I am pleased to introduce the Fines Enforcement and Debt Recovery (Miscellaneous) Amendment Bill 2021. This bill amends the Fines Enforcement and Debt Recovery Act 2017 to make the process of recovering moneys owed to government fairer and more efficient.
The Fines Enforcement and Debt Recovery Act 2017 established the Chief Recovery Officer as a central authority for recovering debts owed to government, covering expiation fees, criminal fines and civil debts. After several years in operation, various technical issues and opportunities for improvement have been brought to my attention, primarily by the Chief Recovery Officer.
The Fines Enforcement and Debt Recovery (Miscellaneous) Amendment Bill 2021 proposes amendments to deal with these issues. The bill will reform the way late penalties are imposed on criminal fines so that the debtor will no longer incur extra sums before they have been reminded of the obligation to pay.
The bill allows late fees to be added to an existing debt if the person was initially under a payment arrangement but the arrangement is terminated for noncompliance. This will provide an incentive for debtors to comply with their instalment obligations. The bill will impose late fees according to the date that the sum fell due rather than imposing one late fee per criminal charge. The bill also ensures that victims of crime are prioritised by directing the Chief Recovery Officer to ensure that court-ordered compensation is paid fully before moneys received from an offender are directed to any other recipient.
The bill repeals two sanctions for non-payment of debt that are harsh and ineffective. First, it removes the option for the court to order that a non-paying criminal debtor undertake a treatment program. Whilst the government is committed to addressing the underlying causes of offending, such as drug and alcohol addiction, there is doubt as to the efficacy of involuntary drug and alcohol treatment by these debtors. Additionally, penalty for noncompliance with mandatory treatment is imprisonment, which would not assist the debtor's underlying problems and may make the situation worse.
I emphasise that this bill only proposes to remove involuntary treatment from the fines enforcement regime. The debtor may still undertake voluntary treatment in lieu of paying a criminal fine. The bill also removes the potential for imprisonment for not paying a civil debt both under the Fines Enforcement and Debt Recovery Act 2017 and for the enforcement of court monetary judgements generally. No civil debtor will be at risk of going to prison. Imprisonment will be replaced by a monetary penalty which can be added by the court if it is proved that the debtor has failed to comply with a payment order without reasonable excuse in circumstances where they could afford to pay without suffering hardship.
The bill will also allow for more efficient administration of government debt matters, saving time for both the fines unit and the debtors, which I will outline now. The Chief Recovery Officer will be able to add a new debt to an existing payment arrangement unless the debtor opts out. The Chief Recovery Officer will be able to apply overpayments of one form of debt to another debt unless the debtor opts out. The Chief Recovery Officer will be able to have the ability to revoke, vary or suspend a civil debt determination on their own initiative so as to respond flexibly to unique circumstances without needing to go to court. Instalment plans for civil debts will be able to last longer than 12 months.
The bill also expands some of the civil debt recovery provisions in part 8 of the act in order to address potential overlap and provisions in the act to create a statutory debt. The bill clarifies the central role the Chief Recovery Officer is to have in dealing with civil debts and explains how the fines act and debt referring act are to interact with each other. However, some statutory debt might exist under acts that allow the South Australian Civil and Administrative Tribunal or other tribunal to review administrative decisions under the act. The bill allows as a rule that when reviewing, if a debt is owed, the Magistrates Court is bound by any previous tribunal reviews in relation to the debt.
I emphasise that this does not take away any of the rights a person might have to appeal the tribunal ruling. It just ensures that they do so in the appropriate forum. The bill also addresses more minor and technical overlap such as specifying the correct application of interest rates on unpaid civil debts and providing that confidentiality requirements do not prevent an agency providing information to the Chief Recovery Officer for the purpose of debt enforcement.
There are some statutory debts that have separate enforcement schemes so comprehensive and specialist that it would be undesirable to deal with them outside of their own legislation, notwithstanding the consistency clarifications in this bill. Therefore, they have been excluded from part 8 by being carved out from the definition of debt.
