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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (FINES ENFORCEMENT AND RECOVERY) BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:49): The community service amendments and court imposed penalties, the existing court considerations of whether the defendant would be unable to comply with a pecuniary order, and whether compliance with the provisions would unduly prejudice the welfare of the defendants, continue to apply. However, clause 7 of the bill amends the sentencing act to include a provision that the court is not obliged to inform itself of the defendant's means when imposing a penalty.

In addition, the court would also now be able to consider the potential for flexible payment options, such as penalty by instalment, when imposing the penalty. There is also some provision in respect of community service hours, which reduces the maximum number of community service hours to which a person can be sentenced from 320 hours to 300 hours, and reduces the minimum threshold from 16 hours to 15 hours, again to fit more neatly into the standard working hours.

The transitional provisions are noted, so that the enforcement provisions will apply to all existing debts and, as we know, there are a very substantial amount of those. The bill also makes provision for a massive increase in penalties for driving unregistered and driving uninsured. People can be liable for a fine now of up to $1,750 under this bill. There is a proposed increase in the expiation fee for driving unregistered from $315 to $1,000, and $582 to $1,500 for driving uninsured. There will be some regulations in respect of the cost scales, and I will not detail those.

The consultation is a matter of concern to the opposition, as usual. As has become common practice for the government, the consultation here has been quite selective. In this instance, the government has consulted with the courts, SAPOL, cabinet agencies and local government, all of which is entirely appropriate. However, those who represent the homeless, the unemployed and the poor in our community—for example, representatives of the South Australian Council of Social Service, the Aboriginal Legal Rights Movement, the Law Society, the Bar Association—appear to have been completely ignored.

I have today received a submission from the Legal Services Commission, which I am going to refer to shortly, because they have presented a very powerful case to us that this legislation may be well intended, but it will affect the most vulnerable and the most financially pressed in our community. They have expressed a number of concerns, which we will place on the record.

The other aspect is that the powers of these new officers are only to apply to debts owed to the courts and police. However, the question I think in the future is whether the government will be leaving it open to use this as an agency for debt collection for all other government agencies. It gets back to this question of the state taxation office and debt that may be owed to them, for example, and whether they are going to be called in to be an army of debt collection, and all of this streamlined process being not just for fines—for penalties that have been applied for some illegal or improper conduct—but in fact for the civil recovery of debt owed to the government.

A major concern also arises because of this question of onus of proof on the defendant in a number of instances. I have referred to some of them in this contribution. We on this side of the parliament have consistently expressed our concern about that and, again, the prejudice that that would impose in this swathe of legislation is no less applicable in these circumstances.

Of the submissions that we have considered from December last year, I wish to place on the record some concerns raised by a number of councils. Local government is an agency or a level of government that has a significant role in enforcement of their by-laws and actions, and they are an enforcer of those, of course. Largely, they have had powers to impose fines for breaches, and they have raised a number of concerns. The LGA itself has raised a number of concerns. I will say that, almost universally, there was a concern raised about the very short time that consultation was allowed on this bill.

Nevertheless, the principal complaint, it seems, is that the negative impact on councils of this type of legislation, by introducing a new law where really an army of public servants are going to have responsibility to manage and to disallow or to provide exemption for a large amount of money, is that the revenue from councils will be adversely affected. That negative impact on the bottom line for councils is a repeated theme through the submissions that they raised. I will just read one from the City of Charles Sturt:

While there are four areas of principal concern, the charges relating to the issuing of reminder notices on behalf of all councils within the state is our major concern. The City of Charles Sturt alone issues approximately 18,000 expiation notices with fees related to the reminder notices funding the provision of community safety services and their administration. Should these funds be lost, it is likely that services in our community will be affected with a potential public safety impact being predicted.

A further quote, again, demonstrates a common theme in the submissions:

It is disappointing that major stakeholder engagement has not been undertaken at the drafting stage of the bill and it is likely that the majority of our concerns could have been addressed well before this time.

The Legal Services Commission, which of course provides representation for those in our community who are unable to afford and/or access private services and provide a very important service to South Australia, receives state and federal funding to undertake this work. Largely, its area of support is in criminal and family law areas. It also undertakes some civil advice in civil cases but, as I say, it represents those in the community who have little other option in the services it offers than being unrepresented. So, the access to justice principle is important in the provision of its service.

I have received a submission from Ms Gabrielle Canny, the chair of the South Australian Legal Assistance Forum, and she raises a great deal of concern about this bill. I hasten to add that there are supportive statements about having opportunities to improve cooperation between legal assistance services, coordination, targeting of legal services and linking of legal services and other services, and they accept the importance of having some processes that will help streamline and make things more efficient. But, the sort of things that they raise are the provision of a pecuniary sum being imposed by a court remaining unpaid for 28 days from the day on which the order is made. Then they can attract an amount prescribed by regulation. I quote:

This is in effect an interest payment or unpaid or unrecovered pecuniary sum. This may reasonable if sums are unpaid because debtors are choosing to ignore imposed penalties. However, often this is not the reason penalties remain unpaid. Often, the penalties are unpaid because those on whom they have imposed have insufficient money to pay, are homeless or suffer from a mental illness. To increase the debt level of those people in the community who are most vulnerable reinforces the poverty trap in which they find themselves, exacerbates their difficulties and makes payment less feasible. This policy will result in those less able to pay owing more than a person who can pay, despite the initial penalty being the same.

