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Infringements and Other Acts
Amendment Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
General
The Infringements Act 2006 (the Principal Act) establishes a regime to deal
with minor breaches of State and local laws by the issue of infringement
notices.
It articulates the principles and rights that underpin the infringements regime.
The defendant has a right to have the notice withdrawn and the matter dealt
with in open court. If the defendant pays the fine, the principle of expiation
applies to ensure that payment will not be taken as an admission of guilt, no
further proceedings can be taken in relation to that conduct, and no
conviction recorded.
The Principal Act prescribes the processes to be used for the issue of
infringement and penalty reminder notices, establishes the requirements for
service of these notices, and creates a regulatory framework to be used for the
conduct of internal reviews. It also sets out the options available to
defendants to arrange payment of their fines, as well as the sanctions
available to facilitate the recovery of outstanding fines and the enforcement
action that can be taken against persistent fine defaulters.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill, which are to--
· provide for a trial expansion of the infringements
regime, during which certain offences under the
Summary Offences Act 1966, the Liquor Control
Reform Act 1998, and theft which is "shop theft" under
the Crimes Act 1958 will be enforceable by
infringement notice; and
561081 1 BILL LA INTRODUCTION 4/12/2007
· make miscellaneous amendments to the Principal Act
to refine the operation of the current infringement
processes and amend other Acts which interact with
the Principal Act; and
· amend the Supreme Court Act 1986 to provide the
Sheriff with the power to temporarily restrain a person
who resists the execution of a civil warrant.
Clause 2 Subclause (1) provides that the Bill, other than clause 11, will
come into operation on a day or days to be proclaimed.
Subclause (2) provides for clause 11 to commence on a
proclaimed day. Subclause (3) provides that if a provision, other
than clause 11, has not commenced by 1 January 2009, it will
commence on that date. Subclause (4) provides that if clause 11
does not commence before 1 July 2011, it comes into operation
on that day. Clause 11, when it commences, will repeal the
provisions relating to the trial expansion of the infringements
system.
Clause 3 provides that the Infringements Act 2006 is the Principal Act for
the purposes of this Amendment Bill.
PART 2--TRIAL EXPANSION OF ENFORCEMENT BY
INFRINGEMENT NOTICE
Clause 4 makes a consequential amendment to the Liquor Control
Reform Act 1998, to update section 97(2) to reflect the
amendments to section 113 of the Liquor Control Reform Act
1998 being made by clause 5 of this Bill.
Clause 5 Subclause (1) amends section 113 of the Liquor Control
Reform Act 1998 by re-enacting the offences originally set out
in paragraphs in section 113(1) into separate subsections.
The offences relate to consuming or having liquor on unlicensed
premises.
Subclauses (2) and (3) amend section 114 of the Liquor Control
Reform Act 1998. The offence under section 114(d), failure or
refusal by a drunk, violent or quarrelsome person to leave
licensed premises as requested, is repealed and re-enacted in a
new section 114(2).
Clause 6 makes a consequential amendment to new section 113A of the
Liquor Control Reform Act 1998, which is being inserted by
the Liquor Control Reform Amendment Bill 2007. New section
113A refers to section 113(1)(c) which has been amended by this
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Bill so that it is now set out in a new subsection rather than a
paragraph. See clause 5.
Clause 7 provides police members with the power to serve infringement
notices for offences committed under sections 113(1), 113(1A),
113(1B), 113(1C) and 114(2) of the Liquor Control Reform
Act 1998.
Clause 8 Subclause (1) inserts new section 141(1B) to provide that an
infringement notice cannot be issued to a person who is under
18 years of age at the time of the alleged offence, for the offences
under section 113 or 114 of the Liquor Control Reform Act
1998 that are enforceable by infringement notice for the purposes
of the trial expansion.
Subclause (2) amends section 144 of the Liquor Control
Reform Act 1998, which sets the penalties that can be imposed
for offences enforced by infringement notice, to provide that the
infringement penalty for the consumption or supply of liquor on
unlicensed premises under section 113(1), (1A), (1B) or (1C) will
be 2 penalty units.
Clause 9 amends section 60AA of the Summary Offences Act 1966 to
provide that, during the trial expansion of the infringements
system, a police member may serve an infringement notice on a
person who is aged 18 years or more for the following offences--
· wilful damage to property being under the value of $500
(section 9(1)(c) of the Summary Offences Act 1966);
· indecent, abusive or obscene language (section 17(1)(c)
of the Summary Offences Act 1966); and
· offensive behaviour (section 17(1)(d) of the Summary
Offences Act 1966).
