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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-07-23 Daily Xml
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STATUTES AMENDMENT (FINES ENFORCEMENT AND RECOVERY) BILL

Second Reading

Second reading debate resumed.

The Hon. J.A. DARLEY (11:21): I rise to oppose this bill. At the outset I agree with many of the sentiments expressed by the opposition in the Hon. Stephen Wade's contribution. Whilst I agree that action must be taken to recover unpaid fines, this is not the solution. The penalties suggested by the government are far too harsh and will penalise those who can least afford it, through a system that lacks transparency. If I could have moved amendments to address some of the concerns I would have done so. However, in this case, I think it would be best to go back to the drawing board.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (11:22): I understand there are no further second reading contributions to this bill, and I wish to thank those members who have made contributions thus far, and also those who have indicated their support and contributed other comments as well. This bill is an important one; it sets out to change the present system for the collection and enforcement of unpaid pecuniary sums and expiation fees, as well as debts owed to the Crown under the Victims of Crime Act 2001. I have been able to gain some answers to some of the questions asked, so I will put those that I have to hand on the record now and those outstanding I am happy to deal with during committee.

In relation to the first question asked by the Hon. Stephen Wade, modelling will be done with the passage of the bill. The project team will involve senior Treasury officials and the LGA. In relation to his second question, I am advised that I am not aware of any discussions other than with Centrelink or the Department of Human Services, which did not progress. In relation to his third question, I am advised that six months from passage of the bill to allow for key operational activities to be undertaken, including the recruitment of the head of the unit. In relation to the Hon. Stephen Wade's fourth question, this information needs to be provided by the Courts Administration Authority and we can attempt to do that.

In relation to questions asked by the Hon. Tammy Franks, in relation to her first question, I am advised that approximately $2.1 million was recovered by Dun & Bradstreet. In relation to her second question: we would need to obtain further information about that in relation to the APY and Centrelink debtors. In relation to her third question, expiation amounts: again we need to obtain further information in relation to that. In relation to the fourth question, the APY lands amnesty: I am advised that it could apply to the APY lands if amnesty is called. The legislation, I am advised, provides for an amnesty.

In relation to the briefings for the Hon. Tammy Franks, I am advised that when her office contacted the Attorney-General's office she was advised that the lead officer was not available; however, she was offered an alternate officer to provide a briefing. I am advised that her office indicated that they would opt to send in questions via email and receive answers in that format. I am advised that the questions were answered and I think they were provided by Friday. With that, I look forward to dealing with the committee stage expeditiously.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. T.A. FRANKS: I am certainly waiting for quite a few of the questions I raised during the second reading stage to be answered and I assume that we will not be progressing past clause 1 until we get those answers. In relation to one of the answers the minister was able to provide, of the $40 million farmed out to Dun & Bradstreet, we received $2.1 million back. How much did we pay Dun & Bradstreet to get $2.1 million of the $40 million back?

The Hon. G.E. GAGO: I am advised that we are not sure of the amount. However, the contract is still ongoing, with the commission basis. I am advised it will expire on 31 August 2013. I have also been provided with answers to a further two of the Hon. Tammy Franks' questions. One is in relation to a parent's vehicle: would a parent's vehicle be taken if children incurred fines? I am advised that, yes, the legislation provides for this. There was also a question: when would we sell a primary place of residence? I am advised that this would be a last resort. Before FERO would proceed to the sale it would aim to deal with the best suited enforcement action and then, if required, the primary sale of the residence would be pursued. The legislation provides for this.

The Hon. S.G. WADE: In relation to the Hon. Tammy Franks' questions to which the minister responded that Dun & Bradstreet had recovered $2.4 million, could the minister advise over what period that recovery was achieved?

The Hon. G.E. GAGO: I am advised over a 12-month contract.

The Hon. S.G. WADE: In relation to the termination of the current contract, is there a right to extend, and, whether or not there is a right to extend, is it the government's intention to continue a similar arrangement?

