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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Fines Enforcement and Debt Recovery
Bill 2017
A BILL FOR
An Act to provide for the recovery of expiation fees, fines and other
pecuniary sums; to allow for the recovery of civil debt owed to public
authorities; to continue the office of Fines Enforcement and Recovery Officer as
the Chief Recovery Officer; to set out the functions and powers of the Chief
Recovery Officer; to make related amendments to the
Cross-border
Justice Act 2009
, the
Expiation
of Offences Act 1996
, the
Magistrates
Court Act 1991
, the
Motor
Vehicles Act 1959
, the
Summary
Procedure Act 1921
and the
Victims
of Crime Act 2001
; and for other purposes.
Contents
6Certain determinations may be made by automated
process
Part 3—Enforcement
of pecuniary sums
9Amounts due under expiation
notices may be treated as part of pecuniary sum
Division 2—Payment
of pecuniary sums
11Pecuniary sum is
payable within 28 days
12Payment of pecuniary sum to Chief Recovery
Officer
14Amounts unpaid or
unrecovered for more than certain period
15Arrangements as to
manner and time of payment
16Arrangement or waiver for
debtor who has persistently driven unlicensed
17Publication of names of debtors who cannot be
found
Part 4—Payment of
expiation fees
20Arrangements as to
manner and time of payment
21Arrangement or waiver
for alleged offender who has persistently driven unlicensed
23Review by Court of refusal to revoke
enforcement determination
25Enforcement actions by
Chief Recovery Officer
26Amounts unpaid or
unrecovered for more than certain period
28Enforcement of expiation notices in other
jurisdictions
29Personal details and investigation of
financial position
30Power to require information
31Power to require identification
32Disclosure of information to prescribed
interstate authority
35Aggregation of monetary amounts for the
purposes of enforcement
38Suspension of driver's licence
39Restriction on transacting business with
Registrar of Motor Vehicles
40Suspension of section 97A of Motor Vehicles
Act 1959
41Clamping or impounding
of vehicle
42Power to dispose of
uncollected seized vehicles
43Seizure of number plates of
vehicle
44Publication of names of debtors and alleged
offenders subject to enforcement action
Division 2—Failure
of enforcement process
46Community service and
intervention program orders
47Community service and
intervention program orders may be enforced by imprisonment
Division 2—Recovery of civil
debt
50Application to Court in
relation to debt
52Internal review of decision
to take enforcement action
53Review of decision to take
enforcement action
54Effect of review proceedings on decision
being reviewed
Division 3—Payment
arrangements
57Voluntary arrangement
as to time and manner of payment
Division 4—Investigation
powers
58Investigation of debtor's financial
position
59Power to require information
60Aggregation of debts for the purposes of
enforcement
Subdivision 2—Action
requiring formal determination
61Requirement for payment of instalments
etc
Subdivision 3—Appointment of
receiver
68Identification of authorised
officers
69Hindering authorised
officer or assistant
70Minister may declare amnesty from payment of
costs, fees and charges
71Power of delegation—intervention
program manager
73Chief Recovery Officer may be assisted by
others
Schedule 1—Related amendments and
transitional provisions
Part 2—Amendment of Cross-border
Justice Act 2009
2Amendment of section
7—Interpretation
3Amendment of section 68—Proceedings that
may be heard in another participating jurisdiction
4Amendment of section 120—Terms used in
this Part
5Amendment of section 121—Request to
enforce fine in another participating jurisdiction
6Amendment of section 122—Effect of
making request
7Amendment of section 125—Resumption of
enforcement by Fines Director
8Amendment of section 127—Effect of
registration
9Amendment of section 129—Receipt of
money by Fines Director
10Amendment of section 130—Request to
cease enforcement of fine
Part 3—Amendment of Expiation of
Offences Act 1996
11Amendment of section
4—Interpretation
12Amendment of section 8—Alleged offender
may elect to be prosecuted etc
13Amendment of section 8A—Review of
notices on ground that offence is trifling
15Amendment of section 11—Expiation
reminder notices
16Amendment of section 11A—Expiation
enforcement warning notices
17Amendment of section 12—Late
payment
18Repeal of sections 13 to 14B
19Amendment of section 16—Withdrawal of
expiation notices
20Amendment of section 18—Provision of
information
21Repeal of sections 18B to 18E
23Amendment of section
20—Regulations
Part 4—Amendment of Magistrates
Court Act 1991
24Amendment of section 7A—Constitution of
Court
25Amendment of section 9A—Petty Sessions
Division
Part 5—Amendment of Motor Vehicles
Act 1959
61ARemoval of
number plates by Chief Recovery Officer
27Amendment of section 93—Notice to be
given to Registrar
28Amendment of section 97A—Visiting
motorists
29Amendment of section
139D—Confidentiality
Part 6—Amendment of Summary
Procedure Act 1921
30Amendment of section 52—Limitation on
time in which proceedings may be commenced
Part 7—Amendment of Victims of
Crime Act 2001
31Amendment of section 28—Right of
Attorney-General to recover money paid out from offender etc
32Amendment of section 32—Imposition of
levy
Part 8—Transitional
provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Fines Enforcement and Debt Recovery
Act 2017.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
authorised officer means—
(a) the Sheriff; or
(b) the Chief Recovery Officer; or
(c) a Registrar of the Magistrates Court; or
(d) the Registrar of the Youth Court; or
(e) a person appointed under
section 67
as an authorised officer;
bond means an agreement (not being a bail agreement) entered
into pursuant to the sentence of a court under which the defendant undertakes to
the Crown to comply with the conditions of the agreement;
case manager means a person responsible for supervision of a
person's participation in an intervention program;
council means a council constituted under the
Local
Government Act 1999
;
court means a court of criminal jurisdiction;
Court means—
(a) in relation to a debtor who is a youth or an expiation notice issued
to a person who was under the age of 18 years at the time of the alleged
offence—the Youth Court;
(b) in relation to any other debtor or expiation notice—the
Magistrates Court;
debtor means the person by whom a pecuniary sum is
payable;
driver's licence means a licence under the
Motor
Vehicles Act 1959
;
expiation notice means an expiation notice under the
Expiation
of Offences Act 1996
;
expiation period means the period specified in an expiation
notice for payment of the expiation fee (in the absence of an arrangement under
section 20
);
intervention program means a program that
provides—
(a) supervised treatment; or
(b) supervised rehabilitation; or
(c) supervised behaviour management; or
(d) supervised access to support services; or
(e) a combination of any one or more of the above,
designed to address behavioural problems (including problem gambling),
substance abuse or mental impairment;
intervention program manager means a person employed by the
South Australian Courts Administration Authority to have general oversight of
intervention programs and coordinate the implementation of relevant court orders
(and includes a delegate of such a person);
issuing authority, in relation to an expiation notice,
means—
(a) if the notice is given by a police officer—the Commissioner of
Police; or
(b) in any other case—the Minister, statutory authority or council
on whose behalf the notice is given;
land means, according to the context—
(a) land as a physical entity, including—
(i) any building or structure on, or improvement to, land (whether affixed
to the land or not); and
(ii) land covered by water and, in such a case, the overlying water;
and
(iii) a lot under the
Community
Titles Act 1996
or a unit under the
Strata
Titles Act 1988
; or
(b) a legal estate or interest in, or right in respect of, land;
ordinary business hours means the hours between 9 am and
5 pm on any day other than a Saturday, Sunday or public holiday;
pecuniary sum means—
(a) a fine; or
(b) compensation; or
(c) costs; or
(d) a sum payable pursuant to a bond or to a guarantee ancillary to a
bond; or
(e) any other amount payable pursuant to an order or direction of a court
in proceedings relating to an offence,
and includes a VIC levy;
personal details, in relation to a person,
means—
(a) the person's full name; and
(b) the person's date of birth; and
(c) the address of where the person is living; and
(d) the address of where the person usually lives; and
(e) the person's business address; and
(f) the name and address of the person's employer;
protected person has the same meaning as in the
Intervention
Orders (Prevention of Abuse) Act 2009
;
public sector agency has the same meaning as in the
Public
Sector Act 2009
;
VIC levy means a levy imposed under the
Victims
of Crime Act 2001
or a corresponding previous law.
(2) For the purposes of this Act—
(a) enforcement action includes a penalty enforcement order
made under the
Criminal
Law (Sentencing) Act 1988
as in force before the commencement of section 11 of the
Statutes
Amendment (Fines Enforcement and Recovery) Act 2013
; and
(b) a debtor is subject to a suppression order if a
suppression order forbidding publication of the debtor's name was made in the
proceedings in which the pecuniary sum was imposed on the debtor and the order
has not subsequently been revoked.
(3) Unless the contrary intention appears—
(a) a reference in this Act to a pecuniary sum includes a reference
to—
(i) the amount outstanding of such a sum or, if a number of pecuniary sums
have been aggregated, the amount outstanding of the aggregated sums;
and
(ii) any fees, charges or other amounts which are, in accordance with this
Act, added to and form part of such a sum; and
(b) a reference in this Act to an amount due under an expiation notice
includes a reference to—
(i) the amount outstanding under the notice or, if a number of amounts
have been aggregated, the amount outstanding of the aggregated amounts;
and
(ii) any fees, charges or other amounts which are, in accordance with this
Act, added to and form part of such amount.
(4) Subject to this Act, a person expiates an offence if a
person pays all of the amounts due under the expiation notice (including any
levy payable under the
Victims
of Crime Act 2001
) or such amounts are recovered from the person in accordance with this Act
or the
Expiation
of Offences Act 1996
.
(1) The office of Fines Enforcement and Recovery Officer continues
as the office of the Chief Recovery Officer.
(2) The Chief Recovery Officer will be a person employed in the Public
Service of the State.
(3) The Chief Recovery Officer may, in addition to carrying out functions
and exercising powers under this Act, carry out any other functions, or exercise
any other powers, assigned to the Chief Recovery Officer by or under any other
Act or law or by the Minister.
(4) If the Chief Recovery Officer carries out functions under an Act on
behalf of a public sector agency, Local Government agency or other person or
body, the Chief Recovery Officer may charge the agency, person or body a fee of
such amount as may be agreed between the Chief Recovery Officer and the agency,
person or body.
(1) The Chief Recovery Officer may, by instrument in writing, delegate a
power or function under this Act or any other Act—
(a) to a particular person or committee; or
(b) to the person for the time being performing particular duties or
holding or acting in a particular position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) The person to whom a power or function is delegated under this section
may be a body corporate.
(4) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act personally in
a matter; and
(c) is revocable at will.
6—Certain
determinations may be made by automated process
(1) The Chief Recovery
Officer may determine that a class of determinations required to be made by the
Chief Recovery Officer under this Act is of such a nature that they could
appropriately be made by means of an automated process in accordance with this
section.
(2) If the Chief Recovery Officer makes a determination under
subsection (1)
, the Chief Recovery Officer must—
(a) determine the policies to be applied for the purpose of making the
relevant class of determinations by means of an automated process; and
(b) approve the automated process to be used.
(3) For the purpose of any proceedings—
(a) a certificate apparently signed by the Chief Recovery Officer and
certifying as to any determination or approval given by the Chief Recovery
Officer under this section is conclusive proof of the matters so certified;
and
(b) a determination made by an automated process in accordance with this
section will be taken to be a determination of the Chief Recovery Officer under
this Act.
(1) The Chief Executive of the administrative unit of the Public Service
that is, under a Minister, responsible for the administration of this Act must,
not later than 30 September in each year, submit to the Minister a report
on the work of the Chief Recovery Officer for the financial year ending on the
preceding 30 June.
(2) The report must include information prescribed by the regulations or
required by the Minister.
(3) The Minister must, as soon as practicable after receipt of a report
submitted under this section, cause a copy of the report to be laid before each
House of Parliament.
Part 3—Enforcement
of pecuniary sums
A pecuniary sum due and payable is a debt due to the Crown and is
recoverable by the Chief Recovery Officer by action in any court of competent
jurisdiction or as otherwise set out in this Act.
9—Amounts
due under expiation notices may be treated as part of pecuniary
sum
(1) Subject to this
section, the Chief Recovery Officer may make a determination under this section
(an aggregation determination) if a debtor who owes a pecuniary
sum also has an amount due under an expiation notice (an expiation
amount) and—
(a) the debtor has requested the making of the aggregation determination;
or
(b) an enforcement determination has been made in relation to the
expiation amount under
section 22
.
(2) If the debtor requests the making of the aggregation determination but
no enforcement determination has been made under
section 22
in relation to the expiation amount, the Chief Recovery Officer may refuse
to make a determination under this section unless the issuing authority pays the
prescribed fee.
(3) On the making of an aggregation determination—
(a) the expiation amount will be taken to be part of the pecuniary sum
owed by the debtor; and
(b) subject to the regulations, the debtor will, for the purposes of an
Act or law other than this Act or the
Expiation
of Offences Act 1996
, be taken to have expiated the offence or offences to which the
determination relates (unless the debtor is already taken to have expiated the
offence in accordance with
section 20(21)
or
section 22
); and
(c) any enforcement determination made in relation to the expiation amount
is suspended.
(4) For the purposes of
section 14
, an expiation fee that is subject to an aggregation determination is taken
to be a pecuniary sum imposed by order of a court and the 28 day period
referred to in
section 11
is taken to have ended on the day on which the expiation period
ended.
(5) If—
(a) an amount due under an expiation notice is included in an aggregation
determination; and
(b) the expiation notice is withdrawn under section 16 of the
Expiation
of Offences Act 1996
,
the expiation amount under the withdrawn notice is to be deducted from the
amount due under the aggregation determination.
(6) The Chief
Recovery Officer may revoke an aggregation determination at any time by notice
in writing given to the debtor.
(7) A revocation takes effect 7 days from (and including) the day on
which the notice referred to in
subsection (6)
was given to the debtor.
(8) On the revocation of an aggregation determination under
subsection (6)
—
(a) the remaining expiation amount must be determined by the Chief
Recovery Officer, taking into account—
(i) any deductions that should be made on account of amounts that have
been paid by or recovered from the debtor since the making of the determination;
and
(ii) any additions that should be made on account of amounts that have
accrued in accordance with
section 14
since the making of the determination; and
(b) the remaining expiation amount so determined will no longer be taken
to be part of the pecuniary sum; and
(c) —
(i) if an enforcement determination had been made prior to the making of
the aggregation determination—the enforcement determination comes back
into force (and this Act applies to the remaining expiation amount as if the
aggregation determination had not been made); or
(ii) in any other case—the Chief Recovery Officer may make an
enforcement determination in relation to the remaining expiation amount under
section 22
(and any procedural or other requirements relating to the making of such
determinations will be taken to have been complied with).
This Act applies to a debtor who is a youth (ie a person who was under the
age of 18 years at the time when the offence in respect of which the
pecuniary sum was imposed was committed) but an additional power exists for the
youth or the Chief Recovery Officer to apply, at any time, to the Youth Court
for the making of a community service order in respect of the youth (as if
section 46
applied in respect of the pecuniary sum).
Division 2—Payment
of pecuniary sums
11—Pecuniary
sum is payable within 28 days
Subject to any arrangement under
section 15
, a pecuniary sum imposed by order of a court is payable within
28 days from (and including) the day on which the order was made.
12—Payment
of pecuniary sum to Chief Recovery Officer
(1) A pecuniary sum is payable (despite the fact that the order is in
favour of some person)—
(a) to the Chief Recovery Officer; or
(b) to an agent appointed by the Chief Recovery Officer for the
purpose.
