Senate

Crimes Legislation Amendment (Powers and Offences) Bill 2011

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, The Honourable Nicola Roxon MP)

Schedule 8 - Enforcement of fines

The Commonwealth does not have a fine enforcement agency and relies on State and Territory agencies to enforce Commonwealth fines on its behalf.

Currently, section 15A of the Crimes Act limits the actions that States and Territories can take on behalf of the Commonwealth. In particular, State and Territory fine enforcement agencies cannot take certain types of enforcement action for fine default unless they first obtain a court order.

The amendments will empower State and Territory fine enforcement agencies to enforce Commonwealth fines through non-judicial enforcement actions (for example: garnishment of a debt, wage or salary; a charge or caveat on property; seizure or forfeiture of property; and voluntary community service orders) without first obtaining a court order. However, State and Territory fine enforcement agencies would still be required to apply to a court of summary jurisdiction for an order imposing a judicial penalty (for example, compulsory community service, detention or imprisonment) on a person who has failed to pay a Commonwealth fine.

The amendments will also confer retrospective authority on persons who previously enforced Commonwealth fines through non-judicial enforcement actions without a court order.

Further, the amendments will make it clear that State and Territory fine enforcement agencies are not required to go back to court before proceeding to enforce a self-executing court order (regardless of whether the penalty imposed in the original court order was a judicial or non-judicial penalty).

Crimes Act 1914

Item 1 - Paragraph 15A(1)(b)

Subsection 15A(1) of the Crimes Act deals with the application of a law of a State or Territory in relation to the enforcement of a Commonwealth fine. It essentially allows State or Territory laws to be applied to enforce fines against federal offenders in the same way they are applied in relation to State or Territory offenders.

However, paragraph 15A(1)(a) of the Crimes Act provides that State and Territory laws apply only to the extent that they are consistent with Commonwealth laws. In addition, existing paragraph 15A(1)(b) of the Crimes Act provides that State and Territory laws apply subject to the modifications made by other provisions in section 15A.

Item 1 amends existing paragraph 15A(1)(b) of the Crimes Act to provide that subsection 15A(1) applies subject to the modifications (if any) made by other provisions in section 15A. This is because, in many cases, the general rule that State and Territory laws apply to the enforcement of fines against federal offenders will apply without any modifications made by other provisions in section 15A.

Item 2 - Paragraphs 15A(1AB)(a), (b), (c) and (d)

Subsection 15A(1AA) qualifies the general application of subsection 15A(1) by prescribing various types of orders that may only be made by a court, notwithstanding that the laws of a State or Territory generally allow these types of orders (insofar as they relate to State or Territory offenders) to be made by a body other than a court. In these cases, paragraph 15(1AA)(a) provides that 'any person' may apply to a court of summary jurisdiction in the State or Territory for an order imposing the penalty.

Subsection 15A(1AB) provides that subsection 15A(1AA) applies in relation to the penalties set out in paragraphs (a) to (g) - that is, garnishment of a debt, wage or salary; a charge or caveat on property; seizure of property; forfeiture of property; community service; detention or imprisonment; a penalty that is similar to any of the preceding penalties; and a penalty prescribed by the regulations.

Item 2 repeals paragraphs 15A(1AB)(a), (b), (c) and (d). This means that the general rule in subsection 15A(1) applies in relation to these fine enforcement actions. That is, State or Territory laws can be applied to enforce fines against federal offenders in the same way they are applied in relation to State or Territory offenders, in relation to fine enforcement by way of garnishment of a debt, wage or salary; a charge or caveat on property; seizure of property; or forfeiture of property. In particular, there will be no requirement under the Crimes Act that these types of penalties can only be enforced by way of a court order.

Item 2 does not have any effect on other fine enforcement options that are already available to State and Territory fine enforcement agencies as a penalty for non-payment of a fine - for example, administrative penalties such as suspension of a fine defaulter's driver's licence.

Item 2 also has no effect on other fine enforcement options that are already offered by State and Territory fine enforcement agencies as an alternative to paying a fine rather than a penalty for failure to pay a fine - for example, if a fine defaulter applies for, or consents to, voluntary community service as an alternative to paying the fine.

Item 3 - Paragraph 15A(1AB)(g)

Existing paragraph 15A(1AB)(g) of the Crimes Act provides that subsection 15A(1AA) applies in relation to penalties that are similar to penalties described in paragraphs (a), (b), (c), (d), (e) or (f) - that is, garnishment of a debt, wage or salary; a charge or caveat on property; seizure of property; forfeiture of property; community service; or detention or imprisonment.