Subclause (3) amends section 60AB of the Summary Offences
Act 1966 to provide that the penalty applicable when these trial
offences contained in the Summary Offences Act 1966 are
enforced by infringement notice will be 2 penalty units.
Clause 10 inserts new section 74A in the Crimes Act 1958, providing for
"shop theft", which is a "sub set" of the indictable offence of
theft. Shop theft covers theft from retail premises of goods that
are displayed or offered for sale for less than $600. It may be
enforced by infringement notice and an infringement penalty of
2 penalty units applies.
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Retail premises is defined to mean the whole or any part of a
building, structure, place or vehicle that is used wholly or
predominantly for the retail sale of goods, and where goods are
sold, exposed or offered for retail sale on one or more occasions.
Clause 11 provides for the end of the trial expansion. When clause 11
commences, it will repeal the relevant sections of the Liquor
Control Reform Act 1998, the Summary Offences Act 1966
and the Crimes Act 1958 relating to the trial.
PART 3--MISCELLANEOUS AMENDMENTS TO THE
PRINCIPAL ACT
Clause 12 amends section 23 of the Principal Act to enable an enforcement
agency to consider additional information provided by an
applicant who has requested an internal review, even if the
information was provided after the due date. It also clarifies that
if an enforcement agency requests additional information for an
internal review, the agency must complete the internal review
within the prescribed period (currently fixed at 90 days) plus
35 days from the date when the agency requested the additional
information.
Clause 13 amends section 24 of the Principal Act to stipulate that the
agency must complete the internal review within the prescribed
period (currently fixed at 90 days) plus 35 days, whether or not it
receives the additional information it has requested.
Clause 14 amends section 40(3) of the Principal Act, which prescribes the
requirements governing the referral of infringement matters to
the Court and the Court's power to deal with such matters, to
make special provision for matters relating to indictable offences
as set out in new section 40A which is being inserted by
clause 15.
Clause 15 inserts new section 40A into the Principal Act to ensure that
when an infringement matter relating to an indictable offence
triable summarily commences to be determined in the Court
rather than as an infringement, section 53 of the Magistrates'
Court Act 1989 applies in determining whether the charge shall
be dealt with summarily or on indictment.
Clause 16 amends section 53(1) of the Principal Act to extend the period
in which an enforcement agency may bring proceedings for a
lodgeable offence when a person has defaulted on a payment
plan. It also repeals the now superseded note at the foot of
section 53.
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Clause 17 amends section 54 of the Principal Act to ensure that the criteria
for lodgement of infringement penalties are consistent with
recent amendments to the Melbourne City Link Act 1995 and
the Eastlink Project Act 2004. The amended provisions are
now consistent with operator onus provisions in those Acts.
Clause 18 amends section 55(h) of the Principal Act, which sets out the
period within which an infringement penalty and costs may be
lodged with the Infringements Court. The effect of the
amendment is to provide that where a registered operator has
nominated another person as the responsible person for an
infringeable traffic offence, but responsibility ultimately reverts
to the person who made the nomination, the period within which
lodgement can occur is extended to 6 months after the date of
cancellation of that nomination.
Clause 19 inserts a new section 62(5) into the Principal Act to provide that
reference to an enforcement order includes an enforcement order
reinstated under section 63.
Clause 20 amends section 63 of the Principal Act, which sets out the
circumstances in which an enforcement order can be reinstated
after it has expired. The amendment qualifies the provision to
make it clear that an enforcement order can only be reinstated
once after its expiry.
Clause 21 amends section 67 of the Principal Act to authorise an
infringements registrar to vary the costs or fees payable by a
person who has unsuccessfully sought revocation based on
special circumstances. Section 67 generally permits the registrar,
when rejecting an application, to vary the costs or fees payable,
but does not allow the registrar to do this when rejecting an
application based on "special circumstances".
Clause 22 inserts a new section in the Principal Act to establish that when
proceedings commence in relation to a matter for which an
infringement notice for an indictable offence was originally
issued, the matter proceeds as if it had commenced by charge and
summons under section 53 of the Magistrates' Court Act 1989.
The effect of this amendment is to ensure that matters relating to
indictable offences proceed under the same provisions and
defendants to these proceedings have the same legal rights and
options, regardless of whether they have commenced by the issue
of an infringement notice or charge and summons.
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Clause 23 amends section 95 of the Principal Act to provide that Part 7 will
apply if one or more infringement warrants has been issued
against a registered operator of a motor vehicle.
