Bills

Fines Enforcement and Debt Recovery Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 November 2017.)

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (11:04): I would like to thank honourable members who have contributed to the second reading of the bill. The purpose of the bill is to consolidate in one act the fines enforcement and recovery provisions currently located in the Criminal Law (Sentencing) Act 1988 (the sentencing act) and the Expiation of Offences Act 1996 (the expiation act), and also to confer new powers to enforce outstanding fines, expiation fees and civil debts owed to government. Civil debt enforcement powers are modelled on those in the Enforcement of Judgments Act 1991.

I wish to address a number of comments made by honourable members during the second reading of the bill. On 14 November 2017, the Hon. Mr Parnell discussed some of the issues raised by the Law Society about the bill. These are the same as the feedback that the Law Society gave the government during consultation on the bill. I can assure honourable members that those comments were given serious consideration by the government. The Law Society's feedback was forwarded to the fines enforcement and recovery officer who will take those comments on operational matters into account when implementing the reforms under the bill.

Also, I assure the house that in respect of the enforcement against a debtor who is a youth, the bill is no different from the current legislation. Clause 10 of the bill continues the current situation under section 62 of the Sentencing Act that allows a youth to apply to the Youth Court at any time for the making of a community service order in respect of the youth.

On 16 November 2017, the Hon. Mr McLachlan asked that the impact of the bill on certain Supreme Court proceedings currently awaiting judgement be addressed. I am advised that the potential consequences of that judgement are the subject of amendment No. 113 in the government's first set of filed amendments. Amendment No. 113, if passed, will come into operation on the day on which the act is assented to by His Excellency the Governor. Essentially, this provision seeks to validate the practices to date of issuing authorities under section 13 of the expiation act when they are seeking that the fines enforcement and recovery officer enforce expiation notices.

Amendment No. 113 will have the effect that any enforcement determination made by the fines enforcement and recovery officer between February 2014 and the day on which the provision comes into operation is valid, notwithstanding that there may have been noncompliance with the requirements of section 13(1) or section 13(2). I understand the honourable member's general interest in this matter; however, my advice is that it is premature at this time to indicate what the response may be should the applicant in the proceedings be successful.

The government will consider the court's reasons carefully and take advice on the appropriate approach. I thank the Hon. Mr McLachlan for indicating the opposition's support for the bill and the bulk of the government's amendments. I commend this bill to the chamber.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: For the benefit of honourable members, I might just go through what I have a disagreement with so that we can go through the committee stage of this large bill expeditiously. The Liberal Party originally had difficulties with amendment No. 31, set 1 (and we still do, and I will speak to that in a minute), and then we had difficulties with amendment No. 72, set 1. But, in my discussions with the government I understand that they have nuanced set 3, which has satiated our concerns, so I would like that to be confirmed by the minister, which will confirm my discussions with staff of the Attorney-General, and then I will return back to the provision that we oppose.

The Hon. K.J. MAHER: Yes, I can confirm that for the honourable member.

The Hon. A.L. McLACHLAN: Before I get on to amendment No. 31, which I have a difficulty with (and I thought I would address it at clause 1 so we can get through the other provisions this morning; I appreciate there are some time constraints), I thank the minister for his response in relation to the litigation.

I am not asking a question—I think that that is probably as far as I can push it, but I just make the general comment that we find ourselves in a very unusual set of circumstances where we have an individual who has a judgement awaiting and we are actually legislating (new clause 113), which effectively affirms the debt collection that has occurred with the fines that have occurred. So, that individual will be held in abeyance, and I appreciate that we have an election, potentially, between when that judgement will come down and that is why the government cannot necessarily give a commitment. It needs to take advice, and that judgement might go either way.

It is pause for reflection for us as honourable members that, in a bill like this, an individual lives and seeks to comply with the law, has a right to challenge it, and they have been living in the expectation that the law will not change on them in the interim, but it will do so if this bill passes today. I do not intend to pursue that issue any further.

For the benefit of honourable members, the opposition has an objection to amendment No. 31, set 1, which provides explicitly that a public sector agency must, upon request, provide to the chief recovery officer a photograph of the alleged offender or debtor that is in possession of the agency. In our view this usurps the current prohibition in the Motor Vehicles Act, and I know there are other exemptions elsewhere. We do not feel it is appropriate in these circumstances, and we do not feel that it is available to any other party seeking to enforce debt. They are very simple reasons for opposing that.

As for the rest of the amendments, we have had ongoing discussions with the government. They have responded to our questions, and I do not have any specific questions on any other remaining clauses of the bill.

Clause passed.

Clause 2.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Employment–1]—

Page 5, line 6—Delete 'This Act will come into operation on a day to be fixed by proclamation.' and substitute:

(1) Subject to subsection (2), this Act will come into operation on the day on which it is assented to by the Governor.

(2) Sections 3 to 76 (inclusive) and Schedule 1 clauses 1 to 33 (inclusive) will come into operation on a day to be fixed by proclamation.

This amendment reflects that the change made by amendment No. 113, which introduces clause 34 in schedule 1, is to commence on assent and that the remainder of the bill is to commence on a date fixed by proclamation. Amendment No. 113 validates the practices surrounding the provision of information to the fines enforcement and recovery officer by issuing authorities currently seeking to enforce expiation notices under section 13 of the Expiation of Offences Act 1996 in the event that proceedings currently before the Supreme Court should find deficiencies in current practices. This proposed amendment will commence on His Excellency the Governor giving royal assent to the bill, and the commencement clause of the bill needs to be amended accordingly.

Amendment carried; clause as amended passed.

Clause 3.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Employment–1]—

Page 5, after line 8 [clause 3(1)]—Before the definition of authorised officer insert:

approved treatment program means a treatment program of a prescribed kind that has been approved by the Minister for the purposes of this definition;

approved treatment program manager means a person who has general oversight of approved treatment programs and coordinates the implementation of relevant court orders and relevant determinations of the Chief Recovery Officer (and includes a delegate of such a person);

Amendment No 3 [Employment–1]—

Page 6, line 5 [clause 3(1), definition of case manager]—Delete 'intervention' and substitute 'approved treatment'

I propose to move these two amendments together and speak to them together as a set, with some 26 other amendments that are consequential on the passing of amendment No. 2 [Employment—1], which I am speaking to with amendment No. 3 [Employment—1].

The bill currently provides that the chief recovery officer can enter into arrangements with debtors and alleged offenders to attend intervention programs to offset the whole or part of their debts and also provides that the court can make orders for people to attend such programs as an enforcement measure on the application of the chief recovery officer (the CRO). Under the bill, a Courts Administration Authority employee would be the intervention program manager who would have general oversight of such programs. References to 'intervention program' in the bill are proposed to be amended to 'approved treatment program'.

The treatment program is proposed to be approved by the minister and prescribed in the regulations. There would be a benefit in changing the terminology to something generic such as 'approved treatment program' so that other public and private agencies could participate in offering programs to debtors and alleged offenders; however, as drafted in these approximately 28 amendments, it will remain open for the Courts Administration Authority to participate in offering approved treatment programs. Should the bill pass with these amendments, the government will develop regulations to prescribe treatment programs for the purpose of this legislation.

Amendments carried.

The Hon. K.J. MAHER: I move:

Amendment No 4 [Employment–1]—

Page 6, line 13 [clause 3(1), definition of debtor]—After 'means' insert '(other than in Part 8)'

This amendment is related to amendment No. 6 of the first set of government amendments and amendment No. 1 in the government's third set. As a point of clarification, amendment No. 1 in the third set will be moved in lieu of amendment No. 72 in the government's first set. I am glad I have made that abundantly clear.

