Using e-Research Briefs

e-Research Briefs are Queensland Parliamentary Library publications which concisely summarise issues of importance to Members of Parliament and their constituency.

e-Research Briefs are published in an electronic format and contain links to relevant information, such as legislation, news clippings, articles, discussion papers, policy papers or other relevant information. Links are current at date of publication.

e-Research Briefs are distributed to all Members’ electorate offices via email. They can also be accessed via the Library’s Research Databases (Concord) available on the Queensland Parliament’s website at: www.parliament.qld.gov.au

Hard copies of these publications can be obtained from the Library.

Ph: 3406 7219

For further inquiries or comments contact:

library.inquiries@ parliament.qld.gov.au or phone (07) 340 67219.

The State Penalties Enforcement and Other Legislation Amendment Bill 2009 (Qld) – A Brief Look at ‘SPER’

Bill: State Penalties Enforcement and Other Legislation

Amendment Bill 2009 (Qld)

Date of introduction:

16 September 2009

Portfolio: Attorney-General

Hansard Reference Second Reading Speech:

Queensland Parliamentary Debates, 16 September 2009, pp 2326-2329

Nicolee Dixon

e-Research Brief 2009/28

October 2009

Research Publications are compiled for Members of the Queensland Parliament, for use in parliamentary debates and for related parliamentary purposes. Information in publications is current to the date of publication. Information on legislation, case law or legal policy issues does not constitute legal advice.

Research Publications on Bills reflect the legislation as introduced and should not be considered complete guides to the legislation. To determine whether a Bill has been enacted, or whether amendments have been made to a Bill during consideration in detail, the Queensland Legislation Annotations, prepared by the Office of the Queensland Parliamentary Counsel, or the Bills Update, produced by the Table Office of the Queensland Parliament, should be consulted. Readers should also refer to the relevant Alert Digest of the Scrutiny of Legislation Committee of the Queensland Parliament at: www.parliament.qld.gov.au/SLC

© Queensland Parliamentary Library, 2009 Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament in the course of their official duties, without the prior written permission of the Clerk of the Parliament on behalf of the Parliament of Queensland.

Inquiries should be addressed to: Ms Karen Sampford Team Leader, General Distribution Research Team Research and Information Service Queensland Parliamentary Library Parliament House George Street, Brisbane QLD 4000 Tel: (07) 3406 7116 Email: Karen.Sampford@parliament.qld.gov.au Information about Research Publications can be found on the Internet at:

www.parliament.qld.gov.au/publications

CONTENTS INTRODUCTION .................................................................................................................................................... 1

Background............................................................................................................................................................. 1

Overview of the State Penalties Enforcement Registry.......................................................................................... 2

Infringement Notice Fines ................................................................................................................................... 2

Court Ordered Fines........................................................................................................................................ 2

When Do Unpaid Fines Go to SPER and an Enforcement Order Sent?............................................................ 3

Options and Obligations Under an Enforcement Order ...................................................................................... 3

Instalment Plans.............................................................................................................................................. 4

Fine Option Order............................................................................................................................................ 4

Election for Court Hearing ............................................................................................................................... 5

Enforcement Actions........................................................................................................................................... 5

Fine Collection Notices.................................................................................................................................... 5

Enforcement Warrants .................................................................................................................................... 6

Enforcement Warrants for Seizure and Sale of Property ................................................................................ 6

Registration of Interest .................................................................................................................................... 7

Enforcement by Vehicle Immobilisation.............................................................................................................. 8

Immobilisation Criteria..................................................................................................................................... 8

Immobilisation Process ................................................................................................................................... 9

Procedure After Immobilisation Period Ends ................................................................................................ 10

Other Matters................................................................................................................................................. 10

Offences ........................................................................................................................................................ 11

Driver Licence Suspension............................................................................................................................ 11

Warrants of Arrest and Imprisonment ............................................................................................................... 11

Good Behaviour Orders ................................................................................................................................ 11

Arrest and Imprisonment ............................................................................................................................... 12

Use of SMS Technology................................................................................................................................ 12

Links to Further Reading ...................................................................................................................................... 13

Bill And Accompanying Material ....................................................................................................................... 13

Act Amended..................................................................................................................................................... 13

Ministerial Media Statements............................................................................................................................ 13

Related Library Publications ............................................................................................................................. 13

Departmental Website....................................................................................................................................... 13

Interstate Fine Enforcement Websites and Legislation .................................................................................... 13

New South Wales.......................................................................................................................................... 13

Victoria........................................................................................................................................................... 13

South Australia .............................................................................................................................................. 14

Tasmania....................................................................................................................................................... 14

Western Australia .......................................................................................................................................... 14

Australian Capital Territory............................................................................................................................ 14

Northern Territory .......................................................................................................................................... 14

Newspaper articles............................................................................................................................................ 14

ENDNOTES.......................................................................................................................................................... 15

1

INTRODUCTION

The State Penalties Enforcement and Other Legislation Amendment Bill 2009 (Qld) (the Bill) was introduced into the Queensland Parliament by the Attorney-General and Minister for Industrial Relations, the Hon Cameron Dick MP, on 16 September 2009. The Attorney-General said that the main purpose of the Bill is to amend the State Penalties Enforcement Act 1999 (Qld) (SPE Act) to ‘strengthen the compliance and enforcement capabilities of the State Penalties Enforcement Registry’.1 The amendments aim to:2

expand the existing powers of the State Penalties Enforcement Registry (SPER) to suspend driver licences of debtors who do not pay their fines that have been registered with SPER;

provide SPER with new powers to place wheel clamps on vehicles of some ‘high-value’ debtors who fail to pay their fines;

strengthen SPER’s powers to seize and sell real and personal property; and

retrospectively validate the referral, registration and enforcement of certain orders made under the Industrial Relations Act 1999 (Qld).

This e-Research Brief aims to provide a general overview of the way in which SPER recovers unpaid court ordered fines and infringement notice penalties owing by a person, the measures to assist people to pay their debt, and the various enforcement actions SPER can take to recover the debt when other efforts to do so have been unsuccessful. The e-Research Brief will particularly focus on the amendments to the SPE Act bullet-pointed above.

While only those aspects of the Bill relating to the SPE Act will be discussed, the Bill also seeks to amend a number of other Acts. This will be briefly considered in the ‘Further Reading’ section of this e-Research Brief.

BACKGROUND

The State Penalties Enforcement Registry (SPER) was established by Part 2 of the SPE Act and is overseen by the Department of Justice and Attorney-General. It was created in the attempt to overcome problems caused by unpaid fines under the former Self Enforcing Ticketable Offence Notice System (SETONS). SPER was set up as a central agency for the collection of unpaid fines through flexible payment options. SPER engages with a person owing the relevant fine (the debtor) to find a way for the outstanding amount to be repaid without the need for enforcement action. SPER has a number of enforcement powers under the SPE Act to recover an unpaid amount where efforts to have the debtor pay the amount owing have been unsuccessful. The currently available enforcement mechanisms include enforcement warrants, which enable registration of interests in the debtor’s property and the seizing and sale of property; suspension of the debtor’s driver’s licence for fines relating to motor vehicle offences; Fine Collection Notices and, as a last resort, warrants for the arrest and imprisonment of the debtor. SPER also has a call centre which can answer defaulters’ inquiries about their options. Information about SPER can be found on the SPER website.3

In announcing the introduction of the legislation establishing SPER, the then Attorney-General, the Hon Matthew Foley MLA, said that the new system would make it more difficult for offenders to avoid their fines, through the new range of enforcement tools at SPER’s disposal, but would be fair to people who are genuinely unable to pay.4

SPER began operation on 27 November 2000 and was coupled with a 4 month amnesty period on fines whereby any warrants for arrest or imprisonment were withdrawn for that time to allow defaulters to meet their obligations.5 SPER’s charter, as specified in s 9 of the SPE Act, includes:

maximising the collection, for victims of offences, of amounts ordered to be paid under the Penalties and Sentences Act 1992 (Qld) by way of restitution or compensation;

maximising the amount of fines and other money penalties paid before enforcement action is taken;

promoting a philosophy that community service work is for the needy and is not an alternative to payment of a fine for those able to afford the fine;

reducing the use of imprisonment for fine default by encouraging the use of other enforcement actions;

promoting public education about offenders’ obligations and the consequences of not satisfying them.

