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Offence Notices Legislation Amendment
OFFENCE NOTICES LEGISLATION
AMENDMENT BILL 1993
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The objective of the Bill is to:
. insert in the Justices Act 1886 a new Part which will be the central
legislative framework for all infringement notice offences
(`on-the-spot' fines);
. provide that any proposal to adopt the infringement notice system
for particular offences will only be effected by regulations pursuant to
the Justices Act; and
. consolidate the new standard infringement notice provisions with
the existing SETONS (Self-Enforcing Ticketable Offences Notice
System) provisions.
Reasons for the Bill
A significant number of offences created in legislation are of a minor
regulatory nature attracting a relatively insubstantial fine. It is often
inconvenient and costly for both the alleged offender and law enforcement
agencies to process such breaches formally through the Court by way of
summons. Sometimes a more attractive process for dealing with such
offences is through a system of `on-the-spot' fines.
Perhaps the most commonly known example of offences that are
processed in this manner are parking tickets and similar minor traffic
offences. Currently, minor traffic offences are processed by the initial
issuing of an infringement notice, payment of which is settled through
SETONS (Self-Enforcing Ticketable Offences Notice System), established
under the Justices Act. A person in receipt of an infringement notice can
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Offence Notices Legislation Amendment
elect, within the prescribed time, to finalise the matter by payment of the
fine (and thus avoid the time and expense of a Court proceeding) or to
challenge the ticket in Court. This election option ensures that an alleged
offender retains the fundamental right to a full Court hearing if desired.
The administrative advantages of `on-the-spot' fines raises attractive
possibilities of adopting such an infringement notice procedure for other
minor, regulatory offences outside the traffic area. However, such a
system can potentially pose a serious risk to civil liberties if it is allowed to
be adopted for more serious offences.
It has therefore become important to standardise the procedure and
ensure that a sufficient number of checks and balances, in line with certain
fundamental legislative principles, are applied to all `infringement notice'
schemes. For example, infringement notice offences in respect of vehicles
necessarily entails an `owner onus' responsibility. It is therefore important
to provide a mechanism whereby the owner can denounce such
responsibility when the vehicle has been stolen or lent to another person
who was the driver at the time.
Another reason for the standardisation of infringement notice procedures
is to ensure that control over the types of offences which will be processed
by way of infringement notices is centralised and streamlined within one
agency. It is appropriate for that to be the agency which shares
responsibility for overseeing the fundamental legislative principles in the
Legislative Standards Act with the Office of Parliamentary Counsel. It is
also the logical choice being the same agency which administers SETONS.
Centralising standard infringement notice provisions will facilitate the
development of general policies and guidelines so as to ensure that no
unreasonable and unjustified compromise of civil liberties occurs in relation
to more serious offences which, by their very nature,ought be fully
prosecuted in the Courts.
The proposed Bill seeks to achieve these policy objectives by inserting
new Part 4A into the Justices Act 1886 setting out the legislative framework
for all `infringement notice' offences. New Part 4A makes no substantive
changes to the operation of SETONS provisions contained within existing
Part 4A but merely consolidates the `infringement notice' provisions with
the SETONS provisions so that they are logically contained within the same
Part. Under new Part 4A, an infringement notice scheme can only be
applied to specific types of offences that are prescribed by regulation under
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Offence Notices Legislation Amendment
the Justices Act 1886. This means that the agency which is responsible for
the administration of the Justices Act, will have policy responsibility to
determine whether any particular offence is of such a minor nature as to
justifiably be processed by way of an `on-the-spot' fine.
Estimated Cost of Implementation
It is not anticipated that additional costs will be incurred by standardising
a process for creating infringement notice offences. The proposal may,
however, present considerable cost-savings to government by facilitating
`on-the-spot' fines for minor offences rather than the costly method of
prosecuting by way of summons in the Courts. This may also ease the
administrative burden associated with court preparation by departmental law
enforcement officers. Any initial costs in transferring to the SETONS
system will be borne by sponsoring agencies within existing budgets.
Consultation
All relevant Departments have been consulted, as has the Litigation
Reform Commission and the Clerk of the SETONS court. All parties
support the Bill.
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Offence Notices Legislation Amendment
NOTES ON PROVISIONS
Part 1--Preliminary
Clause 1 declares the short title of the Act to be the Offence Notices
Legislation Amendment Act 1993.
Clause 2 declares that all provisions, except Part 3, commence on a day
fixed by proclamation.
Part 2--Justices Act Amendments
Clause 3 states that the Justices Act 1886 is amended as set out in this
Part.
Clause 4 amends the long title of the Justices Act as the existing long title
no longer reflects accurately the nature and content of the Act.
Clause 5 replaces existing Part 4A of the Justices Act with a new Part 4A
entitled "Infringement Notices". New Part 4A consists of four separate
Divisions comprising new sections 98B - 98X.