They also raise concerns about the new section 30, which allows for a debtor to enter into an arrangement with a fines enforcement and recovery officer, but there are restrictions on that not being available; for example, when the debt has previously been the subject of an enforcement action by an officer, then an officer may refuse to enter into an arrangement. So, they certainly raise a number of shortcomings in relation to that opportunity being restricted against those who are most likely to benefit, I think they are advocating, from a plan option.

They raise the discretion that is allowed to the fines enforcement and recovery officer to waive a payment. They say that under the current act there is a provision for the registrar to remit a matter to court for reconsideration of the court and that it can:

...on its own initiative, reconsider a matter if satisfied that the debtor does not have means to satisfy the pecuniary sum without the debt of his or her dependants...This is, in effect, a review provision that allows the Court to remit or reduce a pecuniary sum, or make a substitute order.

They suggest this is missing from the proposed new section and have proposed some amendment. They make comment on the current act providing for authorised officers to make an order in relation to the enforcement of a penalty; that is, it is an authorised officer who suspends a debtor's driver's licence or restricts a debtor from transacting business with the Registrar of Motor Vehicles, or makes an order for sale of the debtor's land or personal property. They state:

Clearly, any one of these orders will have a significant impact on the day to day life of a debtor and is of great importance to the individual. An authorised officer is appointed under the Courts Administration Act 1993 and is not a public servant. The current legislation provides a right of review and appeal against a penalty enforcement order imposed by an authorised officer.

In essence, here they are saying that this is not an area of responsibility that should be vested in a public servant; it should remain with a process where there is a review process to go with it. They are highly critical of that aspect, so they obviously want some right of review or appeal. There a number of other concerns in respect of the right of the officers to sell real or personal property, and on this they say:

The sale of land is not authorised unless the amount of the pecuniary sum exceeds $10 000. These provisions are present in the current Act. However, the current Act also provides that the sale of land is not authorised if the land constitutes the debtor's principal place of residence.

As we have heard in this debate, this bill is to cover the principal place of residence and make that vulnerable to such a sale order. The Legal Services Commission continues:

This exception has been removed in the Bill, with the obvious result that a person's place of residence will be able to be sold to satisfy debt. This is clearly a very harsh result.

That is of concern to them. They also point out:

Under the current legislation, a debtor's driver's licence may only be suspended for 60 days. The proposed provisions allow for it to be suspended indefinitely, and for the suspension to take effect in 14 (as opposed to 21) days. As there appears to be no means of review of the decision [by these new taskforce officers] this again seems to be a very harsh result.

Currently, a garnishee order may only be made if the Registrar—

and I have referred to that in the earlier debate—

is satisfied that the orders will not cause the debtor or his or her dependants hardship. The proposed new provision...removes this safeguard.

I think I have covered that generally in the debate, and clearly the Legal Services Commission also has concerns about that. Under the current act, there is:

...direction to an authorised officer in relation to the priority in which penalty enforcement orders should be imposed on a debtor, suggesting that priority should first be given to suspension of a driver's licence or for a restriction only transacting business with the Registrar of Motor Vehicles, no such priority appears in the proposed legislation.

Obviously, that is a concern for the reasons outlined earlier, in the Legal Services Commission's view. Section 70Q comes under scrutiny again, which allows for the publication of the website. Again, I raised this in the debate, but I place on the record their concern, which states:

Such a notice may include the debtor's actual name and any assumed name and date of birth. Publication of a debtor's name, and in effect 'naming and shaming', is an additional penalty against those who, in the majority of cases, are indigent and struggling. Additional to the likely negative repercussions for the debtor, this may have ramifications for his or her family members.

Again, for obvious reasons, that is of concern to them. They also draw attention to the fact that 'the court, under the proposed amendments, will no longer have the power to reconsider a matter' because this will obviously transfer to the task force officer. They continue:

Under the proposed provisions, the debtor will need to convince the Fines Enforcement and Recovery Officer that he or she does not have the means to satisfy the pecuniary sum without suffering hardship. If convinced, the Fines Enforcement and Recovery Officer can apply to the Court and the Court, if convinced, may make a community service order. This, in effect, requires the debtor to jump through two hoops to obtain a community service order. It would be preferable for the legislation to allow a debtor to approach the Court directly to request a monetary penalty be converted to a community service order.

There are two other matters: one is that in respect of the number of hours of community service to be performed for each dollar amount of the find, that is all to be left to the regulations. It continues:

Currently, for youth, 8 hours of community service must be performed for each $100 owed by the debtor. Under the proposed Bill, the prescribed unit amount (whatever that may be) equates to 7.5 hours of community service. Given the significant increase in court fees and levies, and the flow on of this to amounts owed by debtors, it is appropriate for the prescribed unit amount to be significantly more than $100 for 7.5 hours of work.

So we would hope the government would at least take that into account.

Finally, I am concerned to note the proposed increase from six months to twelve months in the maximum prison penalty that may be imposed for lack of compliance with a community service order. Twelve months is a very significant term of imprisonment for defaulting on a fine.

We share that concern in the opposition. I pointed out previously the concern we have for ensuring that we have a balance in recovering as much as we can from those who are defaulting in their obligation to the Crown. Of course, it is reasonable that the government recover that, on behalf of taxpayers, and that is revenue that ought to be paid where it can be paid.

We have a major problem in the amount of money that is owed. One that has been significant under the watch of this Attorney, but, doubtless, a significant factor and feature of this era is that there has been a very substantial increase in fines, and therefore there is a very large amount more money that is owing to the government.

It is not an easy issue; and the opposition does not suggest that it is easy. I am aware of other agencies where there is a paper registration of an obligation to pay and that each year there is a writing off, prudently, having assessed the capacity to recover and identifying that that is just not realistic, either because the person is unable to pay or they are unable to be found.