2

In a Media Statement on 21 July 2009, the present Attorney-General and Minister for Industrial Relations, the Hon Cameron Dick MP, said that since SPER was introduced in 2000, the collection of court ordered fines and unpaid infringement notice fines had increased by 600% and, in the 2008-2009 financial year, more than $143.8m was recovered.6

On, the same day, the Attorney-General told Parliament that:7

Much of the increase in collection has been achieved through the introduction of automated civil enforcement actions such as redirecting money from bank accounts or wages and registering interests over property. SPER has also invested heavily in staff training and call centre technology. The government will continue to build on that good work in pursuit of even the most recalcitrant fine dodgers. I am pleased to announce today that significant new compliance and enforcement strategies will be implemented over the next two years to crack down on people who refuse to pay their fines.

OVERVIEW OF THE STATE PENALTIES ENFORCEMENT REGISTRY

The State Penalties Enforcement Registry (SPER) collects and enforces unpaid infringement notice fines and unpaid court ordered fines (which are paid into consolidated revenue), and court ordered restitution or compensation (paid to victims of crime).8 The All about SPER Factsheet sets out the ways in which SPER collects, and people can pay, infringement notice fines, and court imposed fines.

INFRINGEMENT NOTICE FINES Infringement notices and infringement notice fines are dealt with in Part 3 of the SPE Act.9 Many State Government departments and agencies and other administering authorities (such as local governments) are empowered to issue infringement notices (see ss 13-15 of the SPE Act). Examples of infringement notice fines are:

traffic infringement notice fines issued by the Queensland Police Service (QPS) for offences such as speeding or failing to stop at a red light;

fines issued for an unregistered or unroadworthy vehicle;

fines issued by a local council for parking offences, excessive noise etc.

An infringement notice might be issued ‘on the spot’ (e.g. a parking ticket) but can also be sent by mail (e.g. speed camera ticket).

When a person receives an infringement notice fine, he or she can pay the fine within 28 days or within the further time allowed by the administering authority issuing the notice. Section 15 provides that the notice must state the options available to the person (see also, s 22):

pay the fine in full to the issuing administering authority within the 28 days; or

make an election to have the matter decided in a Magistrates Court (see also s 27); or

if the fine is in relation to a vehicle, if relevant, give to the agency a declaration stating that the car was stolen, or the person was not in charge of the vehicle at the relevant time, or the vehicle had been sold (see ss 17-21 regarding these declarations).

If the infringement notice fine is equal to or more than the ‘threshold amount’ ($200 as prescribed in s 30 of the State Penalties Enforcement Regulation 2000 (Qld) ( the Regulation)), a person can ask to pay off the fine by way of instalments via a Voluntary Instalment Plan which is arranged with the agency issuing the notice (ss 23-24).10 The particulars of the instalment payments are provided by the agency to SPER for registration and upon registration, SPER becomes responsible for collecting the instalment amounts, out of each of which it may retain a prescribed management fee. This option is not available for court ordered fines.

Court Ordered Fines

Section 34 of the SPE Act sets out the range of court ordered fines, penalties and other amounts which can potentially be sent to SPER to enforce. Examples are:

court imposed fines from a judge or magistrate for offences such as driving under the influence of alcohol;

court ordered payments to victims of crime for restitution or compensation in relation to property loss or damage or personal injury pursuant to s 35(1) of the Penalties and Sentences Act 1992 (Qld);

penalties mentioned in ss 182A or 185 of the Penalties and Sentences Act 1992 (Qld);

3

orders for payments for forfeiture of a recognisance;

payments on the forfeiture of an undertaking regarding bail under the Bail Act 1980 (Qld);

amounts recoverable under s 161A of the Justices Act 1886 (Qld).

When a person receives a court ordered fine, he or she can pay it in full at the court at the time it is made.

Clause 4 of the Bill seeks to amend s 34 to enable orders made under ss 400(1) or 408H of the Industrial Relations Act 1999 (Qld) (IR Act) to be included in s 34 as among the court ordered amounts that can be dealt with by SPER.11 These orders under ss 400(1) and 408H of the IR Act are orders for the payment of unpaid wages, tool allowances, unpaid superannuation contributions and illegally charged fees by private employment agents. The Bill (in cls 40-42) seeks to amend, firstly, s 400 of the IR Act to give magistrates discretion to give particulars of the orders in s 400(1), including orders for the payment of unpaid wages, tool allowances, unpaid superannuation contributions, to SPER for registration. Secondly, s 408H is also sought to be amended in the same way to enable particulars of orders for payment of illegally charged fees by employment agents or a costs order to be given to SPER. The Explanatory Notes (p 9) point out that the intention of these amendments is to assist employees who may not be able to afford to use the existing civil processes to recover those amounts ordered to be paid under the IR Act.

The amounts owing under the aforementioned IR Act orders can be enforced under the Justices Act 1886 (Qld) as an order for payment of money made under that Act or can be recovered by the employee from the employer as a debt (see Explanatory Notes (p 3)). Due to non-payment by some employers, the orders have, in the past, been referred to SPER to enforce. However, recent Industrial Court decisions have held that the SPE Act does not allow referral to, and registration by, SPER of such orders.12 A new s 174A is sought to be inserted into the SPE Act by cl 39 intending to retrospectively validate the referral of those IR Act orders to SPER for enforcement. It also retrospectively validates the registration of those orders and any action by SPER purportedly taken under the SPE Act to enforce them.

WHEN DO UNPAID FINES GO TO SPER AND AN ENFORCEMENT ORDER SENT? If the infringement notice fine is not paid by the person within the 28 days (or there have been no Voluntary Instalment Plan arrangements made, or no election to have the matter decided in a Magistrates Court, or (if relevant) the person has not given the administering authority any of the declarations described above, it becomes overdue. The administering authority may then give SPER a default certificate for the infringement notice, which SPER must register, and a fee is added to the amount owed (ss 33, 35-37 of the SPE Act)).13 SPER then must serve the person in default with a written Enforcement Order requiring payment to SPER of the amount stated in the order within 28 days after the date of the order (ss 38-40).14

In relation to court ordered fines, s 34 provides that at any time after the order is made, if all or part of the fine or other amount is unpaid, the court may give SPER the prescribed particulars of the unpaid amount and the particulars must be registered by SPER upon receipt.15 SPER may then serve an Enforcement Order (under s 38-40) on the person in default for the outstanding amount and set out the time within which the debt must be paid (usually 28 days). If the person disputes the court order, he or she may be able to have the matter reheard by the court.

SPER may write off all or part of a fine, whether or not it is payable to someone other than the State, in certain circumstances set out in s 150A (e.g. the person owing the money dies).

OPTIONS AND OBLIGATIONS UNDER AN ENFORCEMENT ORDER The Enforcement Order will set out the choices of payment and the consequences of not paying the fine within the 28 days or other stated time.16 The options for the person (the debtor) are (s 41):

to pay the amount in full to SPER (there are a range of payment facilities such as by phone, by cheque, through BPAY, by credit card, in person, by direct debit from one’s bank or credit card account etc.); or

apply to SPER to pay the amount owing by instalments; or

apply to SPER for a conversion of the amount owing to hours of unpaid community service under a Fine Option Order; or

if the order relates to an infringement notice offence – make an election to have the offence decided in a Magistrates Court.

