Wednesday, 9 March 2022
Bills
Justice Legislation Amendment (Fines Reform and Other Matters) Bill 2022
Bills
Justice Legislation Amendment (Fines Reform and Other Matters) Bill 2022
Statement of compatibility
Ms HUTCHINS (Sydenham—Minister for Crime Prevention, Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (10:38): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Justice Legislation Amendment (Fines Reform and Other Matters) Bill 2022.
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Fines Reform and Other Matters) Bill 2022 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
Relevantly, the Bill:
1. implements recommendation 12.1 of the Fines Reform Advisory Board (the Board) for a harmonised time served scheme for prisoners
2. implements recommendation 20 of the Board by allowing toll companies to request that toll fines be withdrawn once issued
3. enhances the information-gathering powers of the Director, Fines Victoria (the Director) and the sheriff, and
4. creates a legislative framework for the electronic service of documents under the Infringements Act 2006 and the Fines Reform Act 2014.
Human Rights Issues
Human rights protected by the Charter that are relevant to the Bill
Recognition and equality before the law
Section 8 of the Charter relevantly provides that every person is equal before the law.
The changes to implement recommendations 12.1 and 20 of the Board promote the right in section 8.
The changes to implement recommendation 12.1 will ensure that all prisoners eligible to participate in the ‘time served’ scheme for prisoners—a scheme that allows prisoners to convert their unpaid fines to time in custody—can do so on an equal basis (clauses 32B-32M, 33(2) and 50B). Currently, the rules relating to prisoners with unpaid court fines are different from those applicable to prisoners with unpaid infringement fines. The scheme for infringement fines is broader and more flexible. The changes will bring the two schemes together and ensure that there are consistent rules for prisoners with unpaid fines who wish to convert those fines to prison time.
The changes to allow toll companies to request Victoria Police to withdraw a tolling infringement notice—made in response to recommendation 20 of the Fines Reform Advisory Board—will create a more flexible toll fine enforcement regime that is more responsive to the needs of vulnerable and disadvantaged fine recipients (clauses 61–64). The change will allow toll companies to request that fines be withdrawn if they consider that the fine should not be enforced, having regard to the fine recipient’s circumstances.
Collectively, the changes will enhance the extent to which fine recipients are treated fairly and equally by the fines enforcement framework.
Right not to have one’s privacy and reputation unlawfully or arbitrarily interfered with
Section 13(a) of the Charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is authorised by law. An interference will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the purpose of the interference.
Powers to obtain additional information for the purpose of fines enforcement
The Bill amends section 177 of the Fines Reform Act 2014 to expressly authorise credit reporting bodies to disclose to the Director or the sheriff additional information about fine defaulters (clause 37). A ‘fine defaulter’ is a person who has been issued a fine and has not paid that fine after service of a penalty reminder notice, registration of the fine with the Director for enforcement under the Fines Reform Act 2014 and the issue of a notice of final demand.
Currently, the Director and the sheriff can only obtain ‘identification information’ from credit reporting bodies (called ‘relevant information’). This information is very limited in scope: it includes only a person’s full name, date of birth, sex, current or last known address, two previous addresses, last employer and driver licence number.
The Bill will expressly authorise (but not compel) credit reporting bodies to disclose to the Director and the sheriff the following additional information about a fine defaulter:
• telephone number and email address
• credit worthiness information, and
• details of any accounts held by the person with any bank or other deposit-taking institution.
Credit worthiness information is defined to mean information concerning an individual’s eligibility to be provided with consumer credit, history in relation to consumer credit or capacity to repay an amount of credit that relates to consumer credit.
Consistent with the current drafting of section 177, the request will need to be made in writing and for the purpose of enabling the Director or the sheriff to take enforcement action under the Fines Reform Act 2014 against a fine defaulter.
The Bill also amends section 178 of the Fines Reform Act 2014 to expressly allow third-party entities that collate publicly available information to disclose to the Director or the sheriff any information that may be of use in the enforcement of registered fines, collection and enforcement orders, directions and warrants under the Fines Reform Act 2014 (clause 38).
Currently, although section 178 provides that the Director or the sheriff (and any contractor or sub-contractor supporting the functions of the Director or sheriff) can request information for enforcement purposes from any person or body, it is only ‘specified enforcement information agencies’ that are expressly authorised to disclose such information.
Specified enforcement information agencies are defined as agencies that hold information that may be of use in the enforcement of unpaid fines, collection and enforcement orders, directions and warrants under the Fines Reform Act 2014, and that are prescribed in the Fines Reform Regulations 2017. Prescribed agencies include municipal councils, government departments such as the Department of Jobs, Precincts and Regions and various State agencies such as the Victorian Fisheries Authority and the Game Management Authority.