(2) On receipt of the whole or part of a pecuniary sum, the Chief Recovery
Officer must pay the amount received as follows:
(a) firstly, if the sentencing court has ordered the defendant to pay any
amount by way of compensation or restitution to a particular person, then to
that person in satisfaction of that amount;
(b) secondly, if a VIC levy is payable by the defendant, then into the
Victims of Crime Fund in satisfaction of that levy;
(c) thirdly, if any costs are payable to a party to the proceedings, then
in satisfaction of those costs;
(d) fourthly, if any other money is payable under the order of the court
to the informant, then to the informant;
(e) fifthly, according to the directions of any other Act or, if no other
Act contains directions as to payment, then to Treasury.
A pecuniary sum may be paid by using a credit card, charge card or debit
card if facilities for their use are available in relation to the payment to be
made.
14—Amounts
unpaid or unrecovered for more than certain period
(1) Subject to
subsection (2)
, if a part of a pecuniary sum imposed by order of a court
remains—
(a) unpaid by the debtor under this Division; or
(b) unrecovered from the debtor under
Part 7
,
on the expiration of the 28 day period referred to in
section 11
, the following provisions apply:
(c) the prescribed amount is added to, and forms part of, the pecuniary
sum payable by the debtor;
(d) if a part of the pecuniary sum remains unpaid or unrecovered on the
expiration of the 30 day period commencing immediately after that 28 day period,
a further prescribed amount is added to, and forms part of, the pecuniary sum
payable by the debtor.
(2) The Chief
Recovery Officer may, in such circumstances as the Chief Recovery Officer thinks
just, waive payment of the whole or any part of an amount payable by a debtor in
accordance with this section.
(3) In this section—
prescribed amount means an amount prescribed by, or
calculated in accordance with, the regulations.
15—Arrangements
as to manner and time of payment
(1) Subject to this
section, a debtor who pays, or who agrees to pay, to the Chief Recovery Officer
the prescribed fee—
(a) may, at any
time during the 28 day period referred to in
section 11
, enter into an arrangement with the Chief Recovery Officer for payment of
a pecuniary sum by instalments over a period determined by the Chief Recovery
Officer (being not more than 12 months from the date on which the
arrangement is entered into); or
(b) if the Chief
Recovery Officer agrees, may enter into some other kind of arrangement with the
Chief Recovery Officer in relation to a pecuniary sum in accordance with
subsection (5)
.
(2) Subject to
subsection (3)
, if the fee prescribed under
subsection (1)
is not paid by the debtor before the debtor enters into the arrangement,
the fee is to be added to, and forms part of, the pecuniary sum payable by the
debtor.
(3) The Chief
Recovery Officer may, in such circumstances as the Chief Recovery Officer thinks
just, waive payment of the fee prescribed under
subsection (1)
.
(4) An arrangement for payment by instalments referred to in
subsection (1)(a)
must provide for instalments to be paid to the Chief Recovery Officer by
direct debits by or through some other person or agency (eg deductions from an
ADI account or wages).
(5) Other kinds of
arrangements under this section may consist of or include—
(a) payment by instalments (including instalments paid over a period
exceeding 12 months); and
(b) an extension of time to pay; and
(c) the taking of a charge over land; and
(d) the surrender of property to the Chief Recovery Officer; and
(e) payment of any amount, including by direct credit, by or through some
other person or agency (eg deductions from an ADI account or wages);
and
(f) subject to
subsection (6)
—requirements for the performance of community service by the debtor
(in accordance with a scheme prescribed by the regulations); and
(g) subject to
subsection (7)
—an arrangement for the debtor to complete an intervention program;
and
(h) any other form of arrangement agreed by the Chief Recovery Officer and
the debtor.
(6) The Chief
Recovery Officer may only agree to an arrangement requiring the performance of
community service if the Chief Recovery Officer is satisfied that the debtor
does not have, and is not likely within a reasonable time to have, the means to
pay the pecuniary sum without the debtor or the debtor's dependants suffering
hardship.
(7) The Chief Recovery
Officer must not enter into an arrangement requiring a debtor to complete an
intervention program unless the Officer is satisfied that—
(a) the debtor does not have, and is not likely within a reasonable time
to have, the means to pay the pecuniary sum without the debtor or the debtor's
dependants suffering hardship; and
(b) the debtor is eligible for the services to be included on the program
in accordance with applicable eligibility criteria (if any); and
(c) the services are available for the debtor at a suitable time and
place.
(a) a debtor has
previously been subject to enforcement action under—
(i) this Part (whether in relation to the same, or a different, pecuniary
sum); or
(ii)
Part 4
; or
(iii)
Part 8
; or
(iv) Part 9 Division 3 of the repealed
Criminal
Law (Sentencing) Act 1988
; or
(v) the
Expiation
of Offences Act 1996
; or
(b) a debtor is an undischarged bankrupt or is subject to a composition or
deed or scheme of arrangement with or for the benefit of creditors; or
(c) a debtor is of a class prescribed by the regulations,
the Chief Recovery Officer may—
(d) refuse to enter into an arrangement under this section, or a
particular type of arrangement under this section, with the debtor; or
(e) require the debtor to provide an irrevocable authority to obtain (in
accordance with any prescribed requirements) financial and contact information
about the debtor from any Commonwealth, State or Local Government agency, any
ADI or an employer of the debtor; or
(f) require the debtor to provide security or obtain guarantees (as the
Chief Recovery Officer thinks fit).
(9) An arrangement
under this section may be varied by agreement between the debtor and the Chief
Recovery Officer.
(10) If the Chief Recovery Officer is satisfied that a debtor who has
entered into an arrangement under this section has the capacity to pay any
outstanding amount of the pecuniary sum without the debtor or the debtor's
dependants suffering hardship, the Officer may, by notice in writing given to
the debtor, terminate the arrangement.
(11) For the purposes of entering into, or varying, an arrangement, any
number of pecuniary sums payable by the debtor may be aggregated.
(12) If a debtor complies with an arrangement under this section requiring
the performance of community service, the amount of the pecuniary sum
outstanding is to be reduced in accordance with the method prescribed by
regulation for the purposes of this subsection.
(13) If the Chief Recovery Officer is satisfied that a debtor has
completed, or substantially completed, an intervention program pursuant to an
arrangement under this section, the Officer must waive payment of the whole or
part of the amount payable by the debtor in accordance with the
arrangement.
(14) If an arrangement
is entered into or varied under this section, the Chief Recovery Officer must
give notice of the arrangement or varied arrangement (as the case requires) to
the debtor.
(15) If a debtor fails
to comply with an arrangement under this section and the failure has endured for
28 days, the arrangement terminates.
(16) However, an arrangement that has terminated under
subsection (15)
may, not more than 14 days after the day on which it terminated, be
reinstated by the Chief Recovery Officer.
(17) If an arrangement is reinstated by the Chief Recovery
Officer—
(a) the arrangement as reinstated commences on a day specified by the
Officer; and
(b) the provisions of this section apply to the reinstated arrangement as
if it had not terminated.
16—Arrangement
or waiver for debtor who has persistently driven unlicensed
(1) Subject to
subsection (2)
, if the Chief Recovery Officer is satisfied, on application by a debtor,
that—
(a) the pecuniary sum payable by the debtor is attributable, at least in
part, to the debtor having been found guilty of an offence against section 74 of
the
Motor
Vehicles Act 1959
; and
(b) the debtor has been found guilty of, or has expiated, an offence
against that section on more than 2 occasions; and
(c) the debtor has, since the commission of the offence, obtained a
driver's licence,
the Chief Recovery Officer may determine to—
(d) enter into an
arrangement with the debtor of a kind set out in
section 15
; or
(e) waive payment of the pecuniary sum or any part of the pecuniary
sum.
(2) The Chief Recovery
Officer may not make a determination under this section in relation to a debtor
if a determination has previously been made under this section or
section 21
in relation to the debtor.
(3) This Division applies to an arrangement entered into under
subsection (1)(d)
as if the arrangement were an arrangement under
section 15
.
17—Publication
of names of debtors who cannot be found
(1) If the
whereabouts of a debtor cannot, after reasonable enquiries, be ascertained, the
Chief Recovery Officer may cause a notice to be published on a website
determined by the Chief Recovery Officer, and in such other manner (if any) as
the Chief Recovery Officer thinks fit, seeking information as to the debtor's
whereabouts.
(2) A notice under
subsection (1)
—
(a) must be in a form determined by the Chief Recovery Officer;
and
(b) must not include any information relating to the debtor other than the
debtor's—
(i) actual name and any assumed name; and
(ii) last known and former addresses; and
(iii) date of birth.
(3) However, a notice cannot be published under this section in relation
to a debtor if the debtor is—
(a) a youth; or
(b) subject to a suppression order; or
(c) a protected person.
(1) If, at the end
of the 28 day period from the making of an order imposing a pecuniary sum,
the debtor has not paid the pecuniary sum or entered into an arrangement under
this Division in respect of the sum, the Chief Recovery Officer must cause a
reminder notice to be given to the debtor.
(2) A reminder notice must—
(a) be in a form determined by the Chief Recovery Officer; and
(b) contain information as to the enforcement action that can be taken
against the debtor in the event of continued default.
(3) Subject to
subsection (4)
, a prescribed reminder notice fee will be added to and form part of the
pecuniary sum in respect of which the notice is issued.
(4) The Chief
Recovery Officer may, in such circumstances as the Chief Recovery Officer thinks
just, waive payment of a reminder notice fee.
(1) If—
(a) a debtor has not, within 14 days of (and including) the date on
which a reminder notice relating to a pecuniary sum was given to the debtor in
accordance with
section 18
, paid the sum or entered into an arrangement under
section 15
in respect of the sum; or
(b) an arrangement under
section 15
has terminated,
the Chief Recovery Officer may—
(c) determine, at any time, in the Officer's absolute discretion, to do
any of the following:
(i) enter into an arrangement, or further arrangement, with the debtor
under
section 15(1)(b)
;
(ii) exercise any 1 or more of the powers under
Part 7
;
(iii) waive payment of the pecuniary sum or any part of the pecuniary sum;
or
(d) write off the pecuniary sum—
(i) if the Officer has no reasonable prospect of recovering the sum;
or
(ii) if the costs of recovery are likely to equal or exceed the amount to
be recovered.
(2) If the Chief Recovery Officer determines to waive payment of any part
of a pecuniary sum that includes an amount of compensation, the Chief Recovery
Officer must take reasonable action to notify the person to whom the
compensation is payable and that person may then recover the amount of the
compensation as a debt from the debtor.
(3) The writing off of a pecuniary sum does not affect the liability of
the debtor to pay the sum or the power of the Chief Recovery Officer to recover
it.
Part 4—Payment
of expiation fees
20—Arrangements
as to manner and time of payment
(1) Subject to this
section, an alleged offender who has been given an expiation notice and who pays
to the Chief Recovery Officer the prescribed fee—
(a) may, at any
time during the expiation period, enter into an arrangement with the Chief
Recovery Officer for payment of the amount due under the notice by direct debit
instalments in accordance with
subsection (5)
; or
(b) if the Chief
Recovery Officer agrees, may enter into some other kind of arrangement with the
Chief Recovery Officer in relation to the amount due under the notice in
accordance with
subsection (6)
.
(2) Subject to
subsection (3)
, if the fee prescribed under
subsection (1)
is not paid by the alleged offender before the alleged offender enters
into the arrangement, the fee is to be added to, and forms part of, the unpaid
expiation fee.
(3) The Chief
Recovery Officer may, in such circumstances as the Chief Recovery Officer thinks
just, waive payment of the fee prescribed under
subsection (1)
.
(4) The Chief Recovery Officer must give the issuing authority notice (in
a manner agreed between the Chief Recovery Officer and the issuing authority) of
any arrangement entered into under this section.
(5) An arrangement
for payment by instalments referred to in
subsection (1)(a)
—
(a) may not be entered into after an enforcement determination has been
made under
section 22
in respect of the expiation notice; and
(b) must provide for instalments to be paid to the Chief Recovery Officer
by direct debits by or through some other person or agency (eg deductions from
an ADI account or wages); and
(c) must require payment in full within a period determined by the Chief
Recovery Officer (being not more than 12 months from the date on which
the arrangement is entered into).
(6) Other kinds of
arrangements referred to in
subsection (1)(b)
may consist of or include—
(a) payment by instalments (including instalments paid over a period
exceeding 12 months); and
(b) an extension of time to pay; and
(c) the taking of a charge over land; and
(d) the surrender of property to the Chief Recovery Officer; and
(e) payment of any amount, including by direct credit, by or through some
other person or agency (eg deductions from an ADI account or wages);
and
(f) subject to
subsection (7)
—requirements for the performance of community service by the alleged
offender (in accordance with a scheme prescribed by the regulations);
and
(g) subject to
subsection (8)
—an arrangement for the alleged offender to complete an intervention
program; and
(h) any other form of arrangement agreed by the Chief Recovery Officer and
the alleged offender.
(7) The Chief
Recovery Officer may only agree to an arrangement requiring the performance of
community service if—
(a) the Chief Recovery Officer is satisfied that the alleged offender does
not have, and is not likely within a reasonable time to have, the means to
satisfy the amount due under an expiation notice without the alleged offender or
the alleged offender's dependants suffering hardship; and
(b) an enforcement determination has been made by the Chief Recovery
Officer under
section 22
in relation to the expiation notice.
(8) The Chief Recovery
Officer must not enter into an arrangement requiring an alleged offender to
complete an intervention program unless the Officer is satisfied
that—
(a) the alleged offender does not have, and is not likely within a
reasonable time to have, the means to satisfy the amount due under an expiation
notice without the alleged offender or the alleged offender's dependants
suffering hardship; and
(b) the alleged offender is eligible for the services to be included on
the program in accordance with applicable eligibility criteria (if any);
and
(c) the services are available for the alleged offender at a suitable time
and place.
(a) an alleged offender has previously been subject to enforcement action
under—
(i) this Part (whether in relation to the same, or a different, expiation
notice); or
(ii)
Part 3
; or
(iii)
Part 8
; or
(iv) the
Expiation
of Offences Act 1996
; or
(v) Part 9 Division 3 Subdivision 4 of the repealed
Criminal
Law (Sentencing) Act 1988
; or
(b) an alleged offender is an undischarged bankrupt or is subject to a
composition or deed or scheme of arrangement with or for the benefit of
creditors; or
(c) an alleged offender is of a class prescribed by the
regulations,
the Chief Recovery Officer may—
(d) refuse to enter into an arrangement under this section, or a
particular type of arrangement under this section, with the alleged offender;
or
(e) require the alleged offender to provide an irrevocable authority to
obtain (in accordance with any prescribed requirements) financial and contact
information about the alleged offender from any Commonwealth, State or Local
Government agency, any ADI or an employer of the alleged offender; or
(f) require the alleged offender to provide security or obtain guarantees
(as the Chief Recovery Officer thinks fit).
(10) An arrangement
under this section may be varied by agreement between the alleged offender and
the Chief Recovery Officer.
(11) If an arrangement
is entered into or varied under this section, the Chief Recovery Officer must
give notice of the arrangement or varied arrangement (as the case requires) to
the alleged offender.
(12) For the purposes of entering into, or varying, an arrangement, any
number of amounts due under expiation notices given to the alleged offender may
be aggregated.
(13) If an alleged offender complies with an arrangement under this
section requiring the performance of community service, the amount outstanding
is to be reduced in accordance with the method prescribed by regulation for the
purposes of this subsection.
(14) If the Chief Recovery Officer is satisfied that an alleged offender
has completed, or substantially completed, an intervention program pursuant to
an arrangement under this section, the Officer must waive payment of the whole
or part of the amount outstanding in accordance with the arrangement.
(15) If an alleged
offender fails to comply with an arrangement under this section and the failure
has endured for 28 days, the arrangement terminates.
(16) However, an arrangement that has terminated under
subsection (15)
may, not more than 14 days after the day on which it terminated, be
reinstated by the Chief Recovery Officer.
