Magistrates' Court (Infringements) Act 2000 (Vic)

Magistrates' Court (Infringements) Act 2000

Act No. 99/2000

TABLE OF PROVISIONS

Section Page

1.	Purposes	1
2.	Commencement	2
3.	Breaking and entering not necessary	2
4.	Insertion of Subdivision 8 into Division 3 of Part 4	3
Subdivision 8—Special Powers of the Sheriff in Executing
Warrants	3

82G.	Requirement to give name and address	3
82H.	Power to temporarily restrain	5
82I.	Power to assist police at road checks	6

5. Insertion of section 99A 6

99A.	Certain agencies may give information for enforcement
purposes 6

6. Insertion of section 137A 8

137A. How unsold seized property to be handled 8

7.        PERIN procedure may be used for certain Commonwealth

offences 9
8.	Facilitation of instalment arrangements 9
9.	Revocation of enforcement orders 11
10.	Insertion of clause 10A into Schedule 7 12
11.	Expiry of enforcement orders 12
12.	Application of new provisions to the penalty notice provisions 14
13.	Insertion of Part 4 into Schedule 7 14
14.	Transitional provisions 18

15.      Clarification that PERIN sentences of imprisonment are to be

served cumulatively 18
16.	Insertion of section 123—Sentencing Act 1991 18
123. Transitional provision—Magistrates' Court

(Infringements) Act 2000 18

17.	Amendment to the Chattel Securities Act 1987	19
18.	Insertion of section 32—Chattel Securities Act 1987	19

32.          Transitional provision—Magistrates' Court

(Infringements) Act 2000 19

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ENDNOTES 20

i

Victoria

No. 99 of 2000

Magistrates' Court (Infringements) Act

2000†

[Assented to 12 December 2000]

The Parliament of Victoria enacts as follows:

1. Purposes

The main purposes of this Act are—

(a)	to amend the Magistrates' Court Act 1989—
(i)	chance to be heard by a magistrate if

to give infringement notice defaulters a 2 days; and

Magistrates' Court (Infringements) Act 2000

s. 2 Act No. 99/2000

(ii)  to facilitate the use of instalment arrangements for the payment of infringement penalties; and

(iii)  to make various changes in relation to enforcement orders; and

(iv) to make minor amendments to the Sentencing Act 1991 and to the Chattel Securities Act 1987. to enhance sheriff's officers' powers infringement penalties; and

(b)

2. Commencement

(1) This section and section 1 come into operation on

the day on which this Act receives the Royal

Assent.

(2) Subject to sub-section (3), the remainder of this

Act comes into operation on a day to be proclaimed.

(3) If the remainder of this Act does not come into

operation before 1 July 2001, it comes into

operation on that day.

3. Breaking and entering not necessary

After section 82D(2) of the Magistrates' Court
Act 1989 insert—

"(3) Nothing in this section requires a person to

whom a penalty enforcement warrant is

directed—

(a)	to break and enter a property for the purpose of finding and seizing personal property;
(b)	to break and enter a property for the purpose of finding and seizing personal

Magistrates' Court (Infringements) Act 2000

Act No. 99/2000	s. 4
property before arresting the person named in the warrant.

(4) Despite sub-section (3)(b), a person to whom

a penalty enforcement warrant is directed
must not arrest the person named in the
warrant unless the person executing the
warrant reasonably believes that there is not
sufficient personal property of the person
named in the warrant on which to levy the
sums named in the warrant together with all
lawful costs of execution.

(5) On the imprisonment of a person for any

reason, if there are any unsatisfied penalty
enforcement warrants outstanding against the
person, any person to whom such a warrant
is directed is not required, in executing the
warrant, to serve any notice or to search for,
or seize, any personal property of the
imprisoned person.".

4. Insertion of Subdivision 8 into Division 3 of Part 4

After section 82F of the Magistrates' Court Act

1989 insert—

'Subdivision 8—Special Powers of the Sheriff in

Executing Warrants

82G. Requirement to give name and address

(1) In this section "sheriff" means the sheriff or

a person directed by the sheriff to execute a
warrant.

