Bills Digest No. 6  1999-2000 Crimes Amendment (Fine Enforcement) Bill 1999


Numerical Index | Alphabetical Index

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
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Crimes Amendment (Fine Enforcement) Bill 1999

Date Introduced: 30 June 1999

House: House of Representatives

Portfolio: Justice and Customs

Commencement: Upon Royal Assent

Purpose

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.

Background

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 enforcement.

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.

Main Provisions

Schedule 1

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 individuals.

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.

Concluding Comments

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 system.(8)

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 ...where:

  1. 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

  2. there is some scope under State or Territory law for the fine defaulter to appeal to a magistrate against the decision of a court officer.

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.

Endnotes

  • 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 context.

  • Re Wakim; Ex parte McNally [1999] HCA 27 (17 June 1999).

  • Explanatory Memorandum, p. 3.

  • (1982) 150 CLR 49 at 58-59, 71.

  • (1991) 172 CLR 84 at 91.

  • Hon P N Slipper MP, House of Representatives, Parliamentary Debates (Hansard), Second Reading Speech, 30 June 1999, p. 6104.

  • 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.

Contact Officer and Copyright Details

Andrew Grimm
20 July 1999
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 1999

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, 1999.

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