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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2017-09-26 Daily Xml
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Fines Enforcement and Debt Recovery Bill

Second Reading

Adjourned debate on second reading.

(Continued from 9 August 2017.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (19:34): I speak on the Fines Enforcement and Recovery Bill 2017 and indicate that I expect to be the one and only speaker for the opposition. Can I start by saying that this is a bill the Attorney-General introduced on 9 August 2017, and it is a bill that started out with some reasonable statements and aspirations of the government to strengthen the capacity of the recovery of expiation fees and fines and the like. It then had a very significant reform to provide for the recovery of civil debt owed to the public authorities via the unit, which was established under the legislation and the substantive legislation that it is amending.

To do that, it proposed to extend the areas of responsibility of the actual Fines Enforcement and Recovery Unit (FERU, as it is frequently described) and the officer in charge to be upgraded from the status of the chief recovery officer (CRO). Accordingly, this bill sets out the proposed functions and powers of the new CRO. That is where it started—aspirational and reasonable—but, as time developed in the briefings on this matter, it became a shocking mess.

That does not mean that the government's intention of making some improvements is not to be considered meritorious, or indeed their not exclusively novel but still relatively new approach of having some central agency in the bureaucracy take responsibility for the civil enforcement or the civil debts of the Crown, but more significantly it became patently clear that government were yet again trying to sneak through some reforms to fix up a stuff up, basically. That is always concerning because it now comes to the situation where we have to scrutinise legislation, which we should not have to, to the level of concern as to whether, in fact, what the government says it is doing is actually what is in the bill.

Usually, that is a problem because it is by omission of the government drawing attention to any of the reforms in a bill or trying to diminish them as some kind of minor reform, procedural, just resolving some minor matter. When they are completely silent on it, it really does concern the opposition that the government should be so sneaky, secretive and downright unreasonable in asking parliament to progress legislation when they do not give a full and frank disclosure of what these things are about. True to the form of the government, this is exactly the bill that we are having to deal with.

Let's just recap: FEARU was established on 3 February 2014, pursuant to the 2013 legislation, and is part of the Attorney-General's Department. The opposition supported the establishment of this unit. We were not as convinced that it was going to be such a streamlined, cheap option—quicker, cheaper, etc., as they usually pronounce in their reforms—in respect of transferring the recovery of fines to the bureaucracy rather than continuing through the courts. Nevertheless, it progressed and we did not stand in its way. We raised some concerns during its development but, in any event, we acquiesced with that reform. There was a strict program of process to be undertaken in the enforcement of fines via the bureaucracy for good reason, obviously.

The operation of the unit has identified some failings and the bill aspires to remedy some of those. One initiative I think is reasonable is for the bill to be able to remove the current upper limit of 500 hours of community service to allow this to be used as an option where debtors face financial hardship—a sensible amendment. There are also some provisions for offenders with cognitive impairment to enable the withdrawal of expiation notices against them, and that then becomes an administrative decision.

Compensation and restitution payments will also have priority ahead of the victims of crime levy, giving the direct victims of a specific crime priority. That is an initiative which we have considered appropriate for a long time and we are pleased the government has finally taken up that approach for two reasons: first, because the victim of a specific crime at least ought to have the opportunity to recover, as the case is progressing, and at the time of sentencing have immediate direction for payment to them, and that should precede the victims of crime levy; and, secondly, the current balance of the Victims of Crime Fund is hundreds of millions of dollars and it is sitting there—in my view, scandalously wasted by not being applied to victims of crime. In any event, they are all matters that are uncontentious and we agree with them.

The enforcement power to seize a person's numberplates, there is nothing wrong with that, but currently under the law they can take the whole car. It does seem an excuse for the government to be grandiose about their improvements on recovery when they espouse this as some great major initiative. Unquestionably, the government has faced regular criticism through media outlets on the effectiveness of FERU for failing to take effective action against persons with multiple and accumulated fines and penalties. The debt owed to the state in outstanding fines is now well over $300 million and rising. I have heard the Attorney-General give his plaintive excuses on FIVEaa on a regular basis as to why this agency is justified. He tries to present sometimes pathetic excuses as to why its operations should be defended, when it has clearly and utterly failed.