The consequences of failing to pay the amount due stated in the Enforcement Order are that SPER may take any of a number of enforcement actions under the SPE Act, including the compulsory garnishee of wages; the seizure and sale of real and personal property; the suspension of the debtor’s driver’s licence for motor vehicle

4

related offences (which is sought to be amended by the Bill to enable driver licence suspension in relation to fines for other offences); and arrest and imprisonment, as a last resort.

However the various options discussed under the headings below may be available to the debtor, particularly if the defaults are due to financial hardship or other difficulties. The comment has been made, however, that the arrangements considered below may not be suitable for people who are homeless or very poor. For example, payment by instalments, even via social welfare benefits, may be too onerous for persons in those categories. As for community service work under a Fine Option Order, homeless and/or poor people may be unable to afford public transport to facilitate attendance at the site of the work and may also have poor physical health or mental illnesses that prevent them from undertaking such work.17

Instalment Plans

Among the arrangements for payment of the amount owing under the Enforcement Order is payment by instalments (s 42). The debtor can apply to make instalment payments of not less than the minimum amount (see s 28 of the Regulation) and, if SPER decides to allow payment by instalments, it must give the debtor an Instalment Payment Notice (which is not the same thing as the instalment payment notice arranged at first instance with the administering authority issuing the infringement notice).18 The Notice must inform the debtor of the consequences of failing to pay the amount within the time allowed – i.e. that various enforcement action can be taken (see s 136 setting out other content requirements of the instalment plan notice).

Fine Option Order

The debtor may, within 28 days of the date of the Enforcement Order, apply for a Fine Option Order to allow the debtor (if he or she is eligible for the order)19 to perform community service work in lieu of payment of the fine (s 43). Once the specified hours of the community service work are completed, the fine is considered to be paid (see also s 126).20

This option will not be available to a debtor who has previously contravened a Fine Option Order for the same offence; or if the debtor has already been issued with a Warrant of Arrest and Imprisonment (discussed later). Nor can a debtor apply if the debtor has previously been refused a Fine Option Order because he or she was assessed as able to pay the fine in full or by instalments, unless the debtor’s financial circumstances have significantly worsened (s 44). If, on consideration of the current application, SPER assesses the debtor as being able to pay by instalments or otherwise, this option is also unavailable (s 45).

However, if SPER accepts the application, SPER must, as soon as reasonably practicable, refer it to the Queensland Corrective Services (QCS) for QCS’ decision about the debtor’s suitability for performing community service work and notify the debtor of his or her need to attend a QCS office for suitability assessment (s 47). The chief executive of the QCS must assess the debtor’s suitability for community service and, while the chief executive can take into account any relevant matters, the debtor will not be suitable if he or she has breached a community service order in the past 12 months (s 48).

If the QCS assesses the debtor as suitable to perform community service, the QCS chief executive must give SPER notice of the number of hours of unpaid community service the debtor must perform to satisfy the unpaid amount; where and when the debtor must report for performing the required work, and the name of the supervising QCS officer (s 49). Since 1 January 2009, 1 hour of work is required for every $20 owing for a fine given after this date.21

The Fine Option Order is then made, in accordance with the content requirements of s 122, and registered by SPER. Notice of the making of the Fine Option Order must be given to the debtor (s 50). The content requirements of the Order include the number of hours of work to be performed, that the debtor must comply with reasonable directions of an authorised corrective services officer,22 and the debtor’s reporting and notification obligations. It must also state that the work must be performed within 1 year unless another time is allowed or time is extended under s 124. The Fine Option Order must be accompanied by a notice stating that failure to comply with the order may result in a driver’s licence suspension or imprisonment or both (s 138).

If the Fine Option Order is breached, s 128 requires that the debtor be given a notice (by the QCS supervisor) to require him or her to stop the contravention or explain the contravention within a stated time. A breach can occur in circumstances such as failing to properly perform the work, failing to report for work as directed, failing to advise of change of address or employment, or leaving Queensland without permission. If no reasonable explanation is provided by the debtor after being given notice, SPER is provided with a breach notice by the supervisor (see also, s 139). This will enable SPER to revoke the Fine Option Order if satisfied it has been contravened without reasonable excuse and the SPER registrar has considered a report from the QCS chief executive about the matter. SPER then gives the debtor a revocation notice stating that the debtor has rights of review (s 129). The debtor can then seek a review of the revocation by the Magistrates Court (s 130).

The consequences of the breach are that the suspension of the Enforcement Order ends and SPER can now

5

take enforcement action if the amount owing is not paid.

Election for Court Hearing

The Disputing a Fine or SPER Fees factsheet explains that SPER does not have the power to withdraw a disputed infringement notice fine or court ordered fine but can offer advice to debtors disputing a fine about their options regarding election for a court hearing.

Section 51 of the SPE Act provides that if, within 28 days after the date of the Enforcement Order for an unpaid infringement notice fine, the debtor elects to have the matter of the offence decided in a Magistrates Court; or does not apply for an Instalment Plan nor for a Fine Option Order, a proceeding for the offence may be commenced under the Justices Act 1886 (Qld). If the debtor makes that election or is granted a rehearing of the complaint for the offence, the Enforcement Order ceases to have effect.

For a rehearing of a court ordered fine, the debtor needs to contact the court that originally heard the matter to determine eligibility for a rehearing or reopening of the matter (e.g. the proceedings occurred in the absence of the debtor).23

ENFORCEMENT ACTIONS Part 5 of the SPE Act enables SPER to issue an Enforcement Warrant, Fine Collection Notice, or Warrant of Arrest and Imprisonment if, at the end of the Enforcement Order, the fine remains unpaid and, if relevant, the debtor has not elected to have the matter of the offence heard in a Magistrates Court (see also ss 52 and 52A).24

Enforcement Warrants are directed to Enforcement Officers. The current definition of an Enforcement Officer under Sch 2 of the SPE Act is sought to be altered by cl 39 of the Bill to add ‘an appropriately qualified public service officer’, which is further defined as an officer having ‘the training and experience to perform an enforcement function’ under the SPE Act, to the list of potential Enforcement Officer appointees. The list also includes a sheriff, deputy sheriff, bailiff of a court; or a commercial agent engaged under s 10 of the SPE Act.

Before enforcement action is taken, the debtor is provided with a reminder letter giving him or her 14 days within which to pay the outstanding amount of the fine or take some other action such as asking to pay via instalments or applying for a Fine Option Order to undertake community service work.

An Enforcement Officer serving a Fine Collection Notice or enforcing a warrant under the SPE Act may require a person believed to be the debtor to provide relevant information, specified in s 114 (e.g. full name and address, employment details, bank account details etc.) and the debtor may be required to provide evidence to verify that information. It is an offence not to provide the information unless the debtor has a reasonable excuse and the debtor must be told this. This provision is sought to be amended by cl 18, as noted later, to enable the Enforcement Officer to question the debtor in relation to an Immobilisation Warrant. It is also an offence for anyone to obstruct an Enforcement Officer (s 116).

Fine Collection Notices

Under Part 5, Division 3 of the SPE Act, if a debtor does not pay the fine within the time specified by the enforcement order, s 75 enables SPER to issue a Fine Collection Notice to certain bodies to redirect moneys payable to the debtor to SPER. As with other enforcement action, the amount owing by the debtor becomes the total amount still unpaid plus the civil enforcement fee ($87: s 27 of the Regulation). Further, if an Enforcement Warrant has been issued against the debtor, the debtor can agree to satisfy the amount unpaid by way of a Fine Collection Notice. If so, the Enforcement Warrant is suspended for so long as amounts are deducted under the Notice. Fine Collection Notices can be issued to:25

employers (ss 79-96) to order that specified deductions be made from the debtor’s wages or salary and sent to SPER.26 However, this order can only be made if the debtor will, after the deduction is made, have sufficient moneys for necessary living expenses and other known liabilities, and will not suffer unreasonable hardship.27 Failure by the employer to comply with the Notice is an offence. Under s 92 of the SPE Act, employers must not prejudice employees because of the Notice action (e.g. dismiss or threaten to dismiss the debtor) or an offence is committed;

banks and other financial institutions (ss 100-103) to order the transfer of money from the debtor’s account with a financial institution to SPER in payment of the debt (either by way of regular specified deductions or lump sum). An offence is committed if the debtor attempts to defeat the Notice by withdrawing funds from the account or discontinues payments into it;

other third parties (ss 97-99) to order that moneys payable by the third party to the debtor to

6

satisfy a debt be redirected to SPER. Payment to SPER by the third party is a valid discharge of the third party’s liability to the debtor to the extent of the amount paid. Non compliance with the Notice is an offence.