A classic example of that is under our provision of services for ambulance emergency services in South Australia. This is now something almost exclusively provided under the monopoly contract to Ambulance SA. Each year, they collect a number of people in emergency circumstances, deliver them to hospitals or to receive medical treatment and they do a wonderful job; but millions of dollars each year are recorded as being fees that are paid and there has been no recovery from the patient and/or an insurance company who may be representing them in a motor vehicle accident that they may have been in or private health insurance, and the money has not been recovered, with the likelihood of it being recovered being minimal.

Quite often, these persons are identified as homeless, unemployed, certainly poor, might have a mental health condition, may have a suspected imbibing of drugs, for example, and require emergency treatment. So notice is given to the ambulance service by a helpful citizen or some other agency that this person is in likely need of medical treatment or at least assessment and they are picked up by the good men and women of Ambulance SA and taken to the hospital, usually an emergency service division, where they can get some assessment and treatment.

This is an expense in the community which is done, obviously, to ensure that we do all we can for those who are vulnerable and in those circumstances. The reality is that it is well known, even at the time of those who are collecting the person from the side of the street—wherever—that there will never be any likelihood of recovery of those funds. There is no insurance company to send a bill to. There is no health agency to cover it and there is no money that is likely to come from the person who has been rescued from those circumstances, and so each year that is written off.

So it seems to me that the government need to be honest about the fact that they are not going to be able to recover a number of these. Other agencies have to write these off, sensibly and responsibly each year, and not leave this as an ongoing debt and balance the importance of ensuring that where people can pay they do pay and, if they can pay but won't pay, they be severely prosecuted and, if necessary, action taken to take possession of their asset to pay, and where they can't pay that that fruitless endeavour is abandoned so that good money is not thrown after bad.

We will review these matters, having received this helpful submission from those who are clearly in the know on this issue and have been circumvented, we suggest, from any reasonable contribution from those who are caring for a number of these people. The opposition will listen to that. We will identify where there is an opportunity for improvement of this legislation, but clearly at this stage the government does not have it right.

I have been presented, during the course of this debate, with some amendments that are foreshadowed to be introduced by the Attorney. I am ever hopeful that on some of these matters—which have been raised even at this late hour, six months after it has been introduced into the parliament—they are listening and are prepared to listen. Again, it is a situation where this bill was introduced a month ago, after a period of consultation that was squashed into Christmas last year.

They have had plenty of time to get it right and it is almost like they work on the basis that, 'If we can get away with it, we won't amend it and, if we can proceed with this without having to deal with these nuisance people who complain about the drafting of this legislation, we will.' They have been caught out yet again, so I am hopeful at least that having been caught out that the Attorney will eat a bit of humble pie and recognise that he should have got this right in the first place and that if he hadn't tried to silence the critics in the first place, we would not necessarily have this problem.

The Hon. R.B. SUCH (Fisher) (16:12): I support the intention of this bill for the government to reclaim unpaid fines. If people are fined and they have been subject to due process and have gone through the proper channels, then they should pay their fines. My understanding is at the moment there is something like $275 million under management with the fines payment unit and, of that, approximately $103 million is overdue or has not been paid within the time frame set down by law.

I want to focus more on the fundamentals of this issue, the basis that gives rise to these fines, and that is that the expiation system by its very nature is a curial system. I think it would probably be better described as a 'curious' system, but it is meant to be a cost-effective and efficient way of dealing with minor offending to avoid people having to go to court. I believe that is the intention of the system but I think we have got to a point now where that whole expiation process needs to be reviewed.

I have just written in the last few days to the Premier and others on this very matter and I have enclosed with that letter three examples of recent expiations to illustrate part of what I am saying in my concerns. Some of those, for example, are police officers not putting in details of the vehicle, the location which can be critical, as it was in my case, and putting down Victor Harbor Road or South Road—but where? If the matter goes to court, it is very difficult because the location is so imprecise and I would have thought in this day and age of GPS and other electronic devices it would be possible to be a bit more specific.

There are some other practices which are not acceptable. I noted that on some of the expiations shown to me there is no mention of the device and its number and that is supposed to be put on there. There are other omissions as well, and I don't think that is good enough, because in South Australia we have some of the highest expiation fines in the world, certainly in Australia.

I do not condone people breaking the law, but the fines here are very significant. In the past week I have had two people, both very senior people in their 80s, who have been fined close to $800 for relatively minor breaches. People will say, 'Look, they were over the limit a bit coming into Port Noarlunga or Bowering Hill at Port Noarlunga', but those penalties are very severe; they are a lot more than their pension. I think that is another issue that needs to be looked at. I am not saying the system does not have any road safety impact, because it does, but I am saying that it has moved more towards making money than the principal focus being on road safety.

In fact, I would argue that the whole process should be refocused so that there is more emphasis on education rather than punitive measures. When you talk to frontline police, as I do, they tell me that, contrary to what the hierarchy of the police say publicly—that they issue cautions and so on—the reality is that frontline police officers tell me that if they do not issue expiations they get reprimanded.

They get told off, because the assumption is that they are not doing their job. I think the emphasis should switch more to an educative approach. Some police who are now no longer with SAPOL have told me that they got so sick and tired of not being able to use the educative approach that they have left and I know, in one case, have joined the Federal Police. In Victoria there is a situation where if someone has a relatively good driving record of recent times a minor infringement can be waived or forgiven—but not in South Australia; no, we do not have that system here.