The bill will allow the Chief Recovery Officer to recover monetary judgements on behalf of other government agencies. Although part 8 does not apply to court judgement debts, it is still desirable to have the Chief Recovery Officer available to act as a central enforcement point. Government agencies will be able to delegate their existing court monetary judgements to the Chief Recovery Officer who will be able to take actions required under the Enforcement of Judgments Act 1991.
The bill also makes a variety of minor technical amendments. These are outlined in the explanation of clauses. Accordingly, I commend the bill to the house and seek leave to have the explanation of clauses inserted without my reading it.
Explanation of Clauses
These clauses are formal.
Part 2—Amendment of Fines Enforcement and Debt Recovery Act 2017
4—Amendment of section 3—Interpretation
This clause amends the definition of personal details so that details of a kind prescribed by the regulations are included within the definition.
5—Insertion of section 3A
Proposed new section 3A makes it clear that the Act applies to debtors and alleged offenders who are under the age of 18 years. The proposed section also provides that an additional power exists, in relation to enforcement of a pecuniary sum or expiation notice, for a youth or the Chief Recovery Officer to apply, at any time, to the Youth Court for the making of a community service order in respect of the youth (as if section 46 of the Act applied in respect of the pecuniary sum or the amount due under the expiation notice).
6—Repeal of section 10
This clause repeals section 10. The section currently provides that the Act applies to a youth but with an additional power for the youth or the Chief Recovery Officer to apply, at any time, to the Youth Court for the making of a community service order in respect of the youth (as if section 46 applied in respect of the pecuniary sum). The enactment of section 3A will make section 10 obsolete.
7—Amendment of section 12—Payment of pecuniary sum to Chief Recovery Officer
This proposed amendment clarifies that the Chief Recovery Officer must pay an amount received in payment of a pecuniary sum, first, to satisfy any order for compensation or restitution made by a sentencing court. If the debtor is subject to more than one such order, payments are to be made to satisfy the amounts payable under those orders, in chronological order, until all such amounts have been paid, before any other payments are made. This clause also changes the description of defendant to debtor.
8—Repeal of section 14
This clause repeals section 14. This section provides that if a part of pecuniary sum imposed by a court order remains unpaid or unrecovered under Part 7, on expiration of the 28 day period referred to in section 11, the prescribed amount is added to, and forms part of, the pecuniary sum payable by the debtor. The section also provides that a further prescribed amount may be added to, and forms part of, the pecuniary sum payable if a part of the pecuniary sum remains unpaid or unrecovered on the expiration of the 30 day period commencing immediately after that 28 day period. The section also provides that the Chief Recovery Officer may waive payment of the amount payable.
9—Amendment of section 15—Arrangements as to manner and time of payment
Section 15(9) currently provides that an arrangement under the section can be varied by agreement between the debtor and the Chief Recovery Officer. The subsection as proposed to be amended by this clause will provide that arrangements as to the manner and time of the payment may be varied by the Chief Recovery Officer on their own initiative by extending them to apply to another pecuniary sum payable by the debtor. The section as amended by this clause will also provide that if an arrangement is terminated and not reinstated, after 14 days the sum will be added to the pecuniary sum payable by the debtor.
10—Amendment of section 18—Amounts unpaid or unrecovered for more than certain period
The proposed amendment provides that if amounts remain unpaid or unrecovered for more than a certain period after a reminder notice is provided to the debtor, the prescribed amount is added to, and forms part of, the prescribed amount payable by the debtor. Currently, the Chief Recovery Officer may waive payment of a reminder notice fee. Under section 18(4) as amended by this clause, the Chief Recovery Officer will be able to waive the whole or any part of an amount payable by a debtor in accordance with the section.
11—Amendment of section 19—Enforcement action
The proposed amendment recasts the Chief Recovery Officer's enforcement powers, particularly in relation to the power to waive payment of, or write off, a pecuniary sum.
