Division 4Penalty notice enforcement
orders
40What is a penalty notice
enforcement order?
(1)
A penalty notice enforcement order is an order
made by the State Debt Recovery Office for the enforcement of the amount
payable under a penalty notice.
(2)
A single order may be made for the enforcement of
the amounts payable under 2 or more penalty notices.
Note—
Part 4 provides for the fine defaulter to be
notified by the State Debt Recovery Office of the enforcement order and of the
enforcement action that may be taken if the outstanding balance of the amount
payable under the penalty notice (and enforcement costs) is not paid within 28
days.
41How are penalty notice
enforcement orders made?
The State Debt Recovery Office may, on
application by an appropriate officer for a penalty notice or its own
initiative, make a penalty notice enforcement order.
s 41: Subst 2008 No
40, Sch 1 [18].
42When a penalty notice
enforcement order may be made
(1)
A penalty notice enforcement order may be made
only if:
(a)
a penalty notice has been served on a person in
relation to a particular offence referred to in the order,
and
(a1)
any review to be conducted under Division 2A has
been completed and the applicant has been notified of the outcome of the
review, and
(b)
a penalty reminder notice has been served on the
person:
(i)
after the end of the time specified in the
penalty notice as the time within which the amount payable under the notice
may be paid, or
(ii)
if a review has been conducted under Division 2A,
after that review, and
(c)
the due date specified in the penalty reminder
notice has passed, and
(d)
the full amount payable under the penalty notice
had not been paid before the order is made, and
(e)
the person has not, in accordance with this Part,
declined to be dealt with under this Part, and
(f)
a court attendance notice in relation to the
offence has not been issued, and
(g)
(h)
the facts as alleged in or referred to in the
order constitute the offence.
(1AA)
Despite subsection (1), the State Debt Recovery
Office may also make a penalty notice enforcement order if it receives, in
respect of an amount owed by a person under a penalty notice, an application
by the person:
(a)
for an order under section 100 (Time to pay) in
relation to the amount and the person is in receipt of a Government benefit,
or
(b)
for a work and development order in relation to
the amount.
(1BB)
The State Debt Recovery Office is not to make a
penalty notice enforcement order under subsection (1AA) unless it determines
to make the order under section 100, or the work and development order, sought
by the person.
(1CC)
On the making of an order under subsection
(1AA):
(a)
the person who has been served with the penalty
notice to which the order relates can no longer elect to have the matter dealt
with by a court in accordance with section 23A, and
(b)
the decision to issue the penalty notice can no
longer be reviewed under Division 2A.
(1A)
A penalty notice enforcement order may not be
made later than:
(a)
if the applicable limitation period in relation
to the offence is less than 12 months—12 months from when the offence
was committed or is alleged to have been committed, or
(b)
if the applicable limitation period in relation
to the offence is 12 months or greater—the expiry of that limitation
period, or
(c)
if a review has been conducted under Division 2A
and a penalty reminder notice has been served under section 24F (1)—42
days after service of that notice.
(1B)
If more than one date is applicable under
subsection (1A), the later of those dates is the relevant date for the
purposes of that subsection.
(2)
An application for a penalty notice enforcement
order made by an appropriate officer must certify:
(a)
that the matters specified in subsection (1)
(other than subsection (1) (d)), or the relevant matters in subsection (1AA),
are satisfied, and
(b)
that the full amount payable under the penalty
notice has not been paid, and
(c)
that the period for making the order (as referred
to in subsection (1A)) has not expired.
(2A)
The State Debt Recovery Office may rely on the
certificate for the purpose of making the order.
(3)
A penalty notice enforcement order may be made in
the absence of, and without notice to, the person
concerned.
s 42: Am 2004 No 43,
Sch 1 [10]–[13]; 2008 No 40, Sch 1 [5] [19]; 2008 No 110, Sch 1
[12]–[17].