Enforcement Warrants

An Enforcement Warrant can be issued and served on the debtor pursuant to ss 63-74 of the SPE Act to:

seize and sell real and/or personal property (e.g. a motor vehicle or house) in which the debtor has a legal or beneficial interest; or

impose a charge on property (e.g. interest in land, annuities, debentures, stocks etc.).28

Once the Enforcement Warrant is issued, the amount owing is then the unpaid amount plus the civil enforcement fee ($87: s 27 of the Regulation).29

The Enforcement Warrant must be in the approved form and comply with the requirements of s 63 and include particulars required under ss 140 or 141.

The Explanatory Notes (p 29) indicate that, to date, SPER has not used Enforcement Warrants for seizure and sale of property because it has not had the resources or systems in place to do so. Thus, it is proposed that the Bill strengthen SPER’s existing powers and align them with the powers/processes for enforcing money orders under the Uniform Civil Procedure Rules 1999 (UCPR) (rules 820, 821, 828).

Enforcement Warrants for Seizure and Sale of Property

There may be situations in which the debtor can still prevent seizure and sale of his or her property. Under s 69 of the SPE Act, SPER will instruct the Enforcement Officer not to enforce the Enforcement Warrant straight away but to first see if the debtor can pay the amount owing in full. If not, then the Enforcement Officer may be asked to interview the debtor to determine if he or she is able to pay the amount owing by way of a Fine Collection Notice or a Fine Option Order.30 If the debtor agrees to pay the amount owing in any of the foregoing ways, the warrant must not be enforced.

A proposed s 69A (see cl 8) will clarify that the SPER registrar must give the Enforcement Warrant to the Enforcement Officer, subject to any instructions under s 69; that the Enforcement Officer must have the warrant in his or her possession when enforcing it and, for a warrant to seize and sell property, must show it to persons claiming an interest in the property. It will also be stated that actual seizure is not necessary to authorise the sale of real property.

Clause 5 seeks to amend s 63 so that the range of property for seizure and sale under the warrant is limited to exclude ‘exempt property’, as defined in Sch 2 of the Supreme Court of Queensland Act 1991 (Qld). Under Sch 2 of that Act, ‘exempt property’ means ‘property that is not divisible among the creditors of a bankrupt under the relevant bankruptcy law as in force from time to time’. The Explanatory Notes (p 29) state:

… this means that SPER will be unable to seize and sell property including household property that is reasonably necessary for the domestic use of the debtor’s household, having regard to current social standards; property used by the debtor in earning income by personal exertion worth less than $2,600; or transport vehicles worth less than $5,000.

The Explanatory Notes (p 30) go on to say that it was not considered appropriate for SPER to continue to have ‘an advantage over enforcement creditors seeking to enforce a money order under the UCPR’.

The Explanatory Notes (p 30) observe that the amendments to SPER’s seizure and sale powers are intended to support the new wheel clamping initiative proposed by cl 13 of the Bill (Immobilisation Warrants are dealt with later in this e-Research Brief). Clause 5 of the Bill also inserts a proposed s 63(6)-(7) to provide that although SPER can issue an Enforcement Warrant to seize and sell a vehicle while it is subject to an Immobilisation Warrant, the Enforcement Warrant cannot be enforced while the vehicle is so immobilised.

A new s 68A is sought to be inserted by cl 7 which makes it an offence – attracting up to 3 years imprisonment or a fine of up to $20,000 – for the debtor served with an Enforcement Warrant to seize and sell property to conceal, sell, transfer or otherwise deal with the property with the intention of defeating the enforcement of the warrant or adversely affecting the seizure or sale of the property.

Sections 70-74 set out the powers provided to Enforcement Officers to assist in the enforcement of the warrant such as powers of entry, and the ability to obtain a search warrant for a search of premises in which it is reasonably believed there is property to be seized. The search warrant then provides power (for a maximum of 7 days) to enter and undertake the search and seizure. A proposed amendment to s 72 will provide the Enforcement Officer with power to do anything else reasonably necessary that is incidental to searching for and seizing property (cl 9). The Explanatory Notes (pp 31-32) provide the example of the Enforcement Officer directing a tow truck operator to enter the debtor’s premises to tow a vehicle that may be sold under the

7

Enforcement Warrant.

The Bill (cl 10) proposes to insert new s 73A-73K, the operation of which is detailed in the Explanatory Notes (pp 32-35). In brief, the new provisions propose to:

state that the Enforcement Officer seizing the property must serve a notice on the debtor or person in possession of the property to be seized under the warrant. Such notice must be in the approved form, identify the property being seized, and state that it is an offence to conceal, sell, transfer or deal with the property with intent to defeat the Enforcement Warrant or adversely affect the seizure or sale; and that it is an offence to interfere with the property once seized (new s 73A);

enable the Enforcement Officer to authorise the tow of a motor vehicle seized under the warrant to a holding yard (new s 73B (see also the amended s 72, above));

provide for the order in which the Enforcement Officer must seize and sell property and this is the order appearing to be the best for prompt enforcement of the warrant without undue expense and for minimising hardship to the debtor and others. SPER can direct a different order of seizure and sale, but must also have regard to the same matters. Property may be seized and sold even though it is considered that its value exceeds the amount recoverable, provided that additional items are not also seized and sold (new s 73C). The Explanatory Notes (p 32) state that new s 73C is a modified version of r 829 of the UCPR;

state that the Enforcement Officer must not sell property seized if the debtor pays the amount of the debt owing and the enforcement costs at or before the sale (new s 73D – modified version of r 830 of the UCPR);

provide for the storage of the seized goods and for SPER to pay any expenses thereof (which can be recovered as an enforcement cost) (new s 73E – modified version of r 831 of the UCPR);

set out the sale process of the seized property. A public auction must be held as early as possible at a suitable place for beneficial sale. However, before the auction, the debtor can ask for a private sale. The property must be sold at the auction in accordance with the conditions in the new s 73F(3). The conditions are that, if the reserve is reached (set by the SPER registrar under new s 73F(8)) the property must be sold to the highest bidder. Further, if the person conducting the auction for property which are goods believes the lot in which the goods are to be auctioned is worth less than $500, they must be sold at the best price obtainable; for other property if the debtor agrees, at the best price possible. If the property is not sold at the auction, the Enforcement Officer may sell it privately pursuant to new s 73F(7) (new s 73F – modified version of r 832 of the UCPR);

provide for the property to be sold at the best price obtainable if it still remains unsold after auction and private sale (new s 73G – modified version of r 833 of the UCPR);

set out the particulars of advertising required before property is sold or auctioned under the warrant (new s 73H – modified version of r 834 of the UCPR). The debtor can apply to SPER to seek a postponement of the sale under new s 73I (modified version of r 835);

set out the accountability for, and the distribution of, the sale proceeds (new s 73J – modified version of r 836 of the UCPR). The Enforcement Officer must pay all proceeds of sale and other moneys received to SPER as soon as practicable after deducting his or her fees and expenses. SPER must apply the proceeds in the order specified. First, towards the payment of enforcement costs incurred by SPER in the seizure and sale. Then, from any balance, SPER must discharge any registered security interest over the property. From any balance, SPER must pay the amount recoverable under the Enforcement Warrant excluding costs (ss 111-112 set out the order in which the amount is to be applied depending on whether the amount owed is in relation to an infringement notice fine or a court ordered fine etc. (see also s 113)); then any balance left, to the debtor;

enable the Enforcement Officer to require the debtor to provide any known or obtainable information relevant to the setting of the reserve price of the property to be sold and to make the failure by the debtor to comply an offence punishable by a fine of up to $1,000 (new s 73K – modified version of r 837 of the UCPR).