Division 1--Interpretation
New Section 98B is the definition section for new Part 4A. An
"infringement notice offence" means an offence, prescribed by regulation,
to be an offence to which Part 4A applies and "administering authority" for
an infringement notice or infringement notice offence means the entity,
prescribed by regulation, as the administering authority for the notice or
offence. The following definitions should also be noted as they will set the
parameters of defences to infringement notices in later provisions:
. "illegal user declaration" for offences involving a vehicle, is a
statutory declaration stating facts establishing that the vehicle was
stolen or illegally taken at the time the alleged offence was committed;
. "known user declaration" for offences involving a vehicle, is a
statutory declaration stating that the owner was not in charge of the
vehicle (or, if the owner is a corporation, that the vehicle was not being
used for the corporation) at the time of the commission of the offence
and stating the name of the person who was in charge of the vehicle at
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Offence Notices Legislation Amendment
that time;
. "sold vehicle declaration" for an offence involving a vehicle, is a
statutory declaration stating that the alleged owner had sold or
otherwise disposed of the vehicle before the offence was committed
and stating the name and address of the person to whom it was sold or
disposed and the date of such sale;
. "unknown user declaration" for offences involving a vehicle, is a
statutory declaration stating that the owner was not in charge of the
vehicle (or if the owner is a corporation, that the vehicle was not being
used for the corporation) at the time the alleged offence was committed
and that the declarant has not been able to ascertain who was in charge
of the vehicle at the time as well as stating the nature of the inquiries
made for the purpose of ascertaining who was in charge.
It should also be noted that "vehicle" includes a boat or anything declared
by regulation to be a vehicle. "SETONS" is an acronym for the
self-enforcing ticketable offence notice system.
Division 2--Service of Infringement Notices
New section 98C enables the service of infringement notices pursuant to
Part 4A and sets out the type of information which must be included in
such a notice. In particular, a notice must be identified by a specific
number, specify the name, address and identifying particulars of the alleged
offender and, if the alleged offence involved a vehicle, the identifying
particulars of the vehicle. The notice must also state the nature of the
alleged offence (including the identifying particulars of the alleged offence),
the time and place of the alleged offence and the penalty for the alleged
offence. Most importantly, the notice must also inform the alleged offender
that he or she may pay the penalty within 28 days if they do not wish to
have the matter dealt with in a court, specify the place where and the person
to whom such payments can be made, and inform the alleged offender that
the notice may be withdrawn before or after the penalty is paid. If the
alleged offence involves a vehicle, the notice must generally describe the
`owner onus' responsibility imposed by new section 98E as well as the
possible defences that are also referred to in that section.
New section 98D applies only to alleged offences involving a vehicle.
For such offences, the notice may be served on the owner, the person
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Offence Notices Legislation Amendment
specified in a "known user declaration" or a person specified in a "sold
vehicle declaration". If served by post, the notice may be addressed to the
last address of the owner in the register of vehicles (if the alleged offender is
the owner) or to the address noted in the declarations if served on a person
named in a "sold vehicle declaration" or a "known vehicle declaration".
The notice may be served by securely attaching the notice, addressed to the
owner, on the vehicle and if served in this way is taken to have been served
on the owner. Sub-clause (6) provides that a person, other than the owner
or the person in charge of the vehicle, must not remove, deface or interfere
with an infringement notice that is attached to a vehicle.
New section 98E declares the liability attaching to an infringement notice
involving a vehicle. In effect, notices of this kind impose an "owner onus"
responsibility (i.e. the owner is taken to have committed the offence) even
though the actual offender may have been another person. However, if the
actual offender is another person, the owner and the actual offender cannot
both be held liable for the offence. Moreover, it is not to be assumed that
the owner committed the offence if, within 28 days, he or she makes an
"illegal user declaration", a "known or unknown used declaration" or a
"sold user declaration". These terms are defined in section 98B.
New section 98F provides that the alleged offender cannot be prosecuted
in a court for the alleged offence if the penalty is paid in accordance with the
notice. This is the case even if multiple infringement notices have been
served on the alleged offender for the alleged offence. In other words, a
person cannot be held twice liable for one and the same offence.
Sub-section 98F(4) states however, that the section is subject to section 98F
which allows for the subsequent withdrawal of the infringement notice. By
implication, if a notice is subsequently withdrawn in accordance with
section 98F, a person may be prosecuted in a court.
New section 98G states the effect of an illegal user declaration. If the
owner makes an illegal user declaration and the court is satisfied that the
vehicle was stolen or illegally taken, the court must not find the owner liable
for the offence.
New section 98H states the effect of a known user declaration. If the
owner makes a known user declaration, section 98E applies as if the person
named in the declaration as the person in charge of the vehicle at the relevant
time was the owner; but a proceeding against the person named can only be
commenced if that person has been served with a copy of the declaration.
