Division 1 Summary of penalty notice procedure
19 Summary of penalty notice procedure
(1) The following is a summary of the penalty notice procedure under this Part:(a) Breach of statutory provision
A person is alleged to have committed an offence under a statutory provision for which a penalty notice may be issued (see Division 2 and Schedule 1).(a1) Determine whether to give official caution rather than penalty notice
The appropriate officer determines whether to issue a penalty notice or whether an official caution would be more appropriate (see Division 1A).(b) Issue of penalty notice
If it is determined that it is not appropriate to give an official caution, a penalty notice is issued under the relevant statutory provision. The notice requires payment of a specified monetary penalty, unless the person alleged to have committed the offence elects to have the matter dealt with by a court (see Division 2 and Schedule 1).(b1) Internal review
A reviewing agency may conduct a review of the decision to issue the penalty notice. If a review is conducted, the agency may withdraw the penalty notice or confirm the decision and issue a penalty reminder notice (see Division 2A).(c) Penalty reminder notice
If the penalty is not paid, a penalty reminder notice is issued. The person who is alleged to have committed the offence may elect to have the matter dealt with by a court (see Division 3).(d) Enforcement order
If payment of the specified monetary penalty is not made and the person does not elect to have the matter dealt with by a court, a penalty notice enforcement order may be made against the person (see Division 4). If the person does not pay the amount (including enforcement costs) within 28 days, enforcement action authorised by this Act may be taken in the same way as action may be taken for the enforcement of a fine imposed on a person after a court hearing for the offence (see Part 4).(e) Withdrawal of enforcement order
A penalty notice enforcement order may be withdrawn if an error has been made (see Division 4).(f) Annulment of enforcement order
A penalty notice enforcement order may, on application, be annulled by the State Debt Recovery Office or, if the Office refuses the application, by the Local Court. If the order is annulled, the alleged offence is to be heard and determined by the Local Court (see Division 5).(2) This section does not affect the provisions of this Part that it summarises.
19A Appropriate officer may give official caution
(1) An appropriate officer may give a person an official caution instead of issuing a penalty notice if the appropriate officer believes:(a) on reasonable grounds that the person has committed an offence under a statutory provision for which a penalty notice may be issued (a penalty notice offence), and(b) that it is appropriate to give an official caution in the circumstances.(2) In making a decision under subsection (1), an appropriate officer (other than a police officer) must have regard to the applicable guidelines relating to the giving of official cautions in respect of penalty notice offences.(3) In this section:guidelines means guidelines:
(a) issued by the Attorney General that are published in the Gazette and made available on the internet site of the State Debt Recovery Office, or(b) issued by the relevant issuing agency that are consistent with the guidelines issued by the Attorney General.
19B Official caution does not affect other powers
An official caution in relation to a penalty notice offence does not affect the power of an appropriate officer or issuing agency to:(a) commence proceedings against the person to whom the official caution was given, or(b) issue a penalty notice in relation to the offence, or(c) take no further action, or(d) take any other specified action permitted under this Act or the Act that establishes the penalty notice offence.
(1) A penalty notice is a notice referred to in subsection (2) to the effect that the person to whom it is directed has committed a specified offence and that, if the person does not wish to have the matter dealt with by a court, the person may pay the specified amount for the offence to a specified person within a specified time.(2) A penalty notice for the purposes of this Act is:(a) a notice issued under any of the statutory provisions set out in Schedule 1, or(b) any similar notice issued under any statutory provision specified by the regulations for the purposes of this section, or(c) a notice issued under a statutory provision that declares the notice to be a penalty notice for the purposes of this Act, or(d) a notice that, at the time it was issued, was issued under a statutory provision referred to in paragraph (a), (b) or (c).(3) A notice is not a penalty notice for the purposes of this Act unless it is of a kind referred to in subsection (2).
21 When penalty notices may be issued
A penalty notice may be issued in the circumstances specified in the statutory provision providing for the issue of the notice.
22 Persons who may issue and deal with penalty notices (appropriate officers)
(1) A penalty notice may be issued by a person authorised by the statutory provision providing for the issue of the notice.(2) For the purposes of this Part, the following are appropriate officers for a penalty notice:(a) a person so authorised to issue that kind of penalty notice,(b) a person who is:(i) employed in the Office of State Revenue in the Department of Finance and Services, or whose services are made use of by that Office (whether by way of temporary hire arrangement, secondment or otherwise), and(ii) authorised by, and subject to the control and direction of, the Chief Commissioner of State Revenue for the purposes of this Part,(c) a person, or a member of a specified class of persons, specified in the regulations for that kind of penalty notice or for all penalty notices.
