Part 4Payment of expiation fees

Part 4—Payment of expiation fees 20—Arrangements as to manner and time of payment (1) Subject to this section, an alleged offender who has been given an expiation notice and who pays to the Chief Recovery Officer the prescribed fee— (a) may, at any time during the expiation period, enter into an arrangement with the Chief Recovery Officer for payment of the amount due under the notice by direct debit instalments in accordance with subsection (5); or (b) if the Chief Recovery Officer agrees, may enter into some other kind of arrangement with the Chief Recovery Officer in relation to the amount due under the notice in accordance with subsection (6). (2) Subject to subsection (3), if the fee prescribed under subsection (1) is not paid by the alleged offender before the alleged offender enters into the arrangement, the fee is to be added to, and forms part of, the unpaid expiation fee. (3) The Chief Recovery Officer may, in such circumstances as the Chief Recovery Officer thinks just, waive payment of the fee prescribed under subsection (1). (4) The Chief Recovery Officer must give the issuing authority notice (in a manner agreed between the Chief Recovery Officer and the issuing authority) of any arrangement entered into under this section. (5) An arrangement for payment by instalments referred to in subsection (1)(a)— (a) may not be entered into after an enforcement determination has been made under section 22 in respect of the expiation notice; and (b) must provide for instalments to be paid to the Chief Recovery Officer by direct debits by or through some other person or agency (eg deductions from an ADI account or wages); and (c) must require payment in full within a period determined by the Chief Recovery Officer (being not more than 12 months from the date on which the arrangement is entered into). (6) Other kinds of arrangements referred to in subsection (1)(b) may consist of or include— (a) payment by instalments (including instalments paid over a period exceeding 12 months); and (b) an extension of time to pay; and (c) the taking of a charge over land; and (d) the surrender of property to the Chief Recovery Officer; and (e) payment of any amount, including by direct credit, by or through some other person or agency (eg deductions from an ADI account or wages); and (f) subject to subsection (7)—requirements for the performance of community service by the alleged offender (in accordance with a scheme prescribed by the regulations); and (g) subject to subsection (8)—an arrangement for the alleged offender to complete an approved treatment program; and (h) any other form of arrangement agreed by the Chief Recovery Officer and the alleged offender. (7) The Chief Recovery Officer may only agree to an arrangement requiring the performance of community service if— (a) the Chief Recovery Officer is satisfied that the alleged offender does not have, and is not likely within a reasonable time to have, the means to satisfy the amount due under an expiation notice without the alleged offender or the alleged offender's dependants suffering hardship; and (b) an enforcement determination has been made by the Chief Recovery Officer under section 22 in relation to the expiation notice. (8) The Chief Recovery Officer must not enter into an arrangement requiring an alleged offender to complete an approved treatment program unless the Officer is satisfied that— (a) the alleged offender does not have, and is not likely within a reasonable time to have, the means to satisfy the amount due under an expiation notice without the alleged offender or the alleged offender's dependants suffering hardship; and (b) the alleged offender is eligible for the services to be included on the program in accordance with applicable eligibility criteria (if any); and (c) the services are available for the alleged offender at a suitable time and place. (9) If— (a) an alleged offender has previously been subject to enforcement action under— (i) this Part (whether in relation to the same, or a different, expiation notice); or (ii) Part 3; or (iii) Part 8; or (iv) the Expiation of Offences Act 1996; or (v) Part 9 Division 3 Subdivision 4 of the repealed Criminal Law (Sentencing) Act 1988; or (b) an alleged offender is an undischarged bankrupt or is subject to a composition or deed or scheme of arrangement with or for the benefit of creditors; or (c) an alleged offender is of a class prescribed by the regulations, (d) refuse to enter into an arrangement under this section, or a particular type of arrangement under this section, with the alleged offender; or (e) require the alleged offender to provide an irrevocable authority to obtain (in accordance with any prescribed requirements) financial and contact information about the alleged offender from any Commonwealth, State or Local Government agency, any ADI or an employer of the alleged offender; or (f) require the alleged offender to provide security or obtain guarantees (as the Chief Recovery Officer thinks fit). (10) An arrangement under this section may be varied by agreement between the alleged offender and the Chief Recovery Officer. (11) If an arrangement is entered into or varied under this section, the Chief Recovery Officer must give notice of the arrangement or varied arrangement (as the case requires) to the alleged