Monetary Penalties Enforcement Act 2005 (Tas)

Monetary Penalties Enforcement Act 2005 An Act to provide for the appointment of the Director of the Monetary Penalties Enforcement Service and the collection and enforcement of payment of monetary penalties [Royal Assent 9 December 2005] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Monetary Penalties Enforcement Act 2005 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – administrative enforcement means the imposition of an administrative sanction under Part 6 ; approved means approved by the Director; Australian driver licence has the same meaning as in the Vehicle and Traffic Act 1999 ; civil enforcement means the imposition of a civil sanction under Part 7 ; Commissioner means a Commissioner within the meaning of the Victims of Crime Assistance Act 1976 ; compensation order means an order made under Division 2 of Part 9 of the Sentencing Act 1997 ; conveyance includes an aircraft, vehicle or vessel; court means a court as defined in section 6 ; debt means any amount stated in an enforcement order that remains unpaid, including any prescribed amount imposed by or under this Act, and any other costs made recoverable under this Act; Director means the Director, Monetary Penalties Enforcement Service appointed under section 8 ; Director, Community Corrections means the person appointed under the State Service Act 2000 to manage probation officers working on community corrections programs under section 88 of the Corrections Act 1997 ; discharge, in respect of a monetary penalty or a debt, means – (a) to pay in full; or (b) to complete a period of community service in accordance with an MPCSO; or (c) to complete a period of imprisonment imposed in respect of the non-payment of the debt; or (d) to have the Director deem the debt to be uncollectable in accordance with section 109 ; or (e) any combination of paragraphs (a) to (d) which fully satisfies the debt; driver licence has the same meaning as in the Vehicle and Traffic Act 1999 ; earnings, in relation to an enforcement debtor, means any amount payable to the enforcement debtor by way of wages or salary and any other emolument payable in addition to wages or salary; enforcement costs means any costs incurred in enforcing payment of a monetary penalty under this Act; enforcement debtor means a person to whom an enforcement order has been issued under Part 5 ; enforcement officer means a person engaged under section 10(2)(a) or appointed under section 12(3) ; enforcement order means an enforcement order issued under Part 5 ; enforcement warrant means an enforcement warrant issued under Part 7 ; fee-paying public sector body means a public sector body referred to in section 7(1) ; fine means the sum of money payable by an offender under an order – (a) of a court made on the offender being convicted, or found guilty, of an offence and includes – (i) a sum of money payable as costs; and (ii) a sum of money payable under a compensation order; and (iii) a sum of money payable under a compensation levy under the Victims of Crime Compensation Act 1994 ; and (iv) a sum of money payable under a pecuniary penalty order made under the Crime (Confiscation of Profits) Act 1993 – but does not include a restitution order; or (b) made by a Criminal Injuries Compensation Commissioner under section 7A of the Victims of Crime Assistance Act 1976 ; Government Business Enterprise means a Government Business Enterprise within the meaning of the Government Business Enterprises Act 1995 ; infringement notice means a notice, including a traffic infringement notice, which – (a) is authorised by an Act; and (b) sets out particulars of an alleged offence; and (c) gives an alleged offender the option of paying the penalty set out in the notice or having the matter dealt with in court; issuing authority means a public sector body which issues an infringement notice; land has the same meaning as in the Land Titles Act 1980 ; licence issuer means a person with the statutory authority to issue a prescribed licence; monetary penalty means a fine or a penalty set out in an infringement notice and any prescribed amount and other costs recoverable under this Act; MPCSO means a Monetary Penalty Community Service Order issued under section 33 ; non-fee-paying public sector body means a public sector body referred to in section 7(3) ; notice of election means a notice of election under section 15(1)(d) or section 17(1)(d) ; notification includes notice given in an electronic form approved by the Director; probation officer means a person appointed as a probation officer or an honorary probation officer under section 5 of the Corrections Act 1997 ; property means personal property comprising goods or chattels; protected earnings amount, for a period for which earnings are paid, means the amount calculated by applying the protected earnings rate to that period; protected earnings rate has the meaning given by section 4 of the Child Support (Registration and Collection) Act 1988 of the Commonwealth; public sector body means any of the following: (a) an Agency as defined in the State Service Act 2000 ; (b) a statutory board; (c) a holder of a statutory office; (ca) any person, or a person of any class of persons, authorised under an Act to issue or serve an infringement notice; (d) a Government Business Enterprise under the Government Business Enterprises Act 1995 ; (e) a council; (f) a body whose members, or a majority of whose members, are appointed by the Governor or a Minister; (g) a department, authority or agency of the Commonwealth government; (h) a prescribed body; Recorder means the Recorder of Titles appointed under section 4(1) of the Land Titles Act 1980 ; reciprocating court means a court declared under section 107 to be a reciprocating court for the purposes of this Act; redirection of money owing order means an order issued under section 84(1) ; Register