43Form of penalty notice
enforcement order
(1)
A penalty notice enforcement order must specify
the following matters:
(a)
the fine defaulter’s name, address and date
of birth (if known),
(b)
a description of the offence in respect of which
each fine to which the order applies was imposed,
(c)
the date on which the fine was
imposed,
(d)
the amount required to be paid, being the amount
that remains to be paid under the penalty notice, together with specified
enforcement costs.
(2)
Any amount recovered in consequence of the making
of a penalty notice enforcement order (other than for enforcement costs) is to
be dealt with in the same way as if the amount had been paid on the issue of
the penalty notice.
s 43: Am 2004 No 43,
Sch 1 [14].
44Enforcement costs under
penalty notice enforcement order
(1)
The regulations may prescribe the enforcement
costs payable under a penalty notice enforcement order and an amount is not
payable for enforcement costs unless it is so prescribed or is payable under
section 76A (Sheriff’s additional costs of taking enforcement action
under this Division).
(2)
The following applies to any such enforcement
costs:
(a)
an amount may be prescribed as the enforcement
costs payable to the State Debt Recovery Office on the making of the
order,
(b)
an amount may be prescribed as the enforcement
costs payable to the Roads and Traffic Authority if any enforcement action is
taken by that Authority under Division 3 of Part 4 before payment is made
under the order,
(c)
an amount may be prescribed as the enforcement
costs payable into the Consolidated Fund if any enforcement action is taken by
the Sheriff or other official under Division 4 of Part 4 before payment is
made under the order.
(3)
Any amount recovered in consequence of the making
of a penalty notice enforcement order is to be applied firstly towards
enforcement costs payable under this section or section 76A and the balance
towards the amount payable under the penalty notice.
s 44: Am 1998 No 35,
Sch 1 [14] [15].
45Effect of making, or of
payment under, penalty notice enforcement order
(1)
If a penalty notice enforcement order is made in
relation to an offence alleged to have been committed by a person:
(a)
the person is not as a result taken to have been
convicted of the offence, and
(b)
the making of the order does not in any way
affect or prejudice any civil claim, action or proceeding arising out of the
same occurrence.
(2)
If the full amount payable under a penalty notice
enforcement order is paid or recovered, no person is liable for any further
proceedings for the alleged offence concerned. This subsection ceases to apply
if the order is duly withdrawn under this Part and the amount paid under the
order is repaid.
(3)
The payment of any amount payable under a penalty
notice enforcement order is not an admission of liability for the purpose of
and does not in any way affect or prejudice any civil claim, action or
proceeding arising out of the same occurrence.
(4)
Nothing in this section affects the operation of
any provisions of Division 5 relating to the annulment of a penalty notice
enforcement order or any provisions of Part 4 relating to the enforcement of a
penalty notice enforcement order.
46Withdrawal of
order
(1)
The State Debt Recovery Office may, on
application or its own initiative, withdraw a penalty notice enforcement order
if satisfied that:
(a)
a fine to which it applies has previously been
the subject of a penalty notice enforcement order in respect of which any
enforcement action has been taken, or
(b)
the person named in the penalty notice
enforcement order is not the same person as the person in respect of whom a
fine to which the order applies was imposed, or
(c)
the order relates to the owner of a vehicle or
vessel, being a vehicle or vessel involved in an offence the subject of the
fine at a time when the owner was not the owner of the vehicle or vessel
concerned, or
(d)
the order was otherwise made in
error.
(2)
A penalty notice enforcement order must be
withdrawn if application for its withdrawal is made by the appropriate officer
who applied for the order.
Note—
Section 49A (5) also requires a penalty notice
enforcement order to be withdrawn if an issuing agency determines that a
penalty notice should be withdrawn following a review under section
49A.
(3)
A penalty notice enforcement order may be
withdrawn completely or only to the extent of some of the penalty notices to
which it applies.