(2) This section applies if the sheriff believes on reasonable grounds that a person may be the defendant named in a warrant being executed by the sheriff.

Magistrates' Court (Infringements) Act 2000

s. 4 Act No. 99/2000

(3) The sheriff may request the person to state

his or her name and ordinary place of
residence or business.

(4) In making the request, the sheriff must

inform the person of the grounds for his or

her belief in relation to the person's identity.

(5) A person who, in response to the request—

(a)	refuses or fails to comply with the request without a reasonable excuse for not doing so; or
(b)	states a name that is false in a material particular; or
(c)	states an address other than the full and correct address of his or her ordinary place of residence or business—

is guilty of an offence.

Penalty:  5 penalty units.

(6) A person who is requested to state his or her

name and address may request the person who made the request to state, orally or in writing, his or her name, position and place

of business.

(7) A person who, in response to such a

request—

(a)	refuses or fails to comply with the request; or
(b)	states a name or position that is false in a material particular; or

Magistrates' Court (Infringements) Act 2000

Act No. 99/2000 s. 4

(c) states an address other than the full and correct address of his or her ordinary place of business—

is guilty of an offence.

Penalty:  5 penalty units.

(8) If a person states a name and address in

response to a request made under sub-section
(3) and the sheriff suspects on reasonable
grounds that the stated name or address may
be false, the sheriff may request the person
to produce evidence of the correctness of the
name and address.

(9) The person must comply with the request,

unless he or she has a reasonable excuse for
not doing so.

Penalty:  5 penalty units.

(10) It is not an offence for a person to fail to comply with a request made under sub- section (3) or (8) if the sheriff did not inform

the person, at the time the request was made, that it is an offence to fail to comply with the request.

82H. Power to temporarily restrain

(1) The sheriff, a person directed by the sheriff

to execute a warrant and any person assisting
in the execution of a warrant may restrain a
person who is hindering the execution of the
warrant.

(2) A person restrained under this section must

be released as soon as the activity that the person was hindering has been completed.

Magistrates' Court (Infringements) Act 2000

s. 5 Act No. 99/2000

82I. Power to assist police at road checks

(1) This section applies if a member of the

police force exercising a power conferred the driver of a motor vehicle to stop the vehicle.

(whether directly or by implication) by the

(2) Once the vehicle has stopped, the member of

the police force, the sheriff or any person driver of the vehicle—

who is a bailiff for the purposes of the

(a) to keep the vehicle stationary;

(b)	to drive the vehicle to a designated spot;
(c)	to produce his or her driver licence document or permit document;
(d)	to comply with any other reasonable direction—

to enable a determination of whether the driver, or any person accompanying the driver, is named in any warrant.

(3) A person who is given a direction under sub-

section (2) must comply with the direction
unless he or she has a reasonable excuse for
not doing so.
Penalty: 5 penalty units.'.

5. Insertion of section 99A

After section 99 of the Magistrates' Court Act
1989 insert—

'99A. Certain agencies may give information for enforcement purposes

Magistrates' Court (Infringements) Act 2000

Act No. 99/2000 s. 5

(1) In this section, "specified agency" means a person or body—

(a)	that holds information that may be of use in the enforcement of court orders and fines; and
(b)	that is stated by regulations made for the purposes of this section to be a specified agency—

but does not include a person or body listed
in section 90A(1) of the Melbourne City
Link Act 1995.

(2) Words and expressions used in this section have the same meanings as in section 124A and Schedule 7.

(3) The registrar of the PERIN Court, the sheriff

and any contractor or sub-contractor
supporting the functions of the PERIN Court
or the sheriff may, for the purpose of the
enforcement of court orders and fines,
request information that may assist in
carrying out that purpose from any person or
body.