offender. (12) For the purposes of entering into, or varying, an arrangement, any number of amounts due under expiation notices given to the alleged offender may be aggregated. (13) If an alleged offender complies with an arrangement under this section requiring the performance of community service, the amount outstanding is to be reduced in accordance with the method prescribed by regulation for the purposes of this subsection. (14) If the Chief Recovery Officer is satisfied that an alleged offender has completed, or substantially completed, an approved treatment program pursuant to an arrangement under this section, the Officer must waive payment of the whole or part of the amount outstanding in accordance with the arrangement. (15) If an alleged offender fails to comply with an arrangement under this section and the failure has endured for 28 days, the arrangement terminates. (16) However, an arrangement that has terminated under subsection (15) may, not more than 14 days after the day on which it terminated, be reinstated by the Chief Recovery Officer. (17) If the Chief Recovery Officer is satisfied that an alleged offender who has entered into an arrangement under this section has the means to satisfy an enforcement amount without the alleged offender or the alleged offender's dependants suffering hardship, the Officer may, by notice in writing given to the alleged offender, terminate the arrangement. (18) If an arrangement terminates under subsection (15) or (17), the Chief Recovery Officer must give the issuing authority notice (in a manner agreed between the Chief Recovery Officer and the issuing authority) of the termination and the amount then outstanding (taking into account, where the arrangement required the performance of community service, the number of hours of community service so performed). (19) If an arrangement is reinstated by the Chief Recovery Officer— (b) the provisions of this section apply to the reinstated arrangement as if it had not terminated; and (c) notice of the reinstated arrangement must be given by the Officer to the issuing authority. (20) If an alleged offender complies with an arrangement under this section or pays to the Chief Recovery Officer, at any time, the amount then outstanding, the arrangement is discharged. (21) Subject to the regulations, an alleged offender who enters into an arrangement under this section will, for the purposes of any other Act or law, be taken to expiate the offence or offences to which the arrangement relates on the day on which the arrangement is entered into (unless the alleged offender is already taken to have expiated the offence in accordance with section 9 or 22) regardless of whether the arrangement is subsequently discharged or terminates before being discharged. 21—Arrangement or waiver for alleged offender who has persistently driven unlicensed (1) Subject to subsection (2), if the Chief Recovery Officer is satisfied, on application by an alleged offender, that— (a) the amount due under an expiation notice given to the alleged offender is attributable, at least in part, to the alleged offender having been alleged to have committed an offence against section 74 of the Motor Vehicles Act 1959; and (b) the alleged offender has been found guilty of, or has expiated, an offence against that section on more than 2 occasions; and (c) the alleged offender has not, since the commission of the alleged offence, been charged with, or been alleged to have committed, a further offence against that section; and (d) the alleged offender has, since the commission of the alleged offence, obtained a driver's licence, the Chief Recovery Officer may determine to— (e) enter into an arrangement with the alleged offender of a kind set out in section 20; or (f) waive payment of the amount due or any part of the amount due. (2) The Chief Recovery Officer may not make a determination under this section in relation to an alleged offender if a determination has previously been made under this section or section 16 in relation to the alleged offender. (3) This Part applies to an arrangement entered into under subsection (1)(e) as if the arrangement were an arrangement under section 20. 22—Enforcement determinations (1) An expiation notice may be enforced against the alleged offender by the issuing authority providing to the Chief Recovery Officer the particulars determined by the Chief Recovery Officer relating to— (a) the alleged offender; and (b) the offence or offences that remain unexpiated; and (c) the amount due under the notice; and (d) compliance by the authority with the requirements of this Act and any other Act. (2) The prescribed fee is payable by an issuing authority that provides particulars to the Chief Recovery Officer under subsection (1). (3) The Chief Recovery Officer may make an enforcement determination in relation to an expiation notice given to a person— (a) if the Chief Recovery Officer has, within the relevant period, received particulars under subsection (1) and— (i) 14 clear days have elapsed from the date on which a reminder notice relating to the expiation notice was given in accordance with section 11 of the Expiation of Offences Act 1996; or (ii) 14 clear days have elapsed from the date on which an expiation enforcement warning notice relating to the expiation notice was given in accordance with