The Bill clarifies that where a request is made under section 178 to another person or body (as distinct from a request under section 178 to a specified enforcement information agency), that person or body is expressly authorised to disclose that information. There is already an express authorisation for specified enforcement information agencies to disclose information to the Director or the sheriff.
Finally, the Bill amends the Taxation Administration Act 1997 to add the Director and the sheriff as authorised recipients in respect of whom a tax officer may disclose information obtained under or in relation to the administration of a taxation law under section 92(1)(e) of the Taxation Administration Act 1997 (clause 97). The amendment will enable the Director or the sheriff to obtain additional information for the purpose of enforcing an unpaid fine or registered collection and enforcement order.
Other authorised recipients of taxation information under section 92(1)(e) of the Taxation Administration Act 1997 include police, the Country Fire Authority, the Director of Consumer Affairs Victoria, the Registrar of Titles and the Secretary to the Department of Transport for the purpose of administering the Road Safety Act 1986 and regulations made under that Act.
Information able to be disclosed will include information relating to duties, land tax and payroll tax.
Compatibility with the right in section 13
The amendments to expand the powers of the Director and the sheriff to request information from a range of persons engage but do not limit the right to privacy because they will not result in a person’s privacy being unlawfully or arbitrarily interfered with.
Enforcing unpaid fines, collection and enforcement orders made by a court, and directions and warrants is a legitimate and important public function. Credit reporting bodies will not be compelled to provide any information (including the additional information the subject of the amendments), the scope of information that may be supplied to the Director or sheriff remains very limited and what information is disclosed may only be used for the purpose of taking enforcement action under the Fines Reform Act 2014 against a fine defaulter.
The amendment to section 178 of the Fines Reform Act 2014 will not alter the scope of the information-gathering power contained in section 178, which remains limited to sourcing information that may assist in enforcing unpaid fines, directions or warrants. Any information sourced can only be used for that purpose.
Disclosure of information under the Taxation Administration Act 1997 is subject to constraints, including that disclosure may not occur unless it is to enable the recipient to exercise a function conferred by law for the purpose of enforcing a law or protecting public revenue. This means the Director or sheriff will need to be able to demonstrate that the information is needed to assist in enforcing unpaid fines or collection and enforcement orders.
The Director and the sheriff will also continue to be constrained by the requirements in the Privacy and Data Protection Act 2014 that apply to all public entities relating to obtaining, using and disclosing personal information. Their enforcement related activities are appropriately regulated under relevant legislation, including the Fines Reform Act 2014 and the Sheriff Act 2009.
For these reasons, I consider that these amendments are compatible with the right to privacy contained in section 13(a) of the Charter.
Right to a fair hearing and rights in criminal proceedings
Relevantly, section 24(1) of the Charter provides that a person charged with a criminal offence has the right to have the charge or proceeding decided by a competent, independent, and impartial court or tribunal after a fair and public hearing. The right generally encompasses the established common-law right of each individual to unimpeded access to the courts and may be limited if a person faces a procedural barrier to bringing his or her case before a court.
Section 25(2)(a) of the Charter provides that a person charged with a criminal offence is entitled without discrimination to be informed promptly and in detail of the nature and reason for the charge.
Electronic service of documents
The Bill engages the right to a fair hearing by amending the Fines Reform Act 2014 and the Infringements Act 2006 to establish a legislative framework for electronic service (by email or mobile phone) of a range of fines related notices (clauses 39, 41(b), 46 and 48). These changes are aimed at bringing Victoria into line with several other jurisdictions, including Queensland and NSW, which have expressly provided for the electronic service of infringement notices and other fines related documents.
The Bill makes amendments to allow the electronic service of any document under either the Infringements Act or the Fines Reform Act if the recipient is of or over the age of 16 years and:
a. has provided their express consent (whether orally or in writing) to receiving notices by electronic communication and has provided an electronic address for that purpose, or
b. their electronic address is sourced from a prescribed electronic address database.
Where these requirements are satisfied, service will be deemed to have occurred at the time the document was sent or, if sent after 4pm, on the next day.
Noting that there is no existing database of electronic addresses, this aspect of the proposal will only be used where such a database is developed and becomes a reliable source of accurate electronic addresses.
The Bill will also amend the Infringements Act 2006 and the Fines Reform Act 2014 to allow alternative means of serving fine related notices to be prescribed.
Compatibility with the rights in sections 24 and 25
The amendments do not directly engage the rights, because an infringement offence (or a court fine) is not a formal criminal charge. To the extent that they may be regarded as being relevant to those rights, there are adequate safeguards in place to ensure that electronic service does not adversely affect a person’s ability to deal with their fine, including:
• the person will be required to expressly consent to electronic service and have provided an electronic address for service, or the person’s address must have been sourced from a prescribed database, and
• the person must be aged 16 or over.