We also do not have a system, as they do in New South Wales, where an expiation notice can be looked at by an independent body. In South Australia it goes back to the people who issued it. Naturally, they are going to say, 'Look, we got it right.' You cannot really expect SAPOL to say, 'Look, our people got it wrong.' They are going to say they got it right. It is outrageous that in today's society we have the police as Caesar judging Caesar. I believe that in the lead-up to the next election that will be part of a package of reforms that I will certainly be campaigning for.

We need a commissioner, not just to look at fixed cameras, as they have in Victoria, but also to look at mobile cameras and hand-held devices. There is a former judge in Victoria—and I have mentioned this here before—a wonderful person who I think has done a great job. What he has done has restored confidence in the fixed camera system over there because people now know that the cameras are subject to some scrutiny by an independent person, an ex-judge who keeps an eye on that system.

As I alluded to before, I suspect that because the penalties are so high people, naturally, do not want to pay them. If there were more realistic penalties there might be greater compliance in terms of paying. There are some other aspects which I think are unacceptable, too, at the moment. A motorist gets slugged with an expiation notice and cops a $60 victims of crime levy. I am not convinced that motorists are murderers, rapists and bank robbers—some of them might be and some of them could be, some of them certainly probably are—a very small minority. However, the motorist—and I am amazed that the RAA has sat back and allowed this to happen—now pays $60 every time there is an expiation for victims of crime.

The reason the levy is there is because the government of the day has not protected its citizens, which is its first fundamental obligation. What do they do? They put the victims of crime levy on to the motorist, so the little old lady from Burnside, who is seven kilometres over the limit, pays an extra $60 to fund a system to recompense people who have not been protected by the government of the day. Despite the fact that South Australia has more police per head than anywhere else in Australia—I think except the Northern Territory—they have not been able to protect the people and, therefore, they are due for compensation. I do not decry that, but why should the motorist be the one who picks that up simply because they are doing 57 km/h in Grant Avenue, or any other street you want to nominate?

We need a complete review of the expiation system and, in particular, the process that the police use. At the time of the alleged offence, the alleged offender does not get the complete expiation notice. This is another serious flaw in the system: you will only get the complete expiation notice if and unless you go to court. You will not get it before. What you will find is that at the bottom of the expiation notice the police officer may have made certain notes. You should get it at the time it is issued. It is not hard to do. It would be better if the motorist (the alleged offender) was able to sign that and say, 'This is an accurate record of our conversation,' or whatever.

In South Australia, SAPOL allows the pre-typing of the interview that is on the bottom of the expiation notice. I think that is outrageous. I have corresponded with the minister and the commissioner some time back and they believe that it is okay for the police to pre-type an interview with someone who is alleged to have committed an offence. I think that is just outrageous because if it goes to court the police officer will say, 'Here is the interview.' It was pre-typed, so it is not a true and accurate representation, necessarily, of what has been said.

People will say, 'If you don't like what is on the expiation notice, you can go to court.' It is a very expensive business. At the moment, I am trying to help a lady from Port Pirie and I think shortly will be her fourth trip to Adelaide, because the alleged offence happened here with a red light camera. Even if she wins, she will lose because of the cost of going back and forth, the adjournments, the loss of time, and that sort of thing. If you do not have a lawyer, which can be very unwise in some circumstances, you run a risk because you do not talk the language of the magistrate and the judge. It can be very risky. If you have a lawyer, that can cost you a lot of money, too: they cannot do the work for nothing.

There are also some other anomalies with this system. The police officer issuing the expiation has seven days to lodge it. Anything can happen in that time. You do not know what has been added to that bottom part of the expiation in that week. You could drive a truck through the way the expiation system is operating in South Australia at the moment (preferably not at high speed). It has not improved. There have been some small changes. I raised the issue of them being checked by a senior officer after my episode, when the constable signed it as if he was a senior officer. It was quite outrageous, but he got away with it. Now it is supposed to be signed by a senior officer. But the whole process of dealing with these expiation notices is rubbery, and it is even more rubbery when you are dealing with something that has a highly subjective element.

I urge members to read a judgement by His Honour Justice Peek of 15 November 2012 which I think is a brilliant summing up and a brilliant judgement that went against someone who challenged in relation to a speeding offence. Not surprisingly, the person was not represented and the case they put lacked a professional approach in many ways. This is what His Honour said about the certificate the police have to produce in relation to verifying that the instrument they used was accurate. I will not read it all, but he says:

However, SAPOL would be well advised in the future to alter the wording of the certificate by adding the words 'shown by the test to be' to forestall future argument on this point.

The judges use polite language when they make a judgement, and we see how polite the lawyers in this place are. They do not usually use harsh language but, further in, His Honour talks about this constable and what he did.

Just before I outline that, I should point out that, in the expiation in that case—I have had a look at it—they have got down that the superintendant was superintendant 'Tilley'. His name is actually Twilley. That may not sound important but, on this certificate of accuracy which got this person hung, as it did in my case, it was not even signed by that person. His name is typed in. I do not call that a signature.

I would be interested to hear from the lawyers in here whether a typed in name is the same as a signature, but that is what is on this expiation that we have got and which was before His Honour. What he said here, when talking about the checklist which is supposed to be filled out by the traffic officer before he hands it to the superintendant or an inspector—it has to be signed by someone who is an inspector or above—is:

...one of the difficulties for a defendant is that the mere marking of such a check list tells one very little about the bearing of the particular procedures upon the accuracy of the instrument. Another similar difficulty is that assertions—

and he gives some paragraph numbers—

that tests were performed 'correctly' are opaque in the absence of detail as to what were the correct tests and what was the correct manner in which they should be performed.