(17) If the Chief
Recovery Officer is satisfied that an alleged offender who has entered into an
arrangement under this section has the means to satisfy an enforcement amount
without the alleged offender or the alleged offender's dependants suffering
hardship, the Officer may, by notice in writing given to the alleged offender,
terminate the arrangement.
(18) If an arrangement terminates under
subsection (15)
or
(17)
, the Chief Recovery Officer must give the issuing authority notice (in a
manner agreed between the Chief Recovery Officer and the issuing authority) of
the termination and the amount then outstanding (taking into account, where the
arrangement required the performance of community service, the number of hours
of community service so performed).
(19) If an arrangement is reinstated by the Chief Recovery
Officer—
(a) the arrangement as reinstated commences on a day specified by the
Officer; and
(b) the provisions of this section apply to the reinstated arrangement as
if it had not terminated; and
(c) notice of the reinstated arrangement must be given by the Officer to
the issuing authority.
(20) If an alleged
offender complies with an arrangement under this section or pays to the Chief
Recovery Officer, at any time, the amount then outstanding, the arrangement is
discharged.
(21) Subject to the
regulations, an alleged offender who enters into an arrangement under this
section will, for the purposes of any other Act or law, be taken to expiate the
offence or offences to which the arrangement relates on the day on which the
arrangement is entered into (unless the alleged offender is already taken to
have expiated the offence in accordance with
section 9
or
22
) regardless of whether the arrangement is subsequently discharged or
terminates before being discharged.
21—Arrangement
or waiver for alleged offender who has persistently driven
unlicensed
(1) Subject to
subsection (2)
, if the Chief Recovery Officer is satisfied, on application by an alleged
offender, that—
(a) the amount due under an expiation notice given to the alleged offender
is attributable, at least in part, to the alleged offender having been alleged
to have committed an offence against section 74 of the
Motor
Vehicles Act 1959
; and
(b) the alleged offender has been found guilty of, or has expiated, an
offence against that section on more than 2 occasions; and
(c) the alleged offender has, since the commission of the alleged offence,
obtained a driver's licence,
the Chief Recovery Officer may determine to—
(d) enter into an
arrangement with the alleged offender of a kind set out in
section 20
; or
(e) waive payment of the amount due or any part of the amount
due.
(2) The Chief
Recovery Officer may not make a determination under this section in relation to
an alleged offender if a determination has previously been made under this
section or
section 16
in relation to the alleged offender.
(3) This Part applies to an arrangement entered into under
subsection (1)(d)
as if the arrangement were an arrangement under
section 20
.
(1) An expiation
notice may be enforced against the alleged offender by the issuing authority
providing to the Chief Recovery Officer the particulars determined by the Chief
Recovery Officer relating to—
(a) the alleged offender; and
(b) the offence or offences that remain unexpiated; and
(c) the amount due under the notice; and
(d) compliance by the authority with the requirements of this Act and any
other Act.
(2) The prescribed fee is payable by an issuing authority that provides
particulars to the Chief Recovery Officer under
subsection (1)
.
(3) The Chief
Recovery Officer may make an enforcement determination in relation to an
expiation notice given to a person—
(a) if the Chief
Recovery Officer has, within the relevant period, received particulars under
subsection (1)
and—
(i) 14 clear days have elapsed from the date on which a reminder
notice relating to the expiation notice was given in accordance with
section 11 of the
Expiation
of Offences Act 1996
; or
(ii) 14 clear days have elapsed from the date on which an expiation
enforcement warning notice relating to the expiation notice was given in
accordance with section 11A of the
Expiation
of Offences Act 1996
; or
(b) if an
arrangement under
section 20
relating to the notice has terminated in accordance with that section and
the Chief Recovery Officer has, within the relevant period, received particulars
under
subsection (1)
following that termination.
(4) Subject to the
regulations, on the making of an enforcement determination the alleged offender
will, for the purposes of any other Act or law, be taken to have expiated the
offence or offences to which the enforcement determination relates (unless the
alleged offender is already taken to have expiated the offence in accordance
with
section 9
or
20(21)
).
(5) The Chief
Recovery Officer may—
(a) vary an enforcement determination at any time; and
(b) revoke an
enforcement determination—
(i) on application
under this section made within 30 days of notice of an enforcement
determination being given, sent or published in accordance with this section;
or
(ii) on the Chief Recovery Officer's own initiative.
(6) Subject to
subsection (7)
, an application under
subsection (5)(b)(i)
must be accompanied by the prescribed fee.
(7) The Chief
Recovery Officer may, in such circumstances as the Chief Recovery Officer thinks
just, waive payment of the application fee.
(8) The Chief Recovery Officer may entertain an application under
subsection (5)(b)(i)
made out of time if the Chief Recovery Officer thinks good reason exists
for doing so.
(9) The Chief Recovery Officer may refuse to entertain an application
under
subsection (5)(b)(i)
if the Chief Recovery Officer considers that the application is frivolous
or vexatious or is not made in good faith.
(10) An application
under
subsection (5)(b)(i)
for the revocation of an enforcement determination can only be made on the
ground that—
(a) the expiation
notice to which the determination relates should not have been given to the
applicant in the first instance (other than because the alleged offender did not
commit, or has a defence against, the alleged offence); or
(b) the alleged
offender did not have a reasonable opportunity to elect under section 8 of the
Expiation
of Offences Act 1996
to be prosecuted for any offence to which the expiation notice relates;
or
(c) the alleged
offender did not have a reasonable opportunity to apply for review of the
expiation notice to which the determination relates under section 8A of the
Expiation
of Offences Act 1996
; or
(d) the procedural
requirements of this Act or any other Act were not complied with; or
(e) the applicant
failed to receive an expiation notice and an expiation reminder notice as
required by the
Expiation
of Offences Act 1996
; or
(f) the issuing
authority failed to receive—
(i) a notice sent to the authority by the applicant electing to be
prosecuted for the offence; or
(ii) a statutory declaration or other document sent to the authority by
the applicant in accordance with a notice required by law to accompany the
expiation notice or expiation reminder notice; or
(g) the applicant has expiated the offence, or offences, under the
notice.
(11) If the Chief Recovery Officer revokes an enforcement
determination—
(a) the determination will be taken to be void and of no effect (and
subsection (4)
is taken never to have applied in relation to the determination);
and
(b) any enforcement action taken under
section 25
in relation to the determination will be taken to have been revoked;
and
(c) the Chief Recovery Officer may, if the Chief Recovery Officer thinks
fit, refund the fee (if any) paid in accordance with
subsection (6)
.
(12) If—
(a) the Chief Recovery Officer revokes an enforcement determination on a
ground referred to in
subsection (10)(b)
or
(c)
; and
(b) the alleged offender does not, within 14 days of being informed of the
revocation—
(i) elect under section 8 of the
Expiation
of Offences Act 1996
to be prosecuted for the offence; or
(ii) apply under section 8A of the
Expiation
of Offences Act 1996
for review of the expiation notice to which the determination relates on
the ground that the offence is trifling,
the Chief Recovery Officer may make a further enforcement determination in
relation to the expiation notice.
(13) Despite any other provision of this Act, if the Chief Recovery
Officer revokes an enforcement determination on a ground referred to in
subsection (10)(d)
,
(e)
or
(f)
, the following provisions apply:
(a) if the period of 1 year from the date of commission of the
alleged offence, or offences, has not expired, the applicant will be taken to
have been given an expiation notice by the issuing authority in respect of the
alleged offence, or offences, for the first time on the day on which the
determination was revoked; and
(b) the expiation notice will also be taken to have been issued on that
day; and
(c) the expiation period will be taken to be the period of 28 days
from (and including) that day; and
(d) a prosecution can be commenced for the alleged offence, or offences,
within 6 months of the expiry of that expiation period (despite the fact
that the time for the commencement of the prosecution may have already otherwise
expired).
(14) Subject to
subsection (15)
, on an enforcement determination being made, varied or revoked, the Chief
Recovery Officer must cause a written notice of the determination, variation or
revocation containing the particulars (if any) prescribed by the
regulations—
(i) given to the alleged offender; or
(ii) if the
whereabouts of the alleged offender cannot, after reasonable enquiries, be
ascertained—published on a website determined by the Chief Recovery
Officer; and
(b) to be given to the issuing authority.
(a) the alleged offender was under the age of 18 years at the time
the offence is alleged to have been committed or is a protected person;
and
(b) the whereabouts of the alleged offender cannot, after reasonable
enquiries, be ascertained,
the Chief Recovery Officer may not publish the written notice in accordance
with
subsection (14)(a)(ii)
but may, if satisfied that other reasonable means of contacting the
alleged offender (not involving public disclosure of the alleged offender's
name) are available, cause the written notice to be given to the alleged
offender by such other means.
(16) The Chief Recovery Officer is not required to conduct a hearing for
the purposes of making, varying or revoking an enforcement
determination.
(17) In this section—
relevant period, in relation to an expiation notice,
means—
(a) for the
purposes of
subsection (3)(a)
—
(i) the period ending 90 days after the end of the expiation period;
or
(ii) such longer period as the Chief Recovery Officer may allow (provided
that the Chief Recovery Officer may not extend the period so as to allow
particulars to be received after the time for commencement of a prosecution
against the person for the unexpiated offence or offences to which the
particulars relate has expired); and
(b) for the purposes of
subsection (3)(b)
—the period of 30 days after the day on which the arrangement
terminated.
23—Review
by Court of refusal to revoke enforcement determination
(1) Subject to this section, if—
(a) an enforcement determination has been made by the Chief Recovery
Officer under
section 22
in relation to an expiation notice; and
(b) an application by the alleged offender under
section 22(5)(b)(i)
for revocation of the determination on a ground specified in
section 22(10)(b)
or
(c)
has been refused by the Chief Recovery Officer,
the alleged offender may apply to the Court for review of the decision to
refuse the application within 30 days of notice of the decision being given
to the alleged offender.
(2) The Court may entertain an application made out of time if it thinks
good reason exists for doing so.
(3) The issuing authority is a party to an application under this
section.
(4) On an application under this section, the Court may—
(a) confirm or reverse the decision of the Chief Recovery Officer;
and
(b) make any consequential or ancillary order that the Court considers
necessary or expedient.
(5) If the Court reverses a decision of the Chief Recovery Officer to
refuse an application by an alleged offender under
section 22(5)(b)(i)
, the following provisions apply:
(a) the enforcement determination will be taken to be void and of no
effect (and
section 22(4)
is taken never to have applied in relation to the
determination);
(b) any subsequent enforcement action taken under
section 25
will be taken to have been revoked;
(c) if the alleged offender does not, within 14 days of being informed of
the Court's determination—
(i) elect under section 8 of the
Expiation
of Offences Act 1996
to be prosecuted for the offence; or
(ii) apply under section 8A of the
Expiation
of Offences Act 1996
for review of the expiation notice to which the determination relates on
the ground that the offence is trifling,
the Chief Recovery Officer may make a further enforcement determination in
relation to the expiation notice.
(6) A decision of the Court made on an application under this section is
not subject to further appeal by the alleged offender.
An amount due under an expiation notice in relation to which an enforcement
determination has been made by the Chief Recovery Officer under
section 22
is, if the enforcement determination has not been revoked, a debt due to
the Crown and is recoverable by the Chief Recovery Officer by action in any
court of competent jurisdiction or as otherwise set out in this Act.
25—Enforcement
actions by Chief Recovery Officer
(1) If an enforcement determination has been made by the Chief Recovery
Officer under
section 22
in relation to an expiation notice (and has not been revoked), the Chief
Recovery Officer may take enforcement action against the alleged offender to
secure payment of the amount due under the notice.
(2) The Chief
Recovery Officer may take enforcement action against a person by doing any of
the following:
(a) entering into an arrangement, or further arrangement, with the person
under
section 20(1)(b)
;
(b) registering a charge on land under
Part 6
;
(c) exercising a
power under
Part 7
;
(d) waiving payment of the amount due or any part of the amount
due.
(3) If more than 1 enforcement determination has been made in respect
of expiation notices issued to a person, the amounts due under the notices may
be aggregated for the purposes of taking enforcement action.
26—Amounts
unpaid or unrecovered for more than certain period
(1) Subject to
subsection (2)
—
(a) if the Chief
Recovery Officer makes an enforcement determination in relation to an expiation
notice, an amount prescribed by, or calculated in accordance with, the
regulations is added to, and forms part of, the amount due under the notice;
and
(b) if any part of the amount due under the notice (including the amount
added under
paragraph (a)
), remains unpaid by, or unrecovered from, the alleged offender at the end
of the 30 day period commencing on the day on which the enforcement
determination is made, a further amount prescribed by, or calculated in
accordance with, the regulations is added to, and forms part of, the amount due
under the notice.
(2) The Chief
Recovery Officer may, in such circumstances as the Officer thinks just, waive
payment of the whole or part of an amount payable by an alleged offender in
accordance with this section.
(1) The Chief Recovery Officer may write off an amount payable under an
expiation notice—
(a) if the Officer has no reasonable prospect of recovering the amount;
or
(b) if the costs of recovery are likely to equal or exceed the amount to
be recovered.
(2) The writing off of an amount payable under an expiation notice does
not affect the liability of the alleged offender to pay the amount or the power
of the Chief Recovery Officer to recover it.
28—Enforcement
of expiation notices in other jurisdictions
(1) The Minister may enter into an agreement (a multi-jurisdictional
agreement) with 1 or more other Australian jurisdictions to establish
and implement processes and procedures for—
(a) the enforcement in other jurisdictions of expiation notices given in
this State; and
(b) the enforcement in this State of expiation notices given in other
jurisdictions.
(2) A multi-jurisdictional agreement may, for example—
(a) provide for collection of amounts payable under expiation notices by a
participating jurisdiction on behalf of another participating jurisdiction and
for distribution of money so collected; or
(b) authorise the performance or exercise of any functions or powers under
this Act or the
Expiation
of Offences Act 1996
by a specified authority of a participating jurisdiction; or
(c) authorise the performance or exercise of any functions or powers under
a specified law of another jurisdiction by the Chief Recovery Officer (subject
to any law of that jurisdiction and any limitations specified in the agreement);
or
(d) make provision for other measures or matters that the parties consider
necessary or expedient for facilitating the enforcement of expiation notices or
their equivalent in this State and other jurisdictions and for implementing
processes established by the agreement for that purpose.
(3) A multi-jurisdictional agreement will operate for such period, and be
able to be varied or terminated in such a manner, as the participating
jurisdictions agree.
(4) The Chief Recovery Officer must take such action as is necessary or
expedient for giving effect to a multi-jurisdictional agreement.
(5) In this section—
expiation notice includes an equivalent notice (however
described) of a prescribed kind issued under the law of another Australian
jurisdiction.
29—Personal
details and investigation of financial position
(1) The Chief
Recovery Officer may, at any time, give written notice to a debtor or alleged
offender requiring the debtor or alleged offender to provide the Chief Recovery
Officer with the personal details of the debtor or alleged offender.
(2) If the Chief Recovery Officer has reasonable cause to believe that a
person has knowledge of personal details of a debtor or alleged offender, the
Chief Recovery Officer may give written notice to the person requiring the
person to provide the Chief Recovery Officer with such personal details of the
debtor or alleged offender as are known to the person.
(3) The Chief Recovery Officer may, at any time, investigate a debtor's
means of satisfying a pecuniary sum, or an alleged offender's means of
satisfying an amount due under an expiation notice, and may give a written
notice to a person requiring the person to produce to the Chief Recovery
Officer, within a period stated in the notice, documents or other material
relevant to the investigation.
(4) A person who, without reasonable excuse (proof of which lies on the
person), refuses or fails to comply with a requirement under this section is
guilty of an offence.
Maximum penalty: $10 000.
