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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SERVICE AND EXECUTION OF PROCESS AMENDMENT (INTERSTATE FINE ENFORCEMENT)
BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
SERVICE AND EXECUTION OF PROCESS AMENDMENT (INTERSTATE FINE ENFORCEMENT)
BILL 2010
OUTLINE
Part 7 of the Service and Execution of Process Act 1992 (SEPA) provides a
scheme for the mutual recognition between States and Territories of fines
imposed by courts of summary jurisdiction, which allows interstate fines to
be enforced through the apprehension and imprisonment of fine defaulters.
The Bill implements a decision of the Standing Committee of Attorneys-
General (SCAG) by replacing Part 7 with a cooperative and simplified
mechanism which no longer relies on apprehension and imprisonment for
enforcing court-imposed fines across State and Territory borders. States
and Territories have introduced alternative, less punitive, sanctions for
fine enforcement within their own jurisdiction and relying exclusively on
apprehension and imprisonment for interstate fines is no longer
appropriate.
Instead, the new Part 7 provides a scheme whereby a State or Territory that
is owed a fine may request the fine's enforcement in another jurisdiction.
Central to this new scheme is the registration of the fine in the
jurisdiction in which the fine defaulter resides. When registered, the
fine can be enforced according to that jurisdiction's own laws. Any money
recovered through enforcement action will be remitted by the enforcing
jurisdiction back to the State or Territory which is owed the fine. The
Bill ensures that the new scheme will apply to fines that were imposed
after its commencement and will also cover certain fines that were imposed
prior to the scheme's commencement.
The amendments will also impact upon how Commonwealth fines are enforced
against offenders who move between jurisdictions. The Commonwealth relies
on the States and Territories to impose and enforce pecuniary penalties for
offences against Commonwealth laws (via mechanisms such as the Crimes Act
1914). State and Territory courts impose such fines upon offenders
residing in their respective jurisdiction. Where offenders move
interstate, the fine is enforced as an 'interstate' fine in accordance with
Part 7 of SEPA.
FINANCIAL IMPACT STATEMENT
The Bill has no significant financial impact, but may result in a small
increase in revenue for the Commonwealth and the States and Territories
through the more effective enforcement of interstate court-imposed fines.
NOTES ON PROPOSED SECTIONS
Clause 1: Short title
1. This clause is a formal provision that provides for the Act to be
cited as the Service and Execution of Process Amendment (Interstate
Fine Enforcement) Act 2010.
Clause 2: Commencement
2. This clause provides that sections 1 to 3 commence on the day the Act
receives Royal Assent. Schedules 1 and 2 will commence on a day fixed
by Proclamation and, if any provisions within the Schedules have not
commenced within a period of 6 months from the day the Act receives
the Royal Assent, they will commence the day after the end of that 6-
month period.
Clause 3: Schedule(s)
3. This clause makes it clear that the Schedules to the Bill will amend
the Acts set out in those Schedules in accordance with the provisions
set out in each Schedule.
Schedule 1 - Main amendments
Service and Execution of Process Act 1992
SEPA treats Territories either as a State (see subsection 5(1)) or as part
of a State (see subsection 7(2)). The Explanatory Memorandum adopts this
terminology.
Item 1 - Part 7
4. Item 1 inserts a new Part 7 which implements the interstate fine
enforcement framework agreed by SCAG.
Part 7-Enforcment of fines imposed by courts of summary jurisdiction
Division 1- Preliminary
Proposed sections 110 and 111
5. Proposed section 110 defines the key terms used within new Part 7.
Proposed section 111 sets out how a court must be constituted in order
for the Part to apply. 'Court' is defined in proposed section 110.
Division 2- Registration and enforcement of fines
Proposed sections 112 and 113
6. Proposed sections 112 and 113 establish the framework for the
registration process. Proposed subsections 112(1) and (2) set out the
circumstances in which a fine enforcement officer may request the
registration in another jurisdiction and specify the form and content
requirements for such requests. Where a request complies with these
requirements, proposed subsection 113(1) obliges the fine enforcement
officer in the jurisdiction that received the request to register the
fine.