I think the judge's assessment is excellent in that he highlights, when talking about a laser in particular, that an instrument being accurate is one thing, but the second thing is it has to be used accurately. You can have something that is accurate. You might have a rifle, for example—he does not use this example—that might be shooting accurately but, if you point it at the sky, you are not likely to hit the rabbit that is a few hundred metres in front of you.

I would urge members to read this because this judgement of His Honour highlights, in relation to this particular aspect of linking, in this case, lasers and expiations, some of the deficiencies in the current system. He points out that, in the time that one certificate of accuracy was lodged, the police later changed the terminology from being shown to be accurate in relation to the manufacturer's specifications to an Australian Standard.

Who is making sure that these are genuine certificates that reflect the wording that the judge is saying is necessary? The police seem to be able to just change these certificates. They change the expiation notices. I am not sure whether the Attorney has to approve them—I do not believe he does—but what we have got at the moment is a system which is far from satisfactory and needs to be addressed, because it is costing innocent people a lot of time and money.

I will give you an example. I wrote to the current Minister for Police—and I think he is a very good minister—about the fixed camera on the corner of South Road and Dawes Road because people had complained to me. He wrote back and said that that machine has been decommissioned and removed and 220 expiations have been cancelled or withdrawn.

That highlights some of the problems in the current system. I can show members some examples we have got here where the police have said that a particular expiation must stand and you cannot even tell what car is going through the intersection due to the quality of the photograph. That camera has now been withdrawn but, every day—I am not exaggerating—people come to me with concerns where they think they have been unfairly treated by a system which is, in my view, rubbery and needs to be overhauled.

We know—and this what the former commissioner, Mal Hyde, said to me—that these systems depend on the integrity of the officer, but you should have a system which is transparent, which is fair, which is reasonable and is not excessive in terms of the fees that are charged by way of penalty.

It is good to recover moneys owing that have been genuinely incurred as fines; I fully support that. I do not agree with people getting out of their obligation. However, I would urge the Attorney and opposition to look closely at the system and how it is currently operating, because some of that revenue being generated I think is being generated unfairly and wrongly. I can list many examples where it is distinct from Victoria where they are more transparent.

You can look up on the web and find out the operating conditions for mobile cameras, where they can be used and how they can be used, and so on, for Victoria—they are quite transparent about it. Not in South Australia; we are the secretive state. In New South Wales, when they use hand-held equipment, they adjust the speed because the manufacturer says it is not 100 per cent accurate, and they allow a margin of plus or minus 2 kilometres an hour. Not in South Australia; they never mention that. They just book people at the alleged speed without making any adjustment for the manufacturer's error.

We have got a long way to go in South Australia before we get a system which, if it works properly, is a good system, a curial system which is cost-effective and fair. What we have got now is a system that is being blatantly abused and misused by some police, and the police system is not good enough to ensure that it is not a corrupt process. It is not corruption in the sense of gaining money illegally: it is about a system which is suffering from poor administration, poor supervision and a lack of genuine integrity and accountability.

I am happy to see this bill go through with some amendments but, as I said at the start, I urge the Attorney to have a look and preferably get a retired judge or someone to have a look at the current expiation system, and we might find that we have fewer people with unpaid fines because there will be fewer people wrongly issued with an expiation.

Mr PEGLER (Mount Gambier) (16:32): I rise in general support of this bill. This bill tightens up the recovery system for unpaid fines. I think it is much more flexible and it will see much more speedy and timely payments of fines. There is a massive amount of unpaid fines in this state, and I do not think it is fair to those people who do the right thing that others are getting away with not paying their fines. Of course, some people will never bother paying because they can get away with it at the moment. Whereas, once this bill goes through (if it goes through) I think it will address many of the situations.

I agree with the negotiated time payment schemes that are proposed and the arrangements that can be made with Centrepay so that people can pay their fines over a period of time; I think that is a good move. When people absolutely refuse to negotiate or pay their fines I think it is the right move to sell their personal property to recover those fines. I also support the fact that those people's licenses can be suspended and their vehicles can have locking devices applied to them. Of course, the suspension of licenses does not necessarily mean that some of those types of people will do the right thing, but if some of their property can be sold, well, they will think twice about paying their fines.

This bill is aimed at those who do the wrong thing, not those who do the right thing. I also support the fact that the names of those who do the wrong thing will be published. The only part of the bill that I do have a problem with is the lodgement fee. I will read out a letter that the Local Government Association sent to me, and hopefully the Attorney can address this issue in his reply. The letter reads:

The LGA has recently been negotiating with the Attorney in relation to the Statutes Amendment (Fines Enforcement Recovery) Bill 2013. The LGA made a submission on the Bill in late 2012 and is pleased to note key changes to the Bill which address a number of the concerns raised.

However, one issue remains outstanding for Local Government and that is the intention to impose a lodgement fee on Councils for the new Fines Enforcement Office to recover fines which remain unpaid after the issue of appropriate reminder and warning notices. The lodgement fee imposed on Councils will impact adversely on Councils' budgets and result in ratepayers subsidising enforcement procedures against recalcitrant alleged offenders.

The current arrangements for fine collection allows a Council to issue an expiation notice and then issue a reminder notice if the fine is not paid by the due date. The reminder notice attracts an additional fee of $48, which is added to the fine. When the fine is enforced through the court, the original fine amount plus the accumulated fee for the reminder is collected from the alleged offender and paid to Councils. The new lodgement fee will not be recoverable by Councils from the alleged offender, but will have to be paid by Councils when seeking to have the fine enforced. The LGA's view is that the lodgement fee should be added to the original fine, as is the case for the reminder fee, and be paid by the alleged offender through the enforcement process.