30—Power
to require information
(1) If a public sector agency or a credit reporting body (within the
meaning of the Privacy Act 1988 of the Commonwealth) is in possession of
the contact details of a debtor or alleged offender, the agency or body must, on
request from the Chief Recovery Officer, provide those details to the Chief
Recovery Officer.
(2) A public sector agency must, in accordance with the written request of
the Chief Recovery Officer, produce to the Officer—
(a) documents or other material in the possession of the agency relevant
to an investigation of a debtor's means, or an alleged offender's means, of
satisfying a pecuniary sum; and
(b) information that would assist the Officer to identify or recognise a
debtor or alleged offender.
(3) This section does not apply to a public sector agency excluded from
the application of this section by the regulations.
31—Power
to require identification
(1) An authorised officer may require a person who the officer has
reasonable cause to suspect may be a debtor or alleged offender to produce
evidence of the person's identity.
(2) A person who, without reasonable excuse (proof of which lies on the
person), refuses or fails to comply with a requirement under this section is
guilty of an offence.
Maximum penalty: $10 000.
32—Disclosure
of information to prescribed interstate authority
The Chief Recovery Officer may disclose prescribed particulars of a debtor
or alleged offender to a prescribed interstate authority.
(1) The Chief
Recovery Officer may, at any time, apply to the Registrar-General in the form
determined by the Registrar-General to register a charge over land owned
(whether solely or as a co-owner) by a debtor for the amount of the pecuniary
sum outstanding from time to time.
(2) The Chief Recovery
Officer may, if an enforcement determination has been made under
section 22
in relation to an expiation notice (and has not been revoked), apply to
the Registrar-General in the form determined by the Registrar-General to
register a charge over land owned (whether solely or as a co-owner) by the
alleged offender for the amount due from time to time.
(3) On receipt of
an application under
subsection (1)
or
(2)
, the Registrar-General must enter an appropriate note in the Register Book
and, when that entry is made, a charge is created over the land in favour of the
Crown.
(4) The effect of
the charge is as follows:
(a) the
Registrar-General must not, after entry of the note under
subsection (3)
, register an instrument affecting the land over which the charge exists
unless—
(A) was executed before the entry was made; or
(B) has been executed under or pursuant to an agreement entered into
before the entry was made; or
(C) relates to an instrument registered before the entry was made;
or
(ii) the instrument
is an instrument of a prescribed class; or
(iii) the instrument is expressed to be subject to the operation of the
charge; or
(iv) the instrument
is a duly stamped conveyance that results from the exercise of a power of sale
under a mortgage, charge or encumbrance registered before the entry was
made;
(b) the Chief Recovery Officer (on behalf of the Crown) has the same
powers in respect of the land over which the charge exists as are given by the
Real
Property Act 1886
to a mortgagee under a mortgage in respect of which default has been made
in payment of money secured by the mortgage (and sections 132 to 135 (inclusive)
and 136 of that Act apply accordingly as if the Officer were the mortgagee and
the debtor or alleged offender were the mortgagor).
(5) An instrument registered under
subsection (4)(a)(i)
or
(ii)
has effect, in relation to the charge, as if it had been registered before
the entry was made.
(6) If an instrument is registered under
subsection (4)(a)(iv)
, the charge will be taken to be cancelled by the registration of the
instrument and the Registrar-General must take whatever action the
Registrar-General considers appropriate to give effect to the
cancellation.
(7) The Chief Recovery Officer will apply to the Registrar-General, in the
form determined by the Registrar-General, to have the registration of a charge
under this section cancelled—
(a) on the pecuniary sum or amount due under the expiation notice being
fully satisfied; or
(b) if the Chief Recovery Officer considers, in the circumstances of the
particular case, that it is just to do so,
(and the Registrar-General must then cancel the relevant entry).
(8) Any fees incurred in relation to registration (or cancellation of
registration) under this section are added to and form part of the pecuniary sum
or amount due.
(9) A person must, in accordance with the written request of the Chief
Recovery Officer, produce to the Officer documents or other material in the
possession of the person relating to the title of a debtor or alleged offender
to real property owned by the debtor or alleged offender.
Maximum penalty: $10 000.
In this Part—
clamp, in relation to a vehicle, means immobilise the vehicle
by means of wheel clamps (and clamped has a corresponding
meaning);
clamping or impounding period means the period for which a
vehicle is liable to remain clamped or impounded in accordance with a
determination under
section 41(1)
;
drive includes ride;
monetary amount means a pecuniary sum or an amount due under
an expiation notice;
person entitled to custody of a vehicle
means—
(a) an owner of the vehicle; or
(b) a person authorised by an owner of the vehicle to take custody of the
vehicle; or
(c) a person legally entitled to possession of the vehicle;
registered owner of a vehicle means a person recorded in a
register kept under the
Motor
Vehicles Act 1959
or the law of another State or Territory of the Commonwealth as an owner
of the vehicle;
road has the same meaning as in the
Motor
Vehicles Act 1959
.
35—Aggregation
of monetary amounts for the purposes of enforcement
Any number of monetary amounts owed by a debtor may be aggregated for the
purposes of exercising powers under this Part.
(1) The Chief Recovery Officer may, by written determination, determine to
sell the land or personal property of a debtor or alleged offender to satisfy
the monetary amount owed by the debtor or alleged offender.
(2) A determination under this section authorises the Chief Recovery
Officer to—
(a) enter any land
(using such force as may be necessary) on which the Chief Recovery Officer
reasonably suspects personal property of the debtor or alleged offender is
situated; and
(b) seize and remove any personal property found on land referred to in
paragraph (a)
that apparently belongs (wholly or partly) to the debtor or alleged
offender; and
(c) affix clamps or any other locking device to any vehicle that is to be
seized and removed from land referred to in
paragraph (a)
in order to secure the vehicle until it can be so seized and removed;
and
(d) seize and remove any documents evidencing the title of the debtor or
alleged offender to any real or personal property; and
(e) place and keep any such personal property or documents in safe custody
until completion of sale; and
(f) sell real or personal property owned (whether solely or as a co-owner)
by the debtor or alleged offender.
(3) However—
(a) powers under this section may not be exercised in relation to personal
property, or property of a class, prescribed by the regulations; and
(b) this section does not authorise the sale of land unless the monetary
amount exceeds $10 000; and
(c) any amount realised from the sale of the personal property of the
debtor or alleged offender in excess of the monetary amount owed by a debtor or
alleged offender must be paid to the debtor or alleged offender by the Chief
Recovery Officer; and
(d) the Chief Recovery Officer (on behalf of the Crown) has the same
powers in respect of land the Officer determines to sell under this section as
are given by the
Real
Property Act 1886
to a mortgagee under a mortgage in respect of which default has been made
in payment of money secured by the mortgage (and sections 132 to 135 (inclusive)
and 136 of that Act apply accordingly as if the Officer were the mortgagee and
the debtor or alleged offender were the mortgagor).
(4) If the Chief
Recovery Officer determines under this section to sell personal property of the
debtor or alleged offender, the Officer may give the debtor or alleged offender
written notice in the prescribed form requiring the debtor or alleged offender
to produce specified items of property at a time and place specified in the
notice.
(5) A person must not, without reasonable excuse (proof of which lies on
the person), refuse or fail to comply with a notice under
subsection (4)
.
Maximum penalty: $2 500 or imprisonment for 6 months.
(6) The Chief Recovery Officer may exercise powers under this section in
the absence of, and without prior notice to, the debtor or alleged
offender.
(7) When property is seized or removed from land, notice of the written
determination under this section and a notice listing the property
seized—
(a) must be given
personally to the debtor or alleged offender or to any other person apparently
in charge of the land and apparently of or over the age of 16 years;
or
(b) if
paragraph (a)
cannot be complied with, must be left in or attached to a conspicuous
place on the land.
(8) The Chief Recovery Officer may, if the Chief Recovery Officer thinks
fit, leave a debtor or alleged offender in possession of property until it is
sold pursuant to the order for sale.
(9) If property that has been seized is left in the possession of the
debtor or alleged offender pending sale, the debtor or alleged offender must
not, except with the written approval of the Chief Recovery Officer, cause,
permit or allow the property to be removed from the possession of the debtor or
alleged offender or to be sold or offered for sale.
Maximum penalty: $2 500.
(10) If a vehicle has been seized but left in the possession of the debtor
or alleged offender pending sale, the debtor or alleged offender must not,
except with the written approval of the Chief Recovery Officer, drive the
vehicle on a road.
Maximum penalty:
(a) $2 500; or
(b) disqualification from holding or obtaining a driver's licence for a
period (of whole months only) not exceeding 6 months.
(11) If a vehicle that has been seized is not left in the possession of
the debtor or alleged offender, a person must not, without reasonable excuse,
interfere with the vehicle in any way.
Maximum penalty: $2 500.
(12) A person must not interfere in any way—
(a) with any written determination attached by the Chief Recovery Officer
to seized property left in the possession of a debtor or alleged offender
signifying that the property has been seized; or
(b) with a vehicle that has been immobilised, seized or removed, or the
means by which a vehicle has been immobilised, pursuant to this
section.
Maximum penalty: $2 500.
(13) Property seized under this section cannot be sold until 14 days
have elapsed from (and including) the day on which it was seized.
(14) If—
(a) the debtor or alleged offender or any other person claims that
property seized under this section is not liable to seizure and sale under this
section; or
(b) a person (other than the debtor or alleged offender) claims an
interest in property seized under this section,
the Court may, if satisfied, on application by the debtor, alleged offender
or other person, of the validity of the claim—
(c) exclude the property from the sale; or
(d) direct the application of the proceeds of the sale of the property in
such manner as the Court considers just.
(15) A sale of land or tangible property under this section is to be
conducted in a manner determined by the Chief Recovery Officer.
(16) If land is
sold under this section, an instrument of transfer or conveyance (as
appropriate) signed by the Chief Recovery Officer will, on registration, operate
to vest title to the land in the purchaser.
(17) The title vested in a purchaser under
subsection (16)
will be free of—
(a) all mortgages and charges; and
(b) except in the case of land held from the Crown under lease, licence or
agreement to purchase—all leases and licences.
(18) An instrument of transfer or conveyance in pursuance of a sale under
this section must, when lodged with the Registrar-General for registration, be
accompanied by a statutory declaration made by the Chief Recovery Officer
stating that the requirements of this section in relation to the sale of the
land have been observed.
(19) If any part of the property of a debtor or alleged offender consists
of intangible property, the Chief Recovery Officer may sign any transfer or do
anything else necessary to convert that property into money as if the Chief
Recovery Officer were the debtor or alleged offender.
(20) If the proceeds from a sale of personal property under this section
exceed the amount necessary to satisfy the monetary amount owed by the debtor or
the alleged offender, the amount remaining after deduction of the monetary
amount from the proceeds must be returned to the debtor or alleged
offender.
(21) If the Chief Recovery Officer determines not to sell any personal
property seized under this section, the property must be returned to the debtor
or alleged offender or left at the land from which it was seized.
(22) In this section—
driver's licence includes a learner's permit.
(1) The Chief
Recovery Officer may, by written determination, provide that—
(a) money owing or accruing to a debtor or alleged offender from a third
person; or
(b) money of the debtor or alleged offender in the hands of a third person
(including money in an ADI account),
be attached to satisfy a monetary amount owed by the debtor or alleged
offender.
(2) A determination under this section may authorise the garnishee to
retain from the money subject to the attachment a reasonable sum, fixed by the
written determination, as compensation for the garnishee's expenses in complying
with the determination.
(3) The Chief
Recovery Officer must cause notice of a written determination under this section
to be given to the debtor or alleged offender and the garnishee.
(4) A garnishee must comply with a determination under this
section.
Maximum penalty: $10 000.
(5) If the garnishee does not comply with a determination under this
section, the garnishee becomes personally liable for payment to the Chief
Recovery Officer of the amount subject to attachment.
(6) If, because a determination has been made under this section in
relation to an employee, the employer—
(a) dismisses the employee; or
(b) injures the employee in employment; or
(c) alters the employee's position to the employee's prejudice,
the employer is guilty of an offence.
Maximum penalty: $10 000.
(7) A reference in this section to a third person includes
the Crown or any person or body holding money on behalf of the Crown.
38—Suspension
of driver's licence
(1) The Chief
Recovery Officer may, by written determination, suspend a debtor's driver's
licence, or an alleged offender's driver's licence, (and such a determination
may be issued despite the fact that the debtor or alleged offender is currently
disqualified from holding or obtaining a licence).
(2) The Chief Recovery Officer must—
(a) cause notice of the written determination under
subsection (1)
to be given to the debtor or alleged offender; and
(b) notify the Registrar of Motor Vehicles of the determination.
(3) A licence
suspension under this section—
(a) takes effect 14 days from (and including) the day on which the
determination under
subsection (1)
was given to the debtor or alleged offender; and
(b) may be
cancelled by the Chief Recovery Officer by written determination (provided that
the Chief Recovery Officer must make such a written determination if all
monetary amounts owed by the debtor or alleged offender are paid in
full).
(4) If the Chief Recovery Officer makes a determination under
subsection (3)(b)
—
(a) the Chief Recovery Officer must notify the Registrar of Motor Vehicles
of the determination; and
(b) the licence suspension continues in operation until the Registrar of
Motor Vehicles is so notified.
(5) If the Chief Recovery Officer makes a determination under this
section, a fee of the prescribed amount is added to and forms part of the
monetary amount owed by the debtor or alleged offender.
(6) In this section—
driver's licence includes a learner's permit.
39—Restriction
on transacting business with Registrar of Motor Vehicles
(1) The Chief
Recovery Officer may, by written determination, impose a prohibition on a debtor
or alleged offender transacting any business with the Registrar of Motor
Vehicles.
(2) The Chief
Recovery Officer must—
(a) cause notice of the written determination under
subsection (1)
to be given to the debtor or alleged offender; and
(b) notify the Registrar of Motor Vehicles of the determination.
(3) A prohibition
under this section—
(a) takes effect on the Registrar of Motor Vehicles being notified under
subsection (2)
; and
(b) may be
cancelled by the Chief Recovery Officer by written determination (provided that
the Chief Recovery Officer must make such a written determination if all
monetary amounts owed by the debtor or alleged offender are paid in
full).
(4) If the Chief Recovery Officer makes a determination under
subsection (3)(b)
—
(a) the Chief Recovery Officer must notify the Registrar of Motor Vehicles
of the determination; and
(b) the prohibition continues in operation until the Registrar of Motor
Vehicles is so notified.
(5) The effect of a
prohibition under this section is that, while the prohibition continues in
operation, the Registrar of Motor Vehicles will not process any application made
by or on behalf of the debtor or alleged offender, whether the application was
made before or after the prohibition took effect.
(6) However,
subsection (5)
does not apply in relation to an application to transfer the registration
of a vehicle of which the debtor or alleged offender is a registered
owner—
(a) to a person who is not a joint registered owner of the vehicle;
or
(b) to a person where the transfer has been ordered by a court.
(7) If the Chief Recovery Officer makes a determination under this
section, a fee of the prescribed amount is added to and forms part of the
monetary amount owed by the debtor or alleged offender.
40—Suspension
of section 97A of Motor Vehicles
Act 1959
(1) The Chief Recovery
Officer may, by written determination, suspend the operation of section 97A of
the
Motor
Vehicles Act 1959
insofar as it applies to a debtor or alleged offender specified in the
notice.
(2) The Chief
Recovery Officer must—
(a) cause notice of the written determination under
subsection (1)
to be given to the debtor or alleged offender; and
(b) notify the Registrar of Motor Vehicles of the determination.
(3) Suspension of
the operation of section 97A of the
Motor
Vehicles Act 1959
under this section—
(a) takes effect 14 days from (and including) the day on which notice
of the determination under
subsection (1)
was given to the debtor or alleged offender; and
(b) may be
cancelled by the Chief Recovery Officer by written determination (provided that
the Chief Recovery Officer must make such a written determination if all
monetary amounts owed by the debtor or alleged offender are paid in
full).