(4) On the written request of the registrar of the

PERIN Court, the sheriff or any contractor or
sub-contractor supporting the functions of
the PERIN Court or the sheriff, a specified
agency may give the person or body making
the request access to any information held by
the agency that may be of use in the
enforcement of court orders and fines.

(5) A person who obtains access to any

information as a result of a request made

under this section—

(a) may use the information to enforce court orders and fines; but

Magistrates' Court (Infringements) Act 2000

s. 6 Act No. 99/2000

(b) is otherwise subject to all the requirements and restrictions concerning the use and disclosure of

the information that apply to the person who provided, or granted access to, the information in response to the request.'.

6. Insertion of section 137A

After section 137 of the Magistrates' Court Act

1989 insert—

"137A. How unsold seized property to be handled

(1) This section applies if personal property

seized, taken or coming into the possession
of the sheriff in the execution of a warrant or
warrants under section 74(a), 82D(1)(b)(i),
82F(2) or 111(3)(a)—

(a) is not to be sold; or

(b) is offered for sale but is not bought; or

(c) is bought, but is not collected by the buyer.

(2) The sheriff—

(a) must give the owner of the property (or the person from whom the property was seized if the owner is not known) a

written notice—

(i)  stating that the property is available for retrieval; and

(ii)  providing details of how the property may be retrieved; and

(b)

may dispose of the property in any appropriate if the property has not been

Magistrates' Court (Infringements) Act 2000

Act No. 99/2000	s. 7
retrieved within 3 months after the date the notice was given or sent.

(3) It is sufficient compliance with sub-section (2)(a) if the sheriff sends the notice by post to the last known address of the person.".

7.  PERIN procedure may be used for certain Commonwealth offences

In Schedule 7 to the Magistrates' Court Act
1989, in clause 2, for the definition of
"infringement notice" substitute—

' "infringement notice" means an infringement notice

under a prescribed provision of—
(a) any Act or statutory rule; or

(b)	any local law made under the Local Government Act 1989; or
(c)	any Commonwealth Act or subordinate instrument that applies as a law of Victoria;'.

8. Facilitation of instalment arrangements

In Schedule 7 to the Magistrates' Court Act

1989—

(a) after clause 3(2) insert—

"(2A) If—

(a)	the enforcement agency is prepared to accept payment of the infringement penalty and costs by instalments; and
(b)	the payment of the infringement penalty would result in the loss of demerit points under the Road Safety Act 1986—

the courtesy letter must also contain a warning
that entering into an arrangement to pay the
infringement penalty and costs by instalments
will result in the loss of demerit points under
that Act.";

Magistrates' Court (Infringements) Act 2000

s. 8 Act No. 99/2000

(b) after clause 3 insert—

"3A. Agreeing to pay by instalments has same effect

as a full payment

(1) This clause applies in respect of an offence that

would result in a person losing demerit points under the Road Safety Act 1986 if the person were convicted of the offence.

(2) For the purposes of the Road Safety Act 1986,

the person is to be taken as paying the
infringement penalty in respect of the offence
on entering into an arrangement to pay the
infringement penalty and costs by
instalments.";

(c) for clause 4(1)(a) substitute—

"(a) a document in the form required by the

regulations containing the details required by
the regulations in relation to people—

(i)  who have not paid infringement penalties; or

(ii)  who entered into arrangements to pay infringement penalties by instalments, but who have subsequently failed to

comply with the arrangements; and";

(d) after clause 4(2)(d) insert—

"(da) if the person entered into an arrangement to pay the infringement penalty and any prescribed costs by instalments—

(i)  the person has failed to comply with the arrangement; and

(ii)  a specified amount still remains to be paid under the arrangement; and";

(e) in clause 4(3), after "infringement penalty" insert "or the part of the infringement penalty";

Magistrates' Court (Infringements) Act 2000

Act No. 99/2000 s. 9

(f) after clause 4(3) insert—

"(3A) Despite sub-clause (3), the registrar must not register an infringement penalty that is for an amount less than the amount specified by the regulations for the purposes of this sub-

clause.";

(g) in clause 4(4)—

(i)  after "an infringement penalty" insert "or a part of an infringement penalty";

(ii)  after "the infringement penalty" insert "or part";

(h) in clause 5(1)—

(i)  after "an infringement penalty" insert "or a part of an infringement penalty";

(ii) after "the infringement penalty"
(wherever occurring) insert "or part";

(i)  in clause 5(3)(a), after "infringement penalty" insert "or the part of the infringement penalty".

