if it is satisfied that these criteria have been met. Clause 144 states that if an order to sell is made under clause 143, the sheriff must serve a notice of intention to sell the land on any person recorded as having an interest in the land. The notice must be in writing and contain the prescribed particulars, and be served not less than 1 month before the intended sale. It must also state the amount owing and that the sale will not proceed within 1 month and provide the address at which payment may be made. 29

 


 

Clause 145 provides that a sale under clause 143 is to be treated as if the charge were a registered mortgage as under section 77 of the Transfer of Land Act 1958, with the sheriff as mortgagee, and the requirement relating to the giving of notice were deleted. Clause 146 sets out how the proceeds of any sale under clause 143 are to be applied. PART 12--INFRINGEMENT OFFENDERS, COMMUNITY WORK PERMITS AND IMPRISONMENT Division 1--Community Work Permits This Division creates new arrangements for unpaid community work to be carried out by infringement offenders with outstanding infringement warrants. To achieve greater consistency, the core conditions of the new community work permit will reflect those imposed by the Court under the existing provisions for community based orders for fine defaulters found in the Sentencing Act 1991. Clause 147 provides that this Division applies if an infringement offender elects to perform unpaid community work under a community work permit. It sets out the upper monetary limit of outstanding fines under infringement warrants above which a permit may not be issued. A community work permit may not be issued if the outstanding fines under the relevant infringement warrant exceed $10 000 or where the infringement offender has been released under a community work permit in force in respect of another infringement warrant and the total outstanding fines from that permit and any others in force exceed $10 000. An infringement offender will also be ineligible for a community work permit if the total of the outstanding fines under the relevant infringement warrant and any other infringement warrants the subject of other community work permits exceed $10 000. Clause 148 provides that, subject to clause 147, if the sheriff arrests a person under an infringement warrant and an infringement offender elects to perform unpaid community work in respect of outstanding fines under that infringement warrant, the sheriff may release the offender on a community work permit in accordance with the terms of the infringement warrant and the regulations. Clause 149 sets out the core conditions applying to community work permits generally. 30

 


 

Clause 150 sets out the program condition of a community work permit that the infringement offender performs unpaid community work as directed by the Secretary for a period determined in accordance with clause 152. Clause 151 provides that if the sheriff issues 2 or more community work permits for 2 or more infringement warrants, the periods of unpaid community work to be performed under those periods are cumulative. Clause 152 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 02 fine unit or part of 02 fine unit of the outstanding fines with a minimum of 8 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 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 153 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 offender to report at another place or to another person and the offender must report as directed. Clause 154 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 155 provides that a community work permit may be varied or cancelled by application to the 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 program. The clause provides that the Court may vary or cancel the community work permit on such an application if it is satisfied that the circumstances of the offender have materially altered since the permit was issued so that the offender is unable to comply with a condition of the permit, or if it is satisfied that the circumstances of the offender were wrongly stated or inaccurately presented before the permit was issued, or that the offender is no longer willing to comply with the permit. 31

 


 

Clause 156 states that where an infringement offender fails without reasonable excuse to comply with a community work permit or any of its conditions or with the requirements of the regulations relating to community work permits, the offender is to be brought to Court in accordance with Division 2. Clause 157 provides that during the term of a community work permit, if part of the outstanding fines are paid by or on behalf of the infringement offender, the number of hours of work which the offender is required to perform must be reduced proportionately. Division 2--Imprisonment This Division expands the options available to the Court in considering the personal circumstances of infringement offenders brought before it under an infringement warrant. These provisions will replace those currently found in Part 4 of Schedule 7 to the Magistrates' Court Act 1989. Clause 158 provides that this Division applies if an infringement offender is arrested under an infringement warrant and the infringement offender is assessed in accordance with prescribed criteria as being unsuitable for a community work permit under Division 1 or is not issued with a permit within 48 hours of arrest. It also applies where the infringement offender has been issued with a permit but fails to comply with any of its conditions or with any regulations made for the purposes of this Part or where the permit has been cancelled under clause 155. Clause 159 provides that an infringement offender must be brought before the Court within 48 hours after being arrested under an infringement warrant. Where this is not possible, a date for the infringement offender to appear before the Court must be fixed and written notice to appear must be given to the infringement offender. 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 to the Court as soon as practicable. The clause specifies that an infringement offender arrested under an infringement warrant may be discharged from custody on bail under the Bail Act 1977. The clause ceases to apply if there are no outstanding fines under the infringement warrant. 32

 


 