has the same meaning as in the Land Titles Act 1980 ; registered land means land which is subject to the Land Titles Act 1980 ; registered operator has the same meaning as in the Vehicle and Traffic Act 1999 ; registered proprietor means any person appearing by a folio of the Register, or by any registered dealing, to be the proprietor of any estate or interest in registered land; Registrar means the Registrar of Motor Vehicles appointed under section 5 of the Vehicle and Traffic Act 1999 ; restitution order means a restitution order within the meaning of the Sentencing Act 1997 ; search warrant means a search warrant under Part 7 ; specified land means land specified in a notice under section 68(3) ; warrant of commitment means a warrant of commitment under Part 8 ; warrant premises means – (a) premises in relation to which a search warrant or an enforcement warrant is in force; and (b) where a warrant is to be executed against property which is a conveyance, the place at which the conveyance is hangared, parked or moored. 4. Application of Act (1) This Act does not apply to a person sentenced under the Youth Justice Act 1997 other than to the extent that the Director may accept payment of a monetary penalty, or payment in accordance with an undertaking to pay compensation under section 16(1)(b) or (c) of the Youth Justice Act 1997 , in whole or in part, from the person. (2) Notwithstanding subsection (1) of this section and section 103(3) of the Youth Justice Act 1997 , this Act applies to a person sentenced under that Act who upon attaining 18 years of age remains in default of payment of any monetary penalty. (3) Nothing in subsection (1) derogates from the obligations imposed on the Director under section 19 of the Youth Justice Act 1997 in relation to payments of compensation. 5. Act binds Crown (1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. (2) The Crown in any of its capacities is not liable to be prosecuted for an offence under this Act. 6. Meaning of court (1) Subject to subsection (2) , "court" means a court of summary jurisdiction within the meaning of the Justices Act 1959 . (2) A court when constituted by one or more justices may only exercise the jurisdiction prescribed by rules of court made under section 144 of the Justices Act 1959 . 7. Fee-paying public sector bodies and non-fee-paying public sector bodies (1) If a public sector body issues an infringement notice that imposes a penalty of which any part is payable otherwise than into the Public Account, the Director may charge the body a fee for the collection of the penalty. (2) A public sector body referred to in subsection (1) is to be known as a fee-paying public sector body. (3) If a public sector body issues an infringement notice that imposes a penalty which is payable wholly into the Public Account, the Director must not charge the body a fee for the collection of the penalty. (4) A public sector body referred to in subsection (3) is to be known as a non-fee-paying public sector body. PART 2 - Monetary Penalties Enforcement Service 8. Appointment of Director, Monetary Penalties Enforcement Service Subject to and in accordance with the State Service Act 2000 , the Premier may appoint a person as Director, Monetary Penalties Enforcement Service. 9. Director to collect and enforce monetary penalties (1) The Director is the sole authority for collection and enforcement of a fine, except where the fine is imposed for an offence against a law of the Commonwealth. (2) The Director is the sole authority for collection and enforcement of any monetary penalty imposed by an infringement notice issued by a non-fee-paying public sector body and referred to the Director. (3) The Director is the sole authority for enforcement of any monetary penalty imposed by an infringement notice issued by a fee-paying public sector body and, if the notice is referred to the Director by that body, the Director also becomes the sole authority for collection of money paid under the notice. (4) Notwithstanding subsection (1) , a fee-paying public sector body may enforce payment of a fine, or part of a fine, through the Civil Division of the Magistrates Court or the Supreme Court, if under section 109 the fine has been deemed by the Director to be uncollectable in full or in part and the uncollectable amount has been removed from any record of monies owing to the Director. 10. Functions and powers of Director (1) The Director – (a) is to perform such functions and may exercise such powers as are imposed or conferred on him or her by or under this or any other Act; and (ab) is to perform such functions and may exercise such powers as are imposed or conferred on him or her as a fine enforcement officer under Part 7 of the Service and Execution of Process Act 1992 of the Commonwealth; and (b) is to perform any other functions the Minister directs. (2) Without limiting subsection (1) , the Director has the following powers: (a) to engage under contract as an enforcement officer a person who has been appointed as an assistant bailiff under the Magistrates Court (Civil Division) Act 1992 ; (b) to deem an unpaid monetary penalty to be uncollectable in full or in part in accordance with section 109 ; (c) to waive or reduce a fee or charge payable under this Act. (3) The Director may do anything necessary or convenient to perform any of his or her functions under this Act. (4) The Director has an official seal. (5) The signature and seal of the Director may be in electronic form and may be applied electronically. (6) A court or tribunal acting judicially is to take judicial notice of the Director's signature and seal. 11. Delegation The Director may delegate any of his or her functions or powers under this Act other than this power of delegation. 