Last year we informed our Briefly readership of an initiative by the Attorney-General’s Department to establish a new statutory office, the Penalty Enforcement Officer (PEO). The function of this office would be to recover fines and expiation fees from fine defaulters.
We signalled that the establishment of the office of the PEO would involve some significant amendments to Expiation of Offences Act 1996 (SA) (EO Act), which in turn would have a substantial impact on the roles, responsibilities and powers of councils with respect to the enforcement of expiation notices.
A draft bill was published by the Attorney-General’s Department for comment in October 2012. Submissions were made by various persons and bodies, including councils. The bill was redrafted as a result. Earlier this month, the redrafted bill – entitled the Statutes Amendment (Fines Enforcement and Recovery) Bill 2013 (the Bill) – was tabled in the House of Assembly.
The Bill contains some differences from its draft incarnation. Norman Waterhouse assisted in the preparation of council submissions regarding the effect of the draft bill on the EO Act. Some of the recommendations in those submissions have been adopted. One noteworthy difference is a change in terminology from PEO to Fines Enforcement and Recovery Officer (FERO).
Importantly for councils, the Bill no longer interferes with councils’ ability to issue reminder notices and expiation enforcement warning notices to alleged offenders who have not had their debts referred to the FERO. Under the previous drafting, councils were rendered unable to issue reminder and expiation enforcement warning notices in respect of expiation notices that councils had issued, and were instead required to refer such duties to the PEO. Under the amendments proposed to the EO Act by the Bill, councils’ responsibilities regarding the issuing of such notices are largely unchanged.
Other various changes were made to the Bill’s effect on the EO Act, however the fundamental elements of the proposed changes remain the same. Councils will be able to refer expiation enforcement to the FERO. Councils will not have to engage with the Court to recover expiation debts.
The FERO will be able to exercise significant powers in conducting penalty enforcement, including seizure and sale of assets and garnishment of income. The FERO will also be able to come to arrangements with alleged offenders regarding methods of payment. Amounts recovered will still flow to the relevant council.