Registration of Interest

If the amount owing is more than $1,000, s 110 of the SPE Act allows SPER to register an interest in land or other property (e.g. a motor vehicle) via a Registered Warrant which is issued together with an Enforcement

8

Warrant. If SPER registers an interest over real property, it is recorded against title in the Land Titles Office so that the owner (the debtor owing the debt to SPER) cannot sell or otherwise deal with the property while SPER’s interest in it exists. If SPER registers an interest over a vehicle or vessel, that interest is recorded against that vehicle/vessel in the Register of Encumbered Vehicles (REVS) meaning that it will be difficult to sell the vehicle while the interest exists over it. A proposed amendment to s 110 (by cl 14) is intended to clarify that registration of an interest in a vehicle does not prevent SPER from issuing a Notice of Intention to immobilise the vehicle; an Immobilisation Warrant; or an Enforcement Warrant to Seize and Sell.

ENFORCEMENT BY VEHICLE IMMOBILISATION A key amendment sought to be effected by the Bill (by virtue of the proposed new Part 5, Div 7A to be inserted into the SPE Act by cl 13) is the provision of new powers to SPER to, under an Immobilisation Warrant, immobilise vehicles owned by defaulting persons who owe more than a prescribed threshold amount (which the Explanatory Notes (p 7) indicate will be $5,000) and who are the sole registered operator of the motor vehicle. The Explanatory Notes (p 7) also state that this enforcement mechanism is one of ‘last resort’, second only to imprisonment, where other compliance and enforcement provisions are not suitable or have been ineffective. The Explanatory Notes also comment that the ‘wheel clamping process will provide debtors with ample opportunity to pay the debt or enter into compliance before their vehicle is actually clamped, seized and sold’.

The effect of an Immobilisation Warrant (see new s 108F) is that the vehicle(s) named therein can, without further notice to the debtor and without the debtor’s consent, be immobilised by attaching an ‘immobilising device’ to the vehicle. A new definition in Sch 2 of the SPE Act will provide that an ‘immobilising device’ means ‘wheel clamps or another device that effectively detains the vehicle’. Further, the amount then owed by the debtor increases by the amount of the civil enforcement fee ($87, which is added to the amount already owing).

The Explanatory Notes comment that the Immobilisation Warrant provisions will bring Queensland into line with Victoria (Infringements Act 2006 (Vic), Part 7) and South Australia (Criminal Law (Sentencing) Act 1988 (SA), s 75G).

Immobilisation Criteria

The criteria for vehicle immobilisation are set out in new s 108A. They are:

that the vehicle is of a type that can be immobilised under new s 108B. Section 108B(2) sets out the vehicles that may not be immobilised: a motorised wheelchair; a motorised wheeled recreational device; or any of the following used wholly or primarily by a person with a disability or by the person’s carer (a scooter, quad bike, or motor vehicle adapted to accommodate the disability);31 and

that the debtor is the sole registered operator of the vehicle. A new definition of ‘registered operator’ is proposed to be inserted into Sch 2 to cover the current registered operator, or if there is no current registered operator, the last registered operator. The Explanatory Notes (p 36) comment that this definition is intended to prevent debtors from avoiding the immobilisation process by deregistering their vehicle or allowing the registration to lapse (however, jointly owned vehicles cannot be immobilised); and

the amount owing by the debtor to SPER is at least the prescribed amount (which the Explanatory Notes (p 35) indicate will be a threshold amount of $5,000); and

the SPER registrar is satisfied the debtor is not taking action to dispute the amount owed or part thereof, and any of the following applies:

the debtor has failed to pay an amount stated in an Enforcement Order within the stated 28 day period;

an instalment payment notice has been cancelled;

a Fine Option Order has been revoked;

a good behaviour order has been cancelled; and

the SPER registrar is satisfied either that it is not possible or appropriate to take another form of enforcement action (e.g. licence suspension, redirection of wages under a Fine Collection Notice, arrest and imprisonment); or another form of enforcement action has been unsuccessful.

9

Immobilisation Process

The steps taken to immobilise one or more vehicles are proposed to be as follows:

the SPER registrar registers an interest over the debtor’s vehicle pursuant to s 110 of the SPE Act (which will occur under the Register of Encumbered Vehicles) (see Explanatory Notes (p 7));

the SPER registrar must serve the debtor with an Notice of Intention to Issue an Immobilisation Warrant under new s 108C which gives the debtor 14 days within which to pay the outstanding amount in full or to enter into compliance arrangements (e.g. being permitted to pay by instalments or convert the unpaid amount to community service work under a Fine Option Order, or being made subject to a good behaviour order). SPER will, during the 14 day notice period, attempt to liaise with the debtor to have him or her pay the debt in full or via other arrangements so that the next step – issue of the Immobilisation Warrant – can be avoided.32 The new s 146A (proposed to be inserted by cl 26) sets out the content requirements of the Notice of Intention (for instance, it must state that the debtor has 14 days to pay or make other arrangements with SPER before the vehicle is immobilised; that the vehicle can be seized and sold if the debtor takes no action to pay the unpaid amount or enter into compliance arrangements by the time the immobilisation device is removed; and the offences that apply if the immobilisation process is interfered with etc.);33

next, new s 108D provides that once the 14 day period mentioned in the Notice of Intention has elapsed with none of the stated actions by the debtor (e.g. full payment, being allowed to pay by instalments or being given a Fine Option Order, or being granted a good behaviour order) having occurred, the SPER registrar may issue an Immobilisation Warrant, complying with the requirements of new s 146B (see cl 26), and serve it on the debtor. Among the several content requirements (some of which are similar to the content requirements of the Notice of Intention) is that the warrant must state that the vehicle is liable to seizure and sale if the debtor fails to pay the amount owing or has not entered into other compliance arrangements, or had a good behaviour order made against him or her by the time the immobilising device is removed. SPER’s decision to issue an Immobilisation Warrant joins the list of decisions of the SPER registrar in s 155 that are not judicially reviewable.34

In deciding whether or not to issue the warrant, the SPER registrar may have regard to whether the immobilisation would cause severe or unusual hardship to the debtor, his or her family, or another person who uses the vehicle but has no capacity to ensure the debtor pays the amount owing (guidelines under new s 150B(4) will be issued to assist with this assessment of hardship). The Explanatory Notes (p 40) indicate that if immobilisation does not go ahead on the basis of an assessment of hardship, SPER will instead consider if the debtor could be placed under a good behaviour order under s 118 of the SPE Act. Consideration of hardship can also be made later during the immobilisation period (see below);

then, as soon as practicable after immobilisation, new s 108N requires an immobilisation notice to be attached to a prominent place on the vehicle which states that the vehicle is immobilised because the registered operator is a person against whom an Immobilisation Warrant has been issued; the length of time the device may remain; and the offences that apply to attempting to frustrate the immobilisation process (e.g. by removing the device or the notice or the vehicle itself) (s 146C). It is permissible, however, for the debtor to access the vehicle to, for instance, remove personal property during the immobilisation period (new s 108O(2)). The Explanatory Notes (p 45) point out that the Notice will, in practice, contain the SPER immobilisation team’s contact details and hours of operation.

the immobilising device may be attached to the vehicle parked or stopped in a public place; on property occupied by the debtor; or (if the debtor is not an individual) at the debtor’s place of business or registered office; or at any other premises with the occupier’s consent, and at any reasonable time of the day or night (new s 108H). There are various types of places stated in new s 108H(4) where immobilisation must not occur (e.g. at a place where the vehicle could impede the use of the place or road network, or be a safety risk, or if the safety of the driver and occupants may be at risk) as well as circumstances in which immobilisation must not take place (i.e. the debtor pays the amount owing; or SPER allows instalment payments or makes a Fine Option Order; or a good behaviour order is made against the debtor). Guidelines issued under new s 150B(6) will assist the immobilisation operation.35

The Enforcement Officer enforcing an Immobilisation Warrant may also exercise the powers provided by new s 108I which include powers of entry to public places and other premises. Entry of residential places requires

10

the occupier’s consent or authorisation under an immobilisation search warrant.36 Such a search warrant can be sought under new s 108L if the Enforcement Officer reasonably believes (and the magistrate or justice of the peace (magistrates court) is satisfied there are reasonable grounds for that belief) that the relevant vehicle may be at the premises in an attempt to avoid enforcement of the warrant.37 The search warrant must comply with new s 146D (e.g. state hours of entry, when the warrant ends) and it provides the Enforcement Officer with entry powers to enable a search for the vehicle and powers to use reasonable help to do so (s 108M). A person reasonably believed to be the named debtor can, pursuant to s 114, as amended by cl 18, be required to answer questions relevant to the Immobilisation Warrant.

