Legislative Assembly for the ACT: 2011 Week 12 Hansard (Thursday, 27 October 2011) . . Page.. 5126 ..
The Justice and Community Safety Legislation Amendment Bill 2011 (No 3) amends a number of acts, including the Crimes (Sentence Administration) Act 2005, the Fair Trading (Australian Consumer Law) Act 1992 and the Road Transport (General) Act 1999.
The amendments to the Crimes (Sentence Administration) Act 2005 arise from the new legislative scheme that was introduced in 2010 for the enforcement of court fines. As part of the scheme a new chapter, chapter 6A, was inserted into the act to set out the legislative framework for the scheme.
Under chapter 6A, section 116N operates to require reporting by the courts to a credit agency of a defendant’s failure to pay a fine, or default on an arrangement to pay a fine by instalments. However, there have been difficulties with the implementation of this provision which were not anticipated. A primary difficulty was its interaction with the Road Transport (Driver Licensing) Act 1999. Under section 37 of this act, a court-imposed fine could result in the revocation of a fine defaulter’s drivers licence when the Road Transport Authority obtains access to information in relation to such fines. For example, if an individual entered into a payment by instalments arrangement with the court in relation to a traffic infringement, the RTA may revoke that defaulter’s licence, on the basis of its knowledge only that the fine is overdue and unpaid.
Since the new scheme commenced, ACT courts have been engaged in discussions with a credit reporting agency. These discussions highlighted uncertainty as to whether unpaid fines represent the kind of information that should be disclosed to a credit reporting agency. The office of the commonwealth Privacy Commissioner has since indicated its view that a fine is probably not a loan within the terms of the commonwealth Privacy Act and in its opinion is therefore ineligible to be listed on a credit report. As a result of this uncertainty the bill omits section 116N of the Crimes (Sentencing Administration) Act. It also omits section 116I(1)(d)(iii) and amends section 116ZS to remove references to “relevant credit reporting agency” consequentially on the removal of section 116N.
These amendments ensure that confidential information in relation to court fines is not inappropriately disclosed to a credit reporting agency, and this will enhance the rights of individuals who are subject to those fines. These amendments affect a very small part of the fines enforcement scheme but they will help to further ensure the ongoing integrity of the scheme. ACT courts continue to work with the government and credit reporting agencies on the implementation and ongoing improvement of the scheme.
The bill also makes amendments to the Fair Trading (Australian Consumer Law) Act 1992 in order to provide a broad power to the fair trading commissioner and investigators to carry out investigations under “fair trading legislation”, which is defined in the act to mean stated laws administered by the Office of Regulatory Services.
Section 33 sets out the functions of the commissioner. However, it does not state generally that the commissioner has the function of carrying out investigations.