(4)
If a penalty notice enforcement order is
withdrawn completely:
(a)
the order then ceases to have effect,
and
(b)
any enforcement action already taken is to be
reversed, unless the same enforcement action is authorised under another
penalty notice enforcement order or a court fine enforcement order,
and
(c)
enforcement costs are not payable in respect of
the issue of the order and, if paid, are repayable, and
(d)
any amount that has been paid under the order is
repayable to the person by whom it was paid.
(5)
If a penalty notice enforcement order is
withdrawn only to the extent of some of the penalty notices to which it
applies:
(a)
the order continues to have effect in respect of
the remaining penalty notices to which it applies, and
(b)
any amount that has been paid under the order is
to be applied to payment of the remaining penalty notices to which it applies
and any enforcement costs in respect of that order.
(6)
The withdrawal of a penalty notice enforcement
order does not prevent the making of a further order in respect of the penalty
notice.
(7)
Despite subsections (4) and (5), if a penalty
notice enforcement order is withdrawn (whether completely or only to the
extent of some of the penalty notices to which it applies), any amount paid
under the order that would otherwise be repayable to a person may instead be
allocated by the State Debt Recovery Office towards the payment of amounts
payable under any other fine enforcement order that is in force in relation to
the person.
(8)
The State Debt Recovery Office must notify the
person concerned of any allocation made under subsection (7), but a failure to
notify the person does not affect that allocation.
s 46: Am 1998 No 35,
Sch 1 [16]; 2004 No 43, Sch 1 [15]; 2008 No 110, Sch 1 [18]; 2009 No 51, Sch 2
[5].
47Regulations relating to
orders
The regulations may make provision for or with
respect to the making or withdrawal of penalty notice enforcement orders,
including the following:
(a), (b)
(c)
the form of any such order,
(d)
the manner of making any such
order.
s 47: Am 2004 No 43,
Sch 1 [16].
Division 5Annulment of penalty notice
enforcement orders
48Applications for annulment of
orders
(1)
An application may be made by or on behalf of any
person for the annulment of a penalty notice enforcement order made against
the person under Division 4.
(2)
(3)
An application for annulment is to be made in
writing to the State Debt Recovery Office.
(4)
(5)
A person may not, except with the leave of the
State Debt Recovery Office, make more than one application in relation to the
same matter.
(6)
The regulations may make provision for or with
respect to applications under this section (including application
fees).
s 48: Am 2004 No 43,
Sch 1 [17].
49Determination of applications
by State Debt Recovery Office
(1)
When dealing with an application for annulment,
the State Debt Recovery Office:
(a)
must annul the penalty notice enforcement order
if it is satisfied that:
(i)
the person was not aware that a penalty notice
had been issued until the enforcement order was served, but only if the
application was made within a reasonable time after that service,
or
(ii)
the person was otherwise hindered by accident,
illness, misadventure or other cause from taking action in relation to the
penalty notice, but only if the application was made within a reasonable time
after the person ceased being so hindered, or
(iii)
the penalty reminder notice was, or both the
penalty notice and the penalty reminder notice, in relation to a particular
offence were, returned as being undelivered to its sender after being sent to
the person at the person’s recently reported address (within the meaning
of section 126A) and notice of the enforcement order was served on the person
at a different address, and
(b)
may annul the penalty notice enforcement order
if:
(i)
it is satisfied that a question or doubt has
arisen as to the person’s liability for the penalty or other amount
concerned, but only if the person had no previous opportunity to obtain a
review of that liability, or
(ii)
having regard to the circumstances of the case,
it is satisfied that there is other just cause why the application should be
granted.
(2)
The State Debt Recovery Office must not annul a
penalty notice enforcement order under subsection (1) (b) (ii) if doing so is
not permitted under, or would circumvent the restrictions in, subsection (1)
(a) or (b) (i).