However, the major reform in this bill is the provision to allow FERU to collect civil debt owed to the government. To do this, the CRO, as I have indicated, will have the power to enforce the debt owed by a public authority and if debtors seek to challenge or cross claim they will need to institute proceedings in court. Effectively, this places responsibility on the debtor to incur the cost of instituting proceedings, and is a reverse of onus that applies to the enforcement of any other debt between citizens or corporates.

Should we allow it? Should we accept this type of bureaucratic, centralised unit to undertake this role? One would have to ask the question: if it is good enough for governments, why should it not be allowed for citizens in respect of their recovery of debts? It is a bit like when the government decided that all industrial matters for businesses had to go off to Canberra to the Fair Work Commission to sort out their matters, but it was not good enough for the government and/or local government so they were given the privilege of retaining the structure for their remedies in the state arena.

Our position on that is to accept that this will occur. I think it is pretty clear that unless there is a vast improvement in the unit there will be considerable issues raised, and perhaps we need to look at reform. Certainly, we will be reviewing this as the operation follows. It is fair to say that the model, which is based on a New South Wales arrangement that apparently has operated since 2012, is one about which we have made some inquiry and there does not appear to be any abuse of process or concerns raised that would justify us allowing that option to proceed here.

Apparently, each of the government departments or public authorities, as such, will have the right to opt in to use this central service, so it may well be that big entities such as SA Water, the health department or the transport department, where there is a major amount of issuing of invoices to citizens, may decide to keep their own unit and not go into a shared arrangement. Centralisation of a particular area of responsibility in government departments has not had a good record, I have to say. If Shared Services were to be a model of this government in implementing that, then we would say that it will be a short lived operation. It will be a disaster and most of the agencies will certainly be opting out of it.

In any event, as we understand it, Mr Ovenstone, who is currently the head of the fines unit, was asked to prepare a report for the Attorney-General in respect of the program. I was a bit concerned to note in the briefing that they then used a Queensland debt recovery consultant to provide the report. It is bad enough that they have outsourced that out of the state. What is even more concerning is that they have not even provided the report to us, but perhaps that is still coming. Perhaps the Attorney can indicate why that has not been provided, as had been requested at the briefing.

The government briefing provided on 5 September confirmed that the justification for moving towards central civil debt recovery by this unit was, firstly, that it had been demonstrated as effective and presumably efficient in New South Wales. We have no reason to suggest that is not the case. Secondly, they claimed a very low rate of challenge to public sector debt by alleged debtors in this space. Again, that may be the case, but I point out to the house that the downside of this David and Goliath situation—David being the citizen and Goliath being the government—is that, of course, if they want to challenge it they will be the ones to institute it.

Every bill I see in this parliament in recent times manages to claw up an increase in application fees, particularly the initiating application fee. We have just passed a bill today to enable there to be graduated fees in respect of the Magistrates Court. I am not comforted by that, but I will indicate that if there are problems with this and people are excluded unfairly in respect of the process of determining disputes on debt, it will be a matter that we will certainly have a good look at. In the meantime, we will not stand in their way.

I want to raise something that became clear last week when we finally received material in respect of the pending court action. Although during the consultation we had received some correspondence suggesting that there had been a failure of process in the operation of the unit, in particular the failure to issue the requisite certificate for the purposes of enforcement pursuant to section 13 of the Expiation of Offences Act, it did not become clear to us that this situation was not only current but was the subject of court action pending in the Supreme Court and that the potential failure to comply with this process would result in a substantial taxpayer bill.

We had a good look at it, and it seemed quite clear that the government had, for whatever reason, not been full and frank in what had been happening in this regard. As I said, unfortunately that has become a pattern of behaviour of this government. The consequence of this is that there are provisions in this bill, in particular clause 3(2)(a) of the bill in respect of enforcement action and clause 72 to provide protection by way of civil liability to the Crown, which do not have any explanatory material with them. Clearly, if passed, they would have the effect of preventing embarrassment to the government and potential financial embarrassment if the decision goes the wrong way.

What do I mean by the decision? I mean that there is a current case before the Supreme Court against the state of South Australia by a claimant and the Adelaide city council which Chief Justice Kourakis has had before him, and a few weeks ago he reserved his judgement. One of the core issues in relation to that is the validity of the fines enforcement against the applicant based on this failure in relation to the process.