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Offence Notices Legislation Amendment
In a proceeding against the user, the declaration is evidence that the person
was in charge of the vehicle at the relevant time. In a proceeding against the
owner, the court must not find the owner liable if it is satisfied that someone
else was in charge of the vehicle at the relevant time.
New section 98I states the effect of a sold vehicle declaration. If the
owner makes a sold vehicle declaration, section 98E applies as if the person
named in the declaration as the person to whom the vehicle was sold or
disposed was the owner of the vehicle from the time of the sale; but a
proceeding against the buyer can only be commenced if that person has
been served with a copy of the declaration. In such a proceeding against the
buyer, the declaration is evidence that the person was the owner of the
vehicle at the relevant time. In a proceeding against the person initially
presumed to be the owner, a court must not hold that person liable if it is
satisfied that he or she had sold or disposed of the vehicle before the
relevant time.
New section 98J states the effect of an unknown user declaration. If the
owner makes an unknown user declaration, the court must not find the
owner liable for the offence if it is satisfied that the owner was not in charge
of the vehicle at the relevant time (or if the owner is a corporation, that the
vehicle was not being used for the purposes of the corporation at the
relevant time) and that the inquiries that were made to find out the name and
address of the person who was in charge of the vehicle at the relevant time
were reasonable in the circumstances and carried out with due diligence.
New section 98K allows for certain evidentiary certificates to be issued
in relation to:
. infringement notices (that a specified infringement notice was
served on a particular person; that the penalty was not paid; that an
infringement notice has been withdrawn);
. infringement notice offences (that the alleged offence involved a
specified vehicle or animal); and
. persons served with an infringement notice (that the person has
not made an illegal user declaration, a known or unknown user
declaration or a sold vehicle declaration; that the person was the owner
of the vehicle or animal at the relevant time; that a specified address is
the latest recorded address of the owner of a registered vehicle).
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Offence Notices Legislation Amendment
Such certificates are taken to be evidence of the matters contained in
them.
New section 98L provides that an administering authority may withdraw
an infringement notice within 28 days of its issue regardless of whether or
not the penalty has been paid. However, if the penalty has been paid the
amount is repayable to the alleged offender. Sub-section 98L(3)(c) further
provides that proceedings may nevertheless still be taken against any
person, including the alleged offender, as if the notice had not been served.
In other words, the withdrawal of the infringement notice does not prevent
any other proceedings for the alleged offence.
The policy reasons for this provision requires explanation.The advantage
of an `on-the-spot' penalty for offenders is that such a fine does not
constitute a criminal conviction and the amount of the penalty is usually
significantly lower compared to the penalty for the same offence prosecuted
by way of summons. Sometimes, the seriousness of a particular offence is
not appreciated when the roadside ticket is issued but only becomes
apparent at a later stage. For example, a police officer who writes a ticket
for a driver who runs a red light at an intersection may wish to withdraw
that ticket in the light of a subsequent report that five kilometres previously,
the driver of the same registered vehicle was witnessed driving in such a
reckless fashion that he or she hit a parked car.
The seriousness of such events in their entirety would justify the
withdrawal of the ticket and prosecuting the driver for the more serious
offence of dangerous driving.
New section 98M provides that the fact that an infringement notice could
be issued against an alleged offender does not affect the starting or
continuation of a court proceeding against the person or anyone else for the
alleged offence. In other words, just because an offence may be processed
by way of an infringement notice does not mean that such an offence must
be processed in this way. It is still open for law enforcement agencies to
choose to prosecute through the courts in appropriate cases and the fact that
offences of that nature are prescribed infringement notice offences should
not be taken to limit or otherwise affect the penalty that may by imposed by
a court. Clearly however, a person cannot be held liable both for an
infringement notice penalty and for a court prosecution for the same offence
- section 98F(1) prevents a prosecution if an infringement notice has been
issued and the penalty is paid.
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Offence Notices Legislation Amendment
Division 3--Enforcement of infringement notices by registration
New section 98N has the same effect of existing section 98D, providing
for the service of a `reminder notice' on a person who has received an
infringement notice, and has neither paid the penalty nor made any one of
the declarations in defence, and the infringement notice has not been
withdrawn. The reminder must specify the infringement notice and the
alleged offence and inform the alleged offender that, within the specified
time (not less than 28 days), they may elect to have the matter dealt with by
a court or choose to pay the amount specified in the reminder notice. The
reminder notice must also inform the alleged offender that further costs
may be incurred if no election is made. Further, a reminder notice must
specify the place where and the manner in which payment can be made as
well as contain any other prescribed information.
