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16 Nov 2017

Fines Enforcement and Debt Recovery Bill

The Hon. A.L. McLACHLAN (11:54): I rise to speak to the Fines Enforcement and Debt Recovery Bill 2017. I speak on behalf of the Liberal opposition and indicate that we will be supporting the second reading of the bill. The bill amends various acts in order to consolidate and refine the enforcement and recovery of fines and expiation fees. In introducing this bill in the other place, the Attorney-General stated:

…the positive impacts that will arise as a result of the civil debt recovery provisions in the bill include achieving efficiencies by centralising the work currently undertaken in multiple agencies to recover debts owed to government and achieving economies of scale in contractual arrangements with commercial debt collectors.

I now turn to the tabled bill. A new fines enforcement unit was established and commenced operating in 2014. This followed the passing of legislation in 2013. Following the initial period of operation, a number of proposals have been made addressing potential improvements. Initial suggestions were made by the fines enforcement recovery officer, SAPOL and the Magistrates Court. This bill seeks to implement a number of those recommendations.

One of the major reforms within the bill is the establishment of a new process for the collection of civil debt. It is proposed that the current fines enforcement and recovery officer will become the chief recovery officer and that the role will be expanded to enable the same to collect civil debt that is owed to the government. The government has claimed that the chief recovery officer is best placed to consolidate the whole-of-debt recovery efforts. This will enable the chief recovery officer to collect civil debt that is referred to it by public authorities.

We have been advised that this will be on an opt-in basis. At a recent briefing the opposition was advised that the SA Ambulance Service, Housing SA, the Courts Administration Authority, TAFE and the Department for Education are expected to opt in for this service. Pursuant to the bill the chief recovery officer will only be able to collect debts within the monetary limits of the Magistrates Court: $100,000 or less. Debtors will be able to enter into voluntary agreements with the chief recovery officer to offset their debts by performing community service or attending intervention and treatment programs, such as for substance abuse or gambling addiction. The Liberal Party welcomes this particular area of reform.

The bill will also provide the relevant authority with the discretion to withdraw an expiation notice if offenders suffer from a cognitive impairment. The Liberal Party is also pleased to see this particular measure incorporated into the bill.

The bill, if passed, will provide the chief recovery officer with a wide range of powers to enforce payment of fees. These include, by way of example, the seizure of numberplates of vehicles, which is more cost-effective than having to clamp and tow a vehicle but still renders a car unable to be driven; the power to put a charge on land; seizure and sale of assets; garnishment; and suspension of a driver’s licence.

Since the bill was tabled in the other place the government has undertaken consultation with relevant stakeholders. Following the consultation period the government has filed two sets of amendments. Some are substantial and the others are consequential or technical. I note some of the tabled amendments, amendments Nos 1 and 113, seek to address the issue raised in current legal proceedings in the Supreme Court, on which I understand that judgement is reserved.

I have a question which I would like answered in the second reading summing-up in relation to the impact of this legislation, should it pass or not pass, on that judgement. My query is that if the applicant is successful in the judgement and the bill has not either passed through the two chambers or been proclaimed and is therefore not in effect, will the terms of that judgement still be honoured or will they not be impacted should the bill subsequently pass?

If the bill has passed and been proclaimed and the judgement comes in after, what is the effect of the bill on that particular judgement? In essence, my query is about the various scenarios around passage of the bill, its being put into effect and the judgement. If it is the case that this particular applicant, if I could use that term, has obviously litigated and is waiting for a judge to give judgement, and this bill, upon passage, comes into effect and then the judgement arrives and it impacts the ability to effect that judgement, will the government consider, or has it made a decision, to show some compassion to that individual and comply with the terms of judgement, even on a voluntary basis?

It is my understanding that that is the actual case and the judgement that I am referring to brought to light the administrative issue that has called into question thousands of fines collected by the government unit. The bill and the subsequent government amendments seek to address this and validate the practices surrounding the provision of information to the fines enforcement recovery officer by issuing authorities currently seeking to enforce expiation notices. Again, we are in the unusual situation that the trial, as I understand it—and I stand to be corrected by the minister handling the bill—has concluded, other than they are waiting for judgement.

I alert the chamber and honourable members that we will be opposing amendments Nos 31 and 72 in set 1, which was filed on 25 October by the government. Amendment No. 31 seeks to provide explicitly that a public sector agency must provide to the chief recovery officer, on request, a photograph of the alleged offender or debtor. This will avoid a prohibition under the Motor Vehicles Act against the provision of driver’s licence photos for use in the recovery in order to assist with the identification of a debtor. The Liberal Party does not support this proposal, especially given that it is not available to other agencies when seeking to enforce a debt.

Amendment No. 72, which finds disfavour with the Liberal Party, is one which seeks to insert a definition of debt for the purposes of civil debt recovery provisions which would enable the definition to be enlarged by regulations if and when desired. The Liberal Party has formed the view that it does not support this proposal. It is our view that the definition should be and remain clearly defined in the body of the act. We will be supporting the remainder of the government’s amendments.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

See full session on Hansard

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