The amendments are intended to draw a clear distinction between provisions that, when read together, could be confusing. I speak to these three amendments as a set. Amendment No. 4 is for the purpose of clarifying that the definition of debtor in all but the civil recovery positions in part 8 is intended to refer to a person by whom a pecuniary sum is payable. A pecuniary sum is intended to refer to an amount imposed by a court in proceedings for a criminal offence, and this is clarified in amendment No. 6. A different definition of debtor applies for the purposes of the civil debt recovery provision in part 8, and this is the subject of amendment No. 1 in the third set.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 5 [Employment–1]—

Page 6, lines 18 to 29 [clause 3(1), definitions of intervention program and intervention program manager]—Delete the definitions

I inform that these changes are consequential on the changes in amendment No. 2 that introduce the approved treatment programs that we have just discussed.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 6 [Employment–1]—

Page 7, lines 6 to 13 [clause 3(1), definition of pecuniary sum]—Delete the definition and substitute:

pecuniary sum means an amount payable pursuant to an order or direction of a court in proceedings relating to an offence, and includes—

(a) a fine; and

(b) compensation; and

(c) costs; and

(d) a sum payable pursuant to a bond or to a guarantee ancillary to a bond; and

(e) a VIC levy imposed on a person on conviction of an offence;

I addressed this amendment when speaking to amendment No. 4; it is in that group of amendments. The purpose of amendment No. 6 is to make it clear that a pecuniary sum only arises from proceedings relating to a criminal offence.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 7 [Employment–1]—

Page 7, after line 15 [clause 3(1), definition of personal details]—After paragraph (a) insert:

(ab) any former name of the person (including, if relevant, the person's maiden name); and

(ac) any alias of the person; and

Amendment No 8 [Employment–1]—

Page 7, after line 18 [clause 3(1), definition of personal details]—After paragraph (d) insert:

(da) any former residential address of the person in the previous 5 years; and

I move these as a group of two amendments, and I will speak to them together as they are interrelated. Amendments Nos 7 and 8 are designed to assist the chief recovery officer (the CRO) to obtain additional identifying information about a debtor or alleged offender against whom the chief recovery officer proposes to take enforcement action.

Amendments carried; clause as amended passed.

Clauses 4 and 5 passed.

Clause 6.

The Hon. M.C. PARNELL: I have not been weighing into the detailed debate until now, and I want to put on the record why that is the case and make some quick observations about clause 6. The reason that we have not been weighing in to each of the individual amendments is that the Greens are opposing the entire bill; I just want to put that on the record. In terms of clause 6, the heading for this clause is 'Certain determinations may be made by automated process'. The Law Society in its submission says the following:

Clause 6 of the Bill provides that the CRO may determine that a class of determination required to be made by the chief recovery officer under this act is of such a nature that they could appropriately be made by means of an automated process. The Society is concerned that an automated process will remove any individual consideration of the debt and the enforcement process.

In light of the federal robo debt debacle, which caused unnecessary distress and avoidable suffering amongst Centrelink recipients, the Society considers that there is a need for some level of analysis by a person with respect to considering the debt and enforcement payments of the debt.

I want to put that on the record because it is symptomatic of many of the problems with this bill. We saw the harm that was done by the robo debt debacle: people who were told they had debts when they did not have debts. For the state to go down that same path, where the response is 'computer says'—well, the computer sometimes says it wrong. I do not think a provision like this makes sense without a guaranteed level of human intervention. I want to put those remarks on the record in relation to clause 6.

Clause passed.

Clause 7 passed.

Clause 8.

The Hon. K.J. MAHER: I move:

Amendment No 9 [Employment–1]—

Page 9, line 33—After 'payable is' insert 'to be taken for the purposes of this Act to be'

Amendment No 10 [Employment–1]—

Page 9, after line 35—Insert:

(2) Subsection (1) does not limit the ability of a person to take action to recover a sum due and payable to the person.

Again, they are together as a package because they are related. Amendments Nos 9 and 10 are intended to ensure that a person to whom a sum is payable after a defendant is convicted of an offence—for example, a person awarded costs or compensation—is not excluded from being able to recover that sum.

Amendments carried; clause as amended passed.

Clauses 9 and 10 passed.

Clause 11.

The Hon. K.J. MAHER: I move:

Amendment No 11 [Employment–1]—

Page 11, lines 29 to 31—Delete 'imposed by order of a court is payable within 28 days from (and including) the day on which the order was made.' and substitute 'is payable within 28 days from (and including)—'

(a) in the case of a pecuniary sum imposed by order of a court—the day on which the order was made; and

(b) in the case of a VIC levy imposed on a person on conviction of an offence—the day on which the person was sentenced for the offence.

Victims of crime levies that are imposed on a conviction are part of a pecuniary sum for the purposes of legislation. These levies are imposed automatically under section 32 of the Victims of Crime Act 2001, not by an order of the relevant court. Accordingly, this amendment is for the purposes of clarifying that the victims of crime levy is payable within 28 days of a person being sentenced.

Amendment carried; clause as amended passed.

Clause 12.

The Hon. K.J. MAHER: I move:

Amendment No 12 [Employment–1]—

Page 12, after line 8—After subclause (2) insert:

(3) Unless the Chief Recovery Officer determines otherwise, if more than 1 pecuniary sum is payable by a debtor, an amount paid in accordance with subsection (2) is to be taken to have been deducted from the pecuniary sum that the debtor was first ordered to pay and then, if necessary, from the pecuniary sum that the debtor was next ordered to pay, and so on so that deductions are taken to be made from each successive pecuniary sum in chronological order.

This amendment will allow the chief recovery officer to reduce amounts due under pecuniary sums in the order that they were imposed on the debtor.

Amendment carried; clause as amended passed.

Clauses 13 and 14 passed.

Clause 15.

The Hon. K.J. MAHER: I move:

Amendment No 13 [Employment–1]—

Page 13, line 21 [clause 15(5)(g)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 14 [Employment–1]—

Page 13, line 30 [clause 15(7)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 15 [Employment–1]—

Page 14, line 30 [clause 15(13)]—Delete 'intervention' and substitute 'approved treatment'

Again, these are together because they are related. These changes are consequential to the changes in amendment No. 2 that introduced the approved treatment program.

Amendments carried; clause as amended passed.

Clause 16.

The Hon. K.J. MAHER: I move:

Amendment No 16 [Employment–1]—

Page 15, after line 13 [clause 16(1)]—After paragraph (b) insert:

(ba) the debtor has not, since the commission of the offence, been charged with, or been alleged to have committed, a further offence against that section; and

By way of explanation, clause 16 of the bill allows the chief recovery officer to enter into a payment arrangement with the debtor or waive the whole or part of the debt where the debtor has convictions for persistently driving unlicensed but has since obtained a driver's licence. It applies where the debt of outstanding fines owed by the debtor is at least in part attributable to the debtor having been found guilty of driving unlicensed. It is intended to provide an incentive to break the cycle of offending.

The bill is proposed to be amended so that those persons who persistently drive unlicensed must not have been charged with or alleged to have committed a further such offence in order to receive the proposed concessionary treatment by the chief recovery officer on obtaining a driver's licence. In other words, there must have been no more charges or expiation notices for driving unlicensed since the last conviction for such an offence. This amendment is mirrored in amendment No. 20 in respect of outstanding expiation fees.

The Hon. M.C. PARNELL: Just a question in relation to clause 16: is this clause aimed at any particular groups in society? I guess what I had in mind is that, whilst I am not thoroughly familiar with Aboriginal communities, my understanding is that there can be higher levels of driving unlicensed on those communities, partly driven by the fact that it is more difficult to get a licence out in remote areas. So was this clause aimed at any particular group? You can imagine that if someone has a large number of driving unlicensed fines, and they are not wealthy, and they are a welfare recipient perhaps, the prospect of them ever paying those fines is reduced. So that is the first part of the question.

The second part of the question is: is there any scope under this legislation for the authorities to assist a person in getting a licence, or is it just assumed that they will of their own volition seek out instruction and undertake the test?

The Hon. K.J. MAHER: My advice is that this is not, in and of itself, aimed at any particular group in society. I do know from my own experience, though, in remote Aboriginal communities, where it is difficult to obtain a licence and where for the basics of everyday life you need to travel, that it is one of the many disadvantages Aboriginal people living in remote communities face. This is in terms of, firstly, not having a licence and needing to travel and also in finding it difficult in some cases to obtain a licence.

I think it is the On the Right Track program, across the Anangu Pitjantjatjara Yankunytjatjara lands, that is helping to address some of that. I do not have the figures with me, but it has been quite successful in doing that. So, no, doing this is not aimed at a particular group or class of persons, but it will have some of those effects if it is more prevalent in some areas. The second question was: does this scheme envisage any—

The Hon. M.C. PARNELL: I think the minister has answered the second question. Apparently there is a scheme to assist people in getting their licence in remote communities.

The Hon. K.J. MAHER: This regime does not envisage such a scheme, but I am aware of schemes that are run throughout different parts of South Australia to help with this.

Amendment carried; clause as amended passed.

Clauses 17 to 19 passed.

Clause 20.

The Hon. K.J. MAHER: I move:

Amendment No 17 [Employment–1]—

Page 18, line 2 [clause 20(6)(g)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 18 [Employment–1]—

Page 18, line 14 [clause 20(8)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 19 [Employment–1]—

Page 19, line 20 [clause 20(14)]—Delete 'intervention' and substitute 'approved treatment'

I move them as a group, as they are related. These changes are consequential on the changes made in amendment No. 2 that introduced the approved treatment programs.