7. As a general rule, registration is limited to fines that are imposed
after the commencement of these amendments ('post-commencement
fines'). However, proposed subparagraphs 112(1)(c)(ii) and (iii)
allow for the registration for two types of fines imposed before the
commencement of the amendments ('pre-commencement fines').
8. Targeted specifically at persistent or recalcitrant fine defaulters,
proposed subparagraph 112(1)(c)(ii) allows the registration of pre-
commencement fines that are related to one or multiple post-
commencement fines. The registration of a related pre-commencement
fine is governed by proposed subsection 113(3). Proposed section 110
defines when a pre-commencement fine is considered to be 'related' for
the purposes of Part 7. Broadly, for the pre-commencement fine to be
related, it must fulfil three requirements, including that the pre-
commencement fine must be imposed upon the same offender and by a
court of the same State as the post-commencement fine and that the
liability to pay the post-commencement fine has not been fully
discharged. Accordingly, if an offender repays a post-commencement
fine before an originating State makes a request for the registration
of a related pre-commencement fine, that request would fail.
9. Proposed subparagraph 112(1)(c)(iii) permits the registration of 'pre-
commencement serious fines', which are defined in proposed section
110. The definition contains a non-exhaustive list of reasons why a
pre-commencement fine may be considered to be serious, including the
value of the fine, the nature or seriousness of the conduct that lead
to the fine being imposed, or the fact that the offender is a repeat
offender. The originating State determines whether a pre-
commencement fine is serious.
10. Proposed subsection 112(2) sets out the form and content requirements
applying to the request for registration. Under proposed paragraph
112(2)(a), the request must be in writing. This includes traditional
'hard-copy' paper requests, as well as modern electronic
communications such as emails. Proposed paragraph 112(2)(b) requires
that the request is made to a fine enforcement officer of the
receiving jurisdiction.
11. Under proposed paragraph 112(2)(c), the request must be accompanied by
a copy of the order.
12. Proposed paragraph 112(2)(d) requires the officer of an originating
State to provide certain information as part of the request so that
the registering State can properly register and enforce the fine.
This provision is intended to be flexible to allow statements
containing this information either to be included into the written
request or to be contained in separate documents that accompany the
originating State's request.
13. Proposed subparagraph 112(2)(d)(i) requires the officer of an
originating State to state that the offender's liability for paying
the fine has not been fully discharged. This statement must also
include the value of the offender's liability at the time of issuing
the request. This will ensure that the registering State will only
enforce the amount of the fine that remains unpaid.
14. Where the originating State requests the registration of a pre-
commencement serious fine under proposed subparagraph 112(1)(c)(iii),
proposed subparagraph 112(2)(d)(ii) requires the originating State to
provides reasons or a justification for why this pre-commencement fine
was considered to be serious. It is envisaged that this could include
a statement explaining the seriousness of the offender's conduct and
may expound whether the conduct was considered to pose a risk to
public safety.
15. Fines must only be registered in one registering State at any time.
This will prevent offenders being faced with multiple enforcement
proceedings in relation to the same fine. It will also avoid the
duplication of enforcement activities in the States. Proposed
subsection 112(4) clarifies that an originating State cannot request
the registration of a court-imposed fine in multiple registering
States for enforcement. If the offender moves to another jurisdiction
and the originating State wishes to register the fine in that
jurisdiction, it will need to, first, request the cancellation of the
registration (under proposed paragraph 116(1)(b)) and, second, request
a fresh registration of the fine in the other jurisdiction.
Proposed section 114 - Effect of registration
16. Proposed subsection 114(1) provides that with registration, the fine
will have the same force and effect in the registering State as a fine
that has been imposed by a court in the registering State and that is
capable of enforcement by that jurisdiction.
17. As a general rule, the registering State can enforce registered fines
according to its own laws. However, proposed subsection 114(4)
clarifies that a registering State is not permitted to impose a
sanction of imprisonment for defaulting on the registered fine, even
though its laws may allow this.
