Infringements

Infringements

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Oral examination, attachment orders and charges over property

Important changes from 31 December 2017

From 1 July 2017, the Infringements Act 2006 (Vic) was changed as part of Victoria's fines reform process, including new ‘social justice initiatives' that affect people experiencing vulnerability. On 31 December 2017, the Fines Reform Act 2014 (Vic) commenced, creating Fines Victoria. This resulted in significant further changes to the infringements system and substantially shorter timeframes for dealing with infringements and fines.

Please be aware of these reforms in relation to any infringements assistance that you are providing to your clients.

We are in the process of updating Homeless Law in Practice. Justice Connect Homeless Law pro bono lawyers should read our further materials about the changes here (password needed), before doing any fines work after 1 July 2017. Please speak to your supervising lawyer, team leader or Homeless Law staff for more information.

Summons for Oral Examination

Pursuant to section 62 of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s62.html] the Director of Fines Victoria may apply to the Magistrates Court for a summons to be issued requiring a person to attend an oral examination before the Magistrates’ Court if the Director has made a production of information direction and the fine defaulter has failed to comply with that direction. A summons for oral examination must be served personally on a person (section 179(2)(b) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s179.html]. Note a Magistrate may also make an order that the summons be served by way of substituted service under s 180(1) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s180.html]

 

If your client fails to appear before the Magistrates’ Court as required, then the Magistrates’ Court may issue a warrant to arrest the person (see section 64(1) of the Fines Reform Act 2014 (Vic) [ http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s64.html]. If your client is arrested, then the sheriff or police member has the discretion to release them if the person undertakes to attend the oral examination at the time and place specified in the arrest warrant under section 64(3) of the Fines Reform Act 2014 (Vic) [ http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s64.html]. If this does not occur, then the person will be dealt with under the arrest provisions under section 65(1) of the Magistrates’ Court Act 1989 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/mca1989214/s65.html]

 

Attachment of earnings or debt directions

When can an attachment of earnings or debts direction be made?

 

Under Part 7 of the Fines Reform Act 2014 (Vic) the Director may make an attachment of earnings direction or an attachment of debts direction if:

  • the amount outstanding under the enforcement warrant is not less than $1000 (see regulations 5 and 6 of the Fines Reform Regulations 2017 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s5.html][http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s6.html]);
  • a notice of final demand has been served and has not complied with;
  •  the fine has been registered or a collection and enforcement order has been registered; and
  • the client has not applied for a payment arrangement or enforcement review.

This means that an attachment of earnings or debt direction can be made before an enforcement warrant is issued, so long as a notice of final demand has been served on your client which has not been paid (See the definition of a ‘fine defaulter’ under s 3(1) Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s3.html]. Once an attachment of earnings direction or attachment of debts has been made, your client can no longer apply for enforcement review, a Work and Development Permit or make an FVS application (see sections 10B(2), 10O and 32(4) of the Fines Reform Act 2014 (Vic)  [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s10b.html][ http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s10o.html][ http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s32.html]). 

 

Your client may dispute the attachment of earnings direction within 14 days after service of the notice of attachment of earnings direction by making an application to vary or cancel to the direction under section 68 of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s68.html] and regulation 18 of the Fines Reform Regulations 2017 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s18.html].  The direction will be varied or cancelled if your client can demonstrate to the satisfaction of the Director that it would cause the fine defaulter to suffer financial hardship or result in the fine defaulter’s earnings falling below 75% of the maximum fortnightly basic rate of Newstart Allowance payable on 1 January in that year to a person who is partner, has turned 21 years of age and is without dependent children (See sections 643 and 1068 of the Social Security Act 1991 (Cth) [http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ssa1991186/s643.html][http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ssa1991186/s1068.html] and [5.1.8.20] of the Social Security Guide [http://guides.dss.gov.au/guide-social-security-law/5/1/8/20].

 

Accordingly, if your client's only income is a Centrelink benefit, it is unlikely that the court will be able to make an attachment of earnings direction unless your client agrees to it. This is pursuant to s 12 of the Judgement Debt Recovery Act 1984 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/jdra1984237/s12.html] and s 60 of the Social Security (Administration) Act 1999 (Cth) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ssa1999338/s60.html].  Accordingly these directions are rarely made against Homeless Law clients.