Item 3 amends paragraph 15A(1AB)(g) as a consequence of the amendments repealing paragraphs 15A(1AB)(a), (b), (c) and (d) in Item 2 above. Item 3 omits (a), (b), (c) and (d) from paragraph 15A(1AB)(g).

This means that the general rule in subsection 15A(1) applies in relation to fine enforcement actions that are similar to garnishment of a debt, wage or salary; a charge or caveat on property; seizure of property; or forfeiture of property. That is, State or Territory laws can be applied to enforce fines against federal offenders in the same way they are applied to State or Territory offenders, in relation to fine enforcement by way of actions that are similar to garnishment of a debt, wage or salary; a charge or caveat on property; seizure of property; or forfeiture of property. In particular, there will be no requirement under the Crimes Act that these types of penalties can only be enforced by way of a court order.

Item 4 - Before subsection 15A(1AD)

Item 4 inserts a new subsection 15A(1ACB) into the Act. New subsection 15A(1ACB) clarifies that if a court makes an order imposing a penalty for failure to pay a fine, whether or not that penalty is described in subsection 15A(1AB), then a person or authority other than a court may take action to enforce the penalty without making a further application to a court under paragraph 15A(1AA)(a).

This amendment is intended to apply where a court imposes a fine on a federal offender, but at the same time makes an order that another penalty be imposed on the offender if arrangements have not been made to pay the fine by a certain date. For example, a court may impose a fine on a federal offender, but at the same time order that the offender be imprisoned for a period of time if he or she does not pay the fine. In these circumstances, the amendment will mean that State or Territory laws can be applied to enforce the alternative penalty against federal offenders, in the manner set out in the court order, without having to return to court for a further order, even if the alternative penalty imposed is set out in subsection 15A(1AB).

Item 5 - Application

Item 5 determines the way that the amendment made by Item 4 applies. The amendment in Item 4 will apply to a court order, which imposes a penalty for failure to pay a fine, regardless of whether the order was made before, on or after the commencement of this item.

This retrospective application is considered necessary because the amendment made by Item 4 merely clarifies the operation of the existing law, and does not modify any person's accrued rights under the law.

Item 6 - Pending applications to court

Item 6 applies to applications made to a court under paragraph 15A(1AA)(a) of the Act before commencement of this item, where the application was seeking to impose a penalty described in paragraphs 15A(1AB)(a), (b), (c) or (d) or paragraph 15A(1AB)(g), insofar as that paragraph relates to paragraphs 15A(1AB)(a), (b), (c) and (d) - that is, penalties that are garnishment of a debt, wage or salary; a charge or caveat on property; seizure of property; forfeiture of property; or similar penalties.

Item 6 provides that if the court has not made an order in relation to such an application at the time Item 7 commences, then the application is taken to have been withdrawn.

This amendment, in conjunction with the amendments in Items 2 and 3, will mean that no application for a court order that is on foot but undecided at the time of commencement (for penalties that that are garnishment of a debt, wage or salary; a charge or caveat on property; seizure of property; forfeiture of property; or similar penalties), will proceed, and no further applications in relation to these penalties will be made after the time of commencement.

Item 7 - Authority for past actions taken to enforce fines etc.

Item 7 applies to actions taken, before the commencement of this item, to enforce or recover fines pursuant to section 15A of the Crimes Act by way of garnishment of a debt, wage or salary; a charge or caveat on property; seizure of property; or forfeiture of property (or similar penalties) where the action was taken by a person or authority other than a court.

Item 7 provides that, in relation to such actions, the person or authority had the power to take the action, and is always taken to have had the power to take the action, to impose such a penalty.

This amendment essentially provides retrospective authority for past actions taken by State and Territory fine enforcement agencies to enforce or recover fines from federal offenders by way of garnishment of a debt, wage or salary; a charge or caveat on property; seizure of property; or forfeiture of property (or similar penalties) without first applying for a court order under paragraph 15A(1AA)(a).

The scope of this amendment is limited to a bare conferral of authority for the actions taken, and does not extend to treating an invalid action as a valid action. It would still be possible for an affected person to challenge a past fine enforcement action on the basis that there had been some other defect in the process, other than a lack of authority on the part of the State or Territory fine enforcement agency.


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