12. Staff (1) Subject to and in accordance with the State Service Act 2000 , persons may be appointed for the purpose of enabling the Director to perform his or her functions or exercise his or her powers under this or any other Act. (2) The Director may make arrangements with the Secretary of the Department for such State Service officers and State Service employees employed in the Department as may be considered necessary to be made available to enable the Director to perform his or her functions or exercise his or her powers under this or any other Act. (3) The Director may appoint as an enforcement officer a person who is a State Service employee or State Service officer appointed, or made available to the Director, under this section. 13. Protection from liability (1) An officer does not incur any personal liability in respect of an act done, or omitted to be done, by him or her in good faith in the performance or exercise, or purported performance or exercise, of any of his or her functions or powers under this Act. (2) Subsection (1) does not preclude the Crown from incurring liability that an officer would, but for that subsection, incur. (3) In this section, "officer" means – (a) the Director; or (b) any person appointed under section 12 ; or (c) an enforcement officer. PART 3 - Infringement notices Division 1 - Infringement notices generally 14. Form of infringement notices (1) An infringement notice is to – (a) specify the following: (i) the offence or offences in respect of which it is served; (ii) the prescribed penalty or penalties that are applicable; (iii) if the notice relates to more than one offence, the total amount payable; (iv) the payment procedures available; (v) any other details prescribed under this Act or the Act that creates the offence; and (b) inform the person on whom it is served that, if he or she wishes to have any of the offences heard and determined by a court, he or she must lodge a notice of election in accordance with this Act within 28 days of the service of the infringement notice; and (c) inform the person on whom it is served that, if he or she does not lodge a notice of election within 28 days of the service of the infringement notice and the infringement notice is not withdrawn, he or she will be taken to be convicted of the offence or offences set out in the infringement notice and the monetary penalty set out in the infringement notice may be enforced under this Act. (2) In subsection (1)(a)(ii) – prescribed penalty or penalties means the penalty or penalties prescribed under this Act or the Act that creates the offence or offences in respect of which the infringement notice is served. 14A. Authorised person may require name, &c. (1) A person authorised by law to issue an infringement notice (the authorised person) may require a person to give his or her name, address and date of birth if the authorised person reasonably believes that the person has committed an offence for which an infringement notice may be issued. (2) A person must not fail or refuse to comply with a requirement under subsection (1) or, in response to such a requirement, state a name, address or date of birth that is false. Penalty: Fine not exceeding 2 penalty units. 15. Options for dealing with infringement notice issued by non-fee-paying public sector body (1) A person who is served with an infringement notice that was issued by a non-fee-paying public sector body must, within 28 days of the date of service of the notice, do one or more of the following: (a) pay the monetary penalty in full to the Director; (b) apply to the issuing authority for withdrawal of the infringement notice; (c) apply to the Director for a variation of payment conditions; (d) lodge with the Director a notice of election to have the offence or offences set out in the infringement notice heard and determined by a court. (2) An application to the Director is to be – (a) in an approved form; and (b) accompanied by the prescribed amount. (3) The Director may approve or refuse to approve an application under subsection (1)(c) and must notify the alleged offender of that approval or refusal. (4) If the alleged offender makes an election under subsection (1)(d) , he or she must lodge with the Director a notice of election in the approved form. (5) If the alleged offender is notified of the refusal of an application under subsection (1)(b) , he or she may – (a) pay the monetary penalty in full; or (b) apply for variation of payment conditions; or (c) lodge a notice of election. (6) If the alleged offender is notified of the refusal of an application under subsection (1)(c) , he or she must pay the monetary penalty in full. (7) If, when the alleged offender is notified under subsection (5) or (6) , the period referred to in subsection (1) has expired or will expire within 3 days, that period is extended by a further 7 days from the date the alleged offender receives the notification. 16. Referral to Director of infringement notice served by non-fee-paying public sector body (1) A non-fee-paying public sector body that serves an infringement notice must refer the notice to the Director unless exempted by the Director. (2) A non-fee-paying public sector body may apply in writing to the Director for an exemption from subsection (1) in relation to specific offences. (3) The Director may grant or refuse to grant an exemption in respect of a particular offence. 