The department will develop appropriate policies to guide the implementation of electronic service. Under those policies, it is anticipated that electronic service would not be relied on where objective evidence indicated that the notice sent electronically had not been received.
For these reasons, I consider that the amendments are compatible with the rights to a fair hearing and the rights in criminal proceedings contained, respectively, in sections 24(1) and 25(2)(a) of the Charter.
THE HON. NATALIE HUTCHINS MP
Minister for Crime Prevention
Minister for Corrections
Minister for Youth Justice
Minister for Victim Support
Second reading
That this bill be now read a second time.
I ask that my second-reading speech be incorporated into Hansard.
Incorporated speech as follows:
The government is committed to ensuring Victorians have access to a fair and effective fines system. This bill continues the important work of implementing recommendations to improve the fines system made by the independent Fines Reform Advisory Board (‘Board’). It also makes other important changes to improve the fines system.
Continuing to implement the Fines Reform Advisory Board’s recommendations
The Board was established in late 2019 to provide advice to government on the operation of the fines system and opportunities for improvements after the commencement of the Fines Reform Act 2014, on 31 December 2017. The Fines Reform Act introduced a suite of important changes—known as ‘fines reform’—to make the fines system fairer and more effective, including by centralising the collection of court fines and infringement fines in a new office of the Director, Fines Victoria (Director) and establishing new and extending existing social justice initiatives for vulnerable and disadvantaged fine recipients.
In its 2020 final report, the Board made 24 recommendations to establish a more accessible, effective, efficient and fair fines system. In December 2020, the government responded to the Board’s report, supporting seven recommendations in full (recommendations 1, 5, 8, 10, 14, 15 and 18) and six recommendations in-principle (recommendations 2, 3, 7, 16, 20 and 21). Eleven recommendations were to be considered further (recommendations 4, 6, 9, 11–13, 17, 19 and 22-24).
Twelve of the Board’s recommendations require legislative change. Of these, recommendations 7 and 13 have already passed, and the Bill will result in full implementation of recommendations 1, 5, 12, 18 and 20.
Recommendation 1: clarifying the aims of fines reform
In recommendation 1, the Board called for the Fines Reform Act to be amended to clearly state the objectives of fines reform, as identified by the Board. The Board identified four key objectives of fines reform: the centralised collection and enforcement of infringement and court fines; strengthened enforcement mechanisms to better deter fine avoiders; support for vulnerable people to deal with their fines; and enhanced review and oversight processes.
The government agrees that a clear statement of the aims of fines reform is important to provide clarity to stakeholders and the wider public on the purposes of a complex statutory framework for the collection and enforcement of fines.
The Bill will amend the Fines Reform Act to enshrine these key objectives in the legislation.
Recommendation 5: clarifying reporting requirements
In recommendation 5, the Board also called for legislative change to require that the Attorney-General prepare and publish an annual report on the infringements system. While an annual report is routinely prepared by my department, there is no statutory obligation to publish this report.
The government agrees that preparing and publishing information on the functioning of the fines system is important for transparency and accountability purposes. The Bill will amend the Infringements Act 2006 to require the preparation and publication of an annual report. To consolidate reporting requirements under fines legislation, the annual report will also encompass general information about the exercise of the internal review oversight function of the Director.
Recommendations 12.1 and 12.3: a more accessible time served scheme for prisoners
The time served scheme for prisoners supports prisoner rehabilitation and reintegration into the community by minimising the extent to which prisoners are burdened by unpaid fines on their eventual release. The time served scheme allows prisoners to expiate their unpaid fines through time spent within prison.
Currently, there are two separate legislative schemes: one in the Fines Reform Act for prisoners with unpaid infringement fines and one in the Sentencing Act 1991 for prisoners with unpaid court fines. Different rules apply to these two schemes and the infringement fine scheme is broader and more flexible than that applicable to court fines.
The Board recommended that the same rules apply to both categories of fines, and that any costs and fees added to a fine be removed for the purposes of calculating how much ‘time in lieu’ a prisoner will need to serve in place of paying their unpaid fines.
The government agrees these changes will make the time served scheme for prisoners fairer and more effective. The Bill will amend the Sentencing Act and the Fines Reform Act to bring the two schemes for prisoners together, with one set of consistent rules for all fines, and fees and costs will be waived where these have been added to an unpaid fine amount.
Recommendation 18: more time for enforcement review applicants to obtain evidence
Enforcement review is one of the safeguards in the fines system. It allows fine recipients to apply to the Director for a review of their fine after it has been registered under the Fines Reform Act for enforcement. There are established statutory grounds on which review can occur, including that the fine recipient was affected by special circumstances or the conduct for which the fine was issued should be excused having regard to exceptional circumstances.