Clause 160 provides that the Court may order the imprisonment of an infringement offender for a period of 1 day for each fine unit, or part of a fine unit, of the amount outstanding under an infringement warrant. Where the Court is satisfied either that the infringement offender has a mental or intellectual impairment, disorder, disease or illness or where "special circumstances" apply, the Court may discharge all or part of the outstanding fines or adjourn the matter for a period up to 6 months. The term "special circumstances" is defined under clause 3. The Court may discharge all or part of the outstanding fines or adjourn the matter for a period of up to 6 months or to reduce the term of imprisonment where it is satisfied that imprisonment of the infringement offender would be excessive, disproportionate and unduly harsh. Where the Court does make an order for imprisonment, a warrant to imprison may be issued and the Court may also make an instalment order or a community based order. Clause 161 provides that where an infringement offender has been imprisoned under an infringement warrant, payment of the whole or part of the outstanding fines may be made and the offender discharged where all outstanding fines are paid and the offender is not in custody for any other matter. Where part payment is made, the infringement warrant 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. PART 13--GENERAL Clause 162 sets out the procedure for the service of documents under the new Act. They may be served personally, by post or by any prescribed manner. A document must be served personally if it is a seven-day notice, a summons for oral examination, an attachment of earnings order or an attachment of debts order, or a notice under clause 110, 112 or 116. In cases of enforcement against a body corporate, a document to be served on a director must be addressed to the registered office. A penalty reminder notice must be addressed to the last known place of residence or business of the person alleged to have committed the offence. In the case of infringement notices-- · served under section 87 of the Road Safety Act 1986; · in respect of an offence to which section 66 of the Road Safety Act 1986 applies; 33

 


 

· issued in respect of an offence against section 73(1) of the Melbourne City Link Act 1995; or · issued in respect of an offence against section 204 of the Mitcham-Frankston Project Act 2004-- the penalty reminder notice must be addressed to the last address of the owner of the vehicle, or to the last address of the person alleged to have been in charge of the vehicle. Any other document served by post under this Bill may be addressed to the address for service given by the person on whom the document is to be served. Clause 163 provides that if it is impracticable to serve a document as set out in clause 162, a magistrate may order that specified steps be taken to bring the document to the notice of the person to be served, and may order that the document be taken to have been served on the happening of any specified event or the expiry of any specified time. Clause 164 provides that for the purpose of the enforcement of orders and warrants under the new Act, an infringements registrar, the sheriff and any contractor or sub-contractor supporting them may request information from any person or body. On the written request of an infringements registrar, the sheriff or contractor, a specified agency may provide information that may be of use in the enforcement of orders and warrants under this Act. A person who obtains access to any information as a result of a request made under this clause may use the information to enforce orders and warrants under the new Act, but is otherwise subject to all the requirements and restrictions concerning the use and disclosure of the information. Clause 165 provides that a police member may, at the request of the sheriff, assist the sheriff in the execution of the sheriff's functions or duties under the new Act. Clause 166 provides that the sheriff may, with the approval of the Chief Commissioner of Police, authorise a police member to exercise all or any of the powers, functions or duties of the sheriff under the new Act, subject to any conditions and limitations which are stated in the authority. Clause 167 makes it an offence to intentionally provide false or misleading information in any written statement required by or under the new Act with a penalty of 10 penalty units. 34

 


 

Clause 168 provides that the Governor in Council may make regulations for or with respect to the matters set out in the clause. PART 14--AMENDMENTS TO OTHER ACTS It is proposed to have a further Bill dealing with other amendments to Acts consequential on this Bill together with transitional provisions. Division 1--Amendments to Magistrates' Court Act 1989 Clause 169 inserts definitions of "Infringements Court", "infringements registrar" and "infringement warrant" into the Magistrates' Court Act 1989. The clause also amends or repeals certain provisions of the Magistrates' Court Act 1989 as a consequence of the repeal of Schedule 7 to that Act. Clause 170 amends the heading to Subdivision 2 of Division 6 of Part 4 of the Magistrates' Court Act 1989 to read "Procedure for Enforcement of Infringement Penalties under the Infringements Act 2005" in place of the previous heading "Procedure for Enforcement of Infringement Penalties". This change is necessary because the enforcement machinery in Schedule 7 to the Magistrates' Court Act 1989 which is presently applied by section 99 of that Act will be replaced by the provisions of the Bill. Clause 171 substitutes section 99 of the Magistrates' Court Act 1989 so that new section 99 refers to the infringement offence enforcement procedure set out in the Infringements Act 2005, in place of the PERIN procedure under the former regime. Clause 172 makes consequential amendments to section 99A of the Magistrates' Court Act 1989. Clause 173 makes consequential amendments to Part 6A of the Magistrates' Court Act 1989. Clause 174 amends section 134 of the Magistrates' Court Act 1989 to insert a provision providing that a person is guilty of contempt of court if, having been summoned under Part 9 of the Infringements Act 2005, the person refuses or neglects to attend without sufficient cause. Clause 175 inserts a new clause 7 in Schedule 2 to the Magistrates' Court Act 1989, providing that in cases of non-appearance of a defendant in hearings relating to a lodgeable infringement offence under the Infringements Act 2005, the Court may proceed to hear and determine the charge based on the prescribed information lodged under that Act. 35

 


 

