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This is a Bill, not an Act. For current law, see the Acts databases.
SERVICE AND EXECUTION OF PROCESS AMENDMENT (INTERSTATE FINE ENFORCEMENT) BILL 2010
2008-2009-2010
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Service and Execution of Process
Amendment (Interstate Fine
Enforcement) Bill 2010
No. , 2010
(Attorney-General)
A Bill for an Act to amend the Service and
Execution of Process Act 1992, and for related
purposes
i Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010
No. , 2010
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Main amendments
3
Service and Execution of Process Act 1992
3
Schedule 2--Consequential amendments
12
Service and Execution of Process Act 1992
12
Transfer of Prisoners Act 1983
12
Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010 No.
, 2010 1
A Bill for an Act to amend the Service and
1
Execution of Process Act 1992, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Service and Execution of Process
6
Amendment (Interstate Fine Enforcement) Act 2010.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2 Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010
No. , 2010
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1
and 2
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Main amendments Schedule 1
Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010 No.
, 2010 3
Schedule 1--Main amendments
1
2
Service and Execution of Process Act 1992
3
1 Part 7
4
Repeal the Part, substitute:
5
Part 7--Enforcement of fines imposed by courts of
6
summary jurisdiction
7
Division 1--Preliminary
8
110 Definitions
9
In this Part:
10
court means a court of a State having jurisdiction in relation to the
11
summary trial of all or any offences under the law of the State.
12
discharged, in relation to a fine or part of a fine, means discharged
13
because of a payment, remission or pardon, or otherwise.
14
fine means a pecuniary penalty imposed by a court for an offence
15
against a law of the Commonwealth (other than a revenue law) or
16
of a State, together with any amount (including an amount of costs,
17
compensation or revenue charges) that the person on whom the
18
fine was imposed was ordered to pay by the court in the
19
proceedings in which the fine was imposed.
20
fine enforcement officer means:
21
(a) an officer of a Department of State of a State, or a body
22
established for a public purpose by or under a law of a State,
23
that is responsible for the enforcement of fines; or
24
(b) an officer of a court who is responsible for the enforcement
25
of fines.
26
offender, in relation to a fine, means the person on whom the fine
27
was imposed.
28
Schedule 1 Main amendments
4 Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010
No. , 2010
originating State for a fine means the State in which the fine was
1
imposed.
2
post-commencement fine means a fine imposed after the
3
commencement of this Part.
4
pre-commencement fine means a fine imposed before the
5
commencement of this Part.
6
pre-commencement serious fine means a pre-commencement fine
7
that the originating State considers is a serious fine:
8
(a) because of the value of the fine; or
9
(b) because of the nature or seriousness of the conduct in relation
10
to which the fine was imposed; or
11
(c) because the fine is not the first fine imposed on the offender
12
in relation to an offence of the same kind as the offence for
13
which the fine was imposed; or
14
(d) for any other reason.
15
registered fine means a fine that has been registered under
16
section 113, and the registration of which has not been cancelled.
17
registering State for a fine means the State in which the fine is
18
registered under section 113.
19
related: a pre-commencement fine is related to a
20
post-commencement fine if:
21
(a) the pre-commencement fine is imposed on the same offender
22
as the post-commencement fine; and
23
(b) the pre-commencement fine is imposed by a court of the
24
same State as the post-commencement fine; and
25
(c) the liability of the offender to pay the post-commencement
26
fine has not been fully discharged.
27
revenue law means a law of the Commonwealth relating to
28
taxation (including duties) that contains special provisions with
29
respect to imprisonment for non-payment of penalties.
30
111 Constitution of courts
31
The jurisdiction of a court for the purposes of this Part may be
32
exercised by the court constituted by any person (other than a
33
Main amendments Schedule 1
Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010 No.
, 2010 5
single justice of the peace sitting as such) or persons competent to
1
exercise the jurisdiction of the court in any other matter.
2
Division 2--Registration and enforcement of fines
3
112 Request for registration
4
(1) A fine enforcement officer of the originating State for a fine may
5
request registration of the fine in another State if:
6
(a) the liability of the offender to pay the fine has not been fully
7
discharged; and
8
(b) there is reason to believe that the offender is resident in, or
9
appears to be resident in, the other State; and
10
(c) the fine is any of the following:
11
(i) a post-commencement fine;
12
(ii) a pre-commencement fine that is related to a
13
post-commencement fine;
14
(iii) a pre-commencement serious fine.