Amendments carried; clause as amended passed.

Clause 21.

The Hon. K.J. MAHER: I move:

Amendment No 20 [Employment–1]—

Page 20, after line 19 [clause 21(1)]—After paragraph (b) insert:

(ba) the alleged offender has not, since the commission of the alleged offence, been charged with, or been alleged to have committed, a further offence against that section; and

This amendment is identical to amendment No. 16 except that it relates to outstanding expiation fees rather than outstanding fines.

Amendment carried; clause as amended passed.

Clause 22.

The Hon. K.J. MAHER: I move:

Amendment No 21 [Employment–1]—

Page 22, line 3 [clause 22(10)(b)]—After 'relates' insert:

(other than because the alleged offender did not receive an expiation notice or an expiation reminder notice as required under that Act)

Amendment No 22 [Employment–1]—

Page 22, line 6 [clause 22(10)(c)]—After 'Expiation of Offences Act 1996' insert:

(other than because the alleged offender did not receive an expiation notice or an expiation reminder notice as required under that Act)

Amendment No 23 [Employment–1]—

Page 22, after line 17—After subclause (10) insert:

(10a) The Chief Recovery Officer may only revoke an enforcement determination on a ground referred to in subsection (10)(b) or (c) if satisfied that there are exceptional circumstances that justify the alleged offender's failure to make an election, or to apply for a review, under the Expiation of Offences Act 1996.

Amendment No 24 [Employment–1]—

Page 22, after line 24—After subclause (11) insert:

(11a) If the Chief Recovery Officer revokes an enforcement determination on the ground referred to in subsection (10)(b), a prosecution can be commenced for the alleged offence or offences within 6 months of the day on which the determination was revoked despite the fact that the time for the commencement of the prosecution may have already otherwise expired.

Amendment No 25 [Employment–1]—

Page 22, lines 25 to 36 [clause 22(12)]—Delete subclause (12) and substitute:

(12) If—

(a) the Chief Recovery Officer revokes an enforcement determination on a ground referred to in subsection (10)(b) or (c); and

(b) —

(i) the alleged offender does not, within 14 days of being informed of the revocation—

(A) elect under section 8 of the Expiation of Offences Act 1996 to be prosecuted for the offence; or

(B) apply under section 8A of the Expiation of Offences Act 1996 for review of the expiation notice to which the determination relates on the ground that the offence is trifling; or

(ii) the alleged offender applies under section 8A of the Expiation of Offences Act 1996 for review of the expiation notice to which the determination relates but the issuing authority determines not to withdraw the expiation notice,

the Chief Recovery Officer may make a further enforcement determination in relation to the expiation notice.

These amendments are a set of refinements to clause 22 of the bill, and I speak to them as a set. This set of amendments proposes to amend the grounds for applying to revoke an enforcement determination on the basis that there was no reasonable opportunity to elect to be prosecuted for the offence under section 8 of the Expiation Offences Act or to challenge its trifling nature under section 8A of that act to avoid an argument that a person did not receive an expiation notice or expiation reminder notice.

Failure to receive a notice as grounds for revocation is the purpose of clause 22(10)(e). Also, the amendments have the effect that the chief recovery officer can only revoke an enforcement determination pursuant to an application under these provisions if satisfied that there are exceptional circumstances that justify the alleged offender's failure to make an election under section 8 or apply for review under section 8A. The latter amendment is intended to avoid arguments that the statutory time frames under sections 8 and 8A are unreasonable.

Should the chief recovery officer revoke and enforce a determination to permit a person to elect to be prosecuted for the offence, the issuing authority will have six months to commence such a prosecution. Amendment No. 25 also makes it clear that the chief recovery officer can make another enforcement determination if the alleged offender does not take action under sections 8 or 8A, as the case may be, or is unsuccessful in an application under section 8A.

Amendments carried; clause as amended passed.

Clause 23 passed.

Clause 24.

The Hon. K.J. MAHER: I move:

Amendment No 26 [Employment–1]—

Page 25, line 6—After 'been revoked, ' insert 'to be taken for the purposes of this Act to be'

Amendment No 27 [Employment–1]—

Page 25, after line 8—Insert:

(2) Subsection (1) does not affect the operation of section 17(2) or (3) of the Expiation of Offences Act 1996.

As I have previously, I will speak to them together as a set. These amendments preserve the operation of section 17(2) and 17(3) of the Expiation of Offences Act, which entitles the issuing authority to the expiation fee recovered by the chief recovery officer, unless the expiation notice was issued after the reporting of the offence by the police or an officer of the Crown in which case half the fee is paid into the Consolidated Account.

The Hon. M.C. PARNELL: Just a question in relation to clause 24 which provides that an expiation is in fact a debt that can be recoverable by the chief recovery officer in a court of competent jurisdiction. My question relates to the attitude of the government generally in relation to expiations against people who subsequently die—in other words, deceased estates. If someone dies owing parking fines, speeding fines or whatever, what is the approach that the government takes? Is it an automatic waiver or, as I would understand it, the government could line up with other creditors and seek to obtain payment of these expiation fines against the estate of the deceased? Can the minister explain how the system would work?

The Hon. K.J. MAHER: I do not have an absolute answer to this. My advice is that there would be a procedure in place and I undertake to provide that to the honourable member. I will take it on notice and let him know what the procedure in place in such circumstances would be.

The Hon. M.C. PARNELL: I am happy for it to be taken on notice. What got me thinking about this is that there are situations, for example, in relation to debts owed to the commonwealth—the HECS debt is a good example—if people pass away before they have paid off their HECS debt, my understanding was that those debts would generally be waived, although I think there was a proposal at the commonwealth level some little while ago, which I do not think went anywhere, for the commonwealth to actually try to recover those debts against the estate. I am happy to wait for the minister's answer.

The Hon. K.J. MAHER: I might be able to add to that. The further advice is that we are not sure if it is the case that it is definitely recoverable, but if it is, we can find out where it lines up in order of precedence and also find out whether or not it is actually something that is, in the administration of it, recovered. As the honourable member mentions, there are schemes where maybe debts are not recovered, like the HECS debt.

Amendments carried; clause as amended passed.

Clause 25.

The Hon. K.J. MAHER: I move:

Amendment No 28 [Employment–1]—

Page 25, line 18 [clause 25(2)(b)]—After 'charge on' insert 'an interest in'

This is one of a set of roughly 28 proposed amendments to clauses 25, 33, 36, 63, 64 and 65 of the bill that arise from a recommendation of the Registrar-General that the bill should be more explicit that where property is owned by a debtor or alleged offender jointly with another person who does not owe the chief recovery officer any money, a charge is intended to be taken only over the relevant interest of the debtor or alleged offender in the property. The same principle applies to jointly owned property to be sold under clauses 36 and 63 of the bill where only one of the co-owners is a relevant debtor or alleged offender.

Amendment carried; clause as amended passed.

Clause 26 passed.

Clause 27.

The Hon. M.C. PARNELL: Clause 27 relates to the writing off of bad debts, and at first blush, it makes sense. It says that the chief recovery officer can write off an amount payable under an expiation notice if the officer has no reasonable prospect of recovering the amount or if the costs of recovery are likely to equal or exceed the amount to be recovered. I think that is normal commercial practice. You cannot get blood out of a stone. If you are either not going to get the money or it is going to cost you more to get the money than the money is worth, then you do not do it.

However, the clause then goes on to say that the writing off of an amount payable under an expiation notice does not affect the liability of the alleged offender to pay the amount or the power of the chief recovery officer to recover it. I tend to think of clauses like that as the TattsLotto clause: that the person has no means to pay their debts and the chief recovery officer writes it off and says, 'There's no point in chasing Fred; Fred has no money. We will never get our loot.' Then Fred wins TattsLotto and, all of a sudden, Fred does have the capacity to pay the debt.

I understand how that could work but it would strike me that once an agency has written off a debt then there is not going to be anyone who is actively pursuing it and there is not going to be anyone out there checking whether my mythical Fred has won TattsLotto or not so I am wondering how that clause might work. Within government would there be some sort of review mechanism where they go back and revisit all these old bad debts and check if the person has perhaps discovered their Bitcoin collection or they have won TattsLotto or they have found gainful employment and are now wealthy?

I am just wondering how in practice it would work. It would strike me that once you have written it off, you have written it off and you are not going to go chasing it, but I can understand why you would want to give yourself the right to chase it. I am just wondering what the mechanism might be for determining that someone who did not have the capacity to pay now does.