18. Proposed subsection 114(2) provides that the originating State may not
take enforcement measures against the offender while the fine remains
registered in the registering jurisdiction. Therefore, if the
originating State wishes to enforce the fine itself, for example,
because the offender moved back into the originating State, it must
first request the cancellation of the registration of the fine under
proposed paragraph 116(1)(b) before it can take any steps towards
enforcement.
19. Whilst this provision ensures that the originating State cannot
enforce the fine against the offender when the fine is registered in
another jurisdiction, it will remain possible for offenders to pay the
fine voluntarily (either in full or in part). A Note inserted after
proposed subsection 114(2) puts beyond doubt that such voluntary
payments in the originating State will continue to be possible.
20. Proposed subsection 114(3) will ensure that the registering State will
only enforce fines that would, but for proposed subsection 114(2),
have been capable of being enforced in the original State.
Division 3- Amendment, cancellation and challenge to imposition etc.
Proposed section 115 - Amendment of registration initiated by originating
State
21. Where an offender voluntarily chooses to fully or partially pay a fine
in the originating State (which remains an option for the offender),
proposed section 115 provides that the originating State must notify
the registering State of this payment. Notification must occur as
soon as practicable after payment. The proposed section also requires
the registering State to amend their register to reflect the updated
amount of the fine that remains unpaid as soon as practicable after
the notification.
Proposed section 116 - Cancellation of registration initiated by
originating State
22. Proposed subsection 116(1) provides that the originating State is
required to notify the registering State if either the:
. fine defaulter has paid the full amount of the unpaid fine in
the original jurisdiction, or
. fine enforcement officer is satisfied that the fine defaulter no
longer resides in the registering jurisdiction.
23. Proposed subsection 116(2) allows the originating State to request the
cancellation of the registration of the fine. The cancellation may be
requested at any time. The request for cancellation must be a written
request (either as a traditional 'hard-copy' paper request or by
modern electronic communication, including email), issued to a fine
enforcement officer of the registering State.
24. Proposed subsection 116(3) requires the registering State to cancel a
registered fine as soon as practicable after receiving a notification
or request from an originating State under proposed subsections 116(1)
or (2).
Proposed section 117 - Payment of fine to the registering State
25. Proposed section 117 requires the registering State to notify the
originating State that a fine has fully or partially been paid and
then to transfer the recovered fine payment to the originating State.
26. This provision does not require a registering State to transfer any
administrative charge levied by it, to offset costs incurred whilst
enforcing the fine, to the originating State. States will have
considerable discretion to find the most efficient way of remitting
recovered amounts.
Proposed section 118 - Cancellation of registration initiated by
registering State
27. Proposed section 118 provides three circumstances in which the
registering State may initiate the cancellation of the registration of
a fine. First, under proposed paragraph 118(1)(a), the registering
State may initiate the cancellation if a fine enforcement officer is
satisfied that the request for registration is not made according to
proposed section 112. This includes, for example, the situation where
the request for registration did not contain all the information
required under proposed subsection 112(2). This provision will enable
registering States that use automated registration systems to cancel a
registration after discovering that the information provided by the
originating State was incomplete.
28. The second circumstance in which cancellation may be initiated is
where a fine enforcement officer in the registering State is satisfied
that the person specified as the fine defaulter is not the actual
offender (proposed paragraph 118(1)(b). The third circumstance is
where the offender is not resident in the registering State (proposed
paragraph 118(1)(c)).
29. Proposed paragraph 118(1)(d) will allow further circumstances in which
registrations may be cancelled by the registering State to be added by
way of regulation (the relevant regulation-making power is section
132(1)(a)).
Proposed section 119 - Effect of cancellation of registration
30. Proposed subsection 119(1) provides that with the cancellation of the
registration of a fine, the originating State regains the ability to
enforce that fine. This provision is a necessary corollary to
proposed subsection 114(2).
31. Proposed subsection 119(2) makes special provision for the
cancellation of pre-commencement fines that are related to post-
commencement fines. Specifically, it recognises that related pre-
commencement fines are not independent of the post-commencement fines
to which they relate. Accordingly, a related pre-commencement fine
can only be cancelled if the post-commencement fine to which it
relates is cancelled and the fine does not relate to any other post-
commencement fines.
