Bills Digest No. 199 1997-98
Crimes Amendment (Enforcement of Fines) Bill 1998
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
- 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.
- 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 Act 1996.
- 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.
Jennifer Norberry
12 May 1998
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1998
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