(4) If the Chief Recovery Officer makes a determination under
subsection (3)(b)
—
(a) the Chief Recovery Officer must notify the Registrar of Motor Vehicles
of the determination; and
(b) the suspension under this section continues in operation until the
Registrar of Motor Vehicles is so notified.
(5) If the Chief Recovery Officer makes a determination under this
section, a fee of the prescribed amount is added to and forms part of the
monetary amount owed by the debtor or alleged offender.
41—Clamping
or impounding of vehicle
(1) The Chief
Recovery Officer may, by written determination, determine to clamp or impound
any vehicle that a debtor or alleged offender owns or is accustomed to drive, or
that was used in the commission of an offence or alleged offence to which action
under this Part relates, for a period specified in the determination or until
the Chief Recovery Officer determines to end the clamping or impounding period
under this section.
(2) A determination
under this section authorises the Chief Recovery Officer—
(a) to clamp a vehicle referred to in
subsection (1)
; or
(b) to seize such a vehicle for the purpose of clamping or impounding
it.
(3) If the Chief Recovery Officer has made reasonable attempts to notify
each registered owner of a vehicle of the Officer's intention to exercise powers
under this section in relation to the vehicle, the Officer may exercise those
powers in the absence of, and without prior notice to, the debtor or alleged
offender.
(4) When a vehicle is clamped or seized, notice of the written
determination under this section—
(a) must be given
personally to the debtor or alleged offender and to each registered owner of the
vehicle; and
(b) must be left in or attached to a conspicuous place on the vehicle or
attached to a conspicuous place in the vicinity of the vehicle.
(5) A person must not, without reasonable excuse, interfere in any
way—
(a) with a vehicle that has been clamped pursuant to this section;
or
(b) with a written determination attached by the Chief Recovery Officer to
a vehicle, or to a conspicuous place in the vicinity of a vehicle, pursuant to
this section; or
(c) with the means by which a vehicle has been clamped pursuant to this
section.
Maximum penalty: $2 500.
(6) If a
determination has been made under this section in relation to a vehicle, the
Chief Recovery Officer may do anything reasonably necessary for the purposes of
carrying out functions under this section, including exercising any of the
following powers in relation to the vehicle:
(a) giving an owner
of the vehicle written notice in the prescribed form requiring the owner to
produce the vehicle at a time and place specified in the notice;
(b) entering any place, including a public place, (using such force as may
be necessary) at which the Chief Recovery Officer reasonably suspects the
vehicle is situated and breaking into or opening any garage or other structure
in which the vehicle can be seen to be stored at the place;
(c) requiring a person to stop the vehicle;
(d) causing a locking device or other feature of the vehicle to be
removed, dismantled or neutralised;
(e) requiring a person to surrender the keys to the vehicle, or starting
the vehicle by other means;
(f) temporarily
affixing clamps or any other locking device to the vehicle on a public road or
in any other place in order to secure the vehicle until it can be seized and
moved;
(g) moving the vehicle to a place determined by the Chief Recovery Officer
and clamping or impounding the vehicle at that place (and, if the Chief Recovery
Officer so determines, subsequently moving the vehicle to, and clamping or
impounding the vehicle at, some other place);
(h) driving, towing or pushing the vehicle, or moving the vehicle in any
other manner.
(7) A person must not, without reasonable excuse (proof of which lies on
the person), refuse or fail to comply with a notice or requirement under
subsection (6)
.
Maximum penalty: $2 500 or imprisonment for 6 months.
(8) The Chief
Recovery Officer—
(a) must determine to end the clamping or impounding period if all
monetary amounts owed by the debtor or alleged offender are paid in full;
and
(b) may determine to end the clamping or impounding period at any other
time in the Chief Recovery Officer's absolute discretion.
(9) At the end of the clamping or impounding period, the Chief Recovery
Officer may—
(a) remove the clamps; or
(b) release the vehicle, including to a person who applies for release of
the vehicle and satisfies the Chief Recovery Officer that the person is entitled
to custody of the vehicle.
(10) However, the Chief Recovery Officer is not obliged to remove clamps
from a vehicle or release a vehicle—
(a) outside of ordinary business hours; or
(b) if the Chief Recovery Officer believes that the removal or release
would result in the vehicle being left in the custody of a person not entitled
to custody of the vehicle.
(11) The Chief
Recovery Officer may ask a person questions for the purpose of carrying out
functions under this section, including questions for the purpose of determining
whether a particular vehicle is liable to be clamped or impounded under this
section and questions for the purpose of determining whether a person who
applies for release of a vehicle is entitled to custody of the
vehicle.
(12) A person who—
(a) refuses or fails, without reasonable excuse, to answer a question
under
subsection (11)
; or
(b) in response to a question under
subsection (11)
gives an answer that is false or misleading in a material
particular,
is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
42—Power
to dispose of uncollected seized vehicles
(1) Despite this or
any other law, if no person who is entitled to custody of a vehicle that has
been seized and clamped or impounded under
section 41
applies to the Chief Recovery Officer for release of the vehicle within
28 days of the vehicle ceasing to be liable to be so clamped or impounded,
the Chief Recovery Officer may, subject to this section, dispose of the
vehicle.
(2) A vehicle must
not be disposed of under
subsection (1)
unless, not less than 14 days before the disposal, notice of the
disposal—
(a) was sent by registered post to—
(i) in the case of a registered vehicle—the registered address of
each registered owner of the vehicle; or
(ii) in any other case—the address of any owner of the vehicle of
which the Chief Recovery Officer is aware; and
(b) was given to each person registered under the Personal Property
Securities Act 2009 of the Commonwealth as a secured party in relation
to a security interest for which the vehicle is collateral; and
(c) was published on a website determined by the Chief Recovery
Officer.
(3) Subject to
subsection (4)
, a disposal of a vehicle under this section is to be by sale by public
auction or public tender.
(4) A vehicle may
be disposed of under this section otherwise than by sale if—
(a) the Chief Recovery Officer believes on reasonable grounds that the
vehicle has no monetary value or that the proceeds of the sale would be unlikely
to exceed the costs of the sale; or
(b) the vehicle has been offered for sale and was not sold.
(5) Subject to
subsection (6)
, the proceeds of the sale of a vehicle under this section must be dealt
with as follows:
(a) if the debtor or alleged offender is the owner of the
vehicle—the proceeds must be applied towards satisfaction of the monetary
amount owed and any remaining amount must be dealt with in accordance with
section 7A of the
Unclaimed
Moneys Act 1891
as money the owner of which cannot be found;
(b) in any other case—the proceeds must be dealt with in accordance
with section 7A of the
Unclaimed
Moneys Act 1891
as money the owner of which cannot be found.
(6) If, before the
disposal of a vehicle under this section, a person (other than the registered
owner, the debtor or the alleged offender) claims an interest in a vehicle that
has been seized and clamped or impounded under
section 41
, the Court may, if satisfied, on application by the person, of the
validity of the claim, direct—
(a) that the vehicle be released into the custody of the person;
or
(b) the application of the proceeds of the sale of the vehicle in such
manner as the Court considers just.
(7) Despite any other Act or law, if a vehicle is sold or otherwise
disposed of under this section—
(a) any interests in the vehicle existing prior to the sale or disposal
are extinguished; and
(b) any purchaser of the vehicle, or of any part of the vehicle, acquires
a good title.
43—Seizure
of number plates of vehicle
(1) The Chief
Recovery Officer may, by written determination, determine to seize the number
plates of any vehicle that a debtor or alleged offender owns or is accustomed to
drive or that was used in the commission of an offence or alleged offence to
which action under this Division relates.
(2) The Chief Recovery Officer must cause notice of the written
determination to seize the number plates of a vehicle to be given to the debtor
or alleged offender and to each registered owner of the vehicle.
(3) A determination
under this section authorises the Chief Recovery Officer to seize the number
plates of a vehicle referred to in
subsection (1)
.
(4) However, the Chief Recovery Officer may not seize the number plates of
a vehicle if—
(a) the vehicle is situated in a public place; or
(b) seizure of the number plates would cause undue inconvenience to a
person other than the debtor or alleged offender.
(5) If a
determination has been made under this section in relation to a vehicle, the
Chief Recovery Officer may do anything reasonably necessary for the purposes of
carrying out functions under this section, including entering any place,
including a public place, (using such force as may be necessary) at which the
Chief Recovery Officer reasonably suspects the vehicle is situated and breaking
into or opening any garage or other structure in which the vehicle can be seen
to be stored at the place.
(6) The Chief
Recovery Officer—
(a) must determine to return the vehicle's number plates to the registered
owner if all monetary amounts owed by the debtor or alleged offender are paid in
full within 28 days of the day on which the vehicle's number plates are seized;
and
(b) may determine to return the vehicle's number plates to the registered
owner at any other time in the Officer's absolute discretion.
(7) If all
pecuniary sums owed by the debtor or alleged offender are not paid within
28 days of the day on which the vehicle's number plates are seized, the
Chief Recovery Officer may, subject to this section, dispose of the vehicle's
number plates by forwarding them to the Registrar of Motor Vehicles.
(8) Number plates
must not be disposed of by the Chief Recovery Officer under
subsection (7)
unless, not less than 14 days before the number plates are forwarded
to the Registrar of Motor Vehicles, notice of the Chief Recovery Officer's
intention to dispose of the number plates was sent by registered post
to—
(a) in the case of a registered vehicle—the registered address of
each registered owner of the vehicle; or
(b) in any other case—the address of any owner of the vehicle of
which the Chief Recovery Officer is aware.
(9) The Chief
Recovery Officer may ask a person questions for the purpose of carrying out
functions under this section, including questions for the purpose of determining
whether the number plates of a particular vehicle are liable to be seized under
this section.
(10) A person who—
(a) refuses or fails, without reasonable excuse, to answer a question
under
subsection (9)
; or
(b) in response to a question under
subsection (9)
gives an answer that is false or misleading in a material
particular,
is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
44—Publication
of names of debtors and alleged offenders subject to enforcement
action
(1) The Chief
Recovery Officer may cause a notice to be published on a website determined by
the Chief Recovery Officer, and in such other manner (if any) as the Chief
Recovery Officer thinks fit, identifying a debtor or alleged offender who is
subject to enforcement action under this Act and specifying the monetary amount
that is payable at the date of the notice.
(2) A notice under
subsection (1)
—
(a) must be in a form determined by the Chief Recovery Officer;
and
(b) must not include any identifying information relating to the debtor or
alleged offender other than—
(i) the actual name and any assumed name; and
(ii) the date of birth,
of the debtor or alleged offender.
(3) However, a notice cannot be published under this section in relation
to a debtor or alleged offender if the debtor or alleged offender
is—
(a) a youth; or
(b) subject to a suppression order; or
(c) a protected person.
(4) The Chief Recovery Officer must remove a notice published under
subsection (1)
from the website as soon as is reasonably practicable after the debtor has
paid in full the pecuniary sum to which the notice relates.
Any costs incurred by the Chief Recovery Officer in relation to the
exercise of powers and functions under this Part are added to and form part of
the monetary amount owed by the debtor or alleged offender.
Division 2—Failure
of enforcement process
46—Community
service and intervention program orders
(1) If the Court is
satisfied that a debtor or alleged offender does not have, and is not likely
within a reasonable time to have, the means to satisfy a monetary amount owed by
the debtor or alleged offender without the debtor or alleged offender, or the
dependants of the debtor or alleged offender, suffering hardship, the Court may,
on application by the Chief Recovery Officer, make either or both of the
following orders in relation to the debtor or alleged offender:
(a) a community service order;
(b) an order requiring the debtor or alleged offender to complete an
intervention program.
(2) The Chief Recovery Officer may not make an application to the Court
under
subsection (1)
in relation to a pecuniary sum that comprises or includes an amount of
compensation unless the Chief Recovery Officer has given written notification of
the Officer's intention to make the application to the person to whom the
compensation is payable.
(3) If a community
service order is made by the Court under this section, the following provisions
apply:
(a) the number of
hours of community service to be performed by the debtor or alleged offender
is—
(i) if the monetary amount is equal to or less than the prescribed
unit—7.5 hours; or
(ii) if the monetary amount exceeds the prescribed
unit—7.5 hours for each prescribed unit of the monetary amount and
for any fraction left after dividing the sum by that unit;
(b) the debtor or
alleged offender must not, during the period for which the order applies, leave
the State for any reason except in accordance with the written permission of the
Chief Recovery Officer.
(4) The Chief Recovery Officer must give the debtor or alleged offender a
notice specifying—
(a) the number of hours of community service to be performed in accordance
with
subsection (3)(a)
; and
(b) the requirement set out in
subsection (3)(b)
; and
(c) any other matter prescribed by regulation.
(5) The
requirements specified in
subsection (3)
apply and are enforceable as if they were terms of the order under
subsection (1)
.
(6) A court may not make an order requiring a debtor or alleged offender
to complete an intervention program unless the court is satisfied
that—
(a) the debtor or alleged offender is eligible for the services to be
included on the program in accordance with applicable eligibility criteria (if
any); and
(b) the services are available for the debtor or alleged offender at a
suitable time and place.
(7) Subject to this
section, the following provisions of the
Sentencing
Act 2017
apply to an order for community service under this section as if it were a
sentence of community service:
(a) section 104;
(b) section 105(1)(c) to (l) (inclusive) and (2);
(c) section 106;
(d) section 107;
(e) section 108;
(f) section 110;
(g) section 111;
(h) section 112.
(8) Part 6 of the
Young
Offenders Act 1993
and sections 44 to 46 (inclusive) of the
Youth
Justice Administration Act 2016
apply, with necessary modifications, in relation to an order under this
section made in relation to a youth as if it were an order for community service
under the
Young
Offenders Act 1993
.
(9) The monetary amount to which a community service order relates is
reduced by 1 prescribed unit for each 7.5 hours of community service
performed under the order.
(10) If, while a community service order is in force, part of the monetary
amount to which it relates is paid, the number of hours of community service to
be performed under the order will be reduced by a proportionate
amount.
(11) However, if
the Court, on application by the Chief Recovery Officer at any time, is
satisfied that a person subject to an order under this section has the means to
pay a monetary amount without the person or the person's dependants suffering
hardship, the Court may—
(a) revoke the order; and
(b) order the restoration of the monetary amount in respect of which the
order was made (and for the purposes of taking enforcement action against the
person, the monetary amount so restored is to be treated as having been imposed
on the day on which the Court makes an order under this paragraph).
(12) In restoring a monetary amount under
subsection (11)
, the Court must take into account the number of hours of community service
(if any) that the person performed, and the time spent by the person in an
intervention program, under the revoked order.
(13) If a debtor or alleged offender complies with an order under this
section requiring the completion of an intervention program, then the monetary
amount outstanding is to be reduced in accordance with the method prescribed by
regulation for the purposes of this subsection.
(14) The Court may
make appropriate orders for assessment of a debtor or alleged offender to
determine—
(a) a form of intervention program that is appropriate for the debtor or
alleged offender; and
(b) the eligibility of the debtor or alleged offender for the services
included on the program.
(15) A certificate apparently signed by—
(a) an intervention program manager as to—
(i) whether the services to be included on an intervention program are
available for a particular person and, if so, when and where they will be
available; or
(ii) whether a particular person is eligible for the services to be
included on the program; or
(b) a case manager as to whether a particular person has complied with
conditions regulating the person's participation in an intervention
program,
is admissible as evidence of the matter so certified.
47—Community
service and intervention program orders may be enforced by
imprisonment
(1) Subject to this section, an order under
section 46
requiring community service or the completion of an intervention program
is enforceable by imprisonment in default of compliance.