The Hon. G.E. GAGO: I am advised that, no, the government does not intend to extend or pursue.

The Hon. T.A. FRANKS: So, with the remainder of the $40 million that has been assigned to Dun & Bradstreet—is it $2.1 million or $2.4 million that has been recovered?

The Hon. G.E. GAGO: I am advised it is $2.1 million.

The Hon. S.G. Wade: Sorry; my mistake.

The Hon. T.A. FRANKS: So, we have $37.9 million still outstanding. What is happening with that debt?

The Hon. G.E. GAGO: I am advised that quite a lot of that debt outstanding aimed to be recovered by D&B is over 10 years old and quite a bit of the data is now inaccurate with changes of address of people who have moved and so addresses are now inaccurate. The courts attempted to recover that with the new unit. However, the Courts Administration Authority, together with the new unit, FERO, will now pursue recovery of that outstanding debt but without D&B assisting.

The Hon. S.G. WADE: I just want to go back to the Attorney-General's statement on 28 March on FIVEaa radio that he was hopeful of getting FERO established 'well before the next financial year'. Considering the comment was made on 28 March 2013, I presume that the Attorney-General was talking about the next financial year, being the financial year that commenced on 1 July 2013. Considering that that is a three-month period, and that the Attorney was anticipating parliamentary consideration of the bill being in that period as well, why does the government now think it would take six months to get this agency up and running?

The Hon. G.E. GAGO: I am advised that there are a number of administrative matters involved such as the recruitment process, IT systems that need to be developed and implemented (including IT system changes to the SAPOL system), and also things like accommodation and other general administrative matters.

The Hon. S.G. WADE: I am interested in hearing the minister refer to the recruitment challenge for this new agency. Considering that there are 84 people coming from established agencies and there is only one new person, I am incredulous that that is a huge recruitment challenge. Considering that we are basically talking about a unit where, of the 85, 79 are already in the Fines Payment Unit, why would the government not want the officers who are currently working in the Fines Payment Unit to shift to the FERO environment in terms of the tools?

The government has not made a focus in its presentation, at this point to this parliament, that this is somehow an IT-enabled response; this is primarily, according to the government's second reading speech, a tool-focused response. Why couldn't the current FPU team, operating as a new FERO team, much more rapidly start accessing those tools?

The Hon. G.E. GAGO: I have been advised that it has been estimated that it will take somewhere between three to four months to recruit the head of the unit. They are obviously looking for the best, experienced person possible in debt recovery. Also, I have been advised that all of the Fines Payment Unit employees will in fact come across to the FERO unit and, as I have stated in my previous answer, there needs to be a number of modifications to IT systems, which have been assessed to take some time.

The Hon. S.G. WADE: Could the government advise: of the capital expenditure shown in Budget Paper 6, how much will be for IT-related capital?

The Hon. G.E. GAGO: I have been advised approximately 970,000.

The Hon. T.A. FRANKS: Getting back to the $37.9 million that Dun & Bradstreet was unable to collect that now comes back, you have answered that in fact a lot of this debt is over 10 years old. My questions are: how much of the debt is over 10 years old? How many people does this debt apply to; how many debtors are we actually talking about? And what level of interest are we talking about as part of this amount? This is an amount, we are told, of $40 million that was farmed out. It has been used as a headline figure. I think it is important to get the real facts of this particular amount on the record.

The Hon. G.E. GAGO: I have been advised that the number of debtors is approximately 50,000, and in relation to how much of the debt is over 10 years old and the interest, I would have to take those on notice and attempt to get an answer for that.

The Hon. T.A. FRANKS: Thank you, minister, for that. I am going to go for a fuller answer. When I asked if those other than the person who incurred the debt might have their car clamped, impounded or sold, you answered that parents may have their vehicle taken away for their child's debt. Would that also extend to partners, children and to employers of the person who has received the fine and has the debt, if it was the partner's, child's or employer's car?