section 11A of the Expiation of Offences Act 1996; or (b) if an arrangement under section 20 relating to the notice has terminated in accordance with that section and the Chief Recovery Officer has, within the relevant period, received particulars under subsection (1) following that termination. (4) Subject to the regulations, on the making of an enforcement determination the alleged offender will, for the purposes of any other Act or law, be taken to have expiated the offence or offences to which the enforcement determination relates (unless the alleged offender is already taken to have expiated the offence in accordance with section 9 or 20(21)). (5) The Chief Recovery Officer may— (a) vary an enforcement determination at any time; and (b) revoke an enforcement determination— (i) on application under this section made within 30 days of notice of an enforcement determination being given, sent or published in accordance with this section; or (ii) on the Chief Recovery Officer's own initiative. (6) Subject to subsection (7), an application under subsection (5)(b)(i) must be accompanied by the prescribed fee. (7) The Chief Recovery Officer may, in such circumstances as the Chief Recovery Officer thinks just, waive payment of the application fee. (8) The Chief Recovery Officer may entertain an application under subsection (5)(b)(i) made out of time if the Chief Recovery Officer thinks good reason exists for doing so. (9) The Chief Recovery Officer may refuse to entertain an application under subsection (5)(b)(i) if the Chief Recovery Officer considers that the application is frivolous or vexatious or is not made in good faith. (10) An application under subsection (5)(b)(i) for the revocation of an enforcement determination can only be made on the ground that— (a) the expiation notice to which the determination relates should not have been given to the applicant in the first instance (other than because the alleged offender did not commit, or has a defence against, the alleged offence); or (b) the alleged offender did not have a reasonable opportunity to elect under section 8 of the Expiation of Offences Act 1996 to be prosecuted for any offence to which the expiation notice relates (other than because the alleged offender did not receive an expiation notice or an expiation reminder notice as required under that Act); or (c) the alleged offender did not have a reasonable opportunity to apply for review of the expiation notice to which the determination relates under section 8A of the Expiation of Offences Act 1996 (other than because the alleged offender did not receive an expiation notice or an expiation reminder notice as required under that Act); or (d) the procedural requirements of this Act or any other Act were not complied with; or (e) the applicant failed to receive an expiation notice and an expiation reminder notice as required by the Expiation of Offences Act 1996; or (f) the issuing authority failed to receive— (i) a notice sent to the authority by the applicant electing to be prosecuted for the offence; or (ii) a nomination, statutory declaration or other document sent to the authority by the applicant in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or (g) the applicant has expiated the offence, or offences, under the notice. (11) The Chief Recovery Officer may only revoke an enforcement determination on a ground referred to in subsection (10)(b) or (c) if satisfied that there are exceptional circumstances that justify the alleged offender's failure to make an election, or to apply for a review, under the Expiation of Offences Act 1996. (12) If the Chief Recovery Officer revokes an enforcement determination— (a) the determination will be taken to be void and of no effect (and subsection (4) is taken never to have applied in relation to the determination); and (b) any enforcement action taken under section 25 in relation to the determination will be taken to have been revoked; and (c) the Chief Recovery Officer may, if the Chief Recovery Officer thinks fit, refund the fee (if any) paid in accordance with subsection (6). (13) If the Chief Recovery Officer revokes an enforcement determination on the ground referred to in subsection (10)(b), a prosecution can be commenced for the alleged offence or offences within 6 months of the day on which the determination was revoked despite the fact that the time for the commencement of the prosecution may have already otherwise expired. (14) If— (a) the Chief Recovery Officer revokes an enforcement determination on a ground referred to in subsection (10)(b) or (c); and (b) — (i) the alleged offender does not, within 14 days of being informed of the revocation— (A) elect under section 8 of the Expiation of Offences Act 1996 to be prosecuted for the offence; or (B) apply under section 8A of the Expiation of Offences Act 1996 for review of the expiation notice to which the determination relates on the ground that the offence is trifling; or (ii) the alleged offender applies under section 8A of the Expiation of Offences Act 1996 for review of the expiation notice to which the determination relates but the issuing authority determines not to withdraw the expiation notice, the Chief Recovery Officer may make a further enforcement determination in relation to the expiation notice. (15) Despite any other provision of this Act, if