9. Revocation of enforcement orders

In Schedule 7 to the Magistrates' Court Act
1989, for clause 10(6) substitute—

"(6) A person who receives a notice under sub-clause (4)(b) or (c) may apply to the registrar to have the application for revocation referred to the Court.

(7) If the registrar receives an application under sub-

clause (6)—

(a)	within 28 days after the date of the notice, the registrar must refer the matter to the Court under clause 11;
(b)	29 days or more after the date of the notice, the registrar may refer the matter to the Court under clause 11.

(8) The registrar may not revoke an enforcement order
under this clause if a previous application has been

Magistrates' Court (Infringements) Act 2000

s. 10 Act No. 99/2000

made for the revocation of the order unless the person revocation.".

seeking the revocation has obtained the leave of the

10. Insertion of clause 10A into Schedule 7

In Schedule 7 to the Magistrates' Court Act

1989, after clause 10 insert—

"10A. Registrar may refer matter to the Court

(1) The registrar may, on his or her own initiative, revoke

an enforcement order and refer the matter of the
alleged offence to the Court for hearing and
determination at any time if the registrar is satisfied
that the matter would be more appropriately dealt
with by the Court.

(2) If the registrar revokes an enforcement order under

this clause, he or she must notify the enforcement
agency and the person against whom the order was
made—

(a) that the order has been revoked; and

(b) that the matter of the alleged offence has been referred to the Court for hearing and determination.

(3) The notification must also include details of the

reasons why the order was revoked.".

11. Expiry of enforcement orders

In Schedule 7 to the Magistrates' Court Act

1989, after clause 14 insert—

"14A. Expiry of enforcement orders

(1) This clause does not apply to an enforcement order in respect of which a warrant has been issued under the Service and Execution of Process Act 1992 of the

Commonwealth.

(2) An enforcement order expires—
Magistrates' Court (Infringements) Act 2000

Act No. 99/2000 s. 11

(a)	if an arrangement to pay a fine by instalments, or to delay the payment of a fine, was entered into after the order was made and there is a
failure to comply with the arrangement, 5 years after the last of these events occurs—

(i) the entering into of the arrangement;

(ii) the making of the last payment;

(b)	if a penalty enforcement warrant has been issued in respect of the order, on that warrant becoming void;
(c)	in any other case, 5 years after the order was made.

(3) If an enforcement order expires as a result of sub-

clause (2)(a)(ii), (b) or (c), any amount still
outstanding in respect of the fine for which it was
made ceases to be enforceable or recoverable.

(4) On the expiry of an enforcement order, any warrant to seize property that was issued in respect of that order is void.

(5) An enforcement order that has expired may be

reinstated by the registrar on the application of the
enforcement agency.

(6) Despite sub-clause (3), if an enforcement order is

reinstated, the fine in respect of which it was made
again becomes enforceable or recoverable as if there
had been no cessation.

(7) Sub-clause (2) does not apply to a reinstated

enforcement order.

(8) A reinstated enforcement order expires 5 years after it was reinstated.

14B. Cancellation of enforcement orders where interstate

execution has been tried

(1) This clause only applies to an enforcement order in

respect of which a warrant has been issued under the
Service and Execution of Process Act 1992 of the
Commonwealth.