There is also a process by which the Director can request additional information from enforcement review applicants in support of their application. If the Director requests additional information, that information must be provided within 14 days or, if the Director agrees to provide more time, a maximum of three months.
In recommendation 18, the Board called for change to allow applicants to request more time to obtain additional evidence for applications on the grounds of special or exceptional circumstances. Due to the nature of these applications, which can require evidence from medical or other professionals, for example, greater flexibility is needed to ensure that applicants are given enough time to obtain this additional supporting material and make it available to the Director.
The Bill will make this change and will also allow the Director a discretion to give applicants more time to provide additional evidence where the Director has requested that information. The changes will create a more flexible and responsive enforcement review process.
Recommendation 20: new powers for toll operators to request tolling fines be withdrawn
Unpaid debts for the use of Melbourne’s toll roads may be referred to Victoria Police for the issue of tolling infringement fines. These fines are then enforced in the same way as any other infringement fine. The tolling company has no further involvement in collecting or enforcing the fine.
In recommendation 20, the Board recommended change to allow tolling companies to withdraw toll infringement fines if they consider it appropriate having regard to the fine recipient’s individual circumstances. The Board recognised that through their interactions with customers, toll companies can learn that a person is suffering from financial hardship or vulnerability such that enforcing a fine against them may be counter-productive and unfair. Enforcing fines that should not or cannot be paid is not in the interests of the toll companies, Victoria Police or the wider community.
The Bill responds to recommendation 20 by creating a power for toll companies to request that Victoria Police withdraw a toll infringement fine if they think the fine recipient’s circumstances mean that the fine should not be enforced. Consistent with its role in enforcing toll fines, Victoria Police will retain a discretion as to whether to withdraw a fine in response to a request.
The changes are consistent with recent legislative amendments by this government to limit the number of tolling offences for which a person can be prosecuted in any seven-day period and give toll companies more time to seek payment of toll debts before the issue of an infringement notice.
Other changes to improve the fines system
The Bill will make other important changes to improve the fines system. These include:
Ensuring fines can be enforced
The Bill will ensure that the Director has the information needed to enforce fines when they are registered under the Fines Reform Act for enforcement. Currently, there are no minimum requirements for providing information about a fine when registering it for enforcement and the Bill will address this by allowing minimum requirements to be prescribed in regulations.
Ensuring internal reviews are carried out by enforcement agencies
The Bill responds to a 2020 recommendation by the Victorian Ombudsman for legislative change to clarify who can conduct internal reviews of parking infringements. The Bill will amend the Infringements Act 2006 to clarify that internal reviews of infringement fines cannot be ‘outsourced’ by local councils or any other enforcement agencies.
Creating a legislative framework for electronic services of fines related notices
The Bill creates a framework for the electronic service of infringement fines and related notices—by email or mobile phone, for example—where a person has consented to electronic service or their address has been obtained from a prescribed database. The amendments will bring Victoria into line with other jurisdictions that have similar provisions enabling electronic service, including NSW and Queensland.
Implementing electronic service will require extensive IT changes and consultation with enforcement agencies and other stakeholders. The changes create a structure for electronic service to be used where this method is fair to fine recipients and effective for enforcement purposes, while recognising that this method of service has considerable potential to increase the efficiency of the fines system while also making it more convenient for fine recipients.
Strengthening information-gathering powers to enforce fines
The Fines Reform Act contains a range of provisions enabling the Director and the sheriff to seek information that may assist them in enforcing unpaid fines. There are inconsistencies and gaps in these powers. The Bill will make amendments to clarify and strengthen these information-gathering powers, subject to appropriate constraints.
In particular, the Bill will:
• allow the Director and the sheriff to source additional information from credit reporting bodies
• amend the Taxation Administration Act 1997 to add the Director and the sheriff as authorised recipients of taxation information
Important safeguards remain in place. Credit reporting bodies will not be compelled to provide information to the Director or the sheriff, and any information that is supplied can only be used for the purpose of enforcing unpaid fines. The same limitation on use will be in place in respect of any taxation information sourced under the provisions of the Taxation Administration Act 1997.
The amendments will also clarify that where the Director or sheriff requests information from a third-party that may assist in enforcing unpaid fines under existing provisions in the Fines Reform Act, that entity is authorised to disclose that information. These changes will strengthen the Director or sheriff’s ability to recover unpaid fines from fine recipients.
Making minor and technical amendments
The Bill will also make a range of minor and technical type amendments to clarify various matters.
I commend the Bill to the house.
Ms STALEY (Ripon) (10:38): I move:
That the debate be now adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 23 March.