the Chief Recovery Officer revokes an enforcement determination on a ground referred to in subsection (10)(d), (e) or (f), the following provisions apply: (a) if the period of 1 year from the date of commission of the alleged offence, or offences, has not expired, the applicant will be taken to have been given an expiation notice by the issuing authority in respect of the alleged offence, or offences, for the first time on the day on which the determination was revoked; and (b) the expiation notice will also be taken to have been issued on that day; and (c) the expiation period will be taken to be the period of 28 days from (and including) that day; and (d) a prosecution can be commenced for the alleged offence, or offences, within 6 months of the expiry of that expiation period (despite the fact that the time for the commencement of the prosecution may have already otherwise expired). (16) Subject to subsection (17), on an enforcement determination being made, varied or revoked, the Chief Recovery Officer must cause a written notice of the determination, variation or revocation containing the particulars (if any) prescribed by the regulations— (a) to be— (i) given to the alleged offender; or (ii) if the whereabouts of the alleged offender cannot, after reasonable enquiries, be ascertained—published on a website determined by the Chief Recovery Officer; and (b) to be given to the issuing authority. (17) If— (a) the alleged offender was under the age of 18 years at the time the offence is alleged to have been committed or is a protected person; and (b) the whereabouts of the alleged offender cannot, after reasonable enquiries, be ascertained, the Chief Recovery Officer may not publish the written notice in accordance with subsection (16)(a)(ii) but may, if satisfied that other reasonable means of contacting the alleged offender (not involving public disclosure of the alleged offender's name) are available, cause the written notice to be given to the alleged offender by such other means. (18) The Chief Recovery Officer is not required to conduct a hearing for the purposes of making, varying or revoking an enforcement determination. (19) In this section— relevant period, in relation to an expiation notice, means— (a) for the purposes of subsection (3)(a)— (i) the period ending 90 days after the end of the expiation period; or (ii) such longer period as the Chief Recovery Officer may allow (provided that the Chief Recovery Officer may not extend the period so as to allow particulars to be received after the time for commencement of a prosecution against the person for the unexpiated offence or offences to which the particulars relate has expired); and (b) for the purposes of subsection (3)(b)—the period of 30 days after the day on which the arrangement terminated. 23—Review by Court of refusal to revoke enforcement determination (1) Subject to this section, if— (a) an enforcement determination has been made by the Chief Recovery Officer under section 22 in relation to an expiation notice; and (b) an application by the alleged offender under section 22(5)(b)(i) for revocation of the determination on a ground specified in section 22(10)(b) or (c) has been refused by the Chief Recovery Officer, the alleged offender may apply to the Court for review of the decision to refuse the application within 30 days of notice of the decision being given to the alleged offender. (2) The Court may entertain an application made out of time if it thinks good reason exists for doing so. (3) The issuing authority is a party to an application under this section. (4) On an application under this section, the Court may— (a) confirm or reverse the decision of the Chief Recovery Officer; and (b) make any consequential or ancillary order that the Court considers necessary or expedient. (4a) If the Court reverses a decision of the Chief Recovery Officer to refuse an application made by an alleged offender under section 22(5)(b)(i) on the ground referred to in section 22(10)(b), a prosecution can be commenced for the alleged offence or offences within 6 months of the day on which the Court's decision is made despite the fact that the time for commencement of the prosecution may have already otherwise expired. (5) If the Court reverses a decision of the Chief Recovery Officer to refuse an application by an alleged offender under section 22(5)(b)(i), the following provisions apply: (a) the enforcement determination will be taken to be void and of no effect (and section 22(4) is taken never to have applied in relation to the determination); (b) any subsequent enforcement action taken under section 25 will be taken to have been revoked; (c) if the alleged offender does not, within 14 days of being informed of the Court's determination— (i) elect under section 8 of the Expiation of Offences Act 1996 to be prosecuted for the offence; or (ii) apply under section 8A of the Expiation of Offences Act 1996 for review of the expiation notice to which the determination relates on the ground that the offence is trifling, the Chief Recovery Officer may make a further enforcement determination in relation to the expiation notice. (6) A decision of the Court made on an application under this section is not subject to further appeal by the alleged offender. 