Clause 176 repeals Subdivision 7 of Division 3 of Part 4 of the Magistrates' Court Act 1989 and Schedule 7 to the Magistrates' Court Act 1989 except for clauses 28 and 29 of that Schedule (which are of a savings and transitional nature), which set up procedures under the PERIN system and are all now redundant. Division 2--Amendments to Subordinate Legislation Act 1994 Clause 177 inserts a new section 6A into the Subordinate Legislation Act 1994, setting out a consultation procedure for proposed statutory rules which provide for the enforcement of an offence by an infringement notice. The procedure requires the responsible Minister to certify that the Department of Justice has been consulted about the suitability of the proposed statutory rule to be an infringement offence and to be enforced under the new Act, that the Attorney-General's guidelines under clause 5 of the Bill have been taken into account in preparing the proposed statutory rule and that it meets the guidelines or if it does not meet the guidelines, should be made anyway for the specified reasons. Clause 178 inserts a new paragraph (e) into section 14 of the Subordinate Legislation Act 1994, requiring that a copy of the certificate under section 6A be submitted to the Governor in Council when the proposed statutory rule is presented. Division 3--Amendments to Road Safety Act 1986 Clause 179 amends section 5AB(1) of the Road Safety Act 1986, allowing VicRoads to exercise powers conferred by the Infringements Act 2005. Clause 180 inserts new sections 9AA to 9AF in the Road Safety Act 1986. New section 9AA states that if directed by the sheriff under section 112 of the Infringements Act 2005, VicRoads must suspend any motor vehicle or trailer registration if the registered operator is a person in default. While the registration is suspended, the vehicle is unregistered. Suspension under this section does not alter the expiry date for registration. New section 9AB provides that the suspension of registration of a motor vehicle or trailer under section 9AA ceases when VicRoads receives notification from the sheriff in accordance with section 113 of the Infringements Act 2005. 36

 


 

New section 9AC provides that if directed by the sheriff under section 114 of the Infringements Act 2005 (i.e. where the registered operator is a person in default), VicRoads must not renew any registration of a motor vehicle or trailer until notified by the sheriff that the direction has ceased effect. When sending a notice of renewal in this case, VicRoads must include a notice advising that renewal will not be granted until one of the matters referred to in section 115 occurs. New section 9AD provides that VicRoads may renew a motor vehicle or trailer registration which was not renewed by virtue of section 9AC when notified by the sheriff in accordance with section 115 of the Infringements Act 2005. New section 9AE provides that that if directed by the sheriff under section 116 of the Infringements Act 2005 (i.e. where the registered operator is a person in default), VicRoads must not transfer any registration of a motor vehicle or trailer until notified by the sheriff that the direction has ceased to have effect. When directed not to transfer the registration in this case, VicRoads must send a notice to the registered operator advising that the transfer will not occur until one of the matters referred to in section 117 occurs. New section 9AF provides that VicRoads may transfer a motor vehicle or trailer registration which was not transferred by virtue of section 9AE when notified by the sheriff that one of the matters referred to in section 117 of the Infringements Act 2005 occurs. Clause 181 amends section 12 of the Road Safety Act 1986 to make it clear that any right to appeal to the Magistrates' Court against a suspension of registration does not extend to a case of suspension in accordance with the Infringements Act 2005. Clause 182 inserts new sections 19A and 19B in the Road Safety Act 1986. New section 19A states that if directed by the sheriff under section 114 of the Infringements Act 2005, VicRoads must not renew a driver licence or permit of a person in default until notified by the sheriff that the direction has ceased to have effect. When sending a notice of renewal in this case, VicRoads must include a notice advising that renewal will not be granted until one of the matters referred to in section 115 occurs. New section 19B provides that VicRoads may renew a driver licence or permit which was not renewed by virtue of section 19A when it receives notification from the sheriff under section 115 of the Infringements Act 2005. 37

 


 

Clause 183 inserts new sections 24(1A) and 24(1B) in the Road Safety Act 1986. New section 24(1A) states that if directed to do so by the sheriff under section 110 of the Infringements Act 2005, VicRoads must suspend a driver licence or permit of a person in default until the sheriff notifies it that one of the matters referred to in section 111 of the Act has occurred. New section 24(1B) provides that the suspension of a driver licence or permit under sub-section (1A) ceases when VicRoads receives notification from the sheriff under section 111 of the Infringements Act 2005. Clause 184 amends sections 28A and 28B of the Road Safety Act 1986 so that a person whose driver licence or permit is suspended through the operation of the Infringements Act 2005 is disqualified from obtaining a further licence or permit or applying for one. The clause also amends section 30(1) of the Road Safety Act 1986, which creates an offence of driving while disqualified, to include reference to new section 30AA of the Road Safety Act 1986. Clause 185 inserts new section 30AA in the Road Safety Act 1986, creating an offence for driving a vehicle while the person's driver licence or permit is suspended in accordance with Part 8 of the Infringements Act 2005, imposing a penalty of 10 penalty units. 38

 


 

 


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