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Crimes Amendment (Fine Enforcement)
Date Introduced: 30 June 1999
House: House of Representatives
Portfolio: Justice and Customs
Commencement: Upon Royal Assent
The Crimes Amendment (Fine Enforcement) Bill
1999 broadens the available mechanisms for enforcing federal fines.
It amends the Crimes Act 1914 in order to allow
state and territory administrative agencies and court officers used
in fine enforcement to also enforce federal fines.
The fine is the most frequently used
alternative to imposing a custodial sentence on a criminal
offender. In the year 1977-78, the most recent figures apparently
available, approximately 32% of all federal offenders convicted in
courts exercising federal jurisdiction received a fine.(1)
It should be noted at the outset that there is a
distinction between a fine and a pecuniary penalty.(2) 'Fine' is
defined in s. 3(2) of the Crimes Act to include a pecuniary
penalty. Although the fine is a pecuniary sanction, a 'pecuniary
penalty' properly so called is a monetary civil sanction that may
be imposed without conviction or other form of judicial order. Thus
people who in common parlance refer to a 'parking fine', are really
referring to a type of pecuniary penalty. Since it is a civil
penalty, a pecuniary penalty does not give rise to a criminal
record. The Bill deals with fines, that is, monetary sanctions that
attach after a finding of criminal liability.(3)
A number of states and territories have in place
administrative agencies responsible for enforcing fines that are
imposed under their legislation. For example, in New South Wales
the Fines Act 1996 (NSW) establishes the State
Debt Recovery Office (SDRO) which has power to impose a range of
civil and criminal sanctions against fine defaulters. The SDRO is a
statutory body representing the Crown and as such, is not part of
the NSW court system.
The establishment of administrative agencies
such as the SDRO enables fine defaulters to be punished without the
costs of prosecution and court resources associated with a court
hearing. It is apparent that the use by the Commonwealth of such
agencies will reduce the cost to the taxpayer of federal fine
The use, especially in rural and regional areas,
of court officers (rather than magistrates) to impose penalties on
fine defaulters makes fine enforcement more efficient and timely.
Magistrates generally visit rural and regional areas only
periodically, so it makes good sense to enable a permanent court
officer, such as the court clerk, to impose sanctions on fine
defaulters. It is proposed that state and territory court officers
be able to impose sanctions for federal fine default as well.
At present, the Crimes Act requires sanctions
for federal fine default to be imposed by magistrates, and any
state or territory law that permits a person or body other than a
magistrate to impose a sanction on a fine defaulter, is to be
applied as if it requires a magistrate to impose the sanction. This
is the effect of the existing s. 15A(1AA).
It is noted that, by imposing sanctions on fine
defaulters through magistrates, s. 15A(1AA) complies with the
constitutional requirement that the federal judicial jurisdiction
of a state or territory court of summary jurisdiction be exercised
by a magistrate. This requirement is contained in s. 39(2)(d) of
the Judiciary Act 1903. Section 39(2)(d) effectively
stipulates that the federal jurisdiction of a state or territory
court of summary jurisdiction can only be judicially exercised by
magistrates. The imposition of civil and criminal sanctions on fine
defaulters is an exercise of judicial jurisdiction or power.
A legal problem therefore arises in the use of
an administrative agency or court officer, rather than a
magistrate, to impose sanctions on fine defaulters. The simplest
solution to this problem, and the one adopted by the Bill, is to
exclude the operation of s. 39(2)(d) of the Judiciary Act for the
purposes of this section of the Crimes Act.
Finally, a comment should be made about the
relationship between this Bill and the recent decision of the High
Court concerning cross vesting of jurisdiction.(4) Contrary to what
might be first thought, the decision does not impact on the Bill,
because the decision prohibits the investiture of state
jurisdiction in federal courts, the reverse process to that
involved in the Bill.
Items 1, 2 and 3 replace in ss. 15A(1AA)(a),
s.15A(1AA)(b) and s. 15A(1AC) respectively the term 'magistrate of
the State or Territory sitting as a court' with the term 'court of
summary jurisdiction of the State or Territory'. This may seem to
be little more than a semantic change, but the Explanatory
Memorandum explains that
... the paragraph is amended to make it clear to
readers of the legislation that enforcement powers are conferred on
relevant courts, not magistrates.(5)
The reason for the change is presumably to bring
the section in line with the principles enunciated by the High
Court in decisions such as The Commonwealth v Hospital
Contribution Fund of Australia(6) (the HCF case) and
Harris v Caladine.(7) Those cases established that the
Commonwealth has power to invest state courts with federal
jurisdiction, and the constitution of the state court is (subject
to any provisos in the Commonwealth legislation) determined by
state law. The amendment simply emphasises that the section is
investing judicial power in relation to fine enforcement in courts
as institutions, rather than particular court officers as
Item 4 is the provision which deals with the
legal problem presented by s. 39(2)(d) of the Judiciary Act. It
excludes the operation of s. 39(2)(d) in the context of the
section. Thus it will not be necessary to use state or territory
magistrates in order to impose sanctions on fine defaulters; the
way is left open for the use of state and territory administrative
agencies and court officers.