15
(2) The request must:
16
(a) be in writing; and
17
(b) be made to a fine enforcement officer of the other State; and
18
(c) be accompanied by a copy of the order, however described,
19
of the court imposing the fine; and
20
(d) be accompanied by, or include:
21
(i) a statement by a fine enforcement officer of the
22
originating State stating that the liability of the offender
23
to pay the fine has not been fully discharged, and
24
specifying the amount of the fine that remains unpaid;
25
(ii) if the fine is a pre-commencement serious fine--a
26
statement by a fine enforcement officer of the
27
originating State stating why the originating State
28
considers the fine is a serious fine.
29
(3) A single request under subsection (1) may relate to more than one
30
fine, in which case this section applies to each of the fines to which
31
the request relates.
32
(4) A request cannot be made under this section for registration of a
33
fine that is already registered in another State.
34
Schedule 1 Main amendments
6 Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010
No. , 2010
113 Registration
1
Registration
2
(1) If a fine enforcement officer of a State receives a request made in
3
accordance with section 112 for the registration of a fine, the
4
officer must, subject to this section, register the fine in that State.
5
(2) The registration must specify who is the offender in relation to the
6
fine.
7
Related fines
8
(3) A fine enforcement officer of a State may register a
9
pre-commencement fine that is related to a post-commencement
10
fine only if the post-commencement fine is registered in that State.
11
114 Effect of registration
12
Effect
13
(1) Subject to this section, a registered fine:
14
(a) has the same force and effect; and
15
(b) may give rise to the same actions by way of enforcement;
16
as if the fine had been imposed on the offender by a court of the
17
registering State.
18
Enforcement only by registering State
19
(2) A registered fine cannot be enforced in the originating State for the
20
fine.
21
Note:
This subsection does not prevent voluntary payment of the fine in the
22
originating State--see sections 115 and 116.
23
Fine capable of enforcement
24
(3) A registered fine is capable of being enforced in or by the
25
registering State only if, and to the extent that, when the action for
26
enforcement is or is to be taken, the fine could, but for
27
subsection (2), be enforced in the originating State.
28
Main amendments Schedule 1
Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010 No.
, 2010 7
No imprisonment
1
(4) Despite anything in the laws of the registering State, a registered
2
fine cannot be enforced by the imposition of a sentence of
3
imprisonment on the offender.
4
Division 3--Amendment, cancellation and challenge to
5
imposition etc.
6
115 Amendment of registration initiated by originating State
7
Obligation to initiate amendment
8
(1) The originating State for a registered fine must notify the
9
registering State if part of the amount of a fine that remains unpaid
10
is paid to the originating State.
11
Amendment
12
(2) As soon as practicable after receiving a notice under
13
subsection (1), the registering State must amend the registration of
14
the fine accordingly.
15
116 Cancellation of registration initiated by originating State
16
Obligation to initiate cancellation
17
(1) The originating State for a registered fine must notify the
18
registering State if:
19
(a) the amount of the fine that remains unpaid is paid to the
20
originating State; or
21
(b) a fine enforcement officer of the originating State is satisfied
22
that the offender is not resident in the registering State.
23
Option to initiate cancellation
24
(2) A fine enforcement officer of the originating State for a registered
25
fine may, at any time, send a written request for the cancellation of
26
the registration of the fine to a fine enforcement officer of the
27
registering State.
28
Schedule 1 Main amendments
8 Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010
No. , 2010
Cancellation
1
(3) As soon as practicable after receiving a notice under
2
subsection (1), or a request under subsection (2), the registering
3
State must cancel the registration of the fine.
4
117 Payment of fine to the registering State
5
The registering State for a fine must:
6
(a) notify the originating State if the amount of the fine, or part
7
of the amount, is paid to the registering State; and
8
(b) forward to a fine enforcement officer of the originating State
9
the amount, or the part of the amount, that was paid.
10
118 Cancellation of registration initiated by registering State
11
(1) This section applies if a fine enforcement officer of the registering
12
State for a fine is satisfied:
13
(a) that the request for registration of the fine was not made in
14
accordance with section 112; or
15
(b) that the person specified in the register as the offender in
16
relation to the fine is not the offender in relation to the fine;
17
or
18
(c) that the offender in relation to the fine is not resident in the
19
State; or
20
(d) of a matter or matters prescribed by the regulations for the
21
purposes of this paragraph.
22
(2) The registering State must:
23
(a) notify the originating State that the officer is so satisfied; and
24
(b) cancel the registration of the fine.
25
119 Effect of cancellation of registration
26
Originating State can enforce fine
27
(1) If the registration of a fine is cancelled for any reason, the
28
originating State can, subject to subsections (2) and 114(3), enforce
29
the fine.