However, after discussions with the Attorney's staff, the LGA has made a compromise proposal which is to seek an increase in the fee for the reminder notice as a means of offsetting the impact of the new lodgement fee. We have written to the Attorney seeking his endorsement of this proposal.

If the Attorney is supportive of this proposal we would be comfortable with a statement of commitment being made by him enabling discussions to occur between the LGA and his Department, including Treasury to implement the proposal.

The LGA is otherwise supportive of the passage of this Bill through the House of Assembly.

I do support the LGA in this. It is not actually the councils that end up being out of pocket but the ratepayers themselves for these people who do the wrong thing. I believe that the collection should actually come from those people who have done the wrong thing. Otherwise, I support the bill.

Mr VAN HOLST PELLEKAAN (Stuart) (16:37): I will make a few very brief comments. It is a pleasure to contribute to this discussion, particularly following the member for Bragg, our lead speaker on this issue, who as always has been very thorough about outlining where everything is going, but there have been good contributions from other speakers, too.

Without going over old ground, I will touch on a couple of concerns I have. There is no doubt that the opposition supports this bill, and I am certainly very supportive of anything that is going to crack down on crime, and not paying your fine is a crime linked to a former crime. I am happy to support the government in trying to address that, and no doubt it will benefit our economy. As the member for Mount Gambier just said, at the end of the day it is the ratepayer or the taxpayer who really misses out because, if the money is not paid and there are costs involved, it is the South Australian who bears the brunt of it. I certainly think that this is a positive measure.

I put on the record, though, my concerns about what seem to be very excessive powers given to these fines enforcement recovery officers. These powers include things like clamping and impounding vehicles, sale of a debtor's primary place of residence if the fine is more than $10,000, publishing debtors' names on websites, open-ended driver's licence and potentially other disqualifications, and other things like that.

It does seem a big chunk of power to put into people's hands, into public servants' hands. I certainly have nothing against public servants, but you would want to be sure that they were trained in exactly this sort of work. They are actually being given this job because the people who are trained in exactly this sort of work are currently not being successful. That is an issue I think needs to be looked at very seriously.

We have certainly had situations—and they are in the vast minority, but they have existed—where people with authority to make decisions within the Public Service have been open to graft and corruption. I forget exactly what the situation was, but I think towards the middle of last year there were people who were either handing out driver's licences or car registrations or something like that, or not handing them out, for their own personal gain.

So, not only do these fines enforcement and recovery officers have a great deal of power and authority, they also have a great deal of discretion. They have an enormous amount of discretion in the work that they do with regard to actually deciding how they are going to go about recovering the debt, in actually deciding whether they are going to recover the debt at all and deciding whether possibly the debt should never actually have been applied in the first place.

So, on the one hand, they have a great deal of authority and on the other hand a great deal of judgement opportunity. I just put on record my concern that these people will be put under an enormous amount of pressure in their job with the straightforward thing of potentially just their own inclination to make poor judgments for one reason or another. They might also find themselves very exposed to pressure from organised crime gangs. We have a very hard time keeping bikies and other organised crime gangs out of just about everything that we do in South Australia. It is not a great leap to be concerned about the possibility that these fine enforcement and recovery officers may well be deliberately targeted by organised crime people.

I just think that is something the government—whoever is in government when this bill passes, as it surely will—should be right on top of, because these are people doing the job who will be put under an enormous amount of pressure. They will be put under extreme pressure because they will have a great deal of personal authority, which I have no reason to expect that any individuals would not do to the best of their ability, but they will be placed under pressure.

The last point I would like to make quickly is that, while I certainly support the recovery of fines from people who have committed a crime and then compounded that by not paying their fine, what we are looking at here is actually going to have an impact upon the people who have assets and people who have a reputation that they are fearful of losing—the people who have a driver's licence that they do not want to lose or some other thing. It actually will not do anything to address the people who do not have any of those positives that can be taken away from them.

So, for people—and there are thousands of them across our state—who have outstanding fines and are typically recalcitrants over a very long period of time, if they do not have a home, property, driver's licence, car, money in the bank or even a reputation that they are fearful of having besmirched, this will not impact on them. It is okay to address what you can address, and that is fantastic, but we also have to deal with the fact that we have to address an enormous amount of outstanding fines owed by people in those categories who will not be captured here.

I hope that, given that presumably it will be more efficient for the government and the departments to recover money owed from people with assets of one category or another, including a good reputation that they are fearful of losing, it never gets to the point then where fines are more readily applied to those people and less readily applied to the people who will not have them recovered by the extra tools that are put in place by this act. Clearly, that would be completely unethical and inappropriate. It is important that obviously fines, when they are handed out, are applied exactly to whatever the crime is, and are not linked to the capacity to recover the fine.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:44): Can I start by thanking everyone who has contributed to the debate. I am actually very pleased that overall people are supportive of the legislation. I guess people have pointed out a number of areas of concern. In dealing with this area, obviously one has to be realistic and accept that there are, as the member for Stuart was just referring to, some people who, for whatever reason, are incapable of paying a fine.

Nobody wants to get to the point where we are creating a debtors' prison. We do not want to be re-entering the era of Charles Dickens, with hulks in the Port River and that sort of thing. That said, the fundamental point about all of this is that the fines enforcement tools that the government presently has are tools that have been accumulated over some time, and have been incrementally added to as time went on. In a way, you have various sediments of thinking sitting there at the moment, all of which are grafted onto the courts as the body that is going to be doing this work.