(3)
If the State Debt Recovery Office annuls a
penalty notice enforcement order under subsection (1) (a), it must refer the
matter to the Local Court unless:
(a)
the person concerned does not dispute the
person’s liability to pay the amount payable under the penalty notice,
and
(b)
that amount was paid to the State Debt Recovery
Office at the time of making the application for the annulment of the
order.
(3A)
For the avoidance of doubt, payment of the full
amount under a penalty notice under subsection (3) results in there being no
further liability for further proceedings for the offence to which the notice
relates.
(3B)
If the State Debt Recovery Office annuls a
penalty notice enforcement order under subsection (1) (b), it must refer the
matter to the Local Court.
Note—
Section 51 provides that the Local Court is to
hear and determine the alleged offence as if no penalty notice enforcement
order had been made.
(4)
Applications for annulment are to be dealt with
by the State Debt Recovery Office in the absence of the parties, unless that
Office otherwise determines.
(5)
The State Debt Recovery Office must give notice
of the determination of an application for annulment to all parties interested
or concerned.
(6)
The regulations may make provision for or with
respect to the practice and procedure of the State Debt Recovery Office when
dealing with applications for annulment.
(7)
The State Debt Recovery Office may, but is not
required to, refund any application fee for an application for an annulment
that is successful.
(8)
For the avoidance of doubt, the State Debt
Recovery Office may grant an application for annulment (and annul the penalty
notice enforcement order) on the ground that the person was not aware that a
penalty notice had been issued until the enforcement order was served even if
section 126A (1) permitted the issue and service of a penalty reminder notice
in relation to a particular offence referred to in the enforcement order or
section 126A (2) permitted the making of the penalty notice enforcement order
(or both).
s 49: Am 2004 No 43,
Sch 1 [18]–[21]; 2007 No 94, Sch 2; 2008 No 40, Sch 1 [20]–[22];
2009 No 51, Sch 2 [6]; 2009 No 106, Sch 4.16.
49AReview of penalty notice
before annulment
(1)
Before it annuls a penalty notice enforcement
order, the State Debt Recovery Office is to seek a review of the decision to
issue each penalty notice to which the penalty notice enforcement order
applies if:
(a)
it has reason to suspect that the penalty notice
should be withdrawn having regard to any of the matters set out in section 24E
(2), and
(b)
a review of the decision to issue the penalty
notice has not been conducted under this section or Division
2A.
(2)
A review is to be conducted by the relevant
issuing agency.
(3)
A review is to be dealt with in the absence of
the parties, unless the issuing agency otherwise
determines.
(4)
The issuing agency must notify the applicant for
the annulment and the State Debt Recovery Office of its determination on the
review of the decision to issue the penalty notice.
(5)
If the issuing agency determines that a penalty
notice should be withdrawn (in whole or in part), the State Debt Recovery
Office must withdraw the penalty notice enforcement order (in whole or in
part) under section 46.
(6)
The State Debt Recovery Office must, if a penalty
notice is not withdrawn on review or there is no decision on a review within
42 days after referral for review, grant the application for annulment and
annul the penalty notice enforcement order under section
49.
(7)
An issuing agency may enter into arrangements
with another person or body (including the State Debt Recovery Office) under
which the functions of the issuing agency under this section are exercised by
that person or body on behalf of the issuing agency.
s 49A: Ins 2004 No
43, Sch 1 [22]. Subst 2008 No 110 Sch 1 [19].
50Appeal against refusal of
application by State Debt Recovery Office
(1)
If the State Debt Recovery Office refuses an
application for annulment, the applicant may, not later than 28 days after
notice is given of the refusal, lodge an application in writing with a
registrar of the Local Court to have the original application determined by
the Local Court.
(2)
The relevant registrar of the Local Court must,
as soon as possible, give written notification to the applicant and the
parties of the date, time and place on or at which the application is to be
determined.
(3)
An application under this section may be
determined by the Local Court in accordance with this Division and the Local
Court may make any decision about the application that the State Debt Recovery
Office may have made.
