Bills Digest No. 199 1997-98 Crimes Amendment (Enforcement of Fines) Bill 1998


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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details

Passage History

Date Introduced: 1 April 1998

House: Senate

Portfolio: Justice

Commencement: On Royal Assent.

Purpose

To amend the Crimes Act 1914 (Cwlth) so that a wider range of State and Territory statutory options relating to the enforcement of fines can be applied to Commonwealth offenders who are dealt with by State or Territory courts.

Background

General

Commonwealth criminal jurisdiction is a complex matter. Most prosecutions for Commonwealth offences are conducted in State and Territory courts using the practices and procedures of the particular State or Territory. Sentencing of Commonwealth offenders is largely covered by Part 1B of the Crimes Act 1914 with exceptions where State or Territory law applies.(1) In relation to the enforcement of fines, the laws of the States and Territories apply as a result of section 15A of the Crimes Act 1914. Section 3B of the Crimes Act 1914 provides for administrative arrangements to be made with the States, the ACT and the Northern Territory so that sentences and orders made under the Act can be carried out. Arrangements have been made with all jurisdictions.

Section 15A of the Crimes Act 1914, dealing with the enforcement of fines, was originally added as section 18A by the Crimes Act 1960. It then provided that State and Territory laws dealing with the enforcement of fines, including laws making provision for imprisonment in the case of fine default, and which allowed for time for the payment of fines, for payment by instalments or giving security could be applied to persons convicted of Commonwealth offences. Section 15A has been amended on a number of occasions. As currently worded, the section also enables State and Territory fine default laws providing for community service orders, work orders, weekend detention or similar orders or sentences to be applied to persons convicted of Commonwealth offences.

State and Territory legislation dealing with fine defaulters

There has been considerable discussion in Australia and overseas about how best to enforce unpaid fines. In NSW, for example, the subject was considered by the Bureau of Crime Statistics and Research(2) and by the NSW Law Reform Commission(3) as a result of a high incidence of fine default. Concerns were also expressed that a system be introduced which ensured that imprisonment was the last resort-both as a matter of justice and to prevent fine defaulters simply electing to go to gaol as a means of 'cutting out' their fine. The New South Wales Law Reform Commission report also commented:

A high incidence of fine default may have a negative impact on the use made of fines as a sentencing option, as well as on public perceptions of the fine as an effective sanction. Non-payment of fines also represents a considerable loss of revenue for the State.(4)

Current Australian legislation which aims to address the problem includes the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) and the Fines Act 1996 (NSW).

Prior to 1987 the only sanction available for fine defaulters in New South Wales was imprisonment.(5) Subsequently, a number of legislative reforms occurred which were designed to provide alternatives to imprisonment for fine defaulters. The most recent example is the Fines Act 1996.(6) This statute contains a hierarchy of steps which are employed before a fine defaulter can be imprisoned and establishes an administrative agency to manage and enforce the fine default system. (7)

First of all, in NSW, an enforcement order is made by an administrative agency if a fine is not paid within the specified time. If payment is not made before the date specified in the enforcement order, suspension and finally cancellation of the driver's licence or vehicle registration follows. If the fine defaulter does not hold a driver's licence or vehicle registration or if the fine remains unpaid then civil enforcement can occur. This might be a property seizure order, a garnishee order or the registration of a charge on land owned by the fine defaulter. A community service order (CSO) can be served by the administrative agency in the event that civil action is unlikely to be successful or has failed. Finally, if the CSO is not complied with, then the defaulter can be imprisoned. If a fine defaulter is sentenced to not more than 18 months imprisonment, home detention may be available under the Home Detention Act 1996 (NSW). Imprisonment and community service orders are not applicable to corporate fine defaulters.

In Western Australia, fines can be registered for enforcement if they are not paid within the time specified. The system is administered by the Registrar of the Fines Enforcement Agency.(8) Once a fine is registered, the Registrar may issue a notice of intention to suspend the defaulter's licence. Next, once a further period of time has elapsed the defaulter's drivers or vehicle licence can be suspended. There is also provision for defaulters to be placed on work and development orders and for their imprisonment. Orders for work and development and imprisonment apply only to individuals.