17. Options for dealing with infringement notice issued by fee-paying public sector body (1) A person who is served with an infringement notice that was issued by a fee-paying public sector body must, within the period allowed on the notice and subject to subsection (6) , do one or more of the following: (a) pay the monetary penalty in full to the issuing authority; (b) apply to the issuing authority for withdrawal of the infringement notice; (c) apply to the issuing authority for a variation of payment conditions; (d) lodge with the issuing authority a notice of election to have the offence or offences set out in the infringement notice heard and determined by a court. (2) A fee-paying public sector body may approve or refuse to approve an application under this section and must notify the alleged offender of that approval or refusal. (3) If the alleged offender makes an election under subsection (1)(d) , he or she must lodge with the issuing authority a notice of election in a form specified by the issuing authority. (4) If the alleged offender is notified of the refusal of an application under subsection (1)(b) , he or she may – (a) pay the monetary penalty in full; or (b) apply for variation of payment conditions; or (c) lodge a notice of election. (5) If the alleged offender is notified of the refusal of an application under subsection (1)(c) , he or she must pay the monetary penalty in full. (6) If, when the alleged offender is notified under subsection (4) or (5) , the period referred to in subsection (1) has expired or will expire within 3 days, that period is extended by a further 7 days from the date the alleged offender receives the notification. 18. Referral to Director of infringement notice issued by fee-paying public sector body (1) A fee-paying public sector body may refer an infringement notice served by it to the Director for enforcement. (2) Referral of an infringement notice to the Director – (a) must not be made less than 35 days after the date of issue of the notice; and (b) must not be made more than 6 months after the date of issue of the notice; and (c) must be accompanied by any prescribed amount. (3) A fee-paying public sector body which refers an infringement notice under this section is responsible for the accuracy of the details of the notice at the time of referral. 19. Non-application of certain sections to approved fee-paying public sector bodies (1) A fee-paying public sector body, other than a council, may apply to the Director for an exemption from the application of section 9(3) and sections 17 and 18 . (2) If the Director approves an application, the fee-paying public sector body is taken to be a non-fee-paying public sector body for the purposes of section 9(1) and sections 15 and 16 . 20. Offender taken to have been convicted (1) If an alleged offender – (a) pays a penalty in part or in full; or (b) applies to the Director or to the issuing authority for a variation of payment conditions; or (c) takes no action under section 15(1)(a) , (b) or (c) or section 17(1)(a) , (b) or (c) or is refused an application under section 15(1)(b) or section 17(1)(b) and does not elect to have the infringement notice heard and determined by a court within the time allowed – he or she is taken to have been convicted of the offence. (2) If a person pays a sum of money to the Director in respect of a specific infringement notice, the offender is taken to have been convicted of the offence or offences specified in that infringement notice. (3) A conviction under subsection (1) is not to be regarded as an admission of liability for the purpose of, nor in any way affect or prejudice, any civil claim, action or proceeding. 21. Election to have matter heard by court (1) If an alleged offender elects to have matters relating to any offence specified in an infringement notice which has been referred to the Director heard by a court – (a) the Director is to give notice of the election to the issuing authority within 7 days of receiving such notice; and (b) the issuing authority is responsible for prosecuting the offences in the infringement notice; and (c) the Director is not to collect or enforce payment of any monetary penalty imposed by the infringement notice. (2) If the issuing authority decides not to prosecute the offence in the infringement notice, it must notify the alleged offender of that decision. 22. Notification or referral to Director to be electronic Notification or referral to the Director of a matter under this Act is to be by electronic means unless otherwise agreed with the Director. Division 2 - Withdrawal of infringement notice 23. Withdrawal of infringement notice (1) A fee-paying public sector body or a non-fee-paying public sector body may withdraw an infringement notice served by it at any time – (a) on application by the alleged offender; or (b) on its own motion. (2) An infringement notice may be withdrawn whether or not the person on whom it was served is taken, under section 20 , to have been convicted of the offence. (3) If an infringement notice is withdrawn by a fee-paying public sector body or a non-fee-paying public sector body, that body is to – (a) advise the alleged offender, in writing, of the withdrawal; and (b) if the infringement notice has been referred to the Director, immediately notify the Director in the approved manner of the withdrawal of the infringement notice, quoting the infringement notice number; and (c) in the case of the withdrawal of an infringement notice by a non-fee-paying public body, notify any relevant authority to enable the cancellation or revocation of any other penalty imposed as the result of the operation of section 20 in respect of an offence set out in the infringement notice; and (d) initiate the deletion of any conviction imposed as the result of the operation of section 20 from any record held by any public sector body and the body holding the record must make that deletion. (4) Upon being notified of the withdrawal of an infringement notice, the Director – (a) is to refund any penalty amount already paid, unless the alleged offender has been, or could be, issued with an enforcement order in respect of another monetary penalty, in which case the amount already paid may be taken to be in payment or part payment of that other monetary penalty; and (b) is to cancel any relevant enforcement order issued against the alleged offender; and (c) is not to collect or enforce payment of any monetary penalty contained in the infringement notice. 24. . . . . . . . . 