12—Amendment of section 20—Arrangements as to manner and time of payment
The proposed amendment broadens the scope of the section to allow the Chief Recovery Officer to vary an arrangement as to the manner and time of payment. The section as amended would allow the Chief Recovery Officer to aggregate any number of amounts due under expiation notices. Proposed subsection (12) gives a debtor the right to request rescission of a unilateral variation made by the Chief Recovery Officer. The clause also makes consequential amendments to sections 20(17) and 20(18). Subsection (19a), as inserted by this clause, will provide that if an arrangement is terminated and not reinstated, the amount due will be added to an amount due under a notice under section 26(1)(b).
13—Amendment of section 25—Enforcement actions by Chief Recovery Officer
This clause proposes to amend the wording of section 25 to recognise the multiple powers of the Chief Recovery Officer in Part 7.
14—Amendment of section 26—Amounts unpaid or unrecovered for more than certain period
Section 26(1)(b) is expanded by this clause so that if an amount due under an expiation notice is not the subject of a section 20 arrangement at the end of the 28 day period commencing on the making of an enforcement determination, an additional amount will be added to the amount due under the relevant expiation notice.
15—Amendment of section 27—Writing off bad debts
The proposed amendment clarifies that the Chief Recovery Officer may write off an amount payable under an expiation notice if they consider that certain requirements are satisfied.
16—Amendment of section 30—Power to require information
This clause seeks to expand the types of material that may be required to be produced to the Chief Recovery Officer to include those relating to an amount due under an expiation notice.
17—Amendment of section 32—Disclosure of information to prescribed authorities of other jurisdictions
This clause makes a change in terminology so that 'interstate authority' becomes 'authority of another jurisdiction'.
18—Amendment of section 33—Charge on land
This clause clarifies that the pecuniary amount referred to in section 33(1) is that which is payable by the debtor.
19—Amendment of section 35—Aggregation of monetary amounts for the purposes of enforcement
This clause expands the provision to apply to an alleged offender.
20—Amendment of section 36—Seizure and sale of assets
This clause proposes the insertion of a provision granting the Chief Recovery Officer the power to eject from land any person who is not lawfully entitled to be on the land, if a determination provides for the sale of an interest in the land.
21—Amendment of section 38—Suspension of driver's licence
The proposed amendments clarify the operation of certain aspects of section 38 and make it clear that the fee that forms part of the monetary amount owed by a debtor or alleged offender applies only if the Chief Recovery Officer makes a determination under subsection (1).
22—Amendment of section 39—Restriction on transacting business with Registrar of Motor Vehicles
The amendment proposed by this clause makes it clear that the fee that forms part of the monetary amount owed by a debtor or alleged offender applies only if the Chief Recovery Officer makes a determination under subsection (1).
23—Amendment of section 40—Suspension of section 97A of Motor Vehicles Act 1959
The amendment made by this clause makes it clear that the fee that forms part of the monetary amount owed by a debtor or alleged offender under section 40(5) relates only to a determination of the Chief Recovery Officer pursuant to section 40(1).
24—Amendment of section 46—Community service
Section 46 currently provides that, if the Court is satisfied that a debtor or alleged offender does not have, and is not likely within a reasonable time to have, the means to satisfy a monetary amount owed by the debtor or alleged offender without the debtor or alleged offender, or the dependants of the debtor or alleged offender, suffering hardship, the Court may, on application by the Chief Recovery Officer, make a community service order, or require the debtor or alleged offender to complete an approved treatment program. This clause proposes to amend section 46 by removing references to approved treatment programs. This clause also makes various amendments consequential on the removal of the Court's ability to require completion of an approved treatment program. The clause deletes provisions referring to approved treatment programs, including subsections (13), (14) and (15).
25—Amendment of section 47—Community service may be enforced by imprisonment
This clause proposes the removal from section 47 of all references to completion of approved treatment programs.
26—Amendment of section 48—Interpretation
This clause amends the definition of debt that applies for the purposes of Part 8. As a consequence of this amendment, the term will not include the following:
a pecuniary sum;
an amount payable under an expiation notice;
a judgment debt;
a tax (within the meaning of the Taxation Administration Act 1996);
the emergency services levy under the Emergency Services Funding Act 1998;
a debt of a prescribed kind.