Main Provisions

Administrative arrangements with the States, ACT, Northern Territory and Norfolk Island

Existing subsection 3B(1) of the Crimes Act 1914 provides that the Governor-General may make administrative arrangements with each jurisdiction listed above so that they can exercise powers, perform functions, make facilities available and carry out sentences under the Act.

Item 1 of the Schedule replaces subsection 3B(1) with a new subsection. New subsection 3B(1) re-phrases existing subsection 3B(1) and provides that administrative arrangements can be made in relation to enforcement procedures. It also extends the application of the section to legislation other than the Crimes Act 1914.(9)

Fine defaulters

Item 5 of the Schedule repeals subsection 15A(1) of the Crimes Act 1914 and substitutes new subsections 15A(1), (1AA), (1AB), (1AC) and (1AD) in its place. New subsection 15A(1) provides that a State or Territory law relating to the enforcement or recovery of a fine applies to a person convicted of a Commonwealth offence so far as it is not inconsistent with Commonwealth law.

Separation of powers doctrine

The Bill's Second Reading Speech states that the States and Territories have enacted fine default laws under which penalties such as imprisonment and CSOs can be imposed by administrative agencies and justices of the peace.(10)

Under section 71 of the Commonwealth Constitution, federal judicial power is vested in the High Court, other federal courts Parliament creates or in courts such as State courts vested with federal jurisdiction by the Parliament. In the Boilermakers Case, a majority of the High Court said:

... it is beyond the competence of Parliament to invest with any part of the judicial power any body or person except a court created pursuant to section 71 and constituted in accordance with section 72 or a court brought into existence by a State.(11)

In other words, federal judicial power must be exercised by a court, not by an administrative body.(12)

New subsection 15(1AA) provides that if a State or Territory law permits a person other than a court to impose the penalties contained in new subsection 15(1AB), then that law applies in relation to Commonwealth offenders as if it referred to a magistrate sitting as a court. The penalties listed in new subsection 15(1AB) are garnishment,(13) charges or caveats on property, seizure or forfeiture of property, community service orders, detention or imprisonment. New subsection 15(1AB) also provides that new subsection 15(1AA) applies to penalties which are similar to those just described and to penalties prescribed by regulation.

Application

Item 8 of the Schedule is an application provision. It provides that the amendments made by the legislation apply irrespective of whether a fine was imposed before or after the commencement of the amendments.

Endnotes

  1. For example, State or Territory laws apply in relation to sentencing options such as work orders, periodic detention and community service orders-see section 20AB of the Crimes Act 1914.
  2. Fine Default: Enforcing Fine Payment, NSW Bureau of Crime Statistics and Research, Sydney, 1995.
  3. See Sentencing. Discussion Paper No. 33, 1996 & Sentencing. Report No. 79, December 1996.
  4. New South Wales Law Reform Commission, Sentencing. Report 79, December 1996, 58. The Commission's report makes a number of comments on and recommendations for the Fines Act 1996.
  5. See Griffith, G The Fine Default System in NSW: Background and Proposed Legislative Changes, NSW Parliamentary Research Service, Briefing Paper No 30/96.
  6. As amended.
  7. The State Debt Recovery Agency.
  8. Located in the Court of Petty Sessions at Perth.
  9. Many Commonwealth offences are found in statutes other than the Crimes Act 1914.
  10. Senate Hansard, 1 April 1998, 1685.
  11. R v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar & Kitto JJ.
  12. There are limited 'exceptions' to the separation of federal judicial power. The power of Parliament to try and imprison for contempt of Parliament and the exercise of judicial power by defence tribunals are examples.
  13. Garnishment is '... the process by which a person who is in ... possession or control of another person's property or money ... is ordered ... to pay a third person instead, in order to settle the other person's ... debt to the third person.' See The CCH Macquarie Dictionary of Law, Revised Edition, CCH Australia Limited, North Ryde, 1996.

Contact Officer and Copyright Details

Jennifer Norberry
12 May 1998
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1998

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1998.



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