The Hon. K.J. MAHER: I am not sure what the correct terminology is for amassing Bitcoins, if it is a Bitcoin collection like normal coin collections or if it is a Bitcoin portfolio, but I am sure there is a way—

The Hon. M.C. Parnell: It is not like stamps.

The Hon. K.J. MAHER: —to correctly describe it. I thank the honourable member for the question. I will seek to get more information and this might be another one I take on notice. I undertake to—it will not be while parliament is sitting obviously— get back to the honourable member with information from the fines officer about exactly how that would work.

Clause passed.

Clause 28.

The Hon. K.J. MAHER: I move:

Amendment No 29 [Employment–1]—

Page 26, after line 34—After subsection (4) insert:

(4a) Any power that the Chief Recovery Officer may exercise under this Act in relation to an expiation notice of this jurisdiction may be exercised by the Chief Recovery Officer in relation to an expiation notice of another jurisdiction if the exercise of the power is authorised under a multi-jurisdictional agreement.

(4b) If an authority of a participating jurisdiction is authorised under a multi-jurisdictional agreement to exercise or perform functions or powers under this Act or the Expiation of Offences Act 1996, the authority will be taken to be the Chief Recovery Officer, and to have the functions and powers of the Chief Recovery Officer, when acting under the agreement.

This proposed amendment strengthens provisions for multijurisdictional agreements for enforcement of expiation fees.

The Hon. D.G.E. HOOD: My apologies to the minister, I was actually looking one amendment ahead. I will ask my question again: are any of these agreements in place and how would that work? What stage are we at with other jurisdictions in making them appropriately in play?

The Hon. K.J. MAHER: I am advised that there are none in place at the moment. In terms of the likelihood of some being in place, we are not aware that any are close to being in place but this allows for such a time and contemplates that there may be some in the future. So, there are none in place and we are not aware that any are close to being in place yet but it is one of those where you legislate for what may happen in the future for a time when there may be some of those in place.

The Hon. D.G.E. HOOD: I thank the minister for his answer but, just to clarify: is it fair to presume that we are talking about other states in Australia but could it be international, as well?

The Hon. K.J. MAHER: My advice is that what we are talking about is other states in Australia.

Amendment carried; clause as amended passed.

Clause 29.

The Hon. M.C. PARNELL: Clause 29 is the first clause in part 5 under the heading Investigation Powers and it has a curious provision in it in subclause (2). In fact, we will go to subclause (1) first, which basically requires a person to provide their personal details, and that is by written notice given to the debtor or an alleged offender, but subclause (2) actually goes a stage further and imposes an obligation on third parties, which I will invite the minister to explain. The subclause reads:

If the Chief Recovery Officer has reasonable cause to believe that a person—

so, not the debtor but a person—

has knowledge of personal details of a debtor or alleged offender, the Chief Recovery Officer may give written notice to the person requiring the person to provide the Chief Recovery Officer with such personal details of the debtor or alleged offender as are known to the person.

My understanding of that clause is that the chief recovery officer can go to any person whatsoever and say to them, 'We reckon you know about Fred. We reckon you know where Fred lives. We reckon you know how much money Fred has got. We reckon you know lots of personal details about Fred, and if you don't tell them to us you are facing a $10,000 fine.' Have I understood the effect of that clause, that it is aimed at third parties and it criminalises third parties for not providing personal information about somebody else, even though the person is not a suspect or a debtor of any kind? Have I understood how that provision works?

The Hon. K.J. MAHER: My advice is yes, but, typically, the third party would be a credit reporting agency, a bank, or your employer.

The Hon. M.C. PARNELL: I understand what the intention might be, but it is not what the provision says. It basically says that if the CRO:

…has reasonable cause to believe a person has knowledge of the personal details [of the other]…

I will tease it out a little bit further because it strikes me that this is effectively about civil debts. If we look at the criminal law, if the police were to knock on the door and speak to, for example, the husband and say, 'We are interested in your wife. She is a person of interest to us. Tell us where she is and tell us all the information you know about her,' and if the husband was to say to the police officers, 'Get nicked,' then my understanding would be that that would be a fair cop, that they would not be legally obliged to identify the location of their wife or personal details about their wife—they would not have to do it.

That is in the criminal context—far more serious circumstances than simply in debt recovery. Yet, this provision, whilst I accept that the minister has in mind not husbands and wives or next-door neighbours, but has in mind employers and debt recovery agencies, it just strikes me that criminalising the failure of innocent third parties to provide details about another person at risk of a $10,000 fine is unique in South Australian law and it is far beyond the consequences that would flow from someone who is refusing to give information in a criminal case. Have I understood that correctly?

The Hon. K.J. MAHER: I thank the honourable member for his question. My advice is that the short answer is yes, but this is not about civil debt but about the recovery of fines and expiation notices. So, while the answer is yes, it is not broad-sweeping powers that can intrude into all aspects of life. It is not about civil debts; this is restricted to the purposes of the scheme, and that is fines and expiation fees.

The Hon. A.L. McLACHLAN: My reading of that, by way of clarity, is that you have to respond, but if you do not know you can respond to say that you do not know—is that correct?

The Hon. K.J. MAHER: My advice is that the honourable member is correct: the answer is yes.

The Hon. M.C. PARNELL: I thank the minister for correcting my language. Of course, fines only arise through the breach of law, so effectively it is more in the criminal realm than the civil realm, but it is debt recovery. The Hon. Andrew McLachlan's question that, if you say you do not know, which I think is a very common response from someone who is trying to protect someone who is dear to them, is just to say, 'Well, I don't know.' Subsection (4) says that:

(4) A person who, without reasonable excuse (proof of which lies on the person), refuses or fails to comply with a requirement…is guilty of an offence.

I am not sure how that would work with the person who says, 'I don't know,' when clearly they do know. The $10,000 fine still applies.

If someone says, 'Where's Fred?', and you know where Fred is but you lie and say, 'I don't know,' I am not sure whether you would be protected by subclause (4). I am not sure whether you have a reasonable excuse. The excuse might be, 'I'm not going to tell you people where he is.' I do not know whether that would wash. The burden of proof is on the person to prove their excuse for answering incorrectly. A subsequent question that arises from that is: is a person who is lying by saying they do not know, when in fact they do know, also guilty of an offence?

The Hon. K.J. MAHER: My advice is that if a person is lying and they cannot persuade a court, should they be charged with an offence, that they have a reasonable excuse for doing so, then, yes, they could well be.

The Hon. M.C. PARNELL: That is probably right: the person says they do not know and they actually do not know, then, yes, that is probably a reasonable excuse. If they say they do not know and it turns out that the person is hiding under their bed and they did know—anyway, it just strikes me that part of the fundamental problem with this bill is that, in pursuit of a regime that makes it easier for the state to extract its pound of flesh, it is actually imposing serious criminal liability on a whole range of people far beyond that which would be required in the normal criminal law with the example I used of the police officer knocking on the door and requesting information. You are not obliged to provide it, and they could be investigating a murder or some really serious crime, yet if the person's crime is that they have not paid their fines—they have a couple of hundred bucks outstanding—then for not providing information that you have you can be subject to a $10,000 fine yourself.

It just strikes me that this is overreach and goes far beyond the powers one would normally expect in provisions such as this. It is effectively requiring people to dob in their family members, their friends or whoever. I am not satisfied that the power would be limited to the people that the minister said it was aimed at, because the words clearly are 'a person', not 'an employer' or 'a credit agency'—it is any person. So, I think this is a reason for members to be very nervous about the entirety of this bill.

Clause passed.

Clause 30.

The Hon. K.J. MAHER: I move:

Amendment No 30 [Employment–1]—

Page 27, line 21 [clause 30(1)]—Delete 'contact' and substitute 'personal'

This amendment corrects an oversight by changing 'contact details' to 'personal details', which is extensively defined in clause 4.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 31 [Employment–1]—

Page 27, line 30 [clause 30(2)(b)]—After 'offender' insert:

(including, despite any other Act or law, any photograph of the debtor or alleged offender in the possession of the agency)

This amendment provides explicitly that a public sector agency must provide the chief recovery officer, on request, a photograph of the alleged offender or debtor that is in the possession of the agency. This amendment avoids, amongst other things, the prohibition under the Motor Vehicles Act 1959 against provisions of driver's licence photographs. Photographs of debtors will be helpful to aid the chief recovery officer in attempting to identify in the field those persons with outstanding debts who will attempt to avoid being debtors by identifying their true identity.

