The Fines Enforcement and Debt Recovery Act 2017 — What does it mean for Councils?

8 May 2018

Substantive provisions of the Fines Enforcement and Debt Recovery Act 2017 (“FEDR Act”) and the Fines Enforcement and Debt Recovery Regulations 2018 commenced operation on 30 April 2018.

Importantly for councils the FEDR Act now prescribes the regime for:

• the recovery and payment of court ordered fines, levies, costs and other pecuniary sums relevant to criminal proceedings (collectively defined as “pecuniary sums”); and
• the enforcement and recovery of unpaid expiation fees.

For these purposes, the FEDR Act has established the new statutory office of the ‘Chief Recovery Officer’ to replace the former office of the ‘Fines Enforcement and Recovery Officer’ and has amended various Acts of Parliament, including the Expiation of Offences Act 1996 (“EO Act”).

As a result of this legislative change councils must now ensure that they have in place;

1.      the necessary delegations under the FEDR Act; and

2.     amended expiation notice templates, to reflect the changes to the EO Act.

A key purpose of the FEDR Act is to consolidate and refine the enforcement and recovery of pecuniary sums and expiation fees.

Details as to how the FEDR Act achieves this objective are outlined below.

Court Ordered Fines and Costs

Under section 145 of the Local Government Act 1999 (“LG Act”) and section 105 of the Development Act 1993, fines and costs awarded in criminal proceedings commenced by a council, are payable to the council.

Prior to the commencement of the FEDR Act, the recovery of pecuniary sums was governed by the (now repealed) Criminal Law (Sentencing) Act 1988. Part 3 of the FEDR Act replaces that regime and provides that:

• pecuniary sums imposed by court order are payable to the Chief Recovery Officer, within 28 days from the date of the order. Late fees may be imposed where payment remains unpaid;
• the person the subject of the court order may enter into an arrangement with the Chief Recovery Officer. This may include the payment of the sum by way of instalments, extension of time to pay, taking a charge over land or surrendering property. The council will be notified of any such arrangements;
• where payment of the sum (in whole or in part) is received by the Chief Recovery Officer, section 12(2) of the FEDR Act governs the priority in which the payment is applied, being:
  • payment of compensation to victims;
  • victims of crimes levy;
  • order for costs;
  • other money, such as court ordered fines; and
  • if there is no other direction, to the Treasury; and
• where the sum remains unpaid, the Chief Recovery Officer may take enforcement measures, as outlined in Parts 6 and 7 of the FEDR Act. These include garnishment of the person’s salary or bank account, seizure and sale of their property, a charge on land owned by the person or the suspension of their driver’s licence.

The payment of expiation fees

The FEDR Act repeals those sections of the EO Act relating to the enforcement of unpaid expiation fees by the Fines Enforcement and Recovery Officer. The power to enforce the payment of expiation fees is now contained within Part 4 of the FEDR Act:

• similar to the previous regime, the recipient of an expiation notice may, at any time during the expiation period, enter into an arrangement for payment with the Chief Recovery Officer (as above), who must then give the council notice;
• where an expiation fee attaching to an expiation reminder notice remains unpaid, a council may apply to the Chief Recovery Officer to enforce the expiation notice (on payment of a fee). The Chief Recovery Officer may enforce an outstanding expiation fee by pursuing any of the enforcement actions under Parts 6 and 7 of the FEDR Act; and
• where the debt is received or recovered by the Chief Recovery Officer, the application of payment is governed by section 17 of the EO Act, which provides that the council is entitled to the expiation fee.

If you require assistance in adopting delegations or amending expiation notice templates to address the changes brought about by the commencement of the FEDR Act, or if you have any questions concerning the FEDR Act or the EO Act, contact Cimon Burke on 8113 7105 or cburke@kelledyjones.com.au or Victoria Shute on 8113 7104 or vshute@kelledyjones.com.au