(2) The term of
imprisonment to be served in default of compliance with an order requiring
community service will be—
(a) a term calculated on the basis of 1 day for each 7.5 hours of
community service remaining to be performed under the order; or
(b) 12 months,
whichever is the lesser.
(3) The term of
imprisonment to be served in default of compliance with an order requiring the
completion of an intervention program will be determined in accordance with the
method set out in the regulations.
(4) If it appears
to the court, by evidence given on oath, that a person has failed to comply with
an order requiring performance of community service or the completion of an
intervention program, the court may—
(a) issue a notice requiring the person to appear before the court at the
time and place specified in the notice to show cause why a warrant of commitment
should not be issued against the person for the default; or
(b) issue a warrant for the person's arrest.
(5) If a person fails to appear before the court as required by a notice
issued under
subsection (4)
, the court may issue a warrant for the person's arrest.
(6) If the court is
satisfied that the person has failed to comply with the order requiring
performance of community service or the completion of an intervention
program—
(a) the court may
issue a warrant of commitment for the appropriate term of imprisonment fixed in
accordance with
subsection (2)
or
(3)
(as appropriate); but
(b) if the person is a youth, the court may, instead of taking action
under
paragraph (a)
, make an order for home detention for a period fixed on the same
basis.
(7) The court may, on issuing a warrant under
subsection (6)
, direct that the imprisonment to which the person becomes liable by virtue
of the warrant be cumulative on any other term of imprisonment being served, or
to be served, by the person.
(8) Despite
subsection (6)
, if the court is satisfied that the failure of a person to comply with an
order requiring performance of community service or the completion of an
intervention program was trivial or that there are proper grounds on which the
failure should be excused, the court—
(a) may refrain from issuing a warrant of commitment; and
(b) may—
(i) extend the term of the order by such period, not exceeding 6 months,
as the court thinks necessary for the purpose of enabling the person to perform
the remaining hours of community service (if any) or complete the intervention
program; or
(ii) if the order has expired, impose a further order, for a term not
exceeding 6 months, requiring the person to perform the number of hours of
community service unperformed under the previous order or complete the
intervention program; or
(iii) in the case of an order requiring performance of community
service—cancel the whole or a number of the unperformed hours of community
service under the order; or
(iv) in the case of an order requiring the completion of an intervention
program—cancel the requirement for the person to complete any completed
part of the program.
(9) However, if the
court is satisfied that a person who has failed to comply with the order
requiring performance of community service or the completion of an intervention
program has the means to pay a fine without the person or the person's
dependants suffering hardship, the court may—
(a) revoke the order; and
(b) impose a fine not exceeding the maximum fine that may be imposed for
the offence in respect of which the order was made (or, if the order was made in
respect of more than 1 offence—the total of the maximum fines that may be
imposed for the offences).
(10) In imposing a fine under
subsection (9)
, the court must take into account (as appropriate)—
(a) the number of hours of community service (if any) that the person
performed under the revoked order; or
(b) the extent (if any) to which the person has participated in the
intervention program in accordance with the revoked order.
(1) In this Part—
civil debt determination—see
section 49(2)
;
Court means the Magistrates Court;
debtor—see
section 49(1)
;
enforcement notice—see
section 51
;
public authority means—
(a) an administrative unit or other agency or instrumentality of the
Crown; or
(b) any incorporated or unincorporated body—
(i) established for a public purpose by an Act; or
(ii) established for a public purpose under an Act (other than an Act
providing for the incorporation of companies or associations, co-operatives,
societies or other voluntary organisations); or
(iii) established or subject to control or direction by the Governor, a
Minister of the Crown or any instrumentality or agency of the Crown (whether or
not established by or under an Act or an enactment); or
(c) a person or body declared by the regulations to be a public authority
for the purposes of this Part,
but does not include a prescribed public authority.
(2) Unless the contrary intention appears, a reference in this Part to a
debt includes a reference to—
(a) the amount outstanding of such a debt or, if a number of debts have
been aggregated, the amount outstanding of the aggregated debts; and
(b) any fees, charges or other amounts which are, in accordance with this
Part, added to and form part of such a debt.
Division 2—Recovery
of civil debt
(1) A public
authority may notify the Chief Recovery Officer, in a form approved by the Chief
Recovery Officer, of a debt owed to the authority by a person (the
debtor).
(2) If the Chief
Recovery Officer receives a notification under
subsection (1)
, the Chief Recovery Officer—
(a) may make a
determination (a civil debt determination) that the debt is owed
by the debtor to the public authority; and
(b) must, if a civil debt determination is made, by notice in
writing—
(i) notify the debtor of the determination; and
(ii) inform the debtor of the Chief Recovery Officer's enforcement powers
under
Division 5
; and
(iii) invite the debtor to contact the Chief Recovery Officer for the
purpose of entering into an arrangement under
section 57
for payment of the debt.
(3) The Chief Recovery Officer may not make a determination under
subsection (2)
if the Court would not have the jurisdiction to hear and determine an
action for a sum of money equal to the amount of the debt claimed by the public
authority.
50—Application
to Court in relation to debt
(1) A debtor who disputes the existence, or the amount, of a debt the
subject of a civil debt determination may, within 1 month after receiving notice
of the determination, apply to the Court for revocation or variation of the
determination.
(2) The public authority to which the debt is owed is the respondent to an
application under this section.
(3) The Court may, on an application under this section, affirm, vary or
revoke the civil debt determination.
(4) A proceeding on an application made to the Court under this section is
a minor statutory proceeding for the purposes of the
Magistrates
Court Act 1991
unless the amount claimed to be owed by the debtor exceeds $12
000.
(1) Subject to
subsection (2)
, the Chief Recovery Officer may exercise a power under
Division 5
in relation to a debtor who has been notified of a civil debt
determination if—
(a) the debtor has not—
(i) made application to the Court for the determination to be varied or
revoked within the time allowed under
section 50
; or
(ii) entered into an arrangement under
section 57
; or
(b) an arrangement under
section 57
has terminated; or
(c) the determination has been confirmed or varied by the Court on an
application under
section 50
.
(2) The Chief Recovery
Officer—
(a) must, before exercising a power under
Division 5
Subdivision 2
—
(i) make a determination that the power is to be exercised; and
(ii) give the debtor written notice of the determination (an
enforcement notice); and
(b) may not exercise the power if the determination is revoked under this
Division.
(3) An enforcement notice must include advice to the debtor of the
debtors' right to request internal review of the determination under
section 52
52—Internal
review of decision to take enforcement action
(1) A debtor who has received an enforcement notice and is aggrieved by
the determination to which the notice relates may apply in a form approved by
the Chief Recovery Officer for review of the determination (an internal
review).
(2) An application for internal review must be made within 30 days after
the day on which the applicant received the enforcement notice, or within such
further period (if any) as the Chief Recovery Officer, either before or after
the end of that period, allows.
(3) The Chief Recovery Officer must, on receiving an application, review
the determination.
(4) The Chief Recovery Officer may make a decision confirming, varying or
revoking the determination.
53—Review
of decision to take enforcement action
(1) A debtor
aggrieved by a decision of the Chief Recovery Officer on an internal review to
confirm or vary a determination may apply to the Court for review of the
decision.
(2) If the Chief
Recovery Officer did not give reasons in writing at the time of making the
decision, the Chief Recovery Officer must do so on request made within
28 days of the making of the decision.
(3) An application under
subsection (1)
must be made—
(a) within 28 days of the making of the decision; or
(b) if a request for reasons in writing is made under
subsection (2)
—within 28 days after receipt of the reasons in writing.
(4) The Court may, in the Court's discretion, extend the time for making
an application under this section even if the time for making the application
has ended.
(5) A proceeding on an application made to the Court under this section is
a minor statutory proceeding for the purposes of the
Magistrates
Court Act 1991
unless the amount of the debt to which the determination confirmed or
varied by the Chief Recovery Officer relates exceeds $12 000.
54—Effect
of review proceedings on decision being reviewed
(1) The commencement of an internal review of a determination under
section 52
or proceedings for a review of a decision by the Court under
section 53
does not affect the operation of the determination to which the review
relates or prevent the taking of action to implement the determination unless an
order is made under
subsection (2)
.
(2) On or after the
commencement of an internal review or proceedings for the review of a decision,
the reviewer may, on application or on the reviewer's own initiative, make an
order staying or varying the operation or the implementation of the whole or a
part of the determination to which the review relates pending the determination
of the matter, or until such time (whether before or after the determination of
the matter) as the reviewer may specify, if the reviewer is satisfied that it is
just and reasonable in the circumstances to make the order.
(3) An order by a reviewer under this section—
(a) is subject to such conditions as are specified in the order;
and
(b) may be varied or revoked by further order of the reviewer or, if the
order was made on an internal review, by further order of the Court.
(4) In this section—
reviewer means—
(a) in the case of an internal review—the person conducting the
review; and
(b) in the case of a review conducted by the Court—the
Court.
Any costs incurred by the Chief Recovery Officer in relation to the
exercise of powers and functions under this Part are added to and form part of
the debt owed by the debtor.
(1) A debt that is the
subject of a civil debt determination under this Part bears interest at the
prescribed rate from the date of the civil debt determination.
(2) In
subsection (1)
, the prescribed rate of interest is the rate prescribed under the rules of
the Magistrates Court for the purposes of section 35(1) of the
Magistrates
Court Act 1991
.
Division 3—Payment
arrangements
57—Voluntary
arrangement as to time and manner of payment
(1) Subject to this
section, a debtor who pays, or who agrees to pay, to the Chief Recovery Officer
the prescribed fee may enter into an arrangement with the Chief Recovery
Officer—
(a) for payment of the debt by instalments over a period determined by the
Chief Recovery Officer (being not more than 12 months from the date on
which the arrangement is entered into); or
(b) for the taking of a charge over land; or
(c) for the surrender of property to the Chief Recovery Officer.
(2) Subject to
subsection (3)
, if the fee prescribed under
subsection (1)
is not paid by the debtor before the debtor enters into the arrangement,
the fee is to be added to, and forms part of, the debt payable by the
debtor.
(3) The Chief
Recovery Officer may, in such circumstances as the Chief Recovery Officer thinks
just, waive payment of the fee prescribed under
subsection (1)
.
(4) An arrangement for payment by instalments referred to in
subsection (1)
must provide for instalments to be paid to the Chief Recovery Officer by
direct debits by or through some other person or agency (eg deductions from an
ADI account or wages).
(5) An arrangement
under this section may be varied by agreement between the debtor and the Chief
Recovery Officer.
(6) If the Chief Recovery Officer is satisfied that a debtor who has
entered into an arrangement under this section has the capacity to pay any
outstanding amount of the debt without the debtor or the debtor's dependants
suffering hardship, the Officer may, by notice in writing given to the debtor,
terminate the arrangement.
(7) For the purposes of entering into, or varying, an arrangement, any
number of debts owed by the debtor that are the subject of a civil debt
determination may be aggregated.
(8) If an
arrangement is entered into or varied under this section, the Chief Recovery
Officer must give notice of the arrangement or varied arrangement (as the case
requires) to the debtor.
(9) If a debtor
fails to comply with an arrangement under this section and the failure has
endured for 28 days, the arrangement terminates.
(10) However, an arrangement that has terminated under
subsection (9)
may, not more than 14 days after the day on which it terminated, be
reinstated by the Chief Recovery Officer.
(11) If an arrangement is reinstated by the Chief Recovery
Officer—
(a) the arrangement as reinstated commences on a day specified by the
Officer; and
(b) the provisions of this section apply to the reinstated arrangement as
if it had not terminated.
Division 4—Investigation
powers
58—Investigation
of debtor's financial position
(1) The Chief
Recovery Officer may, at any time, give written notice to a debtor requiring the
debtor to provide the Chief Recovery Officer with the debtor's personal
details.
(2) If the Chief Recovery Officer has reasonable cause to believe that a
person has knowledge of personal details of a debtor, the Chief Recovery Officer
may give written notice to the person requiring the person to provide the Chief
Recovery Officer with such personal details of the debtor as are known to the
person.
(3) The Chief
Recovery Officer may, for the purposes of determining a debtor's means of
satisfying the debt owed by the debtor, by notice in writing, require the
debtor, or another person who may be able to assist with the investigation, to
appear for examination before the Chief Recovery Officer or to produce documents
relevant to the investigation to the Chief Recovery Officer.
(4) A person who, without reasonable excuse (proof of which lies on the
person), refuses or fails to comply with a requirement under this section is
guilty of an offence.
Maximum penalty: $10 000.
59—Power
to require information
(1) If a public sector agency or a credit reporting body (within the
meaning of the Privacy Act 1988 of the Commonwealth) is in possession of
the contact details of a debtor, the agency or body must, on request from the
Chief Recovery Officer, provide those details to the Chief Recovery
Officer.
(2) A public sector agency must, in accordance with the written request of
the Chief Recovery Officer, produce to the Officer—
(a) documents or other material in the possession of the agency relevant
to an investigation of a debtor's means of satisfying a debt; and
(b) information that would assist the Officer to identify or recognise a
debtor.
(3) This section does not apply to a public sector agency excluded from
the application of this section by the regulations.
60—Aggregation
of debts for the purposes of enforcement
Any number of debts owed by a debtor that are the subject of a civil debt
determination may be aggregated for the purposes of exercising powers under this
Division.
Subdivision 2—Action
requiring formal determination
61—Requirement
for payment of instalments etc
(1) The Chief
Recovery Officer may determine that a debtor is to pay instalments towards the
satisfaction of a debt owed by the debtor.
(2) The amount and regularity of the instalments must be specified in the
relevant enforcement notice.
(3) A debtor who is a natural person can only be required to pay
instalments towards the satisfaction of a debt if—
(a) the Chief Recovery Officer has conducted an investigation into the
debtor's means of satisfying the debt; or
(b) the Chief Recovery Officer is satisfied that there are, in the
circumstances of the case, proper reasons for dispensing with such an
investigation.
(4) In determining whether a debtor who is a natural person should be
required to pay instalments towards the satisfaction of the debt, the Chief
Recovery Officer should have due regard to evidence placed before the Officer as
to—
(a) the debtor's means of satisfying the debt; and
(b) the necessary living expenses of the debtor and the debtor's
dependants; and
(c) other liabilities of the debtor,
and where satisfactory evidence is placed before the Chief Recovery Officer
on those subjects, the Officer should determine the amount and regularity of the
instalments so as to ensure that unreasonable requirements are not imposed on
the debtor.
(5) The Chief Recovery
Officer—
(a) may, on application
by a debtor, rescind, suspend or vary a determination under
subsection (1)
if the Chief Recovery Officer is satisfied that there has been a relevant
change in the debtor's circumstances; and
(b) must give the debtor written notice of the Chief Recovery Officer's
decision on the application.
(6) Written notice of a decision under
subsection (5)
is to be taken to be an enforcement notice for the purposes of this
Part.
(7) If a debtor fails to comply with a determination under
subsection (1)
, the Court may, on application by the Chief Recovery Officer, issue a
summons (which must be served personally) to require the debtor to appear for
examination before the Court.
(8) If a debtor fails to appear as required by the summons, the Court may
issue a warrant to have the debtor arrested and brought before the Court for
examination.
(9) If, after examination of a debtor, the Court is satisfied
that—
(a) the debtor has, without proper excuse, failed to comply with the
determination under
subsection (1)
; and
(b) at least 2 instalments are in arrears,
the Court may commit the debtor to prison for not more than 40
days.
(10) If payment of the debt or all arrears of instalments (as the case
requires) is made, the debtor must be discharged from custody even though the
period of imprisonment has not expired.
(1) The Chief
Recovery Officer may determine that—
(a) money owing or accruing to a debtor from a third person; or
(b) money of a debtor in the hands of a third person (including money in
an ADI account),
is to be attached to satisfy a debt owed by the debtor.