23 Payment of amount required by penalty notice
(1) For the purposes of this Part, the amount payable under a penalty notice is the amount specified in the notice, as fixed by or in accordance with law.(1A) A person may pay the amount by part payments. However, the full amount payable under a penalty notice is to be paid within the time required by the notice.(2) Payment of the full amount under a penalty notice results in there being no further liability for further proceedings for the offence to which the notice relates.Note. The statutory provisions under which mechanisms for the issue of penalty notices are provided also provide for the effect of payment in accordance with the notice. The effect of payment in accordance with a penalty notice generally is that no further proceedings will be taken for the alleged offence. Payment generally does not have the effect of an admission of any liability in relation to the events out of which the offence arose.
23A Person may elect to have matter dealt with by court
(1) A person alleged to have committed or to be guilty of the offence to which a penalty notice relates:(a) has the right to elect to have the matter dealt with by a court instead of under the statutory provision providing for the issue of the penalty notice, and(b) may make that election:(i) in the manner specified in that statutory provision, or(ii) if no manner is specified in that statutory provision—in the manner specified in the penalty notice, or(iii) if no manner is specified in that statutory provision or in the penalty notice—in the manner specified by the regulations.(2) A person may make such an election even if the whole or part of the amount payable under the penalty notice has been paid, but such an election may not be made later than 90 days after the penalty notice was served.(3) If a person elects under this section to have a matter dealt with by a court after any amount payable under the penalty notice has been paid:(a) section 23 (2) and the corresponding provision of the statutory provision under which the penalty notice was issued (being the provision that provides that if an amount is paid under the penalty notice, no person is liable to any further proceedings for the alleged offence concerned) then cease to have effect, and(b) any action taken to record demerit points against the person in the demerit points register kept under the Road Transport (Driver Licensing) Act 1998 because of that payment is to be reversed by Roads and Maritime Services, and(c) the amount that has been paid under the penalty notice is repayable to the person to whom the penalty notice was directed.
24 Failure to pay amount required by penalty notice
Divisions 3–5 set out the procedure that applies when a person who has been served with a penalty notice fails to pay the full amount payable under the notice within the time required by the notice.
24A Application for review of penalty notice
(1) An application may be made by or on behalf of any person for a review of the decision to issue a penalty notice in respect of the person.(2) An application for a review:(a) is to be made in writing to the issuing agency for the penalty notice or to the State Debt Recovery Office (if the fine under the penalty notice is payable to the State Debt Recovery Office), and(b) is to include the mailing address of the applicant and the grounds on which the review is sought (including supporting evidence).(3) An application for a review may be made at any time up until the due date specified in the penalty reminder notice for payment in relation to the offence concerned even if the whole or part of the amount payable under the penalty notice has been paid.(4) The regulations may make provision for or with respect to applications under this section.
24B Circumstances when agency is not required to conduct a review
(1) An agency that receives an application for a review of a decision to issue a penalty notice is not required to conduct a review of the decision under this Division in any of the following circumstances:(a) the agency notifies the applicant in writing, within 10 days after receiving the application, that it has decided not to conduct a review under this Division and gives reasons for its decision,(b) a review of the decision has already been conducted under this Division,(c) such other circumstances as may be prescribed by the regulations.(2) An agency that decides not to conduct a review may take such other action as it sees fit, including withdrawing the penalty notice to which an application relates.
24C Review by reviewing agency
(1) Except as provided by section 24B, an agency that receives an application for review under this Division must conduct a review in accordance with this Division.(2) The reviewing agency is to ensure that a review under this Division is conducted by a person who was not involved in making the decision that is the subject of the review.
24D Request for additional information
(1) When conducting a review under this Division, a reviewing agency may request, in writing, additional information from the applicant.(2) The additional information must be provided by the applicant to the reviewing agency within 14 days of the request.(3) If the information is not provided within the time specified, the review may be conducted without that information.
(1) After reviewing a decision under this Division, a reviewing agency may confirm the decision to issue a penalty notice or may withdraw the penalty notice.(2) A reviewing agency must withdraw a penalty notice if it finds any of the following grounds to be made out:(a) the penalty notice was issued contrary to law,(b) the issue of the penalty notice involved a mistake of identity,(c) the penalty notice should not have been issued, having regard to the exceptional circumstances relating to the offence,(d) the person to whom the penalty notice was issued is unable, because the person has an intellectual disability, a mental illness, a cognitive impairment or is homeless:(i) to understand that the person’s conduct constituted an offence, or(ii) to control such conduct,(e) an official caution should have been given instead of a penalty notice, having regard to the relevant guidelines under section 19A,(f) any other ground prescribed by the regulations.(3) A reviewing agency may, at its discretion, also decide to withdraw a penalty notice on a ground other than those specified in subsection (2).(4) A reviewing agency is to notify the applicant in writing of the outcome of the review within 42 days of receipt of the application, or within 56 days if additional information has been requested under this Division.