New section 98O corresponds with existing section 98E and provides
for the enforcement procedure, by registering an enforcement notice with
the SETONS clerk, when a reminder notice has not received a satisfactory
response (i.e. payment of the penalty or an election for a court proceeding)
within the specified time. The enforcement notice to the SETONS clerk
must also contain the relevant information specified in subsections (2). If
there is a legal limit on the time within which the alleged offence may be
commenced, an enforcement notice must not be issued after that time.
On the issuing of an enforcement notice, the amount owing for the
alleged offence escalates to the summation of the amount specified in the
reminder notice plus the amount of the enforcement notice filing fee and an
amount prescribed by regulation for the giving of the enforcement notice.
Once an enforcement notice is given, a court proceeding for the alleged
offence can only be commenced in accordance with Division 3.
New section 98P corresponds with existing section 98F and provides
that, on registering an enforcement notice, the SETONS clerk must make
an enforcement order stating that the alleged offender is to pay the
outstanding fine to the SETONS clerk within the specified time (not less
than 7 days after service), default of which will incur a prison sentence. (A
formula is set out in subsection 98P(1) for calculating the length of the
prison sentence.) An enforcement order is taken to be an order of the court
prescribed by regulation and, for the purposes of the Penalties and
Sentences Act 1992 only, is taken to have been made after a conviction has
been recorded. (This reference to the Penalties and Sentences Act is merely
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Offence Notices Legislation Amendment
necessary so that fine option orders may be available for infringement
notice offences. The provision re-enacts similar amendments contained in
the Penalties and Sentences Legislation Amendment Act 1993).
New section 98Q corresponds with existing section 98G, providing that
a notice about the enforcement order must be served on the alleged offender
by certified mail. The notice must inform the alleged offender that an
enforcement order has been made and that, within the specified time, the
amount must be paid or an election made to have the matter dealt with by a
court and that, if neither payment nor an election for a court hearing is
made, a warrant may be issued for the alleged offence.
New section 98R corresponds with existing section 98H and allows an
alleged offender to apply to the SETONS clerk for an extension of time.
New section 98S corresponds with existing section 98I and enables a
warrant of commitment or a warrant of execution to be issued against the
person or against the person's property respectively when the penalty has
not been paid or an election for a court proceeding has not been made.
New section 98T corresponds with existing section 98J and states that, if
the penalty is paid or a warrant is executed under Division 3, the
proceedings that may be brought and the penalties that may be imposed are
limited to proceedings and penalties that could be brought as if the person
had already been convicted of the offence. However, the making of an
enforcement order does not constitute a conviction (and thus a person does
not incur a criminal record). However, section 177 (remission of penalty)
applies to an enforcement order in the same way as it applies to a
conviction. Generally, payment of the penalty is not to be taken, for the
purposes of any subsequent proceeding, as an admission of any events
which gave rise to the issuing of the infringement notice.
New section 98U corresponds with existing section 98K and allows for
fine option orders to be applied for in relation to enforcement orders.
New section 98V corresponds to existing section 98L and allows for
alleged offenders to elect to have the matter determined by a court after an
enforcement order has been served.
New section 98W corresponds with existing section 98M, setting out the
procedure to be followed if the prosecuting authority determines to
withdraw the matter. In such circumstances, any enforcement notice that
has been issued ceases to have effect and any prosecution that has started is
discontinued.
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Offence Notices Legislation Amendment
Division 4--Miscellaneous
New section 98X allows for the delegation and sub-delegation of the
powers of an administering authority to another person.
Clause 6 replaces the heading to section 268.
Clause 7 inserts new sections 269 and 270. These transitional provisions
will preserve the application of existing Part 4A to any existing use of the
SETONS system that is contained in other statutes. This is necessary
because from the date of commencement of the Offence Notices Legislation
Amendment Bill, any future proposal for the adoption of the SETONS
scheme can only be effected pursuant to the Justices Act. However, the
transitional provisions will expire 1 year after the commencement of the
Offence Notices Legislation Amendment Bill. This means that all current
users of the SETONS scheme must convert to the Justices Act infringement
notice system within 1 year. Eventually then, all `on-the-spot' fines that
are enforced through SETONS will come within the Justices Act
provisions.
Part 3--Amendment of Motor Vehicles Safety Amendment Act 1993
Clause 8 provides that the Motor Vehicles Safety Amendment Act 1993 is
amended as set out in this Part.
Clause 9 clarifies the intended effect of the amendments made by the
Motor Vehicles Safety Amendment Act 1993 by omitting section 11.
Part 4--Amendment of the Traffic Act 1949
Clause 10 provides that the Traffic Act 1949 is amended as set out in this
Part.
Clause 11 amends section 44V of the Traffic Act by substituting "section
98D" for "section 98N". This is merely a consequential amendment as
existing section 98D now becomes section 98N of the Justices Act.
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Offence Notices Legislation Amendment
© The State of Queensland 1993