The courts are obviously very good at their core business, which is managing courts. In fact, I think they are getting better at it and they are getting more efficient at it. They are starting to look at things in a very progressive way, and I applaud the courts for that, but this is not part of their core business. This is something that was conveniently picked up by them because nobody else seemed to be the appropriate people to do it.

They have struggled on in a genuine fashion for some time, doing their best, but it has been a very systematic, focused collection agency. By 'systematic', I mean it is almost an automated system. What we are talking about here is a far more case-specific system with dedicated people who will look at each individual debtor, examine that individual debtor's circumstances, and deal with those as best they can.

I have mentioned this previously, and I will not labour the point too much here, but we need to remember that, of the debt that is sitting out there at the minute, the best part of 40 or more per cent of that is debt which is due but not yet overdue. When we say there is two hundred and something million dollars there, of that, a hundred and something million is money which is due but not yet overdue. That part of it is not really a problem.

We then have a large segment of debt which is overdue but is being managed in some fashion. Again, in that area, at least it is being managed presently. I applaud the system for doing that, but this bill aims to improve the management of that substantial chunk of money. That is another 30-odd per cent of the total outstanding funds, so that is a substantial amount of money, the collection of which could be more actively and personally managed to get a maximum return out of that.

Finally, we have this very, very troublesome tail in terms of statistics. That tail is made up of all sorts of things: people whose addresses we do not know; people who have disappeared; people who have gone overseas; and people who have gone interstate. In relation to that debt, it is fair to ask whether the energy and cost put into recovering that debt are warranted, given how big that debt might be. To put it another way: how many hundreds of dollars do you spend chasing $100? Again, that requires common sense on the part of a dedicated debt collection agency, which this will be.

I realise that there have been concerns raised about people who are not financially well off and so forth. This scheme is intended to acknowledge and comprehend that those people exist and deal with them in the appropriate way, but it also acknowledges there are some people out there who have thumbed their nose at the system, and the present system has not actually presented any great challenge for these people.

The other thing I should point out is that—and I tried to capture this a while ago using the word 'automated'—the present system does not have a lot of discretions built into it. For example, a person is overdue; automatically, an overdue fee of X dollars. The process goes down the track, some other step happens, then automatically the next step must be licence suspension or something else—no ifs, no buts, it just must happen.

Inevitably, when you set up an automated system like that that reacts to individuals, not based on their particular personal circumstances but on some predetermined trigger point, you are going to get odd outcomes. I believe the new system we are talking about here will minimise those odd outcomes; it will make less of those odd outcomes.

The other thing is that this is bringing a professionalism (and I do not use that word in any way to be disparaging of the courts) in the context of debt collection to government debt collection. I think in this day and age, given the sophistication of all the other agencies the government has—the tax department and so forth—not to have a dedicated and sophisticated modern flexible government agency dedicated to collecting outstanding government debt is leaving a big gap in our armoury.

I would particularly like to mention the member for Mount Gambier's remarks. We have had extensive consultation in relation to this bill. In fact, I know the member for Bragg was at one point acknowledging that we have had this bill out there for a long time, and at another time I think she might have mentioned that we had not consulted enough. However, it has been on the radar screen for two years, and a version of this bill was put out for consultation in October of last year, I think. There have then been several iterations of the bill and further consultation, both within government and outside government.

I know that some people, like the Legal Services Commission, say that there has not been enough consultation, but those who advise me here today suggest that some of the remarks the member for Bragg was passing on from the commission may have been pertinent to an earlier draft of the bill, perhaps even the October version, and not to the amended version. Consultation is important, but those with whom we should be consulting need to take responsibility for being timely in their replies as well, otherwise nothing would ever happen.

In regard to the LGA, I wanted to say in this instance that the LGA has been quite engaged with us on this topic, and there is something I would like to read into Hansard because I gave an undertaking to the LGA that I would do this. I read the following:

The Government will commit to increasing the Reminder Notice Fee for expiation debts as a means of reducing the impact of introducing a new $18 lodgement fee that will be imposed on Issuing Authorities, including Local Government Councils, for lodging debts with the Fines Enforcement and Recovery Office.

The Government will commit to modelling the impact of this new lodgement fee in conjunction with the Local Government Association and the Department of Treasury and Finance prior to this Bill becoming law. Any increase in the Reminder Notice Fee will come into effect on the day that the new Fines Enforcement and Recovery Unit opens its doors.

I gave the undertaking I would put that on the record, and I have now done so. There are just a few other things I wanted to mention very briefly. I understand that because I have a couple of brief amendments we will have to go into committee. I understand that the member for Bragg might have a couple of brief remarks to make in committee, but otherwise we expect to go through it fairly quickly.

This has been a very long and difficult process for me, for my personal office and for the public servants and parliamentary counsel who have assisted us in getting to this point. I would particularly like to place on record my thanks to the head of my department, Rick Persse, and Caroline Mealor, deputy head, who have both been extremely energetic in helping make this happen.

I would also like to thank my personal staff, who have been at varying degrees tolerant and sometimes engaged in therapy with me when they have sat down and said, 'Don't worry, it will eventually happen.' I would also particularly like to thank Kathy, Scott and Amy who are sitting here today. They have spent a lot of time on this and without their effort, this would not have been possible.