Let me say this: section 13 of the Expiation of Offences Act sets out a very comprehensive procedure about what has to happen if a fee is to be enforced under this principal act. It is there for good reason. It is very concerning to us that in the three years this unit has been operating, there appears to have been no compliance with the issuing of this requisite certificate. Whether ultimately a decision is made by the courts that this in some way invalidates the enforcement processes that have occurred to date would be very concerning. Not only is it appropriate that the government has the opportunity to legitimately collect its fines—in fact, we expect it to do so—but that could result in there being a number of challenges.

Heaven help us if that occurs because, on best estimate, by late last year there were close to 600,000 fine enforcement cases in that time, and we have a rough estimate now of almost 700,000 cases which have passed through this unit. Obviously, when these things occur, not everybody rushes in to try to sue the government or to try to have their fines invalidated, or in this case attempts to get some benefit from it, thankfully.

But what is really concerning to me is this increasing secrecy around these things. There is no reason why the government could not, when it introduced this bill back on 9 August, have said to the parliament, 'We are doing these things, as outlined already, and in addition to that we have identified that there has been a deficiency in respect of the process. It has been identified. It has been remedied. It is being complied with, but in the meantime, the state is potentially exposed to some liability and we need to protect taxpayers. It has been inadvertent. We apologise for it and we need some assistance for the statutory protection.'

Now, unfortunately, that increasingly is a situation we do have to deal with, but unfortunately the government did not do that. They did not come in and say, 'Look, this is the situation.' They just thought they would sneak it in, as usual, to try to get this through. What the opposition has decided to do in these circumstances, as infuriating as it makes us to have to deal with this sort of thing when it is exposed in this manner, is to allow this bill to progress in this house.

I will need some answers from the government; I will need to see this report that purports to have been commissioned by John Ovenstone. I think the parliament and the public do need some answers to the following:

1. When this was identified as a problem, were all subsequent enforcement cases properly complied with, pending some reprieve under this legislation?

2. Has any modelling or assessment been made as to consequences if we do not give this blanket civil liability protection to the government because of this complete stuff-up?

That is really what we need to know. Bear in mind that Mr Ovenstone is not operating a unit that is statutorily independent, obviously.

It is up to the Attorney not only to make the disclosure but to provide the explanations. The Attorney-General is asking us in this bill to expand the responsibility and powers to Mr Ovenstone in respect of undertaking the collection of civil debt for the government and, if he expects us to continue to support legislation like this through the passage of the whole parliament without there being a very clear, full disclosure of the information that is sought surrounding this complete mess, then he cannot rely on us continuing to support those aspects of the bill. It is as simple as that.

You come clean, you come with clean hands, if you expect our support. We will not tolerate the continued contemptuous conduct by the Attorney-General and/or his government in the shoddy way in which this has been presented, undisclosed and dealt with. The Attorney is on clear notice. I do expect some response with the material in between the houses, otherwise he is on clear notice that aspects of this bill may well be under challenge in another place.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (19:57): Can I say that there was a considerable amount of optimism building up in me that there would not be the ultimate or penultimate burst of invective at the end of the contribution by the deputy leader, but, no, my hopes were dashed at the last moment, as it turned out. There are three propositions here that need to be considered, and they are pretty simple.

The first one is in respect of the collection of fines that are owed to the state government, either because of an expiation having been issued by the police or, in some instances, local government, upon whose behalf the state government collects these things, or in some cases it is a fine imposed by the courts. Given the fact that the agency that is charged with the responsibility of helping to collect these fines—and, incidentally, has been doing a very good job of improving the rate at which these fines are being collected (and they need to be given credit for that)—they are asking for additional support and assistance in the legislation.

So the first question is: do we want to keep whingeing about how much money is uncollected, and not give the agency that is collecting that money the assistance it is asking for to be able to do a better job? That is the question. The answer to that question on the government side is unequivocally, 'Yes, we do want to help you collect as much of that outstanding money as possible because it is owed to the taxpayers of South Australia'.

So our answer to that is pretty clear. When I was listening to the deputy leader initially I thought she was heading down that track as well. I am not sure if that is where she landed ultimately, but to the extent that what she was saying was that she agrees that we should be helping them I say to her, 'Thank you'; to the extent that she veered off from that at the end, I say we have a point of difference, because we are trying to help them.