The period of immobilisation is a maximum of 5 days after which time the immobilising device must be removed (new ss 108O, 108Q). The device can be removed earlier if the SPER registrar is satisfied that the debtor has paid the amount outstanding, or SPER has agreed to an instalment plan or Fine Option Order, or a good behaviour order has been made. Removal is also required if the immobilised vehicle is causing impediment or a risk to safety. The device can also be removed before the end of the immobilisation period if the SPER registrar is satisfied that severe or unusual hardship would be caused to the debtor, his or her family or third person (new s 108P). In relation to the latter two situations, operational guidelines will be issued under new s 150B.

Procedure After Immobilisation Period Ends

Once the immobilisation period has ended, the SPER registrar can direct an Enforcement Officer to seize the vehicle if the debtor has not paid the amount owing; or has not been permitted to pay by instalments or to enter into a Fine Option Order; or has not had a good behaviour order made against him or her (new s 108R).

As indicated in the Explanatory Notes (p 45), SPER will assess whether the vehicle is worth selling and, if so, a separate Enforcement Warrant for Seizure and Sale (as discussed earlier) will be issued under s 63 and served on the debtor during the immobilisation period. Section 63 is sought to be amended (cl 5) to provide that nothing prevents SPER from issuing such an Enforcement Warrant while the vehicle is subject to an Immobilisation Warrant but the seizure and sale cannot occur during the immobilisation period. After the immobilisation period, seizure and sale will then occur pursuant to ss 63-74, discussed earlier. If the vehicle is not worth selling, it will be released once the immobilisation period ends and SPER then needs to determine whether the debtor is eligible for a good behaviour order or if the matter should be referred to a warrant evaluation committee to ascertain whether an Arrest and Imprisonment Warrant should be issued (see Explanatory Notes, p 47).

An Immobilisation Warrant lasts for up to 12 months so it can be re-enforced during that time if an instalment payment notice is cancelled, or a Fine Option Order is revoked or a good behaviour order against the debtor is cancelled (new s 108S).

Other Matters

Other points about Immobilisation Warrants made by the Explanatory Notes (pp 42-43) are:

each step of the proposed immobilisation process will provide the debtor with the opportunity to pay the debt in full or come to other arrangements (e.g. instalment payments, a Fine Option Order) as described earlier before the vehicle is actually clamped and before it is finally seized and sold. The debtor will have notice of each step as it moves towards being clamped, then seized and sold (pp 12-13);

SPER will liaise with the QPS when planning immobilisation operations (p 42). A new s 151A of the SPE Act will allow the SPER registrar to advise the QPS once it has issued an Immobilisation Warrant and when and where it is proposed to undertake the immobilisation. This proposed provision complements s 151 which allows the QPS to provide certain information about a debtor (e.g. criminal history information) to SPER. The Explanatory Notes (p 50) comment that the information exchange will help to ensure that SPER’s operations to immobilise a vehicle do not compromise major police investigations and facilitate the QPS being able to assist in the immobilisation operation, if necessary. The use of such information so exchanged is considerably restricted;

immobilisation will be trialled in the Brisbane metropolitan area for 12 months, starting 1 January 2010, targeting public places (e.g. shopping centre car parks, park and ride stations). It is intended that operations will take place during SPER’s normal business hours. An assessment of any implementation problems will then occur. SPER will conduct the trial operations at paid parking facilities of local councils, universities etc. if memoranda of understanding can be reached with the relevant entities to avoid immobilised vehicles attracting further fees (p 43).

11

Offences

New ss 108X-108Z seek to create a number of offences under the SPE Act that are relevant to immobilisation. Such offences are aimed at actions that seek to interfere with or frustrate the immobilisation process, or avoid the issue of an Immobilisation Warrant. For instance, the debtor must not conceal, sell, transfer, or otherwise deal with the vehicle with intent to avoid the issue of an Immobilisation Warrant or the enforcement thereof. The maximum penalty for most of the new offences will be a fine of $20,000 or 3 years imprisonment (but tampering or removing an immobilising device or an immobilising notice attracts a fine of up to $5,000).

Driver Licence Suspension

Currently, a driver’s licence suspension (ss 104-108) may be incurred if a person commits a motor vehicle related offence; and fails to pay the amount of the fine stated in the Enforcement Order, or defaults on the instalment plan payments, or breaches a Fine Option Order, or has taken no action to have the matter of the offence decided in a court. In addition, there must have been unsuccessful attempts by the Enforcement Officer to enforce the Enforcement Warrant, including interviewing the debtor in the attempt to have the unpaid amount paid off by instalments or by other means set out in s 69. An amended s 104(1) seeks to enable SPER to issue a driver’s licence suspension in relation to amounts owing for any offence not just those related to a motor vehicle (see cl 12). The Explanatory Notes (p 35) comment that this change brings Queensland into line with other Australian jurisdictions, apart from the Australian Capital Territory. A number of jurisdictions also provide for suspension of vehicle registration as an enforcement action (Fines Act 1996 (NSW); Infringements Act 2006 (Vic); Monetary Penalties Enforcement Act 2005 (Tas); Fines And Penalties (Recovery) Act (NT).

Prior to the licence suspension occurring, the debtor must be provided with a Notice of Intention to Suspend Driver Licence (ss 105, 145). If the fine is not paid in full within 14 days after the Notice is issued, the licence is then suspended by SPER until the debt is discharged. Queensland Transport is notified of this suspension (and QPS is also informed). If the suspension is for 3 or more months, SPER must review the suspension at the end of each 3 months.

The consequences of suspension are that it is an offence under the Transport Operations (Road Use Management) Act 1995 (Qld) to drive under a suspended licence (and if convicted of such offence, the debtor can be disqualified from holding a licence for up to 6 months (s 78) and may be fined and/or imprisoned).38 If the unpaid amount owing is paid in full or other arrangements made with SPER to finalise the fine (e.g. instalments of payment; conversion to a Fine Option Order), the suspension can be lifted. If SPER is satisfied that the debtor is not taking steps to satisfy the debt owing to SPER, it may issue an Arrest and Imprisonment Warrant without notice to the debtor (s 107).

WARRANTS OF ARREST AND IMPRISONMENT When other enforcement actions have not succeeded and the fine remains unpaid, SPER has power under Part 6 of the SPE Act to issue a warrant authorising the debtor’s imprisonment (Warrant of Arrest and Imprisonment) and it may also add a further charge ($87) to each fine.

Good Behaviour Orders

Section 118 of the SPE Act allows for the making of a Good Behaviour Order when imprisonment is not appropriate. A Good Behaviour Order is an agreement that the debtor will not commit further offences or infringements for a specified period (which order may or may include conditions).