(2) The registrar must recall the warrant as soon as is practicable after—

Magistrates' Court (Infringements) Act 2000

s. 12 Act No. 99/2000

(a) instalments, or to delay the payment of the fine,

if an arrangement to pay the fine by enforcement order was made and there was a failure to comply with the arrangement, the fifth anniversary of the last of these events to occur—

(i) the entering into of the arrangement;

(ii) the making of the last payment;

(b) in any other case, the fifth anniversary of the making of the enforcement order.

(3) On the recall of the warrant, the registrar must cancel

the warrant.

(4) On the cancellation of the warrant, the enforcement order expires.".

12.  Application of new provisions to the penalty notice provisions

In Schedule 7 to the Magistrates' Court Act
1989, in clause 15, after "Clauses 3 to 9" insert

"and 10A, 14A and 14B".

13. Insertion of Part 4 into Schedule 7

In Schedule 7 to the Magistrates' Court Act

1989, after Part 3 insert—

"PART 4—IMPRISONMENT

21. Application of this Part

(1) This Part applies if—

(a) a person is arrested and lodged at a police gaol appointed as a prison under a penalty enforcement warrant; and

(b) either—

(i)  the person is assessed as being unsuitable for a custodial community permit under

Magistrates' Court (Infringements) Act 2000

s. 13 s. 13

Act No. 99/2000

section 57 of the Corrections Act 1986;
or

(ii)  the person is not issued with a custodial community permit within 48 hours of being lodged at the gaol.

(2) This Part also applies if—

(a)	a person is arrested and lodged at a police gaol appointed as a prison under a penalty enforcement warrant; and
(b)	the person is issued a custodial community permit; and
(c)	the person breaches a condition that applies to the permit and is arrested as a result of that breach.

22. Person to be brought before the Court

(1) The person must be brought before the Court as soon as is practicable.

(2)	If it is not practicable to bring the person before the Court within 48 hours of the person being lodged at the gaol—
(a)	a date for the person to appear before the Court must be fixed; and
(b)	if the person is not being held in lawful custody for any other reason, the person must be released within 48 hours of being lodged at the gaol, and must be given a written notice requiring him or her to appear before the Court on that date.

(3) Sub-clause (2) does not apply to a person who was arrested for breaching the conditions of a custodial community permit.

(4) This clause ceases to apply if, while a person is held
in custody, the penalty enforcement warrant is
satisfied.

23. Adjournment of hearing

Magistrates' Court (Infringements) Act 2000

Act No. 99/2000

(1) After giving a person brought before it under

clause 22 an opportunity to be heard, the Court

may—

(a) discharge the fine, either in whole or in part; or

(b)	adjourn the further hearing of the matter for a period of up to 6 months.
(2)	The Court may only act under sub-clause (1) if it is satisfied that the main reason the person committed the offence for which the infringement notice was
issued, or the main reason why the person failed to pay the fine or comply with an instalment arrangement, is one or more of the following—

(a) a mental disorder which the person has; or

(b) an intellectual impairment, a brain injury or dementia which the person has.

(3) The Court may make the granting of an adjournment

subject to any conditions that it considers to be
appropriate.

(4) On resuming a hearing adjourned under sub-clause

(1), the Court may discharge the fine, either in whole
or in part, if it is satisfied that the person—

(a)	has complied with any conditions imposed in adjourning the hearing; and
(b)	has no means to pay the fine or has a reasonable excuse for not paying the fine.

24. Other powers of the Court

(1) This clause applies if the Court, after giving a person brought before it under clause 22 an opportunity to be heard—

(a)	discharges a fine in part only under clause 23(1)(a); or
(b)	is not prepared to grant an adjournment under clause 23(1)(b); or
(c)	granted an adjournment under clause 23(1)(b), but is not prepared to wholly discharge the fine under clause 23(4).

(2) The Court may—

Magistrates' Court (Infringements) Act 2000

Act No. 99/2000 s. 13

(a)	order that the person be imprisoned for a period of 1 day in respect of each $100 or part of $100 of the amount of the fine then remaining unpaid or undischarged; or
(b)	order that the person be imprisoned for a period that is up to two thirds less than the period that may be specified under paragraph (a); or
(c)	if the Court is satisfied that there are exceptional circumstances, make a community- based order under the Sentencing Act 1991 in respect of the person.