The Hon. G.E. GAGO: Any vehicle involved in the commission of an offence that led to the debt is liable to be seized, clamped or impounded, irrespective or whether or not the vehicle is owned by the user of the vehicle.

The Hon. T.A. FRANKS: Just to get it straight, somebody receives a fine, driving their employer's car at the time, and they never pay the fine. That employer, who may not even be their employer anymore, can have their car taken away?

The Hon. G.E. GAGO: I have answered the question quite specifically and I will repeat it. Any vehicle involved in the commission of an offence that led to the debt is liable to be seized, clamped or impounded, so there is some discretion there, irrespective of whether or not the vehicle is owned by the user of that vehicle.

The Hon. T.A. FRANKS: I will add to this scenario. Somebody can steal a car, get a fine, not pay the debt and the person who had their car stolen can have their car clamped, sold or impounded?

The Hon. G.E. GAGO: I am advised that potentially the answer is yes; however, it is practically most unlikely, I am advised, because under section 70O it actually is an administrative decision. There is administrative discretion so, if it were assessed that the circumstances were such that it was unreasonable that the car be clamped, impounded or seized, other enforcement options could be applied.

The Hon. T.A. FRANKS: I promise the minister that I will drop this in a second, but it does raise some concerns. What are the processes around administrative discretion that would be followed and guaranteed?

The Hon. G.E. GAGO: Other alternatives are outlined in sections 70L and 70M. For instance, there is the provision of garnishment and also things like suspension of driver's licence, so there is a range of other enforcement options that are outlined.

The Hon. T.A. FRANKS: How would somebody who had nothing to do with incurring the fine be able to undertake those particular administrative arrangements? How would somebody who did not incur the fine be able to ensure that the person who did incur the fine undertook those arrangements and ensure that their car was not seized, impounded or clamped?

The Hon. G.E. GAGO: I guess it is similar to other forms of judiciary discretion, and we see lots of examples of that right throughout our legislation. The enforcement officer has a range of legislative enforcement options available to them, and they are able to consider the circumstances of the debtor and arrive at the best and most appropriate enforcement option to fit that particular case. They have discretion to do that. So, it is not prescribed, as these discretionary powers are often not prescribed; it is left to the discretion of that enforcement officer.

The Hon. T.A. FRANKS: Thank you, minister, for those answers, which do get me back to one of the original questions from my second reading speech. Could the government please respond to the Law Society's concerns that this sets up a system which bypasses the ordinary safeguards with which a civil creditor must comply, and what areas will the government's enforcement unit have to continue to comply with and which will they not have to continue to comply with?

What assurances are we giving people here that there is going to be actual justice, given we have just heard that somebody who has nothing to do with incurring the fine could, in fact, fall foul and have their car impounded and, I assume, their house—where they are sharing a house with somebody—and, as you have answered before, that situation is that somebody who has the debt could lead to a partner, a friend or a family member losing their house?

The Hon. G.E. GAGO: I have been advised that the government has a lot more accountability than a civil debtor and this bill has certainly tried to balance all relevant considerations. It has tried to make things fair and reasonable for people to pay off their debts in a range of different ways, for instance, by allowing for part payment arrangements, as outlined in section 70, or for people to enter into other arrangements such as direct debit arrangements over quite long periods of time. It has attempted to be as flexible as possible to accommodate the individual needs and circumstances of the person paying the debt.

We simply cannot compare the government's status with that of civil debtors, and I remind honourable members we have included appeal and review provisions within the legislation.

The Hon. T.A. FRANKS: I find it interesting that the government referred to itself in terms of the civil debtor when, in fact, it is having to pass a bill to ensure that it pays its bills on time. As I say, I look forward to that particular debate.