Section 118 applies if an Enforcement Warrant, Immobilisation Warrant (sought to be inserted by cl 22 of the Bill) or a Fine Collection Notice has been, or may be, issued regarding an unpaid amount and the SPER registrar is satisfied (and may have regard to relevant and/or expert advice) that the debtor is not suitable for performing community service under a Fine Option Order and the debtor cannot pay all or part of the amount owing and, in the particular circumstances, it may be inappropriate to enforce payment by issuing an Arrest and Imprisonment Warrant. SPER’s Good Behaviour Order webpage indicates that there may be medical or psychiatric reasons or other exceptional circumstances of the debtor preventing performance of community service or paying the outstanding amount.

In such a situation, the SPER registrar may, with the debtor’s consent, order that the debtor must be of good behaviour for any period up to a maximum of 3 years on the conditions considered to be appropriate. The Good Behaviour Order must include the information specified by s 118(5) regarding how the debtor can apply to have the order cancelled or varied and the consequences for the debtor if the order is cancelled.

If the Good Behaviour Order is cancelled by the SPER registrar on either the debtor’s application to do so or because the SPER registrar is satisfied the order has been contravened (by reoffending or being given an infringement notice during the term of the order), the unpaid amount of the fine is then owed by the debtor and

12

SPER can take enforcement action. If, however, the period stated in the order ends without it being cancelled, the fine is regarded as paid.

Arrest and Imprisonment

The Warrant of Arrest and Imprisonment provisions under s 119 apply if, after attempting to enforce an Enforcement Warrant or Immobilisation Warrant (sought to be inserted by cl 23) against a debtor, the SPER registrar is satisfied the unpaid amount owing cannot be satisfied in any other authorised way. Section 119 also applies if the SPER registrar issues an Instalment Payment Notice or Fine Collection Notice or makes a Fine Option Order after attempting to enforce an Enforcement Warrant or Immobilisation Warrant and the debtor fails to comply with the Notice or the Order. Section 119 then allows the SPER registrar to issue a Warrant of Arrest and Imprisonment, in accordance with the requirements in s 146, directed to all police officers, for the arrest and imprisonment of the debtor. QPS will then create a record indicating that there is an arrest warrant in effect in relation to the debtor.

SPER may agree to take a part payment after the Warrant of Arrest and Imprisonment is issued but before the debtor is imprisoned, in which case, the warrant ceases to have effect. The SPER Warrant of Arrest and Imprisonment webpage notes that the warrant will be recalled. However, if the debtor does not then take steps to finalise the unpaid amount (by upfront immediate payment or entering into an Instalment Plan), the warrant will be reissued in relation to the balance remaining unpaid (s 120(2)).

The amount of time to be served in prison is worked out under s 52A. It appears that, at present, the debtor will be required to serve 1 day in prison for every $100 unpaid, or at a rate specified in the initial Court Order and is cumulative on any other period of imprisonment to be served.39 The amount owing will be increased by a fee of $87 (s 26A of the Regulation). If the debtor serves the required period of imprisonment, the unpaid amount is taken to be satisfied (s 120(1)). If the debtor pays part of the amount owing after being imprisoned, the period of imprisonment will be reduced.

Use of SMS Technology

A new s 159A is sought to be inserted into the SPE Act by cl 35 to provide that the SPER registrar may communicate with a debtor by SMS without the debtor’s consent about an enforcement action that is being, or may be taken, against the debtor; or matters relating to the debtor’s payment of the amount owing. For instance, the SMS technology could be used to warn the debtor about the intended suspension of a driver’s licence or that the debtor’s credit card is about to expire if it is being used for instalment payments. The Explanatory Notes (p 9) observe that the proposed provision will assist in getting prompt compliance by debtors and encourage higher rates of payment, especially by the 60% of debtors under 34 years old.

13

LINKS TO FURTHER READING

BILL AND ACCOMPANYING MATERIAL

State Penalties Enforcement and Other Legislation Amendment Bill 2009 (Qld); Explanatory Notes; Second Reading Speech, 16 September 2009, pp 2326-2329

ACT AMENDED

State Penalties Enforcement Registry Act 1999 (Qld). See also: State Penalties Enforcement Regulation 2000 (Qld)

The Bill also amends a range of other legislation not discussed in this e-Research Brief including:

Police Service Administration Act 1990 (Qld) and the Education (Queensland College of Teachers) Act 2005 (Qld) to allow Queensland to participate in the national exchange of criminal history information for people working with children, pursuant to a 2008 agreement of the Council of Australian Governments

Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Act (Qld) to confer further jurisdiction and to give judicial registrars additional powers for certain matters

Disability Services Act 2006 (Qld) to extend the transitional period for a further 9 months to enable disability service providers to meet all of the requirements of the new scheme regulating the use of restrictive practices and imposing more onerous requirements

Classification of Films Act 1991 (Qld); Classification of Publications Act 1991 (Qld), Classification of Computer Games and Images Act 1995 (Qld) to allow for the appointment of appropriately qualified public service officers to be inspectors under those Acts. This amendment is to enable Office of Fair Trading inspectors to continue in their roles despite the OFT now belonging to another government department rather than the Department of Justice and Attorney-General (those Acts currently only allowing DJAG employees to be appointed as inspectors)

Superannuation (State Public Sector) Act 1990 (Qld) to confirm that the QSuper Board of Trustees is within the regulatory reach of the Australian Prudential Regulation Authority and the Australian Securities and Investment Commission.

For the full range of Acts proposed to be amended, please refer to the Bill and the Explanatory Notes.

MINISTERIAL MEDIA STATEMENTS

16 September 2009, 21 July 2009, 17 January 2001, 11 June 1999

RELATED LIBRARY PUBLICATIONS P Bartholomew, ‘Wheel Clamping in Queensland, RB 6/97, June 1997’

DEPARTMENTAL WEBSITE

Queensland Department of Justice and Attorney-General, State Penalties Enforcement Registry (SPER), (includes SPER factsheets referred to earlier, including: ‘All about SPER’, ‘Your Options with SPER’)

INTERSTATE FINE ENFORCEMENT WEBSITES AND LEGISLATION

New South Wales

State Debt Recovery Office – Fines Division;

Fines Act 1996 (NSW)

Victoria

Department of Justice: Fines; Victorian Government: Fines – Fairer and Firmer, Wheel clamping;

14

Infringements Act 2006 (Vic)

South Australia

Courts Administration Authority – Fines Administration Unit

Criminal Law (Sentencing) Act 1988 (SA), Pt 9 Div 3 (s 70G – wheel clamping)

Tasmania

Department of Justice – Monetary Penalties Enforcement Unit

Monetary Penalties Enforcement Act 2005 (Tas)

Western Australia

Department of the Attorney-General – Paying Fines;

Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA)

Australian Capital Territory

Magistrates Court Act 1930 (ACT), Parts 3.8, 3.9.2

Northern Territory

Department of Justice – Fines Recovery Unit

Fines And Penalties (Recovery) Act (NT)

NEWSPAPER ARTICLES

‘Clamps on cars if fine unpaid’ (Courier-Mail, 26 September 2005)

15

ENDNOTES

1 Hon CR Dick MP, Attorney-General and Minister for Industrial Relations, State Penalties Enforcement and Other Legislation Amendment Bill 2009 (Qld), Second Reading Speech, Queensland Parliamentary Debates, 16 September 2009, pp 2326-2329, p 2326.

2 Hon CR Dick MP, Second Reading Speech, pp 2326-2327.

3 Some of the information in this e-Research Brief is taken from the Queensland Department of Justice and Attorney-General, State Penalties Enforcement Registry (SPER), Factsheets: ‘All about SPER’, ‘Your Options with SPER’ and other factsheets referred to throughout the e-Research Brief.

4 Hon Matthew Foley MLA, Attorney-General and Minister for Justice and The Arts, ‘New fines enforcement legislation introduced’, Queensland Media Statement, 11 June 1999.