25. Effect of withdrawal of infringement notice (1) If an infringement notice is withdrawn – (a) any conviction in respect of that infringement notice by the operation of section 20 of this Act is revoked and is taken not to have occurred; and (b) any payment of all or part of a penalty imposed by the infringement notice is to be repaid in full unless the alleged offender has been, or could be, issued with an enforcement order in respect of another monetary penalty, in which case the amount already paid may be taken to be in payment or part payment of that other monetary penalty; and (c) any sanction imposed under Part 6 or 7 in relation to that infringement notice is revoked unless that sanction has also been imposed in respect of another undischarged monetary penalty payable by that offender for which an enforcement order has been issued; and (d) any demerit points that have been recorded against the alleged offender are deleted and the relevant issuing authority must make a note on any record that it keeps in relation to the person clearly indicating that the demerit points allocated against the person have been deleted. (2) Where an infringement notice served in respect of an offence has been withdrawn, no evidence of the service, acceptance or withdrawal of the notice is admissible in any proceedings for that offence except in a case where proof of service of an infringement notice is required to establish matters relevant to the operation of section 43P of the Traffic Act 1925 . 26. Crown not liable where infringement notice withdrawn or deemed conviction set aside Where an infringement notice is withdrawn by the issuing authority or a conviction under section 20 is set aside by a court, the Crown is not liable for any loss or damage arising from the issue of an enforcement order or sanction under this Act in respect of that notice. Division 3 - Variation of payment conditions 27. Application to Director for variation of payment conditions (1) An offender may apply to the Director for a variation of payment conditions. (2) An application – (a) is to be in a manner approved by the Director; and (b) may include representations from the applicant in respect of his or her ability to pay the monetary penalty; and (c) subject to section 29 , may include an application for an order converting an unpaid monetary penalty to a period of unpaid community service. (3) The Director is to take the applicant's representations into account before determining the period within which the amount is to be paid. (4) If the Director approves an application for a variation of payment conditions, other than an application for an MPCSO, the Director is to give the offender a variation of payment conditions notice. (5) On the issue of a variation of payment conditions notice, the Director is not to take any, or any further, action to enforce payment of any monetary penalty which is the subject of the notice whilst the person to whom the notice has been issued is paying in accordance with that notice. (5A) If, after an administrative sanction under Part 6 has been imposed on a person, a variation of payment conditions notice is issued to that person – (a) that sanction remains in effect after the issue of that notice until the Director determines that he or she is satisfied that the person is, and is likely to continue, complying with that notice; and (b) on the determination of the Director that he or she is satisfied that the person is, and is likely to continue, complying with that notice – (i) the sanction is revoked; and (ii) the Director is to give written notice of the revocation of the sanction to the person and, if appropriate, the Registrar; and (c) if after making a determination that the person is, and is likely to continue, complying with that notice the Director determines that the person has contravened that notice – (i) the sanction is revived; and (ii) the Director is to give written notice of the revival of the sanction to the person and, if appropriate, the Registrar. (5B) If, after a civil sanction under Division 2 or 3 of Part 7 has been imposed on a person, a variation of payment conditions notice is issued to that person – (a) that sanction remains in effect after the issue of that notice; but (b) on the determination of the Director that he or she is satisfied that the person is, and is likely to continue, complying with that notice, no action or further action is to be taken to enforce that sanction; but (c) if after making a determination that the person is, and is likely to continue, complying with that notice the Director determines that the person has contravened that notice, action or further action may be taken to enforce that sanction. (5C) If – (a) a redirection of money owing order has been issued in respect of an enforcement debtor; and (b) an application for a variation of payment conditions notice is then made under this section – that application is taken to include an application under section 85 to cancel or vary, as appropriate, the redirection of money owing order. (6) A variation of payment conditions notice may apply to all monetary penalties for which the applicant has applied for a variation of payment conditions under this Act. (7) The Director may vary a variation of payment conditions notice if he or she becomes aware of a material change in the applicant's financial circumstances and must notify the applicant of any change. 28. Application to fee-paying public sector body for variation of payment conditions (1) A person upon whom an infringement notice is served by a fee-paying public sector body may, at any time before the infringement notice is referred to the Director, apply to that fee-paying public sector body for a variation of payment conditions. (2) An application under subsection (1) may include representations from the applicant in respect of his or her ability to pay the monetary penalty imposed by t