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Date Introduced: 1 April 1998
Commencement: On Royal Assent.
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.
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
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
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
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.
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
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
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
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.
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.
- 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
- Fine Default: Enforcing Fine Payment, NSW Bureau of
Crime Statistics and Research, Sydney, 1995.
- See Sentencing. Discussion Paper No. 33, 1996 &
Sentencing. Report No. 79, December 1996.
- 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
- See Griffith, G The Fine Default System in NSW: Background
and Proposed Legislative Changes, NSW Parliamentary Research
Service, Briefing Paper No 30/96.
- As amended.
- The State Debt Recovery Agency.
- Located in the Court of Petty Sessions at Perth.
- Many Commonwealth offences are found in statutes other than the
Crimes Act 1914.
- Senate Hansard, 1 April 1998, 1685.
- R v. Kirby; Ex parte Boilermakers' Society of
Australia (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan,
Fullagar & Kitto JJ.
- 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.
- 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.
12 May 1998
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