(4)
The Local Court may proceed to determine an
application despite any omission or error in the notice referred to in
subsection (2) or its non-service if:
(a)
the Local Court is satisfied that the applicant
and the parties interested and concerned had knowledge of the date, time and
place on or at which the application was to be determined and were not
prejudiced by the omission, error or non-service, or
(b)
the Local Court is satisfied that the applicant
is avoiding service of the notice or cannot, after reasonable search and
inquiry, be found.
(5)
The regulations may make provision for or with
respect to applications under this section (including application
fees).
s 50: Am 2004 No 43,
Sch 1 [23] [24]; 2007 No 94, Sch 1.44 [2]–[4].
51Proceedings for alleged
offence if penalty notice enforcement order annulled
(1)
If a penalty notice enforcement order is annulled
by the Local Court (or is annulled by the State Debt Recovery Office and
referred to the Local Court), the Local Court is to hear and determine the
matter as if no penalty notice enforcement order had been previously
made.
(2)
If the Local Court annuls the penalty notice
enforcement order, the Local Court may proceed either immediately or at a
later sitting of the Court to hear and determine the
matter.
(3)
(4)
For the purposes of hearing and determining the
matter, a court attendance notice in relation to each alleged offence to which
the annulment of the penalty notice enforcement order relates is taken:
(a)
to have been filed when the penalty notice
enforcement order was made, and
(b)
to have been filed by the appropriate officer for
the penalty notice.
s 51: Am 2004 No 43,
Sch 1 [25] [26]; 2007 No 94, Sch 2; 2008 No 40, Sch 1 [23] [24]; 2009 No 51,
Sch 2 [7].
52Provisions relating to
annulment of enforcement orders
(1)
The State Debt Recovery Office or the Local
Court, if dealing with an application for annulment, may stay enforcement
action under the penalty notice enforcement order subject to such terms and
conditions as that Office or Court thinks fit.
(2)
(3)
An application may be made for the annulment of a
penalty notice enforcement order completely or only to the extent of some of
the penalty notices to which it applies.
(4)
If a penalty notice enforcement order is annulled
completely:
(a)
the order then ceases to have effect,
and
(b)
any enforcement action already taken is to be
reversed, unless the same enforcement action is authorised under another
penalty notice enforcement order or a court fine enforcement order,
and
(c)
enforcement costs are not payable in respect of
the issue of the order and, if paid, are repayable, and
(d)
any amount that has been paid under the order is
repayable to the person by whom it was paid, unless the amount was paid to the
State Debt Recovery Office at the time of making an application for the
annulment of the order under section 49 (1) (a).
(5)
If a penalty notice enforcement order is annulled
only to the extent of some of the penalty notices to which it applies:
(a)
the order continues to have effect in respect of
the remaining penalty notices to which it applies, and
(b)
any amount that has been paid under the order is
to be applied to payment of the remaining penalty notices to which it applies
and any enforcement costs in respect of that order.
(6)
Despite subsections (4) and (5), any amount paid
under a partially or completely annulled penalty notice enforcement order that
would otherwise be repayable to a person may instead be allocated by the State
Debt Recovery Office towards the payment of amounts payable under any other
fine enforcement order that is in force in relation to the
person.
(6A)
The State Debt Recovery Office must notify the
person concerned of any allocation made under subsection (6), but a failure to
notify the person does not affect that allocation.
(7)
If a penalty notice enforcement order is
annulled, the period within which proceedings for an offence may be instituted
in respect of the matter under section 179 of the Criminal Procedure Act 1986 or any other
Act commences on the date the order is annulled.
s 52: Am 1998 No 35,
Sch 1 [17]; 2001 No 121, Sch 2.115 [2]; 2003 No 40, Sch 2.13 [1]; 2007 No 94,
Sch 1.44 [5]; 2008 No 40, Sch 1 [25]; 2009 No 51, Sch 2 [8]
[9].