The Hon. A.L. McLACHLAN: As indicated at clause 1, we will be opposing this amendment. Using a photograph for debt collection is not available to other debt recovery agencies. There is an argument to say that this is a different context. I also want to argue in relation to privacy. We have the road rules around the use of licences and licence photographs and they are contained in another act. The balance between privacy and the use of information across government services are in those other acts, not just the one that deals with driver's licences, but also we have one of information exchange across government.

We do not think this is an appropriate amendment for this bill. If the government wants to debate the balance between privacy and the use of an individual's information, they should do so in the context of the other acts. This is an all encompassing provision contained in this bill which we think is not an appropriate context and, as I indicated earlier, we feel this is a bit too much for this bill. Given there is a raft of amendments and we have gone through them and we have been very amenable with the government, this is one which we cannot look upon kindly so we will be opposing it.

The Hon. M.C. PARNELL: As I said, the Greens are fairly hostile to the whole bill but we are supportive of the Liberal Party position to oppose the amendment. My question of the minister is: we have another bill before us on our Notice Paper that we probably will not get to today. I am pretty sure it is the simplify No. 2 bill, which amends the motor registration laws to specifically provide how driver's licence photos can and cannot be used, because I think the provision in those laws leaves it to a regulation-making power. The government's argument was that they do want to use these driver's licence photos for more purposes but so far they have pretty much limited them to other relevant transport related things.

In other words, you could use your car driver's licence photo for a boat licence for example. The government has not gone so far as to say to a whole range of government agencies that the state's biggest database of its citizens, including their names, dates of birth, residential addresses and photographs, will be made available to any government agency for any purpose. I know this bill does not do that; it says it wants it made available for this purpose. My question is: has the government now abandoned the approach that it was taking in the simplify No. 2 bill; and, perhaps a more general question, which agencies currently have access to driver's licence photos for purposes unconnected with driving motor cars?

The Hon. K.J. MAHER: I thank the honourable member for his question. We do not have the detail of what other agencies may or may not have access to driver's licence photographs. I guess part of the answer, though, lies in part of the explanation that this amendment seeks to avoid, amongst other things, the prohibition under the Motor Vehicles Act 1959 against the provision of driver's licence photographs. I am taking it from the words I have read out that there is contained in the Motor Vehicles Act a prohibition against doing that.

The honourable member has an encyclopaedic knowledge of the bills and their provisions that are on the Notice Paper. If there is other legislation that has a general prohibition, it tends to be the case that a specific allowance would tend to override a general prohibition and that is what this seeks to do, to avoid the prohibition of the Motor Vehicles Act against providing driver's licences. In terms of whether there are other agencies for whatever purposes, we are not aware of that as it currently exists in that act.

The Hon. M.C. PARNELL: I might get the minister to take this one on notice as well. As I think I have said in this place before, last month—I think it was in October—the Premier signed with the Prime Minister of Australia an agreement to hand over the entire driver's licence photo database to the federal government. Can the minister can find out whether that has in fact taken place yet?

The Hon. K.J. MAHER: I am more than happy to take that on notice for the honourable member and bring back a reply about that particular matter.

The Hon. A.L. McLACHLAN: I would like to ask members if they can indicate whether they support the Liberal position so that I can alleviate the need to call a division.

The Hon. D.G.E. HOOD: I thank the Hon. Mr McLachlan; I was just about to do that. My understanding of this amendment is that it does not limit the sharing of photographs specifically for driver's licences. It could be any photograph that the government has, on my understanding. There seems to be agreement on that. I am thinking there may be identification badges or something of that nature if they work in the public sector or whatever. We have no problem with the sharing of that information. I can understand the arguments, but we do not accept them and for that reason we will be supporting the government amendment.

The Hon. J.A. DARLEY: I will be opposing this amendment.

Ayes 9

Noes 12

Majority 3

Clauses 31 and 32 passed.

Clause 33.

The Hon. K.J. MAHER: I move:

Amendment No 32 [Employment–1]—

Page 28, line 7 [clause 33(1)]—After 'charge over' insert 'the interest of a debtor in'

Amendment No 33 [Employment–1]—

Page 28, line 8 [clause 33(1)]—Delete 'a debtor' and substitute 'the debtor'

Amendment No 34 [Employment–1]—

Page 28, line 13 [clause 33(2)]—After 'charge over' insert 'the interest of the alleged offender in'

Amendment No 35 [Employment–1]—

Page 28, after line 14—After subclause (2) insert:

(2a) Any number of pecuniary sums or amounts due under expiation notices may be aggregated for the purposes of exercising powers under this section.

Amendment No 36 [Employment–1]—

Page 28, line 16 [clause 33(3)]—After 'Register Book' insert 'or the Register of Crown Leases'

Amendment No 37 [Employment–1]—

Page 28, line 17 [clause 33(3)]—After 'created over' insert 'the interest of the debtor or alleged offender in'

Amendment No 38 [Employment–1]—

Page 28, line 20 [clause 33(4)(a)]—After 'affecting' insert 'the interest of the debtor or alleged offender in'

Amendment No 39 [Employment–1]—

Page 28, line 31 [clause 33(4)(a)(iv)]—After 'conveyance' insert 'or transfer'

Amendment No 40 [Employment–1]—

Page 28, line 35 [clause 33(4)(b)]—After 'respect of' insert 'the interest of the debtor or alleged offender in'

Amendment No 41 [Employment–1]—

Page 29, lines 3 to 6 [clause 33(6)]—Delete subclause (6) and substitute:

(6) If an instrument registered under subsection (4)(a) has the effect of conveying or transferring the interest of the debtor or alleged offender in the land to another person, the charge will be taken to be cancelled by the registration of the instrument and the Registrar-General must take whatever action the Registrar-General considers appropriate to give effect to the cancellation.

I will address the amendments as a set. They are all amendments to clause 33 of the bill and are related. I have already addressed the majority of these amendments in discussing amendment No. 28. These amendments also clarify that a charge is taken only over the property of the debtor in jointly owned property.

Amendment No. 35 includes a provision that will allow multiple pecuniary sums or outstanding expiation fees to be the subject of a charge. A further useful provision is in amendment No. 36, which was suggested by the Registrar-General, as some debtors may own property held under Crown lease, rather than fee simple land.

Amendment No. 39 reflects the fact that, strictly speaking, fee simple land is transferred, rather than conveyed. Amendment No. 41 provides a useful mechanism for redundant charges to be removed from instruments of title.

The Hon. M.C. PARNELL: I might just ask the minister to explain a little bit further. This provision, clause 33, provides for a charge on land. The amendments go to the question of multiple different interests in land, and the minister used the example of a Crown lease. Could the minister explain how it would work in the more common situation? If you have a couple, for example, who own a property, usually—I am throwing my mind back to property law in 1979—it is either a tenancy in common or a joint—

The Hon. K.J. Maher: Tenancy. I did property law in 1993.

The Hon. M.C. PARNELL: —tenancy. The minister's knowledge is far more up to date. Do either of those different types of tenancy—tenancy in common or joint tenancy—affect the charge on the land? My recollection is that where you have, say, a husband and wife with 50 per cent each, so in other words there is no right of survivorship—they are tenants in common, 50 per cent each—the government or the chief recovery officer would effectively have a charge over the husband's 50 per cent interest in the land; is that how it would work? It would just be noted in relation to that rather than noted in relation to both parties' ownership of the land?

The Hon. K.J. MAHER: I thank the honourable member for his question and for some more law school quizzes as we had last night. We will see if we get up to a high distinction on this one. For tenants in common, where you own a certain percentage of each—a 70:30 or 50:50 split—the charge would be charged against that portion of the land held by that particular person. But the honourable member is right. In most holdings in real property, typically a husband and husband, husband and wife or wife and wife, the far more common way for holding real property is as joint tenants where you effectively both own the whole of the property jointly.

In that case, which is the more typical way to hold it, the charge would be registered against one of those joint tenants, but in terms of having the practical effect, if you wanted to deal with that title, you would have to extinguish that charge that is against one of those so that it could be dealt with.

The Hon. M.C. PARNELL: Just one other question on this issue. Again, casting my mind back to the various priority of interests, we were taught that, in the pecking order of who gets their money first, people with registered interests on land, whether under Torrens title or some other method, took priority over other debtors. There are also, I understood, other laws which say things like, 'The commonwealth tax office is right up the top and will get their money first, before anyone else.' In the event that there are multiple claims on an estate, and you have a registered charge on the land, does that prevail over, for example, unpaid commonwealth income taxes?