The second question is about civil debt owed to the government. Given the fact that we have a stand-alone dedicated specialist debt recovery agency, is it not sensible that government agencies across government should be able to engage that specialist unit to help recover their civil debts? That is a simple question. The answer to that question, I hope, is transparently and obviously, 'Yes. That makes sense.' That is the second question. It either makes sense or it does not. You let every agency have its own peculiar way of doing things and either collecting or not collecting things according to their skill base, or you actually find an agency which has a particular focus of activity, which is collecting moneys, and you let them do it. I would have thought that is a self-evident answer to that question as well.

Then the third question is about where the conspiracy theory begins and we travel off down that oft repeated path we go down where the moon landing is filmed at Universal Studios and Roswell and Area 51 and all that stuff. The whole point of this is really, really simple. This is not a conspiracy. This is a case very simply of this: it has been brought to the attention of the Attorney-General's Department that there is a case before the Supreme Court. As I understand it, it is the view of the legal advisers in the Attorney-General's Department that if one of a number of potential outcomes arises from that case in the ultimate judgement, then that will create a problem where an unintended and unforeseen outcome might create a whole bunch of problems that the parliament would no doubt quite reasonably be expected to fix.

What we are doing is saying that it may be that the Chief Justice, or whoever is seized of this matter, determines the matter entirely in the favour of the government and no remedy or rectification is required. It may not be. We do not know. But what we do know is that, knowing that there is the potential of that being a problem, having this bill in front of us and being so neglectful as to not attempt to remedy that before it becomes a problem would be foolish. So out of an abundance of caution we are making clear through this bill that what everybody thought was going on and what everybody believed in good faith was a bona fide exercise of power under the act by the unit will be, notwithstanding the outcome of that particular matter, the case.

In other words, what everyone thought was happening has happened in an authorised way as everyone anticipated it had been and, in the event that the court determines otherwise, we will have rectified that matter. It is of course entirely possible—and I am not reflecting on the chances of this because who knows what is going through the mind of the Chief Justice on this matter—that the outcome might be that there is not a problem, in which case we have just had a remedial measure which has done no harm but which has reinforced the position as people understood it.

So there are three points. First of all, do we want to support the fines enforcement unit in improving the rate at which it recovers moneys from people who have broken the law in some way or other and have had a fine imposed upon them? The answer to that is either yes or no. If the answer is yes, you support that bit of the bill; if the answer is no, then I guess you can oppose it. The second point, civil debts owed to the state: do with think it is wise for us to have a specialist collection agency for the state to attend to those matters? If the answer to that is yes, you would support the bill in that respect. If the answer to that is no, then I guess you would not.

Then the final point is, having been alerted to the potential—and I emphasise 'potential'—risk to bona fide actions by this agency over a period of time presented by an as yet undetermined and undecided legal dispute in the courts, is it prudent, given that this bill is open, to put beyond doubt that issue? Again, if the answer to that is self-evidently yes, then this bill is the correct way to proceed.

Those are really the three points. Do we help the agency? Yes. Do we want centralised debt collection? Yes. Do we want to ensure that in the event of there being a decision in the courts that actually throws the existing circumstances of the agency into some uncertainty, would we be intending to fix it up? If the answer to that is yes, we might as well do it here. There is no conspiracy here. There is nothing weird about this. This is prudent, given that we have been alerted to the fact that there is a risk. Those are the only matters I wish to address in relation to the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: I am happy to ask these questions in respect of the first paragraph but, as I indicated in the second reading contribution, my concern is in relation to what the Attorney now describes as a bone fide potential problem arising out of the bone fide conduct of his unit. Attorney, when were you first informed that there was a problem with a deficiency in the certification process? I assume it was before 9 August, seeing the provisions in the bill were already there when you tabled it.

The Hon. J.R. RAU: I am advised that the circumstances were that the officers in Legislative Services were alerted to the fact of there being a risk, potentially presented by proceedings in April or May of this year. That possibility was conveyed by Mr Ovenstone, the head of the unit. Pursuant to that, it was considered prudent that something be done about it, given the fact that we were attending to other matters in the bill. Far from it being concealing about it, this has been hidden in broad daylight since the introduction of the bill at the beginning of last month, whenever it was.