A definition of judgment debt is also inserted so that the term has the same meaning as in the Enforcement of Judgments Act 1991.
27—Insertion of section 48A
Proposed section 48A authorises a public authority to provide the Chief Recovery Officer with information considered necessary, or requested by the Chief Recovery Officer, to enable the Chief Recovery Officer to take action in relation to a debt. This applies despite any other Act or law.
28—Insertion of Part 8 Division 1A
This clause proposes the insertion of a new Division into Part 8. Under this Division, the Chief Recovery Officer will be able, on application by a public authority that is a judgment creditor under the Enforcement of Judgments Act 1991, to assume the role of the authority for the purposes of recovering the debt and, if necessary, take proceedings under that Act for enforcement of the judgment.
29—Amendment of section 49—Notification of debt
Section 49, as amended by this clause, will provide that a debt may be notified to the Chief Recovery Officer under the section despite any other relevant Act or law. The section as amended also gives the Chief Recovery Officer the power to vary, revoke or suspend a civil debt determination issued under the Act.
30—Insertion of section 49A
This clause proposes the insertion of a new section. Proposed section 49A provides that, if a civil debt determination is in force in relation to a debt, and the Act under which the debt arises (the debt creating Act) makes provision for recovery of the debt, Part 8 applies to recovery of the debt, and action for recovery of the debt may not be taken under the debt creating Act. If there is an inconsistency between any applicable provisions of the debt creating Act and Part 8, Part 8 prevails to the extent of the inconsistency.
31—Amendment of section 50—Application to Court in relation to debt
Section 50 currently provides that a debtor who disputes the existence, or the amount, of a debt the subject of a civil debt determination may apply to the Court for revocation or variation of the determination. Under the section as amended by this clause, a debtor will also be able to apply for revocation or variation of a civil debt determination if they have been notified that the determination has been confirmed or varied. It is also proposed to change the time within which an application may be made under the section from 1 month to 28 days.
32—Amendment of section 51—Enforcement action
The clause changes the time limit that applies in respect of the presumption that a debtor will be taken to have admitted liability for a debt to which a civil debt determination relates if the debtor has not entered into an arrangement under section 57. The time limit is changed from 1 month to 28 days.
33—Amendment of section 52—Internal review of decision to take enforcement action
The clause changes the general time limit within which an application for internal review of an enforcement notice must be made from 30 days after the day on which the applicant received the enforcement notice, to 28 days after the day on which the applicant received such a notice.
34—Repeal of section 55
The clause proposes to repeal section 55, which provides that any costs incurred by the Chief Recovery Officer in relation to the exercise of powers and functions under Part 8 are added to and form part of the debt owed by the debtor. (See section 66B (inserted by clause 41), which substantially re-enacts section 55.)
35—Amendment of section 56—Interest on debts
As a consequence of amendments to section 56 proposed by this clause, if a debt becomes the subject of a civil debt determination, any provisions of another Act under which interest accrues on the debt will cease to apply from the day following the day on which the determination is made. The clause also amends section 56 to require that the public authority to which a debt is owed under a civil debt determination must make a request in order for interest to accrue under the Act on such a debt.
36—Amendment of section 57—Voluntary arrangement as to time and manner of payment
Under section 57 as amended by this clause—
there will be no time limit on the period that may apply to an arrangement entered into by a debtor with the Chief Recovery Officer for payment of a debt by instalments; and
the Chief Recovery Officer may, under proposed section 57(7a), unilaterally vary a payment arrangement by extending it to apply to another debt payable by the debtor; and
a debtor may apply under proposed section 57(8a) for rescission of a variation of a payment arrangement made under section 57(7a), and the Chief Recovery Officer must, on receipt of the application, rescind the variation.
37—Amendment of section 58—Investigation of debtor's financial position
Section 58 sets out the Chief Recovery Officer's powers of investigation. As a result of the amendments proposed by this section, the Chief Recovery Officer will not be able to give written notice to a person under the section during any period during which the liability for, or the amount of, the debt to which the notice relates is subject to review by a court or tribunal.