The other aspect of Item 4 is that it also
excludes from the section the operation of s. 29(d) of the Acts
Interpretation Act 1901, which defines a 'court of summary
jurisdiction' to mean a justice or magistrate. Having amended the
section to refer to 'courts of summary jurisdiction' rather than
'magistrates' in Item 1, it is then necessary to exclude the
definition contained in s. 26(d), which would otherwise apply by
virtue of the Acts Interpretation Act.
Item 5 deals with the application of the amended
section to fines imposed before their commencement. The item makes
it clear that under the new s. 15A state and territory
administrative agencies and court officers will be able to impose
sanctions on people who default on fines imposed before the changes
to s. 15A of the Crimes Act.
As the Minister
notes in his Second Reading Speech,
Effective and efficient mechanisms to ensure
that fines are paid are an essential part of any criminal justice
This Bill, which makes the machinery of state
and territory administrative agencies and court officers available
for federal fine enforcement, appears a desirable improvement to
the criminal justice system.
The range of sanctions which state and territory
administrative agencies and court officers will be able to impose
following the enactment of this Bill are listed in s. 15A(1AB) of
the Crimes Act. They include (in s. 15A(1AB)(f)) the detention or
imprisonment of a person who failed to pay a fine. While
comprehensive statistics on the number of fine defaulters
imprisoned are not available, a substantial number of prison
admissions in Australia each year relate to persons who have failed
to pay fines.(9) It is noted that the imposition of custodial
sentences on fine defaulters has been an issue of some concern to
some civil liberties groups.(10)
Although the Bill establishes a framework for
the use by the Commonwealth of state and territory administrative
agencies and court officers to impose sanctions on fine defaulters,
not every state or territory scheme will be able to be used by the
Commonwealth. In this regard the Explanatory Memorandum states (in
relation to court officers, although the comments apply equally to
an administrative agency): (11)
An officer of a State or Territory court of
summary jurisdiction will only be able to impose the penalties
- the officer is authorised to exercise the power of a court in
respect of fine enforcement generally, or to impose the penalty in
question in analogous State/Territory cases; and
- there is some scope under State or Territory law for the fine
defaulter to appeal to a magistrate against the decision of a court
These two requirements, which make a state or
territory scheme suitable for use by the Commonwealth, stem from
the Constitution. The first requirement has its genesis in the HCF
case, where the High Court held by majority that invested federal
jurisdiction is to be exercised in the same manner as the state
jurisdiction of a state court.(12)
The second requirement derives from the decision
in Harris v Caladine, where the High Court held, again by
majority, that a federal court must retain effective supervision
and control over the exercise of its functions by its officers.(13)
Thus in order for a delegation of the court's jurisdiction to be
valid, the powers and functions of a court officer must be subject
to review or appeal by a judge.(14)
In light of these constitutional requirements,
it is possible that state or territory legislation conferring fine
enforcement powers on administrative agencies and court officers
will need amending before it can be used by the Commonwealth. This
Bill, however, removes the obstacles to prevent this from
happening, at least in so far as federal law is concerned.
- ALRC Report No 15, Sentencing of Federal Offenders
(Interim), 1980, para. 378.
- R G Fox and A Freiberg, Sentencing: State and Federal Law
in Victoria, 1985, pp. 130-1.
- Note that s. 4B of the Crimes Act gives a court a discretion to
impose a pecuniary penalty in addition to, or instead of, a term of
imprisonment. Perhaps it would be better to refer to a fine in this
- Re Wakim; Ex parte McNally  HCA 27 (17 June
- Explanatory Memorandum, p. 3.
- (1982) 150 CLR 49 at 58-59, 71.
- Hon P N Slipper MP, House of Representatives, Parliamentary
Debates (Hansard), Second Reading Speech, 30 June 1999, p.
- ALRC op. cit., para. 178.
- See, for example, G. Zdenkowski, 'Imprisoning fine defaulters
in New South Wales', Legal Services Bulletin, vol. 10 no.
3 1985, p. 102.
- Explanatory Memorandum, p. 4.
- (1982) 150 CLR 49 at 71 per Wilson J.
- (1991) 172 CLR 84 at 122 per Dawson J.
- ibid. at 95 per Mason CJ and Deane J.
20 July 1999
Bills Digest Service
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