The relief one feels—at least, this one—in having this bill not only in here but actually going through the parliament is enormous. I never understood, Mr Deputy Speaker, when an uncle of mine whom you would remember used to refer to a mythical thing called the ooh-aah bird that used to lay square eggs and it would make a noise at the beginning and then after the egg had been passed there would be a great sense of relief. Well, I am feeling a little bit like that. I am about to feel like that anyway, assuming this goes through. With those few words, perhaps we could go into committee.

Bill read a second time.

Committee Stage

In committee.

The CHAIR: Did you have any particular area that you wanted to ask a question on, member for Bragg?

Ms CHAPMAN: I am happy to indicate that if we move to the amendments [AG-2] and [AG-3] starting at clause 11, I will be brief if not silent. We will consider them between the houses.

Clauses 1 to 10 passed.

Clause 11.

The Hon. J.R. RAU: I move:

Page 8—

Lines 10 to 18 (clause 11, inserted section 61(1), (2) and (3))—Delete subsections (1), (2) and (3) and substitute:

(1) Subject to this section, the Fines Enforcement and Recovery Officer may make a determination under this section (an aggregation determination) if a debtor who owes a pecuniary sum also has an amount due under an expiation notice (an expiation amount) and—

(a) the debtor has requested the making of the aggregation determination; or

(b) an enforcement determination has been made in relation to the expiation amount under the Expiation of Offences Act 1996.

(2) If the debtor requests the making of the aggregation determination but no enforcement determination has been made under section 13 of the Expiation of Offences Act 1996 in relation to the expiation amount, the Fines Enforcement and Recovery Officer may refuse to make a determination under this section unless the issuing authority pays the prescribed fee.

(3) On the making of an aggregation determination—

(a) the expiation amount will be taken to be part of the pecuniary sum owed by the debtor; and

(b) subject to the regulations, the debtor will, for the purposes of an Act or law other than this Act or the Expiation of Offences Act 1996, be taken to have expiated the offence or offences to which the determination relates (unless the debtor is already taken to have expiated the offence in accordance with section 9(14) or section 13 of the Expiation of Offences Act 1996); and

(c) any enforcement determination under the Expiation of Offences Act 1996 made in relation to the expiation amount is suspended.

Lines 26 and 27 [clause 11, inserted section 61(5)]—Delete '(and must revoke the determination at the request of the debtor)'

Page 9, lines 1 to 5 [clause 11, inserted section 61(7)(c)]—Delete paragraph (c) and substitute:

(c) —

(i) if an enforcement determination had been made under the Expiation of Offences Act 1996 prior to the making of the aggregation determination—the enforcement determination comes back into force (and the Expiation of Offences Act 1996 applies to the remaining expiation amount as if the aggregation determination had not been made); or

(ii) in any other case—the Fines Enforcement and Recovery Officer may make an enforcement determination in relation to the remaining expiation amount under section 13 of the Expiation of Offences Act 1996 (and any procedural or other requirements relating to the making of such determinations will be taken to have been complied with).

Amendments carried; clause as amended passed.

Clauses 12 to 22 passed.

Clause 23.

The Hon. J.R. RAU: I move:

Page 35, lines 16 and 17 [clause 23, inserted section 9(14)]—Delete '(whether the arrangement is subsequently discharged or terminates before being discharged)' and substitute:

(unless the alleged offender is already taken to have expiated the offence in accordance with section 13 or in accordance with section 61 of the Criminal Law (Sentencing) Act 1988) regardless of whether the arrangement is subsequently discharged or terminates before being discharged

Amendment carried; clause as amended passed.

Clauses 24 and 25 passed.

Clause 26.

The Hon. J.R. RAU: I move:

Page 36, line 36 [clause 26, inserted section 13(3)]—After 'section 9(14)' insert:

or in accordance with section 61 of the Criminal Law (Sentencing) Act 1988

Page 40, after line 34 [clause 26, inserted section 14A]—After subsection (3) insert:

(4) Where more than 1 enforcement determination has been made in respect of expiation notices issued to a person, the amounts due under the notices may be aggregated for the purposes of taking enforcement action.

Amendments carried; clause as amended passed.

Clauses 27 to 31 passed.

Clause 32.

The Hon. J.R. RAU: I move:

Page 44, after line 39—After subclause (2) insert:

(2a) For the avoidance of doubt, if an order for relief referred to in subsection (2) is cancelled, section 10 of the principal Act (as in force immediately before the commencement day) does not apply in relation to the cancellation.

(2b) The Registrar (within the meaning of the principal Act as in force immediately before the commencement day) may—

(a) with the agreement of the alleged offender, vary an order for relief referred to in subsection (2); and

(b) delegate any functions and powers relating to an order for relief referred to in subsection (2) to the Fines Enforcement and Recovery Officer.

(2c) A power or function delegated under subsection (2b)(b) may, if the instrument of delegation so provides, be further delegated.

(2d) A delegation under subsection (2b)(b)—

(a) may be absolute or conditional; and

(b) does not derogate from the power of the delegator to act personally in a matter; and

(c) is revocable at will; and

(d) operates despite any direction under section 18A of the principal Act (as in force before the commencement day).

Amendment carried; clause as amended passed.

Clauses 33 to 44 passed.

New clause 44A.

The Hon. J.R. RAU: I move:

Page 46, after line 37—After clause 44 insert:

44A—Amendment of section 139D—Confidentiality

Section 139D(1)(ea)—delete paragraph (ea) and substitute:

(ea) as may be required for the purposes of Part 9 Division 3 of the Criminal Law (Sentencing) Act 1988; or

New clause inserted.

Remaining clauses (45 to 49) and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:00): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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