24—Expiation fee is debt (1) An amount due under an expiation notice in relation to which an enforcement determination has been made by the Chief Recovery Officer under section 22 is, if the enforcement determination has not been revoked, to be taken for the purposes of this Act to be a debt due to the Crown and is recoverable by the Chief Recovery Officer by action in any court of competent jurisdiction or as otherwise set out in this Act. (2) Subsection (1) does not affect the operation of section 17(2) or (3) of the Expiation of Offences Act 1996. 25—Enforcement actions by Chief Recovery Officer (1) If an enforcement determination has been made by the Chief Recovery Officer under section 22 in relation to an expiation notice (and has not been revoked), the Chief Recovery Officer may take enforcement action against the alleged offender to secure payment of the amount due under the notice. (2) The Chief Recovery Officer may take enforcement action against a person by doing any of the following: (a) entering into an arrangement, or further arrangement, with the person under section 20(1)(b); (b) registering a charge on an interest in land under Part 6; (c) exercising a power under Part 7; (d) waiving payment of the amount due or any part of the amount due. (3) If more than 1 enforcement determination has been made in respect of expiation notices issued to a person, the amounts due under the notices may be aggregated for the purposes of taking enforcement action. 26—Amounts unpaid or unrecovered for more than certain period (1) Subject to subsection (2)— (a) if the Chief Recovery Officer makes an enforcement determination in relation to an expiation notice, an amount prescribed by, or calculated in accordance with, the regulations is added to, and forms part of, the amount due under the notice; and (b) if any part of the amount due under the notice (including the amount added under paragraph (a)), remains unpaid by, or unrecovered from, the alleged offender at the end of the 30 day period commencing on the day on which the enforcement determination is made, a further amount prescribed by, or calculated in accordance with, the regulations is added to, and forms part of, the amount due under the notice. (2) The Chief Recovery Officer may, in such circumstances as the Officer thinks just, waive payment of the whole or part of an amount payable by an alleged offender in accordance with this section. 27—Writing off bad debts (1) The Chief Recovery Officer may write off an amount payable under an expiation notice— (a) if the Officer has no reasonable prospect of recovering the amount; or (b) if the costs of recovery are likely to equal or exceed the amount to be recovered. (2) The writing off of an amount payable under an expiation notice does not affect the liability of the alleged offender to pay the amount or the power of the Chief Recovery Officer to recover it. 28—Enforcement of expiation notices in other jurisdictions (1) The Minister may enter into an agreement (a multi-jurisdictional agreement) with 1 or more other Australian jurisdictions to establish and implement processes and procedures for— (a) the enforcement in other jurisdictions of expiation notices given in this State; and (b) the enforcement in this State of expiation notices given in other jurisdictions. (2) A multi-jurisdictional agreement may, for example— (a) provide for collection of amounts payable under expiation notices by a participating jurisdiction on behalf of another participating jurisdiction and for distribution of money so collected; or (b) authorise the performance or exercise of any functions or powers under this Act or the Expiation of Offences Act 1996 by a specified authority of a participating jurisdiction; or (c) authorise the performance or exercise of any functions or powers under a specified law of another jurisdiction by the Chief Recovery Officer (subject to any law of that jurisdiction and any limitations specified in the agreement); or (d) make provision for other measures or matters that the parties consider necessary or expedient for facilitating the enforcement of expiation notices or their equivalent in this State and other jurisdictions and for implementing processes established by the agreement for that purpose. (3) A multi-jurisdictional agreement will operate for such period, and be able to be varied or terminated in such a manner, as the participating jurisdictions agree. (4) The Chief Recovery Officer must take such action as is necessary or expedient for giving effect to a multi-jurisdictional agreement. (5) Any power that the Chief Recovery Officer may exercise under this Act in relation to an expiation notice of this jurisdiction may be exercised by the Chief Recovery Officer in relation to an expiation notice of another jurisdiction if the exercise of the power is authorised under a multi-jurisdictional agreement. (6) If an authority of a participating jurisdiction is authorised under a multi-jurisdictional agreement to exercise or perform functions or powers under this Act or the Expiation of Offences Act 1996, the authority will be taken to be the Chief Recovery Officer, and to have the functions and powers of the Chief Recovery Officer, when acting under the agreement. (7) In this section— expiation notice includes an equivalent notice (however described) of a prescribed kind issued under the law of another Australian jurisdiction.