The Hon. K.J. MAHER: In relation to this particular charge, my advice is that this does not rank as a first charge over property. If there are other prior mortgages or charges on the property, this does not outrank those. In terms of a charge a commonwealth agency might put on, I do not have advice on that, but I can find advice to see if there is indeed any commonwealth instrument that allows that charge to take priority over other charges. But this framework does not allow that to happen for this charge in relation to other charges over a property.

The Hon. A.L. McLACHLAN: I am not challenging what you are saying. I would be interested to know where the legislative support is for the charge being of a lesser priority than, say, a first bank mortgage.

The Hon. K.J. MAHER: I thank the honourable member for his question. My advice is that this is found in part 6 clause 33(4)(b), the effect of which is that any charge ranks as other charges under the Real Property Act, and in the case where there are mortgages, it would rank not above any of those. So the common procedure is that the first charges in time would be that the first one to be paid out would occur and these would rank equally, then with any other such charges where the first charge on in time gets paid out first, and this would sit above mortgages that were applied afterwards but below mortgages that were applied in chronological dates before this one.

Amendments carried; clause as amended passed.

Clauses 34 and 35 passed.

Clause 36.

The Hon. K.J. MAHER: I move:

Amendment No 42 [Employment–1]—

Page 30, line 26 [clause 36(2)(f)]—Delete 'real or'

Amendment No 43 [Employment–1]—

Page 30, after line 27 [clause 36(2)]—After paragraph (f) insert:

and

(g) sell the interest of the debtor or alleged offender in real property owned (whether solely or as co-owner) by the debtor or alleged offender.

Amendment No 44 [Employment–1]—

Page 31, line 2 [clause 36(3)(d)]—After 'respect of' insert 'an interest of a debtor or alleged offender in'

Amendment No 45 [Employment–1]—

Page 31, after line 7—After subclause (3) insert:

(3a) If the Chief Recovery Officer determines under this section to sell an interest in real property of the debtor or alleged offender—

(a) the Officer must provide the Registrar-General with written notification of the determination; and

(b) the Registrar-General must note the determination in the Register Book or the Register of Crown Leases; and

(c) the determination will be taken to be a mortgage registered under the Real Property Act 1886 on the day that it is provided to the Registrar-General.

Amendment No 46 [Employment–1]—

Page 32, line 20 [clause 36(15)]—After 'sale of' insert 'an interest in'

Amendment No 47 [Employment–1]—

Page 32, lines 22 to 32 [clause 36(16) to (18)]—Delete subclauses (16) to (18) (inclusive)

These amendments are similar to amendment No. 28 except they apply where a debtor owns land that the chief recovery officer proposes to sell. These amendments clarify that such action is intended to be taken only over the interest of the debtor in jointly owned property—for the benefit of the Hon. Mark Parnell, only on jointly owned property.

Amendment No. 45 was inserted at the suggestion of the Registrar-General to support the provisions of clause 36(3)(d) which allows the chief recovery officer to exercise the powers of a mortgagee in respect of the debtor's interests in the land to be sold. Amendment No. 47 was also inserted at the suggestion of the Registrar-General who considers that clauses 36(16) to 36(18) are redundant and can be removed.

Amendments carried; clause as amended passed.

Clauses 37 and 38 passed.

Clause 39.

The Hon. M.C. PARNELL: Just a question in relation to this, I can understand in relation to clause 38, for example, that you have someone who has a lot of unpaid speeding fines and it seems to be a fair cop that you cannot get a licence until you pay your fines. I get that in a way. Clause 39 is a bit different. You could have speeding fines and be prohibited from registering a car. Some people register cars not necessarily for their own use but for others to use. I guess I am interested in the policy rationale for preventing a person who has debts from being able to put a car in their name purely for registration and perhaps insurance purposes.

Maybe it is a child, a 16 year old. You can get your driver's licence at 16, and maybe mum or dad wants to put the car in their name, but they are prohibited, as I read this, if the chief recovery officer thinks that they have too many fines and will not let them register a car. Have I understood that correctly, and what is the policy rationale for it?

The Hon. K.J. MAHER: My advice is that, while it can apply broadly, its main application is to apply to the debtor and to provide that incentive to pay the fine to register the car.

The Hon. M.C. PARNELL: Part of the reason for my asking is that there is a curious provision here. If there is someone who has bucketloads of traffic debts and they decide that they want to sell their car, it appears to me that clause 39(5) effectively prevents them from doing that. They might want to sell the car—the Lamborghini—to pay off all the speeding fines, and subclause (5) suggests that while the prohibition continues in operation, the Registrar of Motor Vehicles will not process any application made by or on behalf of the debtor.

Perhaps the answer is that you do not need the permission of the Registrar of Motor Vehicles to sell a car. Certainly, the person you sell it to needs approval to register the car in their name. Maybe I am answering my own question but perhaps the minister could clarify whether or not this provision might have an unintended consequence of interfering with someone who actually wants to dispose of a car, rather than register a new one in their own name.

The Hon. K.J. MAHER: I am advised that the person wanting to sell the car could always have a discussion and enter into negotiations with the fines officer to apply the proceeds to do that. It would be open to them to discuss that with the fines officer as a possibility, I am advised.

Clause passed.

Clause 40.

The Hon. K.J. MAHER: I move:

Amendment No 48 [Employment–1]—

Page 35, line 20 [clause 40(2)(b)]—After 'Motor Vehicles' insert 'and the Commissioner of Police'

Amendment No 49 [Employment–1]—

Page 35, line 31 [clause 40(4)(a)]—After 'Motor Vehicles' insert 'and the Commissioner of Police'

Amendment No 50 [Employment–1]—

Page 35, after line 37—After subclause (5) insert:

(6) The Chief Recovery Officer must notify prescribed officers of other States and Territories of determinations made under this section.

These amendments will have the effect that, on taking action to suspend the operation of section 97A of the Motor Vehicles Act 1959 or cancel such a suspension, the chief recovery officer must notify the Commissioner of Police and other state or territory officers as may be prescribed, as well as the Registrar of Motor Vehicles. Section 97A allows the interstate motorist to drive in this state for a limited period on their interstate driver's licence.

Amendments carried; clause as amended passed.

Clause 41.

The Hon. K.J. MAHER: I move:

Amendment No 51 [Employment–1]—

Page 36, lines 11 to 14 [clause 41(3)]—Delete subclause (3) and substitute:

(3) The Chief Recovery Officer may exercise powers under this section in relation to a vehicle without notice to the debtor or alleged offender if—

(a) the debtor or alleged offender is the only registered owner of the vehicle; or

(b) the Chief Recovery Officer has made reasonable attempts to notify each registered owner of the vehicle (other than the debtor or alleged offender) of the Officer's intention to exercise those powers.

This amendment clarifies the intent of clause 41(3), that if the registered owner of the vehicle is the debtor they need not be given prior notice of the chief recovery officer's intentions to clamp or impound the vehicle. This is in order to prevent debtors from hiding the vehicle from the chief recovery officer if they have prior notice of this action.

Amendment carried; clause as amended passed.

Clause 42 passed.

Clause 43.

The Hon. K.J. MAHER: I move:

Amendment No 52 [Employment–1]—

Page 40, after line 19—After subclause (10) insert:

(11) In this section—

public place includes a road and a road-related area (both within the meaning of the Motor Vehicles Act 1959).

This amendment was inserted at the suggestion of the Department of Planning, Transport and Infrastructure to link the reference to 'public place' in clause 43(4)(a) of the bill to the definition of 'public place' in the Motor Vehicles Act.

Amendment carried; clause as amended passed.

Clauses 44 and 45 passed.

Clause 46.

The Hon. K.J. MAHER: I move:

Amendment No 53 [Employment–1]—

Page 41, line 14 [clause 46(1)(b)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 54 [Employment–1]—

Page 42, line 2 [clause 46(6)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 55 [Employment–1]—

Page 42, line 38 [clause 46(12)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 56 [Employment–1]—

Page 42, line 40 [clause 46(13)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 57 [Employment–1]—

Page 43, line 3 [clause 46(14)(a)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 58 [Employment–1]—

Page 43, line 8 [clause 46(15)(a)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 59 [Employment–1]—

Page 43, line 9 [clause 46(15)(a)(i)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 60 [Employment–1]—

Page 43, line 15 [clause 46(15)(b)]—Delete 'intervention' and substitute 'approved treatment'

Amendments carried; clause as amended passed.

Clause 47.