Brushing over that, and realising that I am probably not going to get too much further with this, I ask the minister: will the government support an amendment, should the Greens put it up (and I am having it drafted now), to exempt the primary place of residence, the home of the person, given that they have just acknowledged that this could affect partners, children, family members and those who share a property with somebody as their primary place of residence? Will they support an amendment to this bill to ensure that somebody does not lose their home, particularly, a person who is not guilty of wrongdoing, has no debt and has no responsibility for the debt?

The Hon. G.E. GAGO: I will look at that amendment and consider it when it has been drafted and give a response.

The Hon. T.A. FRANKS: How does that comply with the Attorney-General's assertion that this bill would not be amended last week on FIVEaa? Surely it was a perfect bill?

The Hon. G.E. GAGO: We are happy to look at the amendment and give a response when we have seen the detail of it. I can say no more.

The Hon. T.A. FRANKS: I will overlook the assurances given by the Attorney-General that this was a perfect bill that would not need amendment, and I would certainly welcome the government looking at an amendment to ensure that people do not lose their home.

Clause passed.

Clauses 2 to 10 passed.

Clause 11.

The Hon. D.G.E. HOOD: I move:

Page 11, after line 20—After inserted section 65 insert:

65A—Annual report.

(1) The Chief Executive of the administrative unit of the Public Service that is, under the Minister, responsible for the administration of this Act must, not later than 31 October in each year, submit to the Minister a report on the work of the Fines Enforcement and Recovery Officer for the financial year ending on the preceding 30 June.

(2) The report must include information prescribed by the regulations or required by the Minister.

(3) The Minister must, as soon as practicable after receipt of a report submitted under this section, cause a copy of the report to be laid before each House of Parliament.

There is only one amendment, a pretty straightforward amendment, which speaks for itself. Basically, it asks that the chief executive of the relevant unit must produce an annual report no later than 31 October in each year. The specific items to be reported on will be set down by regulation, as is common practice, I understand, with these sorts of matters. I will place on the record the sorts of things that I as the mover of the amendment will be looking for in particular.

They are things like the total debts outstanding at the beginning of the financial year with any appropriate details of the breakdown; the fines and levies imposed by the courts in that period; the amount paid without enforcement action; the amount collected through enforcement action; the amount ceased to be collectible due to alternative action, such as community service and other sorts of remedies; the amount that ceases to be collected due to being written off; and the balance outstanding at the end of that financial year.

Obviously, the annual report would cover other matters, which are obviously significant as well. As the mover of the amendment, they are the particular things I am interested in. They are not included in the amendment, obviously, as this will be done via regulation, but I just want to put on the record that that is what I am looking to do. It is a fairly straightforward amendment.

The Hon. G.E. GAGO: The government supports this amendment. It will allow for the annual report to be completed on activities of the fines enforcement recovery officer and present it to parliament. The government agrees that the appropriate information to be included in such a report be included in the regulations.

The Hon. S.G. WADE: I ask the minister whether each of the items the Hon. Dennis Hood indicated he would expect to see in such a report is in the exclusive control of the FERO, and, secondly, is the government committing to include each of the items of information that the Hon. Dennis Hood said would be included in the regulations as prescribed information for the annual report?

The Hon. G.E. GAGO: I am advised that anything within the fines enforcement and recovery officer's domain and control in relation to that information will be made available in the annual report. However, I am advised that there may be information from issuing authorities relating to outstanding amounts. That information would come from the issuing authority itself, and that information may not be available to put into the annual report. However, all of the information that is available, and can be made available, I am advised, will be included in the annual report.

The Hon. S.G. WADE: I could plead ignorance because this amendment was only tabled yesterday and I have not had a chance to properly consider it. In light of the minister's answer and in light of the Hon. Dennis Hood's comments about the range of information that he would expect to see, considering that the Hon. Tammy Franks is going to be requesting the recommittal of this clause in any event in relation to an amendment that she has foreshadowed, would the government or the honourable member consider amending particularly clause 1?