38—Amendment of section 59—Power to require information
This clause updates a reference to 'contact details' to 'personal details', which is defined.
39—Amendment of section 61—Requirement for payment of instalments etc
This clause removes provisions granting the Court power, on application by the Chief Recovery Officer, to issue a summons to require a debtor to appear for examination before the Court. It also removes provision for the Court to issue a warrant to have a debtor arrested and brought before the Court if they fail to appear as required by a summons. The power of the Court to commit to prison a debtor who has failed to pay instalments in accordance with a determination of the Chief Recovery Officer under the section is also removed. Some of these provisions are re-enacted in proposed section 66A (see clause 41).
40—Amendment of section 63—Seizure and sale of assets
The effect of the amendments made by this clause is as follows:
it is clarified that section 63(1) refers to land or personal property owned (whether solely or as co-owner) by a debtor;
the power of the Chief Recovery Officer is extended so that they can affix clamps or any other locking device to any vehicle in order for it to be seized and removed under existing provisions of the section;
it is clarified that the Chief Recovery Officer may operate on behalf of a relevant public authority in accordance with the Act;
it is proposed that if the Chief Recovery Officer determines not to sell any personal property seized under section 63, the property must be returned to the debtor or left at the land from which it was seized.
41—Insertion of Part 8 Division 5 Subdivisions 4 and 5
This clause inserts 2 new subdivisions.
Subdivision 4—Failure of enforcement process
Proposed section 66A grants the Court the power if a debtor fails to comply with a determination under section 61(1) to, on application of the Chief Recovery Officer, issue a summons to require the debtor to appear for examination before the Court. The Court may issue a warrant if the summons is not complied with. If the Court is satisfied that certain prescribed conditions are met, the Court may order that the debtor pay a monetary penalty of an amount determined by the Court (which will be payable in addition to the monetary amount owed by the debtor).
Proposed section 66B provides that any costs incurred by the Chief Recovery Officer in relation to the exercise of powers and functions under Division 5 may be added to, and will then form part of, the debt owed by the debtor.
42—Insertion of section 69A
This clause inserts a new section.
69A—Dealing with overpayments
Proposed section 69A provides for the event that a debtor or alleged offender pays an amount of money to the Chief Recovery Officer towards the amount outstanding under this Act and the amount paid exceeds the amount outstanding. The Chief Recovery Officer may apply the excess amount towards any other pecuniary sum, amount payable under an expiation notice or debt owed by the debtor that is payable to the Chief Recovery Officer if certain prescribed requirements are met, including that the debtor or alleged offender is advised of the overpayment and invited to apply for the amount to be returned.
43—Amendment of section 76—Regulations and fee notices
This clause amends section 76 to—
make it clear that fees under the Act are prescribed by fee notice; and
provide an ability for transitional provisions consequent on the amendment of the Act by another Act to be made by regulation.
Schedule 1—Related amendments and transitional provisions
Part 1—Amendment of Enforcement of Judgments Act 1991
1—Amendment of section 5—Order for payment of instalments
This clause proposes to repeal section 5(5) to (8) of the Enforcement of Judgments Act 1991. These provisions relate to the powers of the court if a judgment debtor fails to comply with an order under the section. These provisions are made redundant by the insertion of section 5A under clause 2. A substantive change in these proposed amendments is the removal of the power of the court to commit a judgment debtor to prison.
2—Insertion of section 5A
This clause proposes the insertion of a new section.
This provision provides that if a judgment debtor fails to comply with an order under section 5(1), the court may, on application by the judgment creditor, issue a summons to require the judgment debtor to appear for examination before the court. If the judgment debtor fails to appear as required by the summons, the court may issue a warrant. The court may order that the judgment debtor pay a monetary penalty of an amount determined by the court if the court is satisfied in relation to certain prescribed matters.
Part 2—Transitional provisions
3—Transitional provisions—Fines Enforcement and Debt Recovery Act 2017
4—Transitional provisions—Enforcement of Judgments Act 1991
These clauses set out transitional provisions that apply for the purposes of the measure.
Debate adjourned on motion of Mr Picton.