(2) If the Chief
Recovery Officer makes a determination under
subsection (1)
—
(a) the Chief Recovery
Officer must, in addition to giving the debtor an enforcement notice in relation
to the determination, give written notice of the determination to the garnishee;
and
(b) the garnishee may apply in a form approved by the Chief Recovery
Officer for review of the determination (an internal review) (and
section 52
applies to the application as if it had been made under that
section).
(3) Notice to a garnishee under
subsection (2)(a)
must include advice to the garnishee of the garnishee's right to apply for
internal review of the determination.
(4) Despite
section 51
, a determination may come into force before an enforcement notice has been
given to the debtor, and before the garnishee has been notified of the
determination, but in that case the determination will operate to restrain the
garnishee from dealing with money to which the order relates until both the
debtor and the garnishee have had an opportunity to apply for internal review of
the determination.
(5) In deciding whether to make, vary or confirm a determination under
this section affecting money of a natural person, the Chief Recovery Officer
should have due regard to any evidence placed before the Officer as
to—
(a) the debtor's means of satisfying the debt; and
(b) the necessary living expenses of the debtor and the debtor's
dependants; and
(c) other liabilities of the debtor.
(6) A determination under this section may authorise the garnishee to
retain from the money subject to the attachment a reasonable sum, fixed by the
written determination, as compensation for the garnishee's expenses in complying
with the determination.
(7) A determination cannot be made under
subsection (1)
in respect of salary or wages unless the debtor consents to the making of
the determination but, once that consent has been given, the extent to which the
salary or wages are attached is in the discretion of the Chief Recovery
Officer.
(8) The Chief
Recovery Officer—
(a) may, on
application by a debtor, rescind, suspend or vary a determination under
subsection (1)
if the Chief Recovery Officer is satisfied that there has been a relevant
change in the debtor's circumstances; and
(b) must give the
debtor and the garnishee written notice of the Chief Recovery Officer's decision
on the application.
(9) Written notice of a decision under
subsection (8)
is to be taken to be an enforcement notice for the purposes of this
Part.
(10) If the Chief Recovery Officer decides under
subsection (8)
to vary a determination under
subsection (1)
, the garnishee may apply for review of the decision (an internal
review) (and
section 52
applies to the application as if it had been made under that
section).
(11) Notice to a garnishee under
subsection (8)(b)
must include advice to the garnishee of the garnishee's right to apply for
internal review of the determination.
(12) A garnishee must comply with a determination under this
section.
Maximum penalty: $10 000.
(13) If the garnishee does not comply with a determination under this
section, the garnishee becomes personally liable for payment to the Chief
Recovery Officer of the amount subject to attachment.
(14) If, because a determination has been made under this section in
relation to an employee, the employer—
(a) dismisses the employee; or
(b) injures the employee in employment; or
(c) alters the employee's position to the employee's prejudice,
the employer is guilty of an offence.
Maximum penalty: $10 000.
(15) A reference in this section to a third person includes
the Crown or any person or body holding money on behalf of the Crown.
(1) The Chief Recovery
Officer may determine to sell the land or personal property of a debtor to
satisfy the debt owed by the debtor.
(2) A determination may not be made under
subsection (1)
in relation to personal property that could not be taken in bankruptcy
proceedings against the debtor.
(3) The Chief Recovery Officer may, pursuant to a determination under this
section—
(a) enter the land (using such force as may be necessary for the purpose)
on which property to which the determination relates, or documents evidencing
title to such property, are situated; and
(b) seize and remove any such property or documents; and
(c) place and keep any such property or documents in safe custody until
completion of the sale; and
(d) sell any property to which the determination relates (whether or not
the Chief Recovery Officer has first taken steps to obtain possession of the
property).
(4) If the determination provides for the sale of land, the Chief Recovery
Officer may eject from the land any person who is not lawfully entitled to be on
the land.
(5) The Chief Recovery Officer may, in appropriate cases, leave a debtor
in possession of property until it is sold in accordance with the
determination.
(6) The sale of real property or tangible personal property will be by
public auction (but if no bid that the Chief Recovery Officer considers
acceptable is made at auction, the Chief Recovery Officer may proceed to sell
the property by private treaty for a price not less than the highest
bid).
(7) If there is a reasonable possibility of satisfying the debt out of
personal property, the Chief Recovery Officer should sell personal property
before proceeding to sell real property.
(8) If any part of the debtor's property consists of intangible property,
the Chief Recovery Officer may sign any transfer or do anything else necessary
to convert that property into money.
(9) If property of the debtor seized under the determination consists of a
bank note or other money, the Chief Recovery Officer must, unless it has a value
greater than its face value, retain it in full or partial satisfaction of the
debt.
(10) The purchaser of property sold by authority of the Chief Recovery
Officer under this section acquires a good title to the property subject only to
registered interests and interests of which public notice has been given
pursuant to statute.
(11) If, before the date of sale of property, a person claims to have an
unregistered interest in the property, and gives notice of the claim to the
Chief Recovery Officer, the Chief Recovery Officer must, if the claim is not
disputed—
(a) pay the claimant out of the proceeds of the sale of the property a sum
sufficient to satisfy the claim; or
(b) where appropriate to do so, withdraw the property from sale and give
possession of it to that person.
(1) The Chief Recovery
Officer may determine that real property of a debtor is to be charged with the
debt owed by the debtor or part of the debt.
(2) If the Chief
Recovery Officer makes a determination under
subsection (1)
, the Chief Recovery Officer may apply to the Registrar-General in the form
determined by the Registrar-General to register a charge over land owned
(whether solely or as a co-owner) by the debtor for the amount of the debt or
part of the debt.
(3) On receipt of
an application under
subsection (2)
, the Registrar-General must enter an appropriate note in the Register Book
and, when that entry is made, a charge is created over the land in favour of the
Chief Recovery Officer on behalf of the public authority to whom the debt is
owed by the debtor.
(4) The effect of
the charge is as follows:
(a) the
Registrar-General must not, after entry of the note under
subsection (3)
, register an instrument affecting the land over which the charge exists
unless—
(A) was executed before the entry was made; or
(B) has been executed under or pursuant to an agreement entered into
before the entry was made; or
(C) relates to an instrument registered before the entry was made;
or
(ii) the instrument
is an instrument of a prescribed class; or
(iii) the instrument is expressed to be subject to the operation of the
charge; or
(iv) the instrument
is a duly stamped conveyance that results from the exercise of a power of sale
under a mortgage, charge or encumbrance registered before the entry was
made;
(b) the Chief Recovery Officer (on behalf of the relevant public
authority) has the same powers in respect of the land over which the charge
exists as are given by the
Real
Property Act 1886
to a mortgagee under a mortgage in respect of which default has been made
in payment of money secured by the mortgage (and sections 132 to 135 (inclusive)
and 136 of that Act apply accordingly as if the Officer were the mortgagee and
the debtor were the mortgagor).
(5) An instrument registered under
subsection (4)(a)(i)
or
(ii)
has effect, in relation to the charge, as if it had been registered before
the entry was made.
(6) If an instrument is registered under
subsection (4)(a)(iv)
, the charge will be taken to be cancelled by the registration of the
instrument and the Registrar-General must take whatever action the
Registrar-General considers appropriate to give effect to the
cancellation.
(7) The Chief Recovery Officer will apply to the Registrar-General, in the
form determined by the Registrar-General, to have the registration of a charge
under this section cancelled—
(a) on the debt owed by the debtor being fully satisfied; or
(b) if the Chief Recovery Officer considers, in the circumstances of the
particular case, that it is just to do so,
(and the Registrar-General must then cancel the relevant entry).
(8) Any fees incurred in relation to registration (or cancellation of
registration) under this section are added to and form part of the debt owed by
the debtor.
(9) A person must, in accordance with the written request of the Chief
Recovery Officer, produce to the Officer documents or other material in the
possession of the person relating to the title of a debtor to real property
owned by the debtor.
Maximum penalty: $10 000.
(1) The Chief
Recovery Officer may determine that property of a debtor is to be charged with
the debt owed by the debtor or part of the debt.
(2) If the Chief Recovery Officer determines under
subsection (1)
to charge property of a debtor, the Chief Recovery Officer
may—
(a) do anything necessary to ensure that the charge is registered;
or
(b) make any necessary consequential determination (which will have effect
according to its terms) prohibiting or restricting dealings with the property
subject to the charge; or
(c) take any other action authorised by regulations made for the purposes
of this section.
Subdivision 3—Appointment
of receiver
(1) The Court may, on application by the Chief Recovery Officer, appoint a
receiver for the purpose of recovering a debt.
(2) A receiver may be appointed even though no other proceedings have been
taken for recovery of the debt.
(3) If a receiver is appointed, the Court may make orders—
(a) conferring on the receiver powers—
(i) to take charge of property of the debtor; or
(ii) to dispose of property of the debtor; or
(iii) to divert income (other than income from employment or a pension)
towards satisfaction of the debt; or
(iv) to take charge of, and carry on, a business of the debtor and apply
proceeds from the business towards satisfaction of the debt; or
(v) to do anything reasonably necessary for, incidental to, or
consequential on, the above; or
(b) providing for accounts to be rendered by the receiver; or
(c) providing for the remuneration of the receiver; or
(d) relating to any other incidental or consequential matter.
(4) A receiver's powers operate to the exclusion of the debtor's
powers.
(1) The Minister may appoint persons (including members of the staff of
the State Courts Administration Authority and persons appointed by the Sheriff
to be deputy sheriffs or sheriff's officers) as authorised officers for the
purposes of the enforcement of this Act.
(2) An appointment under this section may be made subject to conditions
limiting the powers exercisable by the authorised officer.
(3) The Minister
may, by notice in writing served on an authorised officer—
(a) vary or revoke a condition of the officer's appointment or impose a
new condition; or
(b) revoke the appointment.
68—Identification
of authorised officers
(1) An authorised officer must be issued with an identity card in a form
approved by the Minister—
(a) containing the person's name and photograph; and
(b) stating that the person is an authorised officer appointed under this
Act.
(2) If the powers of an authorised officer have been limited by
conditions, the identity card must contain a statement of those
limitations.
(3) An authorised officer must, at the request of a person in relation to
whom the officer intends to exercise any powers under this Act or any other Act,
produce the officer's identity card for inspection by the person.
(4) A person appointed as an authorised officer by the Minister must,
within 2 days after ceasing to be an authorised officer, return the
identity card to the Minister.
Maximum penalty: $250.
69—Hindering
authorised officer or assistant
A person must not hinder an authorised officer, or a person assisting an
authorised officer, in the exercise of powers under this Act.
Maximum penalty: $2 500 or 6 months imprisonment.
70—Minister
may declare amnesty from payment of costs, fees and charges
(1) The Minister
may from time to time declare an amnesty from the payment of the whole or any
part of 1 or more of the following:
(a) costs, fees and other charges under this Act;
(b) costs, fees and other charges under Part 9 Division 3 of the repealed
Criminal
Law (Sentencing) Act 1988
(including costs and fees under Part 9 Division 3 of the Act as in force
immediately before the commencement of section 11 of the
Statutes
Amendment (Fines Enforcement and Recovery) Act 2013
).
(2) An amnesty—
(a) must be declared by notice in the Gazette; and
(b) applies—
(i) in relation to a debtor, or a class of debtors; and
(ii) to the extent,
specified in the notice; and
(c) is subject to the terms and conditions (if any) set out in the
notice.
(3) The Minister may vary or revoke the declaration of an amnesty under
subsection (1)
by notice in the Gazette.
71—Power
of delegation—intervention program manager
(1) An intervention program manager may, by instrument in writing,
delegate a power or function under this Act—
(a) to a particular person; or
(b) to the person for the time being occupying a particular position.
(2) A power or function so delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act in a matter;
and
(c) is revocable at will.
(1) No civil
liability is incurred by the Crown, the Chief Recovery Officer or a public
sector employee (within the meaning of the
Public
Sector Act 2009
) in respect of the exercise, or purported exercise, of powers or functions
under this Act.
(2) A person—
(a) to whom powers or functions under this Act are delegated by the Chief
Recovery Officer; and
(b) who is not a public sector employee within the meaning of the
Public
Sector Act 2009
,
does not incur any civil liability in respect of the exercise, or purported
exercise, in good faith of those powers or functions.
73—Chief
Recovery Officer may be assisted by others
The Chief Recovery Officer or an authorised officer may, in the exercise of
powers or functions under this Act, be assisted by such other persons (including
a police officer) as the Chief Recovery Officer or authorised officer considers
necessary in the circumstances.
If the Chief Recovery Officer is required under this Act to give notice of
an arrangement or determination to a person, the notice must—
(a) be in writing; and
(b) specify reasons for the arrangement or determination.
(1) A notice, determination or other document required or authorised to be
given or served under this Act may be given or served personally, by post or by
transmitting it by email to an email address provided by the intended recipient
to the Chief Recovery Officer (in which case the notice, determination or
document will be taken to have been given or served at the time of
transmission).
(2) If the Chief Recovery Officer—
(a) is required under a provision of this Act to give to or serve on a
person a notice, determination or other document; and
(b) is satisfied that—
(i) reasonable steps have been taken to locate the person; and
(ii) the whereabouts of the person cannot be ascertained,
the following provisions apply:
(c) subject to
paragraph (d)
, the Chief Recovery Officer must instead publish details of the notice,
determination or other document on a website determined by the Chief Recovery
Officer (and on publishing such details the Chief Recovery Officer will, for the
purposes of this Act, be taken to have given the person, or served the person
with, the notice, determination or document);
(d) if the person
is a youth, is subject to a suppression order or is a protected person, the
requirement to give the person, or serve the person with, the notice,
determination or other document does not apply but—
(i) the Chief Recovery Officer may cause details of the notice,
determination or other document to be provided to the person by any other means
reasonably available that do not involve public disclosure of the name of the
person; and
(ii) on providing such details the Chief Recovery Officer will, for the
purposes of this Act, be taken to have given the person, or served the person
with, the notice, determination or document.
(1) The Governor
may make such regulations as are contemplated by this Act, or as are necessary
or expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may—
(a) prescribe, or provide for the calculation of, any costs, fees or
charges for the purposes of this Act; or
(b) exempt any person or class of persons from the obligation to pay
costs, fees or charges so prescribed; or
(c) prescribe penalties, not exceeding $5 000, for breach of, or
non-compliance with, a regulation.
(3) The regulations may—
(a) be of general or limited application; and
(b) make different provision according to the persons, things or
circumstances to which they are expressed to apply; and
(c) provide that a specified provision of this Act does not apply, or
applies with prescribed variations, to any person, circumstance or situation (or
person, circumstance or situation of a prescribed class) specified by the
regulations, subject to any condition to which the regulations are expressed to
be subject; and
(d) provide that any matter or thing is to be determined, dispensed with,
regulated or prohibited according to the discretion of the Minister, the Chief
Recovery Officer or another prescribed person.
(4) The regulations may
make provisions of a savings or transitional nature consequent on the
commencement of any provisions of this Act (including provisions of a
transitional nature modifying any provisions of this Act).