24F Action to be taken if decision to issue penalty notice is confirmed
(1) If, after a review under this Division, a reviewing agency confirms a decision to issue a penalty notice in respect of an offence by a person, it must, in accordance with Division 3, serve a penalty reminder notice in respect of the offence on the person.(2) A penalty reminder notice served under subsection (1) replaces any previous penalty reminder notice in respect of the offence.(3) If a penalty reminder notice served under subsection (1) replaces a previous penalty reminder notice, the time for serving the statement under section 36 (2) (a) continues to be the time specified in the penalty reminder notice that has been replaced.
24G Effect of withdrawal of penalty notice
(1) If a reviewing agency withdraws a penalty notice, following a review under this Division or otherwise, it may, if it considers it appropriate to do so, give an official caution to the person in accordance with Division 1A as if it were an appropriate officer.(2) If a penalty notice is withdrawn:(a) any penalty reminder notice, in respect of the offence to which the penalty notice relates, is also taken to be withdrawn, and(b) if all or part of the amount under the penalty notice or penalty reminder notice has been paid:(i) any action taken to record demerit points against a person in the demerit points register kept under the Road Transport (Driver Licensing) Act 1998 because of that payment is to be reversed by Roads and Maritime Services, and(ii) the amount that has been paid is repayable to the person to whom the penalty notice was directed.
24H Agency may review a decision on its own motion
(1) Nothing in this Division limits the power of a reviewing agency to review a decision to issue a penalty notice, or withdraw a penalty notice, on its own motion.(2) If a reviewing agency withdraws a penalty notice on its own motion after the amount under the penalty notice (or a penalty reminder notice in respect of the offence to which the penalty notice relates) has been paid, no person is liable to any further proceedings for the alleged offence.
24I Review terminated if matter dealt with by court
If a person elects to have a matter dealt with by a court under this Part while a review under this Division is in progress, the review is terminated on the person making that election.
24J Reviewing agencies may enter into arrangements with respect to functions under Division
A reviewing agency may enter into arrangements with another person or body under which the functions of the agency under this Division are exercised by that person or body on behalf of the agency.
Division 3 Penalty reminder notices
25 What is a penalty reminder notice?
A penalty reminder notice is a notice (and any matter annexed to, or enclosed with, a notice) served on a person on whom a penalty notice (and any matter annexed to, or enclosed with, a notice) has been served and containing the matters required by this Division.
26 When a penalty reminder notice may be sent
An appropriate officer may serve a penalty reminder notice on a person on whom a penalty notice was served if it appears to the officer that the full amount payable under the penalty notice has not been paid within the time required by the notice.
27 What a penalty reminder notice must say
(1) A penalty reminder notice must inform the person on whom it is served:(a) that the person has until the due date specified in the notice to pay the full amount (or, if one or more part payments of that full amount have been paid, the remaining amount) for the offence specified in the notice, and(a1) of the steps to be taken for seeking a review of the decision to issue the penalty notice, and(b) of enforcement action that may be taken under this Act if the full amount is not paid by the due date, and(c) of additional enforcement costs that become payable under this Act if enforcement action is taken.(2) If there is an approved form for a penalty reminder notice, a penalty reminder notice must be in that form.(3) The inclusion in a penalty reminder notice of additional information and directions for the assistance or guidance of the person on whom it is served does not affect the validity of the penalty reminder notice.
28 Service of penalty reminder notices
(1) A penalty reminder notice may be served on a person:(a) personally, or(b) by post, or(c) by means of a document exchange, or(d) by facsimile transmission or other electronic transmission, or(e) by any other manner prescribed by the regulations.(2) The address for service of any such penalty reminder notice includes:(a) the address of the person shown on the relevant penalty notice or supplied by the person in connection with the service of the relevant penalty notice, or(b) if the relevant penalty notice was served on the person in his or her capacity as owner or responsible person for a vehicle or owner of a vessel or was served by being left on a vehicle or vessel—the address shown in the records of Roads and Maritime Services or other public agency as the address of the owner or responsible person at the time the relevant penalty notice was served, or(c) if the relevant penalty notice was served on the person in his or her capacity as the person driving or in charge of a vehicle or vessel—the address specified in a notice given under section 38 (1) (a) as the address of the person in charge of the vehicle or vessel at the time of the alleged offence.