Part 7 of the Principal Act authorises the sheriff or a police
member to immobilise, detain and if necessary remove the
vehicle of a registered operator against whom an infringement
warrant has been issued. The effect of the amendments in this
clause and clauses 24 to 27 is to provide that action taken to
immobilise, detain or remove a vehicle can continue until all the
defaulter's outstanding warrants have been dealt with.
Clause 24 amends the Principal Act to provide that the provisions allowing:
· the detention, immobilisation and removal of the motor
vehicle (96(1));
· entry into a place occupied by the registered operator
(97(1)(e)(i)); and
· attachment of a notice to a windscreen on the detention
or immobilisation of the vehicle (99(1)(a));
· recovery of the motor vehicle (100(1))
will apply when one or more than one infringement warrant has
been issued against the registered operator and that these
sanctions will continue to be available, even if a payment order
is made with respect to some of the warrants, as long as there is
still one outstanding warrant against the person.
Clause 25 amends section 101 of the Principal Act to clarify that the sheriff
can seize and sell the motor vehicle or an item left in it, if an
amount remains outstanding under one or more infringement
warrants issued against that person.
Subclause (2) amends section 102 of the Principal Act.
This provision permits a vehicle or item belonging to a person
other than the registered operator to be released to that person
but ensures that the registered operator against whom one or
more infringement warrants have been issued, is still liable for
any costs of detention, immobilisation or impoundment.
Clause 26 amends section 103 of the Principal Act to clarify that the sheriff
may return a vehicle if, in his or her opinion, the monetary value
of the vehicle is negligible or less than the costs of sale and the
amount outstanding under one or more infringement warrants.
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Clause 27 amends section 104 of the Principal Act to clarify that proceeds
obtained from the sale of the motor vehicle or an item in it can be
applied to pay the amount outstanding under one or more
infringement warrants.
Clauses 28 to 37 amend Part 8 of the Principal Act, which sets out the
circumstances in which the driver licence or the registration of a
motor vehicle or trailer belonging to a person in default of an
infringement warrant can be suspended. The effect of the
amendments is to provide that a person remains in default unless
and until all infringement warrants have been dealt with.
Clause 28 amends section 108 of the Principal Act, which defines a person
in default. It clarifies that a person is in default if one or more
infringement warrants have been issued and in relation to any one
of them, a seven-day notice has been served and the seven days
have passed, without the person paying the notice or the notice
being revoked.
Clause 29 amends section 109 of the Principal Act to clarify that, where
multiple infringement warrants have been issued against a
person, the sheriff may make one direction in respect of them all.
Clause 30 This clause and clause 31 relate to the suspension of a driver
licence, which is triggered by the sheriff directing VicRoads to
suspend the licence and issuing a notice of intention to the person
in default.
Subclause (1) amends section 110(2) of the Principal Act to
clarify that the sheriff must serve a "notice of intention to
suspend" on that person for the person's driver licence to be
suspended unless the specified action occurs in relation to all
outstanding infringement warrants and enforcement orders.
Subclause (2) substitutes a new section 110(3) and inserts new
section 110(3A) and (3B) to clarify that a direction to suspend
cannot be made in relation to outstanding infringement warrants
that are the subject of an application for a payment order or
revocation order.
Clause 31 amends section 111 of the Principal Act, which sets out the
circumstances in which a suspension can be lifted. It clarifies
that a suspension will only be lifted when all outstanding
infringement warrants have been cleared or cancelled, or the
relevant orders revoked or, that action, as set out in section 111,
has been taken to pay all the amounts outstanding on all
infringement warrants that have been issued against that person.
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Clause 32 This clause and clauses 33 and 34 relate to the suspension of a
driver licence or the registration for a motor vehicle or trailer,
which can occur "automatically" when renewal of the licence or
registration falls due.
This clause amends section 112 of the Principal Act to clarify
that the sheriff may direct VicRoads to suspend vehicle
registration when a person still has one outstanding infringement
warrant issued against him or her, unless action listed in section
112(2) has been taken in respect of all the outstanding
infringement warrants.
Clause 33 amends section 113 of the Principal Act to clarify that suspension
of registration ceases when all outstanding infringement warrants
have been cleared or cancelled, or the relevant orders revoked or,
that action, as set out in section 113, has been taken to pay all the
amounts outstanding on all infringement warrants that have been
issued against that person.
Clause 34 Subclause (1) amends section 114 of the Principal Act to clarify
that the sheriff may direct VicRoads not to renew a person's
driver licence, if that person has one, or more than one
infringement warrant issued against him or her.