Proposed section 120 - Challenge to imposition of fine
32. Offenders should only be able to challenge the imposition of a fine in
the originating State, which is in the jurisdiction where the fine was
originally imposed and then heard and decided by a court. Therefore,
proposed subsection 120(1) provides that a challenge can only be
brought under the laws of the originating State.
33. Under proposed subsection 120(2), the challenging offender must notify
the registering State of the challenge against the imposition. Until
the challenge is finally determined in the originating State, proposed
subsection 120(3) prevents the registering State from enforcing
registered and any related pre-commencement fines.
34. If the challenge is successful and results in the cancellation or
removal of the offender's fine, then proposed subsection 120(4)
requires the registering State to cancel the fine's registration.
35. Proposed subsection 120(5) requires the originating State to inform
the registering State of the outcome of the challenge. There is no
obligation on the offender to inform the registering State. Whilst it
is likely that an offender would inform the registering State if the
challenge was successful, it is far less likely that the offender
would do so where the challenge fails. Therefore, to avoid the
registering State needing to make its own inquiries to find out
whether the challenge has been finally determined and what the outcome
of the challenge was, the onus of informing the registering State has
been shifted to the originating State.
Division 4 - Miscellaneous
Proposed section 121 - Operation of State laws
36. Proposed section 121 ensures the concurrent operation of Commonwealth
and State laws to enable the States to impose additional fees on top
of the fine that is to be recovered. It is envisaged that the
registering State would be able to keep such fees, but is required to
return recovered fine payments to the originating State under proposed
section 117.
Proposed section 122 - Saving
37. Proposed section 122 ensures that the Bill does not affect the
operation of any other part of SEPA.
Transitional - fines
38. This transitional provision makes special arrangements concerning
warrants of apprehension which are still in force and which had been
issued for fine-defaulters under Part 7 as in force immediately before
its repeal, but had not been completed by the time the new Bill came
into effect.
39. It provides that a fine underpinning such warrants of apprehension
will be governed by the new Part 7 as if the fine was issued after
commencement of this Bill. This will ensure that such fines are
registrable either as related pre-commencement fines or as pre-
commencement serious fines.
40. In relation to a warrant of apprehension, the transitional provision
requires that if this warrant operates under the old Part 7 as in
force immediately before its repeal, then the warrant ceases to
operate immediately after commencement of the new Part 7.
41. If any proceedings were on foot under the old Part 7, then these
proceedings must not continue after this Bill's commencement.
42. Where a person is remanded in relation to the enforcement of a fine
under the old Part 7, that person must be released from remand as soon
as practicable after the commencement of this Bill. The offender may
not be released where he or she has been remanded in relation to other
causes.
43. Finally, where a person is serving a period of imprisonment, or is in
custody, under the old Part 7 when this Bill commences, the person
must be released as soon as practicable. Again, the offender may not
be released if he or she is in custody for some other cause.
Regulations may deal with transitional, saving or application matters
44. This proposed provision allows regulations to be made prescribing
matters required or permitted by the Bill, or matters necessary or
convenient to be prescribed for carrying out or giving effect to the
Bill.
Schedule 2 - Consequential amendments
Service and Execution of Process Act 1992
Item 1: Subsection 5(1)
45. This Bill repeals section 125, which deals with the application of the
Removal of Prisoners (Territories) Act 1923. This item will omit the
reference to this section from subsection 5(1).
Item 2: Section 81
46. Section 81 deals with warrants and currently applies to Part 7. This
item will substitute a new section 81 which makes no reference to Part
7.
Transfer of Prisoners Act 1983
Item 3: Subparagraph 21(b)(ii)
47. This is a technical drafting amendment because subparagraph 21(b)(iii)
will be repealed.
Item 4: Subparagraph 21(b)(iii)
48. Section 21 deals with the transfer of prisoners subject to default
imprisonment. Subparagraph 21(b)(iii) will be repealed because Part 7
of SEPA will no longer provide for the apprehension and imprisonment
of fine defaulters.
Item 5: Application
49. This item regulates the application of subparagraph 21(b)(iii) after
the commencement of this Bill.