30
Main amendments Schedule 1
Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010 No.
, 2010 9
Cancellation of registration of related fine
1
(2) The registering State for a pre-commencement fine must cancel the
2
registration of the fine if:
3
(a) the registration of a post-commencement fine is cancelled for
4
any reason; and
5
(b) the pre-commencement fine is related to the
6
post-commencement fine; and
7
(c) the pre-commencement fine is not related to another
8
post-commencement fine that is registered in the State.
9
120 Challenge to imposition of fine
10
Challenge in accordance with laws of originating State
11
(1) Any challenge to the imposition of a registered fine may be
12
brought only in accordance with the laws of the originating State.
13
Offender to notify registering State
14
(2) If the offender in relation to a registered fine challenges the
15
imposition of the fine in accordance with subsection (1), the
16
offender must notify the registering State.
17
Certain fines cannot be enforced during challenge
18
(3) If a challenge to the imposition of a registered fine has been
19
initiated under subsection (1) and the challenge has not yet been
20
finally determined, the registering State cannot enforce:
21
(a) the registered fine; or
22
(b) any pre-commencement related fines.
23
Cancellation of registration if challenge upheld
24
(4) If a challenge to the imposition of a registered fine is upheld, the
25
registering State must cancel the registration of the fine.
26
Fine enforcement officer of originating State to notify registering
27
State
28
(5) A fine enforcement officer of the originating State must notify the
29
registering State of the outcome of the challenge.
30
Schedule 1 Main amendments
10 Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010
No. , 2010
Division 4--Miscellaneous
1
121 Operation of State laws
2
Nothing in this Part excludes the operation of a law of a State
3
relating to the imposition of a fee (however described) by the State
4
for the cost of enforcing a fine for an offence against a law of the
5
Commonwealth.
6
122 Saving
7
Nothing in this Part affects the operation of any other Part of this
8
Act.
9
2 Transitional--fines
10
(1)
This item applies if, before commencement, a warrant of apprehension
11
has been issued in relation to a fine under section 112 of the old law.
12
(2)
This item does not apply if the liability to pay the fine has been fully
13
discharged (whether because of payment of the fine, remission of the
14
fine, service of a term of imprisonment in relation to the fine, the grant
15
of a pardon in respect of the relevant offence, or otherwise).
16
(3)
The new law has effect in relation to the fine as if the fine had been
17
imposed after commencement.
18
(4)
If, immediately before commencement:
19
(a) a warrant of apprehension or commitment is in effect under
20
Part 7 of the old law in relation to the fine--the warrant
21
ceases to have effect immediately after commencement; and
22
(b) proceedings under Part 7 of the old law in relation to the fine
23
have not been finally determined--the proceedings must not
24
be continued after commencement; and
25
(c) a person is remanded on bail under Part 7 of the old law in
26
relation to the fine--the person must be released as soon as
27
practicable after commencement, unless the person is on
28
remand for some other cause; and
29
(d) a person is serving a period of imprisonment, or is in custody,
30
under Part 7 of the old law in relation to the fine--the person
31
must be released as soon as practicable after commencement
32
unless the person is in custody for some other cause.
33
Main amendments Schedule 1
Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010 No.
, 2010 11
(5)
In this item:
1
commencement means the commencement of this Schedule.
2
new law means the Service and Execution of Process Act 1992 as in
3
force immediately after commencement.
4
old law means the Service and Execution of Process Act 1992 as in
5
force immediately before commencement.
6
3 Regulations may deal with transitional, saving or
7
application matters
8
The Governor-General may make regulations dealing with matters of a
9
transitional, saving or application nature relating to amendments and
10
repeals made by this Act.
11
12
Schedule 2 Consequential amendments
12 Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010
No. , 2010
Schedule 2--Consequential amendments
1
2
Service and Execution of Process Act 1992
3
1 Subsection 5(1)
4
Omit "(other than section 125)".
5
2 Section 81
6
Repeal the section, substitute:
7
81 Application of Division
8
This Division applies in relation to all warrants other than warrants
9
issued by tribunals.
10
Transfer of Prisoners Act 1983
11
3 Subparagraph 21(b)(ii)
12
Omit "and".
13
4 Subparagraph 21(b)(iii)
14
Repeal the subparagraph.
15
5 Application
16
Subparagraph 21(b)(iii) of the Transfer of Prisoners Act 1983, as in
17
force immediately before the commencement of this item, continues to
18
apply on and after that commencement in relation to a sentence of
19
default imprisonment imposed under Part 7 of the Service and
20
Execution of Process Act 1992 before that commencement.
21