Subclause (2) inserts a new section 114(5) that gives the Sheriff
power to add subsequent infringement warrants to existing
directions made under this section.
Clause 35 amends section 115 of the Principal Act to clarify that the sheriff
must notify VicRoads to lift a direction not to renew a person's
driver licence or motor vehicle or trailer registration if, as result
of any of the actions listed in section 115 being taken, there are
no outstanding infringement warrants issued against that person.
Clause 36 amends section 116 of the Principal Act, which clarifies that,
unless the action specified in section 115 has been taken in
respect of all outstanding infringement warrants, the sheriff may
direct VicRoads not to transfer registration of that person's motor
vehicle or trailer.
Clause 37 amends section 117 of the Principal Act, which sets out when
transfer of registration can occur, to clarify that the sheriff must
notify VicRoads that the direction not to transfer ceases when all
outstanding infringement warrants have been cleared or any of
the actions listed in section 117 have been taken to deal with
them.
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Clause 38 substitutes section 122 of the Principal Act and clarifies how
Part 10 of the Principal Act applies. Part 10 enables an order for
the attachment of earnings or an order for the attachment of debts
to be made where one or more than one infringement warrant has
been issued against a fine defaulter and the amount owed on one
or more infringement warrants exceed $1000. The amendment
ensures that all money owed on all infringements warrants
against a person can be taken into account in determining
whether the threshold level for the making of such an order has
been reached.
Clause 39 clarifies how Part 11 of the Principal Act applies when one or
more than one infringement warrant has been issued against a
fine defaulter. Part 11 provides that a charge can be made over
real property or the property sold where the amount owed on an
infringement warrants exceed $10 000. The amendment ensures
that all money owed on all infringements warrants against a
person may be taken into account in determining whether the
threshold level for the making of such an order has been reached.
Clause 40 amends section 160 of the Principal Act to provide a means by
which the Court can enforce an order made for payment of an
outstanding fine when part of the fine has already been
discharged.
Section 160 sets out the sentencing options available to the Court
if an infringement offender has been brought before the Court
under section 159 of the Principal Act. The Court may discharge
the fine partially or fully. If the fine is partially discharged, the
court may order the defendant to serve a term of imprisonment in
default of payment. Other sentencing options include adjourning
the matter or imposing a community based order.
PART 4--AMENDMENTS TO OTHER ACTS
Clause 41 makes consequential amendments to Schedule 3 to the Children,
Youth and Families Act 2005, which sets out the regime
governing the issue of infringement notices to children, to replace
references to the driver or operator of a vehicle with references to
the "responsible person" (within the meaning of Part 6AA of the
Road Safety Act 1995).
Clause 42 makes various consequential amendments to the Melbourne City
Link Act 1995, to update references contained in section 87A
that were altered by the Infringements (Consequential and
Other Amendments) Act 2006.
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Clause 43 amends section 6A of the Subordinate Legislation Act 1994,
which requires a Minister to consult with the Department of
Justice before making a statutory rule that creates or varies an
offence enforceable by infringement notice. The amendment
clarifies that an infringements offence consultation certificate is
needed whenever a statutory rule will result in an offence being
enforceable by infringement notice or vary the infringement
penalty, regardless of whether the offence is located in the
proposed statutory rule or in principal legislation.
Clause 44 amends the Supreme Court Act 1986 to enable the sheriff or a
person so directed by the sheriff, when executing a civil warrant,
to temporarily restrain a person who hinders the execution of the
warrant. Section 82H of the Magistrates' Court Act 1989
already provides this power to the sheriff for the execution of
criminal warrants. The purpose of the proposed amendment is to
provide an equivalent power for the execution of civil warrants.
Clause 45 amends section 11 of the Surveillance Devices Act 1999, which
prohibits communication or publication of private conversations
or activities subject to certain exemptions. These include
"a communication or publication by a law enforcement officer
to the sheriff or a person employed in the Department of Justice"
in the administration of the infringements system, which was
formerly governed by Schedule 7 to the Magistrates' Court
Act 1989. The effect of clause 45 is to update the reference in
section 11, to specify that the exemption applies to
communication or publication to the sheriff and persons
employed in the Department of Justice for the administration
of the system governed by the Infringements Act 2006.
PART 5--GENERAL
Clause 46 provides for the automatic repeal of the amending Act on 1 July
2012. As suggested by the Scrutiny of Acts and Regulations
Committee, all amending Acts now contain an automatic repeal
provision, which will save the time and expense of having to
repeal amending Acts in statute law revision Bills. The repeal
of this Act does not affect in any way the operation of the
amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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