Schedule 1—Related
amendments and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Cross-border Justice
Act 2009
2—Amendment
of section 7—Interpretation
Section 7(1), definition of non-custodial order,
(a)(iii)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
3—Amendment
of section 68—Proceedings that may be heard in another participating
jurisdiction
Section 68(2)(d)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
4—Amendment
of section 120—Terms used in this Part
Section 120, definition of Fines Director—delete "Fines
Enforcement and Recovery Officer under the
Criminal
Law (Sentencing) Act 1988
" and substitute:
Chief Recovery Officer under the
Fines
Enforcement and Debt Recovery Act 2017
5—Amendment
of section 121—Request to enforce fine in another participating
jurisdiction
Section 121(1)—delete "Part 9 Division 3 of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
the
Fines
Enforcement and Debt Recovery Act 2017
6—Amendment
of section 122—Effect of making request
Section 122—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Fines
Enforcement and Debt Recovery Act 2017
7—Amendment
of section 125—Resumption of enforcement by Fines
Director
Section 125—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Fines
Enforcement and Debt Recovery Act 2017
8—Amendment
of section 127—Effect of registration
Section 127—delete "Part 9 Division 3 of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
the
Fines
Enforcement and Debt Recovery Act 2017
9—Amendment
of section 129—Receipt of money by Fines Director
Section 129(b)—delete "
Criminal
Law (Sentencing) Act 1988
" and substitute:
Fines
Enforcement and Debt Recovery Act 2017
10—Amendment
of section 130—Request to cease enforcement of fine
Section 130(2)(a) and (c)—delete "
Criminal
Law (Sentencing) Act 1988
" wherever occurring and substitute in each case:
Fines
Enforcement and Debt Recovery Act 2017
Part 3—Amendment of Expiation of Offences
Act 1996
11—Amendment
of section 4—Interpretation
(1) Section 4(1)—before the definition of child
insert:
Chief Recovery Officer means the Chief Recovery Officer under
the
Fines
Enforcement and Debt Recovery Act 2017
;
(2) Section 4(1), definition of expiation
period—delete "section 9" and substitute:
section 20 of the
Fines
Enforcement and Debt Recovery Act 2017
(3) Section 4(1), definition of Fines Enforcement and Recovery
Officer—delete the definition
(4) Section 4(1), definition of protected
person—delete the definition
(5) Section 4(3)—after "this Act" insert:
or the
Fines
Enforcement and Debt Recovery Act 2017
12—Amendment
of section 8—Alleged offender may elect to be prosecuted
etc
(1) Section 8(2)(a)—delete "section 9" and substitute:
section 20 of the
Fines
Enforcement and Debt Recovery Act 2017
(2) Section 8(2)(b)—delete "section 13" and substitute:
section 22 of the
Fines
Enforcement and Debt Recovery Act 2017
(3) Section 8—after subsection (2) insert:
(2a) However, if an enforcement determination made under section 22 of the
Fines
Enforcement and Debt Recovery Act 2017
is revoked on the ground that the alleged offender had not had a
reasonable opportunity to elect under this section to be prosecuted for an
offence to which the expiation notice relates, an election to be prosecuted for
the offence may be made within 14 days of the alleged offender being notified of
the revocation.
13—Amendment
of section 8A—Review of notices on ground that offence is
trifling
(1) Section 8A(6)(b)—delete "section 9" and substitute:
section 20 of the
Fines
Enforcement and Debt Recovery Act 2017
(2) Section 8A(6)(c)—delete "section 13" and substitute:
section 22 of the
Fines
Enforcement and Debt Recovery Act 2017
(3) Section 8A—after subsection (6) insert:
(6a) However, if an enforcement determination made under section 22 of the
Fines
Enforcement and Debt Recovery Act 2017
is revoked on the ground that the alleged offender had not had a
reasonable opportunity to apply for review of the notice under this section, and
the alleged offender makes an application under this section within 14 days of
being notified of the revocation, the expiation notice may be withdrawn under
this section.
Section 9—delete the section
15—Amendment
of section 11—Expiation reminder notices
(1) Section 11(1)—delete "section 9" and substitute:
section 20 of the
Fines
Enforcement and Debt Recovery Act 2017
(2) Section 11(1)—delete "send" and substitute:
give
(3) Section 11(1)—delete "by post"
16—Amendment
of section 11A—Expiation enforcement warning notices
(1) Section 11A(1)—delete "send" and substitute:
give
(2) Section 11A(1)—delete "by post"
17—Amendment
of section 12—Late payment
Section 12—delete "section 13" and substitute:
section 22 of the
Fines
Enforcement and Debt Recovery Act 2017
18—Repeal
of sections 13 to 14B
Sections 13 to 14B (inclusive)—delete the sections
19—Amendment
of section 16—Withdrawal of expiation notices
(1) Section 16(1)—after paragraph (ac) insert:
(ad) the authority is of the opinion that the alleged offender is
suffering from a cognitive impairment; or
(2) Section 16(6)—after "postal system" insert:
or failure in the transmission of an email
(3) Section 16(11)(a)—delete "section 13, inform the Fines
Enforcement and Recovery Officer" and substitute:
section 22 of the
Fines
Enforcement and Debt Recovery Act 2017
, inform the Chief Recovery Officer
(4) Section 16(11)(b)—delete "section 61 of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
section 9 of the
Fines
Enforcement and Debt Recovery Act 2017
(5) Section 16(11)(ba)—delete "this Act" and substitute:
the
Fines
Enforcement and Debt Recovery Act 2017
(6) Section 16(11a)(a)—delete "section 9" and substitute:
section 20 of the
Fines
Enforcement and Debt Recovery Act 2017
(7) Section 16(11a)(a)—delete "section 9(14)" and
substitute:
section 20(21) of that Act
(8) Section 16(11a)(b)—delete "section 13" and substitute:
section 22 of the
Fines
Enforcement and Debt Recovery Act 2017
(9) Section 16(11a)(b)—delete "section 13(3)" and
substitute:
section 22(4) of that Act
(10) Section 16—after subsection (13) insert:
(14) In this section—
cognitive impairment includes the following:
(a) a developmental disability (including, for example, an intellectual
disability, Down syndrome, cerebral palsy or an autistic spectrum
disorder);
(b) an acquired disability as a result of illness or injury (including,
for example, dementia, a traumatic brain injury or a neurological
disorder);
(c) a mental illness.
20—Amendment
of section 18—Provision of information
Section 18(1)—delete "Fines Enforcement and Recovery Officer"
wherever occurring and substitute in each case:
Chief Recovery Officer
21—Repeal
of sections 18B to 18E
Sections 18B to 18E (inclusive)—delete the sections
After section 19 insert:
19A—Service
Subject to this Act, a notice, determination or other document required or
authorised to be given or served under this Act may be given or served
personally, by post or by transmitting it by email to an email address provided
by the intended recipient (in which case the notice, determination or document
will be taken to have been given or served at the time of
transmission).
23—Amendment
of section 20—Regulations
Section 20(3)(d)—delete "Fines Enforcement and Recovery Officer"
wherever occurring and substitute:
Chief Recovery Officer
Part 4—Amendment of Magistrates Court
Act 1991
24—Amendment
of section 7A—Constitution of Court
Section 7A(2)(ba)—delete "section 14 of the
Expiation
of Offences Act 1996
" and substitute:
section 23 of the
Fines
Enforcement and Debt Recovery Act 2017
25—Amendment
of section 9A—Petty Sessions Division
Section 9A(1)(c)—delete "section 14 of the
Expiation
of Offences Act 1996
" and substitute:
section 23 of the
Fines
Enforcement and Debt Recovery Act 2017
Part 5—Amendment of Motor Vehicles
Act 1959
After section 61 insert:
61A—Removal of number plates by Chief Recovery
Officer
If the Chief Recovery Officer forwards to the Registrar number plates that
have been seized from a vehicle under section 43 of the
Fines
Enforcement and Debt Recovery Act 2017
, the Registrar—
(a) may cancel the registration of the vehicle; and
(b) must, after cancelling the registration, make any refund of the
registration fee, or a part of the registration fee, to the Chief Recovery
Officer required under the regulations.
27—Amendment
of section 93—Notice to be given to Registrar
(1) Section 93(3a)—delete "Fines Enforcement and Recovery Officer"
and substitute:
Chief Recovery Officer
(2) Section 93(3c)—delete "
Expiation
of Offences Act 1996
" and substitute:
Fines
Enforcement and Debt Recovery Act 2017
(3) Section 93(3c)(b)—delete "Fines Enforcement and Recovery
Officer" and substitute:
Chief Recovery Officer
28—Amendment
of section 97A—Visiting motorists
Section 97A—after subsection (2b) insert:
(2c) If the Chief Recovery Officer determines under section 40 of the
Fines
Enforcement and Debt Recovery Act 2017
that the operation of this section is suspended insofar as it applies to a
specified person, subsection (1) does not apply to the person while the
determination is in force.
29—Amendment
of section 139D—Confidentiality
Section 139D(1)(ea)—delete "Part 9 Division 3 of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
the
Fines
Enforcement and Debt Recovery Act 2017
Part 6—Amendment of Summary Procedure
Act 1921
30—Amendment
of section 52—Limitation on time in which proceedings may be
commenced
Section 52(2)(b)—after "postal system" insert:
or failure in the transmission of an email
Part 7—Amendment of Victims of Crime
Act 2001
31—Amendment
of section 28—Right of Attorney-General to recover money paid out from
offender etc
(1) Section 28(7)—delete "Fines Enforcement and Recovery Officer"
wherever occurring and substitute in each case:
Chief Recovery Officer
(2) Section 28(7)—delete "
Expiation
of Offences Act 1996
" and substitute:
Fines
Enforcement and Debt Recovery Act 2017
(3) Section 28(8)—delete "Fines Enforcement and Recovery Officer"
and substitute:
Chief Recovery Officer
(4) Section 28(8)(a)—delete "section 9 of the
Expiation
of Offences Act 1996
" and substitute:
section 20 of the
Fines
Enforcement and Debt Recovery Act 2017
(5) Section 28(8)(b)—delete "section 14A" and substitute:
section 26
(6) Section 28(9)—delete "Section 14B of the
Expiation
of Offences Act 1996
" and substitute:
Section 26 of the
Fines
Enforcement and Debt Recovery Act 2017
(7) Section 28(10)—delete "Section 61 of the
Criminal
Law (Sentencing) Act 1988
" and substitute:
Section 9 of the
Fines
Enforcement and Debt Recovery Act 2017
32—Amendment
of section 32—Imposition of levy
Section 32—after subsection (7) insert:
(8) Despite subsection (2), the Chief Recovery Officer or an issuing
authority (within the meaning of the
Expiation
of Offences Act 1996
) may recover a levy before it becomes payable under this
section.
Part 8—Transitional
provisions
(1) Subject to this
clause and to any regulations made under
section 76(4)
—
(a)
Part 7
applies in relation to enforcement of a pecuniary sum or expiation notice
regardless of whether the liability to pay the pecuniary sum or expiation amount
arose before or after the commencement day; and
(b)
section 9
applies to an expiation amount regardless of whether the liability to pay
the expiation amount arose before or after the commencement day; and
(c) this Act applies in relation to an expiation notice whether given
before or after the commencement day.
(2) A request for the making of an aggregation determination made under
section 61 of the
Criminal
Law (Sentencing) Act 1988
before the commencement day will, if it has not been determined before
that day, be taken to have been made under
section 9
of this Act.
(3) If, immediately before the commencement day, a debtor is subject to,
or taken to be subject to, an arrangement with the Fines Enforcement and
Recovery Officer under section 70 of the
Criminal
Law (Sentencing) Act 1988
, the arrangement continues as if it were an arrangement with the Chief
Recovery Officer under
section 15
of this Act (but such an arrangement is, despite the provisions of
section 15
, to have effect according to its terms).
(4) Proceedings in respect of an application commenced by the Fines
Enforcement and Recovery Officer under section 70U of the
Criminal
Law (Sentencing) Act 1988
that are not finally determined before the commencement day will continue
from that day as if the application had been made by the Chief Recovery Officer
under
section 46
of this Act.
(5) A community service order made by the Court under section 70U of the
Criminal
Law (Sentencing) Act 1988
that is in force immediately before the commencement day will continue to
operate on and from the commencement day as if the order were a community
service order made by the Court under
section 46
of this Act.
(6) If, immediately before the commencement day, an alleged offender is
subject to an arrangement with the Fines Enforcement and Recovery Officer under
section 9 of the
Expiation
of Offences Act 1996
, the arrangement continues as if it were an arrangement with the Chief
Recovery Officer under
section 20
of this Act (but such an arrangement is, despite the provisions of
section 20
, to have effect according to its terms).
(7) If, immediately before the commencement day, an enforcement
determination is in force under section 13 of the
Expiation
of Offences Act 1996
in relation to an expiation notice, the determination will continue to
operate as if it were an enforcement determination made by the Chief Recovery
Officer under
section 22
of this Act.
(8) An application made under section 13(4)(b) of the
Expiation
of Offences Act 1996
as in force immediately before the commencement day that has not been
finally determined before that day will, if it was made within 30 days of notice
of the enforcement determination to which it relates being given, sent or
published, be taken to have been made under
section 22(5)(b)(i)
of this Act.
(9) A charge on land imposed under section 70G of the
Criminal
Law (Sentencing) Act 1988
as in force before the commencement day continues as if it were a charge
on land imposed under
section 33
of this Act on or after the commencement day.
(10) If the Fines Enforcement and Recovery Officer has, before the
commencement day, issued a notice, made a request or required a person to do
something under a provision of the
Expiation
of Offences Act 1996
or Part 9 Division 3 of the
Criminal
Law (Sentencing) Act 1988
, and the notice, request or requirement has not been complied with before
the commencement day, the notice will be taken to have been issued, or the
request or requirement will be taken to have been made, under the corresponding
provision of this Act.
(11) If the Fines Enforcement and Recovery Officer has, before the
commencement day, exercised a power under a provision of Part 9 Division 3
Subdivision 4 of the
Criminal
Law (Sentencing) Act 1988
in connection with enforcement action against a debtor or alleged
offender, and the enforcement action has not concluded before that
day—
(a) the power will be taken to have been exercised under the corresponding
provision of Part 7 of this Act; and
(b) a written determination of the Fines Enforcement and Recovery Officer
made under a provision of the
Criminal
Law (Sentencing) Act 1988
in connection with the exercise of the power will be taken to be a
determination made by the Chief Recovery Officer under the corresponding
provision of this Act; and
(c) any other action taken by the Fines Enforcement and Recovery Officer
under a provision of the
Criminal
Law (Sentencing) Act 1988
in connection with the exercise of the power will be taken to have been
done under the corresponding provision of this Act.
(12) Without
derogating from any powers or functions that may be exercised in accordance with
subclause (1)
, a relevant order continues in operation after the commencement
day.
(13) Part 9
Division 3 of the
Criminal
Law (Sentencing) Act 1988
as in force before the commencement of the
Statutes
Amendment (Fines Enforcement and Recovery) Act 2013
(other than Subdivision 7) continues to apply in relation to a
relevant order continued in operation under
subclause (12)
as if references in that Division to the Manager, the Registrar or an
authorised officer were references to the Chief Recovery Officer.
(14) However, the
Chief Recovery Officer may, with the consent of the relevant debtor, revoke a
relevant order continued in operation under
subclause (12)
.
(15) Despite
section 26
, no amount is payable under that section in relation to an amount that is
taken to be a pecuniary sum imposed by order of a court by virtue of the making
of an enforcement order under section 13 of the
Expiation
of Offences Act 1996
before the commencement of section 26 of the
Statutes
Amendment (Fines Enforcement and Recovery) Act 2013
.
(16) A person who holds office as an authorised officer under section 56A
of the
Criminal
Law (Sentencing) Act 1988
immediately before the commencement day will be taken to have been
appointed as an authorised officer under
section 67
(and any conditions to which the appointment is subject under section 56A
of the
Criminal
Law (Sentencing) Act 1988
will, subject to
section 67(3)
, continue to apply to the appointment).
(17) In this clause—
commencement day means the day on which this clause comes
into operation;
relevant order means a penalty enforcement order (and any
warrant or order issued in relation to the penalty enforcement order) made under
Part 9 Division 3 of the
Criminal
Law (Sentencing) Act 1988
as in force before the commencement Part 4 of the
Statutes
Amendment (Fines Enforcement and Recovery) Act 2013
.