(3) The Court must endorse any order it makes under sub-clause (2) on the penalty enforcement warrant.

25. Onus on person to satisfy Court

A person brought before the Court under this Part bears the onus of satisfying the Court with respect to any matter before the Court.

26. Restriction on issue of custodial community permits

If the Court orders that a person be imprisoned under clause 24(2), then despite anything to the contrary in section 57 of the Corrections Act 1986, the Secretary

(as defined in that Act) must not issue a custodial
community permit to the person under section

57(1)(c) in respect of that imprisonment.

27. Procedure if person fails to attend Court as required

(1) This clause applies if a person who was released

under clause 22(2)(b) fails to appear before the Court
as required in the notice given to the person under
that clause.

(2) The Court must order the issue of a warrant to arrest
the person directed to the sheriff.

(3) The sheriff is authorised to execute a warrant of arrest for the purposes of this clause.

(4) Despite anything to the contrary in section 64(2), after

arresting a person for the purposes of this clause, the
sheriff must bring the person before the Court as soon
as is practicable after the arrest.

(5) Section 64(3) does not apply to a person arrested on a
warrant to arrest issued under this clause.".

Magistrates' Court (Infringements) Act 2000

s. 14 Act No. 99/2000

14. Transitional provisions

At the end of Schedule 8 to the Magistrates'

Court Act 1989 insert—

"23. Any amendment of this Act made by the

Magistrates' Court (Infringements) Act 2000
applies to infringement notices, enforcement orders,
warrants and custodial community permits issued
before as well as after the commencement of that Act.

24.  Despite clause 23, any enforcement order or warrant to seize property that was made or issued more than 5 years before the date section 11 of the Magistrates'

Court (Infringements) Act 2000 came into operation expires on that date.".

15.  Clarification that PERIN sentences of imprisonment are to be served cumulatively

After section 16(2) of the Sentencing Act 1991 insert—

"(2A) A reference in sub-section (2) to a term of

imprisonment imposed on a person by a
court is to be read as including a reference to
a term of imprisonment imposed on a person
under Schedule 7 to the Magistrates' Court
Act 1989.".

16. Insertion of section 123—Sentencing Act 1991

After section 122 of the Sentencing Act 1991 insert—

"123. Transitional provision—Magistrates' Court (Infringements) Act 2000

(1) The amendment of section 16 of this Act

made by section 15 of the Magistrates' any person who begins a term of imprisonment on or after the commencement

Magistrates' Court (Infringements) Act 2000

Act No. 99/2000 s. 17

of section 15 of the Magistrates' Court
(Infringements) Act 2000, irrespective of
when the term of imprisonment was
imposed.

(2) For the purposes of sub-section (1), a person

can only begin a term of imprisonment if,
immediately before the term of
imprisonment began, the person was not
serving any other term of imprisonment
imposed on him or her.".

17. Amendment to the Chattel Securities Act 1987

In section 3(1) of the Chattel Securities Act
1987, in the definition of "security interest", omit

"penalty enforcement".

18. Insertion of section 32—Chattel Securities Act 1987

After section 31 of the Chattel Securities Act
1987 insert—

'32. Transitional provision—Magistrates' Court

(Infringements) Act 2000

The amendment made to the definition of
"security interest" by section 17 of the
Magistrates' Court (Infringements) Act
2000 only applies to security interests
coming into existence on or after the
commencement of section 17 of the
Magistrates' Court (Infringements) Act

2000.'.

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Magistrates' Court (Infringements) Act 2000

Endnotes Act No. 99/2000

ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 26 October 2000

Legislative Council: 28 November 2000

The long title for the Bill for this Act was "to amend the Magistrates' Court Act 1989, the Sentencing Act 1991 and the Chattel Securities Act 1987 and for other purposes."