The current amendment states, 'the chief executive', and then later, 'submit to the minister a report on the work of the Fines Enforcement and Recovery Officer'. Would the member or the government consider the words, 'and related agencies' and the like to try to cover the scope of information that the Hon. Dennis Hood referred to? Again, I do not recall each of the items specifically that the honourable member raised, but I imagine that there would be a range of agencies that might well be needing to submit: police, local government, the Courts Administration Authority. It would certainly be of assistance to the public and to the cause of accountability for that information to be in one report, rather than six. So with all due respect, I would suggest to the member or to the minister that there might be an opportunity to see whether we need to enhance that clause.

The Hon. D.G.E. HOOD: My response to that is that I have no objection to what the Hon. Mr Wade is suggesting, but it is also a matter of whether or not the government is prepared to accept that. I think this is clearly a step in the right direction. I would not want to see the amendment defeated by the government's opposition, if it then chose to object to any change to the amendment. So, whilst I have no philosophical or detailed objection to what the Hon. Mr Wade is saying, I certainly want this amendment to succeed and not to be rejected because it was changed.

The Hon. T.A. FRANKS: In discussions with parliamentary counsel, I understand that this would be the clause at which an amendment to ensure that the primary place of residence could not be sold would be inserted. There may, indeed, be other clauses. So, I just raise that and ask for an assurance from the minister that we will be able to recommit this and other relevant clauses once the Greens' amendment is circulated and the government gets back to us on whether it will support it.

The Hon. G.E. GAGO: Yes; we have indicated that we would be happy to have a look at the amendment once it is drafted and to consider that and respond.

The Hon. T.A. FRANKS: Thank you. That was an assurance to recommit.

Amendment carried; clause as amended passed.

Clauses 12 to 25 passed.

Clause 26.

The Hon. G.E. GAGO: I move:

Page 40—

Line 15 [clause 26, inserted section 14(1)]—Delete

'apply to the Court for a review of the determination' and substitute 'appeal to the Court'

Line 18 [clause 26, inserted section 14(2)]—Delete 'application' and substitute 'appeal'

Lines 20 and 21 [clause 26, inserted section 14(3)]—Delete

'application can only be made under this section on the ground that the alleged offender did not commit the offence' and substitute:

appeal can only be made on the ground that the expiation notice to which the determination relates should not have been given to the alleged offender in the first instance because the alleged offender did not commit an offence

Lines 23 to 30 [clause 26, inserted section 14(4) and (5)]—Delete subclauses (4) and (5) and substitute:

(4) The issuing authority is a party to an appeal under this section.

(5) On an appeal under this section, the Court may—

(a) confirm the enforcement determination relating to the expiation notice; or

(b) vary or revoke the enforcement determination relating to the expiation notice,

and the Court may make any consequential or ancillary order that the Court considers necessary or expedient.

Lines 37 and 38 [clause 26, inserted section 14(7)]—Delete

'a review of an enforcement determination is not subject to' and substitute:

an appeal under this section is not subject to further

This aims to eliminate any confusion between this clause and clause 13, which is a review of the fines enforcement and recovery officer. The appeal would be a de novo hearing that would allow the court to hear evidence from both the issuing authority and the applicant.

Amendments carried; clause as amended passed.

Clauses 27 to 34 passed.

Clause 35.

The Hon. G.E. GAGO: I move:

Page 46, lines 29 and 30 [clause 35, inserted paragraph (ba)]—Delete

'applications for review of enforcement determinations' and substitute 'appeals'

I believe the amendment is consequential to government amendment No. 4.

Amendment carried; clause as amended passed.

Clause 36.

The Hon. G.E. GAGO: I move:

Page 46, line 34 [clause 36(2)]—Delete subclause (2) and substitute:

(2) Section 9A(1)(c)—delete 'a review under section 10 or 14' and substitute:

appeals under section 14

I understand the amendment is consequential to government amendment No. 1.

Amendment carried; clause as amended passed.

Remaining clauses (37 to 50) and title passed.

Bill reported with amendment.

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