Ms CHAPMAN: Attorney-General, it is really not very acceptable to talk about being in broad daylight. Of course there are clauses in this bill, but do not get too smart by half. You said nothing about this in your second reading speech. You gave no indication in any public statements you made, including media releases. None of this was disclosed at the briefing that we had, which included Mr Ovenstone's presence, and no reports have been received since, including the report prepared by Mr Tim Lloyd in the Queensland consultancy, assuming that even touched on this issue. It may well have, just on the civil debt recovery, but do not get too cute.

We are supporting the passage of this bill. Do not try to claim that, by sneaking in through clause 72 some civil liability clause, a protection clause, this was fully disclosed to the people of South Australia because it clearly was not and you should stand condemned on the secrecy surrounding it. So, having been made aware of it, can the Attorney assure us that thereafter Mr Ovenstone ensured that the unit did issue the proper certification for subsequent cases until now?

The Hon. J.R. RAU: I will have to seek instructions on that from Mr Ovenstone. I will get those between the houses; I just have to ask. Bear in mind that we do not yet know whether, in fact, we are facing a problem or not. Nevertheless, I will certainly ask him and will seek to advise the deputy leader between now and when the matter resumes elsewhere.

Ms CHAPMAN: Having been apprised of this by Mr Ovenstone, did you make any inquiries of him as to what action he was going to take to ensure this was not ultimately putting taxpayers at risk?

The Hon. J.R. RAU: I am advised that there were some communications between Mr Ovenstone and the Crown, and I would need to reflect on whatever advice he received and exactly how he proceeded with that.

Ms CHAPMAN: That does not really fill us with confidence. What we are seeing here is a situation where since April/May, when it was identified that there was this deficiency that could potentially result in some claim, having been identified as not having occurred, even if it did not have the effect of causing some process to be invalid, surely you would have sought some reassurance from the head of this unit that full compliance would occur in respect of the requirements of section 13 until this matter was either remedied and protected by statute or dismissed in a court action.

The Hon. J.R. RAU: As I have said, I will seek advice about exactly what steps were taken. As I advised the committee a moment ago, there was an initial conversation between Mr Ovenstone and Leg. Services in April or May or thereabouts, at which point Leg. Services were alerted to the potential risk presented by this case. At that point Leg. Services were in the process of preparing for consideration by cabinet the proposal to introduce this bill, and a remedy for that particular concern was incorporated into the proposal out of prudence. As to precisely what steps went by in the interval, I am not in a position to answer that question without seeking further information from Mr Ovenstone, which I will do.

Ms CHAPMAN: Finally, in respect of Mr Tim Lloyd's report from Antaris in Queensland, what is the progress of the debt recovery consultant's report being provided?

The Hon. J.R. RAU: I will check it out. Just to correct the record, I am advised that the actual recommendations that came from that report have been provided to the deputy leader, so the deputy leader has seen what the report ultimately recommended. I do not believe there is any ambiguity about what the report suggested should happen, so it is not as if the deputy leader has not been provided with that information.

I will find out whether there is any concern about the balance of the report, which is the bit leading up to the recommendations—which, as I said, I am advised deputy leader already has—and whether there is any matter or matters in there that would be of concern or be a problem with her seeing the balance of it. However, as I said I am advised that the actual recommendations from the report have already been provided.

Ms CHAPMAN: I will certainly place this on the record: I simply do not have them. I appreciate that you send me a lot of correspondence, but I do not have anything on this aspect or recommendations. I have a reference to the information provided at the briefing as to who did the report, and the consultancy referral from you to Mr Ovenstone, to the consultant for the preparation of the report.

I am only assuming that this report recommends a process which is outlined in this bill and which provides for an opt-in for local government, etc. I would like to see the report, and I would like it to be produced between the houses. I will undertake to then make it absolutely clear what our position will be. As I have indicated, we are not interfering with the reasonably expeditious process of this bill through this house, especially now that we are alert to this problem, but we do want that information.

The Hon. J.R. RAU: As I said, my information was that we provided the recommendations. The deputy leader does not recall having received them. I think we clearly have some misunderstanding or whatever that has occurred. I certainly wish to rectify that as quickly as possible, being that the recommendations are provided. As I indicated, I will turn my mind to whether or not the report in total is something that we can provide, because if there is no problem in providing it, quite frankly we should provide it. I just cannot give that undertaking until I know exactly what the issues are, if any, with the provision of the report itself.

Clause passed.

Remaining clauses (2 to 76) passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (20:17): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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