5 Hon Matthew Foley MLA, ‘Purcell urges defaulters to knock out old fines’, Queensland Media Statement, 17 January 2001.

6 Hon Cameron Dick MP, ‘Clamps tighten on serial fine dodgers’, Media Statement, 21 July 2009.

7 Hon CR Dick MP, Estimates Committee E - Justice & Attorney-General and Industrial Relations, Queensland Parliamentary Debates, 21 July 2009, p 7.

8 See, State Penalties Enforcement and Other Legislation Amendment Bill 2009 (Qld), Explanatory Notes, p 2. The SPE Act has only limited application to children (s 5).

9 Part 4, Div 4 deals with when the agency may withdraw the infringement notice; when SPER must cancel registration of the notice on withdrawal by the agency, and cancellation of the notice if the SPER registrar is satisfied the person has been incorrectly named in the notice as the alleged offender; and the effect of such cancellation.

10 After the first instalment of at least $60 (see s 28 of the Regulation), which is paid to the agency concerned along with the application to pay by instalments, the remainder of the instalments are paid to SPER (details of which will be sent to the person by SPER via an Instalment Payment Notice).

11 See the Explanatory Notes (p 28) which also state that this amendment operates alongside the changes to the Industrial Relations Act 1999 made by Ch 2, Part 2 of the Bill and the proposed s 174A inserted by cl 38 of the Bill.

12 Explanatory Notes (p 3). The cases are: Palk v Kneeves (2007) 186 QGIG 700 and Whitson v Golinski [2009] QIC 25.

13 A registration fee (currently $52) is added to unpaid infringement notice fines sent to SPER.

14 Section 137 also sets out the content requirements of the Enforcement Order. The Order must contain information including that the person in default must pay the amount owing or make other arrangements (e.g. instalment payments, Fine Option Order, elect to have the matter dealt with in a Magistrates Court) and the consequences of not complying with the Enforcement Order (i.e. the taking of various enforcement actions).

15 However the court might send the fine to SPER immediately, in which case SPER is contacted to determine payment options. Even if the court allows a time within which to pay the fine, it might still be sent to SPER and then either the court or SPER can be paid the fine: SPER, ‘Your Options with SPER’.

16 Section 54 deals with the effect of an appeal against conviction or sentence for the offence to which the penalty applies; and ss 55-60 cover the situations in which Enforcement Orders for infringement notice offences can be cancelled (e.g. where the person did not receive the infringement notice or was prevented by accident or illness from taking action) as well as appeals against a refusal to cancel.

16

17 T Walsh, ‘Won’t Pay or Can’t Pay? Exploring the Use of Fines as a Sentencing Alternative for Public Nuisance Type Offences in Queensland’, Current Issues in Criminal Justice, 17(2), November 2005, pp 217-237, p 229.

18 The amounts to be paid off each week/month will be set out in an Instalment Plan Notice. If a person receives an eligible payment from Centrelink, he or she may be able to have a specified amount deducted from Centrelink payments and sent to SPER (Centrepay deduction): see SPER, ‘Instalment Payment Notice’ Factsheet.

19 See also, SPER, ‘Fine Option Order’, Factsheet.

20 Sections 124-130 deal with other matters regarding Fine Option Orders, including that making payments against the amount owing reduces the amount of community service work hours to be performed; and cumulative performance of more than one order for community service.

21 Section 27A of the Regulation. See also, SPER, ‘Fine Option Orders: Frequently Asked Questions’.

22 Such directions should, as far as practicable, avoid conflict with the person’s religious beliefs, or interfering with work or educational commitments, or interfering with family responsibilities (s 123).

23 SPER, ‘Disputing a Fine or SPER Fees’ Factsheet.

24 Part 5 also applies if the SPE Act expressly authorises SPER to issue an Enforcement Warrant or a Fine Collection Notice for an unpaid amount. Part 8 of the SPE Act deals with reciprocal enforcement of fines. It allows a court in another state (which has been declared to be a reciprocating court) to enforce a Queensland fine imposed on a person and, conversely, allows SPER to enforce a fine imposed under a conviction of a reciprocating court on a person with property in Queensland.

25 Sections 142-144 set out the content requirements of each type of Fine Collection Notice.

26 See also, Employer’s Guide which sets out information about the employer’s duties and obligations.

27 See also, ss 82-83 specifying that the deduction should not leave the debtor’s earnings at less than the ‘protected earnings amount’ (PEA). The PEA is determined by Commonwealth legislation to cover reasonable living expenses so that after deduction of income tax and the amount specified in the Fine Collection Notice, the person should be left with an amount not less than the PEA.

28 A proposed amendment to s 63(3) provides that Enforcement Warrants for seizure and sale of property are issued for up to 12 months and other Enforcement Warrants, for up to 6 months (see cl 5(3)). In line with this, a new s 63A (see cl 6) seeks to provide that an Enforcement Warrant for seizure and sale can be renewed for a further 12 months maximum and other warrants for a further 6 months maximum.

29 Sections 64-66 provide for SPER cancelling or suspending or varying an Enforcement Warrant for seizure or sale of property on application by a person claiming an interest therein in certain circumstances; the types of interests that a warrant imposing a charge on property can apply to; and the effect of such a charge on property. The Supreme Court can restrain or set aside a sale or other dealing with the relevant charged property, unless the rights of a genuine purchaser or chargee would be prejudiced without notice (s 67). It is an offence for the debtor (see also offences by other persons specified in s 68(2)) to conceal, sell, transfer or otherwise deal with the charged or restrained property and a fine of up to $20,000 or up to 3 years imprisonment applies (s 68).

30 Section 109 becomes relevant to Fine Option Orders made in these circumstances. If the order is breached, SPER may cancel it and the Enforcement Warrant and, instead, issue an Arrest and Imprisonment Warrant.

31 The Explanatory Notes (p 37) comment that s 150B of the SPE Act, as amended by cl 29 of the Bill, will provide for the SPER registrar to issue guidelines in relation to the immobilisation process and operational matters, including types of vehicles that may be immobilised; the service of Notices of Intention; to assist in the assessment of whether there could be severe and unusual hardship flowing

17

from issuing an immobilisation warrant; the actual immobilisation action; and certain considerations prompting earlier removal of an immobilisation device.

32 See, Explanatory Notes, p 39.

33 See cl 26. Section 158 is proposed to be amended (cl 34) regarding how the Notice of Intention can be served on the debtor (post or facsimile at the specified places such as the debtor’s residential or business address last known to SPER). The same applies for an Immobilisation Warrant.

34 The other non-reviewable decisions include the refusal of an application to make instalment payments; issue of an Enforcement Order, Enforcement Warrant, Fine Collection Notice, Notice of Intention to suspend a driver’s licence, and a Warrant of Arrest and Imprisonment (see s 155 for other non-reviewable decisions and actions). The new s 108E enables a person claiming an interest in the vehicle that is or is about to be immobilised to apply to SPER for a cancellation, suspension or variation of the Immobilisation Warrant because of facts discovered after the warrant was issued. The SPER registrar’s decision can be judicially reviewed as such a decision is not excluded from such under s 155.

35 If the Enforcement Officer damages property during the immobilising process, new s 108U requires the giving of a notice of damage to the apparent owner about the damage unless it is trivial. New s 108V allows a person to claim the cost of repairing or replacing property so damaged from the State. Under the new s 108W, a claim under a vehicle insurance policy for an event that happened during the immobilisation period cannot be refused merely because the vehicle was immobilised.

36 See also, new s 108J (entering land around premises to seek the occupier’s consent): new s 108K (process to be undertaken to enter premises with the occupier’s consent).

37 The same process applies regarding the issue of a search warrant to support an Enforcement Warrant (see s 71. See also s 72 re powers exercisable under a search warrant).

38 See SPER, ‘Driver’s Licence Suspension’ Factsheet. Section 145 provides that one of the requirements of the Notice of Intention to Suspend a Driver Licence is that the person be told that it is an offence to drive while the licence is suspended.

39 See SPER Website, ‘Warrant of Arrest and Imprisonment: Frequently Asked Questions’.