The Hon. K.J. MAHER: I move:

Amendment No 61 [Employment–1]—

Page 43, line 20 [clause 47(1)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 62 [Employment–1]—

Page 43, line 29 [clause 47(3)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 63 [Employment–1]—

Page 43, line 33 [clause 47(4)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 64 [Employment–1]—

Page 44, line 2 [clause 47(6)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 65 [Employment–1]—

Page 44, line 14 [clause 47(8)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 66 [Employment–1]—

Page 44, line 21 [clause 47(8)(b)(i)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 67 [Employment–1]—

Page 44, line 25 [clause 47(8)(b)(ii)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 68 [Employment–1]—

Page 44, line 29 [clause 47(8)(b)(iv)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 69 [Employment–1]—

Page 44, line 31 [clause 47(8)(b)(iv)]—Delete 'completed' and substitute 'uncompleted'

Amendment No 70 [Employment–1]—

Page 44, line 33 [clause 47(9)]—Delete 'intervention' and substitute 'approved treatment'

Amendment No 71 [Employment–1]—

Page 45, line 1 [clause 47(10)(b)]—Delete 'intervention' and substitute 'approved treatment'

Like the other clauses that I decided to move just before, they are changes that are consequential to changes in amendment No. 2 to introduce the approved treatment programs.

Amendments carried; clause as amended passed.

Clause 48.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Employment–3]—

Page 45, after line 8 [clause 48(1)]—After the definition of Court insert:

debt means an amount of money owed to a public authority that is recoverable in a court of competent jurisdiction, but does not include a pecuniary sum or an amount payable under an expiation notice;

Amendment No. 1 in the government's third set of amendments is being moved in place of amendment No. 72 in the first set. I thank the opposition for their helpful assistance in this regard, I am informed. I discussed this amendment when speaking to amendments Nos 4 and 6 of the government's first set of amendments. The purpose of this amendment is to make it clear that a debt and hence a debtor for the purpose of the civil debt recovery provisions in part 8 have different meanings from the corresponding provisions in the fines recovery portion of the bill and do not include pecuniary sums or expiation fees.

Amendment carried; clause as amended passed.

Clause 49.

The Hon. K.J. MAHER: I move:

Amendment No 73 [Employment–1]—

Page 45, after line 33—After subclause (1) insert:

(1a) A notification under subsection (1)—

(a) must not be given unless the public authority has provided the debtor with an invoice for, and given the debtor a reasonable opportunity to pay, the alleged debt; and

(b) must include advice to the Chief Recovery Officer as to whether the debtor is under a legal disability and, if so, the name of a person representing, or acting on behalf of, the debtor.

Amendment No 74 [Employment–1]—

Page 46, line 1 [clause 49(2)]—After 'subsection (1)' insert 'and is satisfied that the requirements of subsection (1a)(a) have been met'

These amendments were suggested by feedback on the bill and are reasonable inclusions.

Amendments carried; clause as amended passed.

Clause 50.

The Hon. K.J. MAHER: I move:

Amendment No 75 [Employment–1]—

Page 46, line 20 [clause 50(2)]—After 'this section' insert 'and bears the onus of proving, on the balance of probabilities, that the debt is owed by the debtor'

Amendment No 76 [Employment–1]—

Page 46, after line 22—After subclause (3) insert:

(3a) The Court may, in the Court's discretion, extend the time for making an application under this section even if the time for making the application has ended.

Amendment No 77 [Employment–1]—

Page 46, after line 25—After subclause (4) insert:

(5) No fee is payable on an application under this section.

These amendments are intended to ensure that applications to challenge the chief recovery officer's determination in a civil debt recovery will be fee free.

Amendments carried; clause as amended passed.

Clause 51.

The Hon. K.J. MAHER: I move:

Amendment No 78 [Employment–1]—

Page 46, lines 30 to 34 [clause 51(1)(a) and (b)]—Delete paragraphs (a) and (b) and substitute:

(a) the debtor is taken under subsection (1a) to have admitted liability for the debt; or

Amendment No 79 [Employment–1]—

Page 46, after line 36—After subclause (1) insert:

(1a) A debtor will be taken to have admitted liability for a debt to which a civil debt determination relates if—

(a) the debtor has not—

(i) within 1 month of receiving the determination—entered into an arrangement under section 57; or

(ii) within the time allowed under section 50—made application to the Court for the determination to be varied or revoked; or

(b) an arrangement entered into with the Chief Recovery Officer under section 57 has terminated.

Amendments carried; clause as amended passed.

Clause 52 passed.

Clause 53.

The Hon. K.J. MAHER: I move:

Amendment No 80 [Employment–1]—

Page 47, after line 20—After subclause (1) insert:

(1a) In proceedings under this section, the Chief Recovery Officer bears the onus of proving the correctness of the decision.

Amendment No 81 [Employment–1]—

Page 47, after line 33—After subclause (5) insert:

(6) No fee is payable on an application under this section.

I move these amendments, for the same reasons given in relation to amendments Nos 75 to 77.

Amendments carried; clause as amended passed.

Clauses 54 to 60 passed.

Clause 61.

The Hon. K.J. MAHER: I move:

Amendment No 82 [Employment–1]—

Page 51, line 17 [clause 61(9)]—After 'debtor' insert 'conducted in accordance with procedures prescribed by rules of the Court'

Amendment No 83 [Employment–1]—

Page 51, lines 22 to 24 [clause 61(10)]—Delete subclause (10) and substitute:

(10) If payment of the debt or all arrears of instalments (as the case requires) is made—

(a) the Chief Recovery Officer must issue a certificate certifying that the payment has been made; and

(b) the debtor must be discharged from custody even though the period of imprisonment has not expired.

Clause 61(9) currently permits a court after examination of a debtor to imprison the debtor as an enforcement measure in cases default where a civil debt is owed. This is modelled on section 5(7) in the Enforcement of Judgments Act 1991. This amendment is proposed following feedback from the Courts Administration Authority that they would prefer to have the powers of the Enforcement of Judgments Act to investigate and examine such a person before exercising the power to commit them to prison. The proposed amendments facilitate this.

Amendments carried; clause as amended passed.

Clause 62.

The Hon. K.J. MAHER: I move:

Amendment No 84 [Employment–1]—

Page 52, line 4 [clause 62(4)]—Delete 'order' and substitute 'determination'

Amendment No 85 [Employment–1]—

Page 52, after line 37—After subclause (13) insert:

(13a) Subsections (12) and (13) do not apply to a garnishee if the garnishee has not been notified of the determination.

These amendments merely correct an oversight to ensure that the garnishee is not subject to criminal proceedings and personally liable for a debt where they have not been notified of the making of the determination by the chief recovery officer to garnish the debtor's money.

Amendments carried; clause as amended passed.

Clause 63.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Employment–2]—

Page 53, line 17 [clause 63(3)(d)]—After 'sell any' insert 'personal'

Amendment No 2 [Employment–2]—

Page 53, after line 18 [clause 63(3)]—After paragraph (d) insert 'and'

(e) sell an interest of the debtor in land to which the determination relates.

Amendment No 3 [Employment–2]—

Page 53, line 19 [clause 63(4)]—After 'sale of' insert 'an interest in'

Amendment No 4 [Employment–2]—

Page 53, after line 22—After subclause (5) insert:

(5a) The Chief Recovery Officer (on behalf of the Crown) has the same powers in respect of an interest of a debtor in land the Officer determines to sell under this section as are given by the Real Property Act 1886 to a mortgagee under a mortgage in respect of which default has been made in payment of money secured by the mortgage (and sections 132 to 135 (inclusive) and 136 of that Act apply accordingly as if the Officer were the mortgagee and the debtor were the mortgagor).

(5b) If the Chief Recovery Officer determines under this section to sell an interest in real property of a debtor—

(a) the Officer must provide the Registrar-General with written notification of the determination; and

(b) the Registrar-General must note the determination in the Register Book or the Register of Crown Leases; and

(c) the determination will be taken to be a mortgage registered under the Real Property Act 1886.

Amendment No 5 [Employment–2]—

Page 53, line 23 [clause 63(6)]—Delete 'real property or'

Amendment No 6 [Employment–2]—

Page 53, line 28 [clause 63(7)]—After 'to sell' insert 'an interest in'

Amendment No 7 [Employment–2]—

Page 53, line 36 [clause 63(10)]—After 'purchaser of' insert 'personal'

Clause 63 applies in respect of a seizure of sale of land or personal property and civil debt recovery, and is similar to clause 36, which applies to seizure and sale of land and personal property in the enforcement of outstanding fines and expiation fees.

Amendments carried; clause as amended passed.

Clause 64.