An attachment of debt direction may only be made if the amount outstanding is greater than $100 and that amount is in an ADI or a co-operative (see sections 78 [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s78.html] and 79 [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s79.html] of the Fines Reform Act 2014 (Vic) and regulation 5 of the Fines Reform Regulations 2017 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s5.html]).  The Director cannot make an attachment of debt direction unless the garnishee (the ADI or co-operative) is within Victoria (see section 78 of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s78.html]). Your client can apply to the Director to vary, cancel or suspend the direction under section 84 [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_reg/frr2017247/s84.html] of the Fines Reform Act 2014 (Vic).

 

Who can make an application of earnings or debt direction?

 

An attachment of earnings or debt direction may be made by the Director or on the application of your client. An attachment of earnings or debt direction may also be varied, discharged or suspended by the Director of Fines Victoria on the Director’s own motion or on the application of your client (see section 70 [http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/fra2014138/s70.html] and 84 [http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/fra2014138/s84.html] of the Fines Reform Act 2014 (Vic)).

 

What happens if a person fails to comply with the direction?

 

If the employer or debtor fails to comply with the direction, they are guilty of an offence and can face 60 penalty units, unless they took all reasonable steps to comply with the direction (sections 72 [http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/fra2014138/s72.html] and 85 [http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/fra2014138/s82.html] of the Fines Reform Act 2014 (Vic)). It is also an offence for an employer to terminate or alter a person's employment to the prejudice of the employee on the ground that the employer has to comply with an attachment of earnings direction in relation to that person (section 73 [http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/fra2014138/s73.html] of the Fines Reform Act 2014 (Vic)). This may be in addition to other remdies available to the employee under the Fair Work Act 2009 (Cth) [http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/fwa2009114/].

 

Enforcement warrant suspended if attachment of earnings direction made

 

If the Director makes an attachment of earnings direction, any enforcement action against the fine defaulter in respect of whom the attachment of earnings direction is made is suspended (section 77 of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/fra2014138/s77.html]).

 

Charges over, and sale of, real property

 

Charges over real property are a last resort. However, the Director may apply to the Registrar of Titles for a charge to be placed over land that the person who owes money under an infringement warrant owns or co-owns. A land charge may only be applied for if the outstanding amount under the enforcement warrant must be greater than $2,000 and a notice of intention to charge the land has been served on your client and your client has not paid the registered fine or taken action within 7 days of the notice being served (sections 95 [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s95.html] and 96 [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s96.html] of the Fines Reform Act 2014 (Vic) and r 20 of the Fines Reform Regulations 2017 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_reg/frr2017247/s20.html]).  

Note your client cannot apply for an enforcement review, a Work and Development Permit or make an FVS application once a land charge has been recorded (see section 10B, 10O and section 32(4) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s10b.html][http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s10o.html][http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s32.html]).

 

The Director must apply to the Registrar of Titles for the removal of the recording of a land charge over land to which the land charge applies if:

·                     the outstanding amount is paid;

·                     your client passes away,

·                     the land charge should “otherwise be removed”, or

·                     the Director believe that in all the circumstances it is no longer appropriate for the land charge to remain on the land (see section 98(1) of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s98.html]).

 

If the land charge has been recorded for at least 28 days, the Director may serve a notice of intention to sell charged land on your client. The notice must be served personally and prescribe that your client has 14 days to make payment of any outstanding registered fine owed at the date of the notice before the Director applies to the Supreme Court for a land sale order (see section 101 of the Fine Reforms Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s101.html]).

If the land is sold, then the proceeds of the sale must be applied to pay in the following order:

  • the costs of the sale; then
  • any costs incurred by the Director; then
  • the payment of any money due or owing on an existing mortgage or charge;
  • the payment of the registered fine; and then
  • if there is any amount remaining, any person whose interest in the land was subject to the charge (section 105 of the Fines Reform Act 2014 (Vic) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fra2014138/s105.html]).