The Hon. K.J. MAHER: I move:

Amendment No 86 [Employment–1]—

Page 54, line 9 [clause 64(1)]—Delete 'real property of a debtor' and substitute 'a debtor's interest in real property'

Amendment No 87 [Employment–1]—

Page 54, line 13 [clause 64(2)]—After 'charge over' insert 'the interest of a debtor in'

Amendment No 88 [Employment–1]—

Page 54, line 16 [clause 64(3)]—After 'Register Book' insert 'or the Register of Crown Leases'

Amendment No 89 [Employment–1]—

Page 54, line 17 [clause 64(3)]—After 'over' insert 'the interest of the debtor in'

Amendment No 90 [Employment–1]—

Page 54, line 21 [clause 64(4)(a)]—After 'affecting' insert 'the interest of the debtor in'

Amendment No 91 [Employment–1]—

Page 54, line 32 [clause 64(4)(a)(iv)]—After 'conveyance' insert 'or transfer'

Amendment No 92 [Employment–1]—

Page 54, line 36 [clause 64(4)(b)]—After 'respect of' insert 'the interest of the debtor in'

Amendment No 93 [Employment–1]—

Page 55, lines 1 to 4 [clause 64(6)]—Delete subclause (6) and substitute:

(6) If an instrument registered under subsection (4)(a) has the effect of conveying or transferring the interest of the debtor in the land to another person, the charge will be taken to be cancelled by the registration of the instrument and the Registrar-General must take whatever action the Registrar-General considers appropriate to give effect to the cancellation.

These amendments are similar to amendments Nos 32 to 41, except that they apply in respect to taking a charge over land in civil debt recovery.

Amendments carried; clause as amended passed.

Clause 65.

The Hon. K.J. MAHER: I move:

Amendment No 94 [Employment–1]—

Page 55, line 19 [clause 65(1)]—Delete 'property of a debtor' and substitute 'a debtor's interest in property'

Amendment No 95 [Employment–1]—

Page 55, lines 21 and 22 [clause 65(2)]—Delete 'property of a debtor' and substitute 'a debtor's interest in property'

Amendment No 96 [Employment–1]—

Page 55, line 25 [clause 65(2)(b)]—After 'with the' insert 'interest in the'

These amendments confirm that the chief recovery officer may, where feasible, take charge over personal property jointly owned by a debtor with another person, for example, a motor vehicle.

Amendments carried; clause as amended passed.

Clauses 66 to 69 passed.

Clause 70.

The Hon. K.J. MAHER: I move:

Amendment No 97 [Employment–1]—

Page 57, line 17 [clause 70(2)(b)(i)]—Delete subparagraph (i) and substitute:

(i) in relation to a debtor or alleged offender, or a class of debtors or class of alleged offenders; and

This amendment will permit the minister to also declare an amnesty in relation to the costs, fees and other charges imposed on alleged offenders.

Amendment carried; clause as amended passed.

Clause 71.

The Hon. K.J. MAHER: I move:

Amendment No 98 [Employment–1]—

Page 57, line 24 [clause 71(1)]—Delete 'intervention' and substitute 'approved treatment'

These changes are consequential on amendment No. 2, which introduced approved treatment programs.

Amendment carried; clause as amended passed.

Clause 72.

The ACTING CHAIR (Hon. J.S.L. Dawkins): Amendment No. 99 [Employment—1] as the minister approaches his century.

The Hon. K.J. MAHER:

Amendment No 99 [Employment–1]—

Page 58, line 6 [clause 72(2)]—After 'liability' insert '(other than a liability owed to the Crown)'

With some nervousness standing at the crease, I move this amendment which will have the effect that the immunity from civil liability available to a delegate of the chief recovery officer who is not a public sector employee will not extend to the civil liability owed to the Crown.

Amendment carried; clause as amended passed.

Clause 73 passed.

Clause 74.

The Hon. K.J. MAHER: I move:

Amendment No 100 [Employment–1]—

Page 58, line 17 [clause 74(b)]—Delete 'reasons' and substitute 'the basis'

With a brazen cover drive, bringing up the ton, I move amendment No. 100 [Employment—1]. This is a minor amendment that better expresses this provision.

The ACTING CHAIR (Hon. J.S.L. Dawkins): I put the question that the century be completed.

Amendment carried; clause as amended passed.

Clauses 75 to 76 passed.

Schedule 1.

The Hon. K.J. MAHER: I move:

Amendment No 101 [Employment–1]—

Page 61, lines 15 and 16 [Schedule 1, clause 11(5)]—Delete subclause (5) and substitute:

(5) Section 4(3)—after 'this Act' first occurring insert:

and the Fines Enforcement and Debt Recovery Act 2017

(6) Section 4(3)—after 'this Act' second occurring insert:

or the Fines Enforcement and Debt Recovery Act 2017

(7) Section 4—after subsection (3) insert:

(4) For the purposes of this and any other Act—

(a) an offence expiated, or taken to have been expiated, under the Fines Enforcement and Debt Recovery Act 2017 will be taken to have been expiated in accordance with this Act; and

(b) an expiation fee paid under the Fines Enforcement and Debt Recovery Act 2017 will be taken to have been paid under this Act.

Amendment No 102 [Employment–1]—

Page 61, after line 31 [Schedule 1, clause 13]—Before subclause (1) insert:

(a1) Section 8A(4)—delete 'issue a certificate for an enforcement determination under section 13' and substitute:

provide the Chief Recovery Officer with relevant particulars under section 22 of the Fines Enforcement and Debt Recovery Act 2017

Amendment No 103 [Employment–1]—

Page 62, after line 13 [Schedule 1, clause 15]—After subclause (1) insert:

(1a) Section 11(1)—after 'this Act' insert:

or the Fines Enforcement and Debt Recovery Act 2017

Amendment No 104 [Employment–1]—

Page 62, after line 16 [Schedule 1, clause 15]—After subclause (3) insert:

(4) Section 11(3)—after 'this Act' insert:

and the Fines Enforcement and Debt Recovery Act 2017

Amendment No 105 [Employment–1]—

Page 62, after line 17 [Schedule 1, clause 16]—Before subclause (1) insert:

(a1) Section 11A(1)—after 'this Act' insert:

or the Fines Enforcement and Debt Recovery Act 2017

Amendment No 106 [Employment–1]—

Page 62, after line 20 [Schedule 1, clause 16]—After subclause (2) insert:

(3) Section 11A(4)—after 'this Act' insert:

and the Fines Enforcement and Debt Recovery Act 2017

Amendment No 107 [Employment–1]—

Page 62, after line 25—After clause 18 insert:

18A—Amendment of section 15—Effect of expiation

Section 15(4)—after 'this Act' second occurring insert:

or the Fines Enforcement and Debt Recovery Act 2017

Amendment No 108 [Employment–1]—

Page 62, line 29 [Schedule 1, clause 19(1), inserted paragraph (ad)]—After 'impairment' insert 'that excuses the alleged offending'

Amendment No 109 [Employment–1]—

Page 63, after line 27 [Schedule 1, clause 20]—Insert:

(2) Section 18(1)(a)—delete 'under this Act'

Amendment No 110 [Employment–1]—

Page 64, line 28 [Schedule 1, clause 26, inserted section 61A]—After 'from a' insert 'motor'

Amendment No 111 [Employment–1]—

Page 64, lines 31 to 33 [Schedule 1, clause 26, inserted section 61A(b)]—Delete paragraph (b) and substitute:

(b) must, if the registration of the vehicle is cancelled under paragraph (a), pay to the Chief Recovery Officer the refund (if any) to which the registered owner or registered operator would have been entitled under section 54(2) if the registration of the vehicle had been cancelled under section 54(1).

Amendment No 112 [Employment–1]—

Page 64, after line 33—After clause 26 insert:

26A—Amendment of section 71B—Replacement of plates, documents and labels

Section 71B—after subsection (1) insert:

(1a) However, if a number plate has been seized by the Chief Recovery Officer under the Fines Enforcement and Debt Recovery Act 2017, a person may not make application for a replacement number plate unless the application is authorised in writing by the Chief Recovery Officer.

Amendment No 113 [Employment–1]—

Page 68, after line 25—After clause 33 insert:

34—Validation provision

Any enforcement determination purportedly made by the Fines Enforcement and Recovery Officer under section 13 of the Expiation of Offences Act 1996 before the day on which this clause comes into operation is declared to have been validly made notwithstanding that there was not compliance with the requirements of subsection (1) or (2) of that section.

These changes make amendments to the schedule.

Amendments carried; schedule as amended passed.

Title passed.

Bill reported with amendments.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (12:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.