29 Time for service of penalty reminder notices by post
Despite any other provision of this Act, it is presumed that a penalty reminder notice sent to a person by post is served on the person 7 days after it is posted, unless the person establishes that it was not served within that 7-day period.
30 Due date for payment in penalty reminder notices
(1) The due date for payment in a penalty reminder notice must be at least 21 days after it is served on the person.(2) Accordingly, a penalty reminder notice that is posted may specify a date that is at least 28 days after the penalty reminder notice is posted as the due date for making the payment concerned.
31 Extension of due date if notice takes more than 7 days
(1) If a penalty reminder notice is served on a person more than 7 days after it was posted, the notice is not invalid merely because it specifies as the due date a date that is less than 21 days after it was served on the person.(2) In such a case however, the due date is extended to a date that is 21 days after the penalty reminder notice was served and the penalty reminder notice is taken to specify that date as the due date.
32 Effect of penalty reminder notice on payment time in penalty notice
If a penalty reminder notice is served on a person, the time for payment of the amount payable under the penalty notice for the offence concerned is extended to the due date specified in the penalty reminder notice for payment.
33 Payment under penalty reminder notice
(1) Payment of the amount payable under the penalty notice to which a penalty reminder notice relates may be made in accordance with the penalty notice and the relevant provisions of the statutory provision under which the notice was served.(2) A person may pay the amount by part payments. However, the full amount payable under a penalty notice is to be paid within the time required by the penalty reminder notice.
34 Effect of payment under penalty reminder notice
Payment of the full amount payable under the penalty notice to which a penalty reminder notice relates has the same effect as payment in accordance with the penalty notice.
35 Alleged offender’s right to elect to have matter dealt with by court
A person alleged to have committed or to be guilty of the offence to which a penalty reminder notice relates has the right to elect to have the matter dealt with by a court instead of under this Part.
36 How person may elect to have matter dealt with by court
(1) A person may elect to have a matter dealt with by a court by serving on the appropriate officer or other person or body specified in the penalty reminder notice a written statement that the person so elects.(1A) Subject to subsection (2), a person may make such an election even if the whole or part of the amount payable under the penalty notice has been paid.(2) The statement must be served within the following time periods:(a) if no part of the amount payable under the penalty notice has been paid, on or before the due date specified in the penalty reminder notice for payment in relation to the offence concerned,(b) if the whole or any part of that amount has been paid, not later than 90 days after the penalty notice was served.(3) The statement may be served on a person personally or by post, by means of document exchange, by facsimile or other electronic transmission or in any other manner prescribed by the regulations.(4) The regulations may make provision for or with respect to the form of written statements under this section.(5) If a person elects under this section to have a matter dealt with by a court after any amount payable under the penalty notice has been paid:(a) section 23 (2) and the corresponding provision of the statutory provision under which the penalty notice was issued (being the provision that provides that if an amount is paid under the penalty notice, no person is liable to any further proceedings for the alleged offence concerned) then cease to have effect, and(b) any action taken to record demerit points against the person in the demerit points register kept under the Road Transport (Driver Licensing) Act 1998 because of that payment is to be reversed by Roads and Maritime Services, and(c) the amount that has been paid under the penalty notice is repayable to the person to whom the penalty notice was directed.
If a person duly elects to have the matter dealt with by a court, proceedings against the person in respect of the offence may be taken as if a penalty notice or penalty reminder notice had not been issued.
37A Extension of time limit for taking proceedings if person has elected to have penalty notice matter dealt with by court
(1) This section applies to proceedings for a summary offence that has an applicable limitation period (apart from this section) of less than 12 months if:(a) a penalty notice in relation to the offence has been issued to a person within that applicable limitation period, and(b) the person has duly elected, in accordance with this Part, to have the matter dealt with by a court.(2) Proceedings relating to that offence may, despite the applicable limitation period, be commenced not later than 12 months from when the offence was alleged to have been committed.Note. An election to have a penalty notice matter dealt with by a court must be made in accordance with section 36.(3) Subsection (2) does not affect the operation of section 179 of the Criminal Procedure Act 1986 in relation to the commencement in any other circumstances of proceedings for an offence.
38 Circumstances in which person issued with penalty reminder notice for vehicle or vessel offence is not liable to pay penalty
(1) A person on whom a penalty reminder notice is served in relation to a vehicle or vessel offence is not liable to make any payment under the penalty notice if the person:(a) on or before the due date specified in the penalty reminder notice, gives notice in accordance with subsection (1A) of the name and address of some other person who was in charge of the vehicle or vessel concerned at all relevant times relating to the offence, or(b) satisfies the appropriate officer for the penalty notice to which the penalty reminder notice relates (or other person or body specified in the penalty reminder notice) that the person did not know and could not with reasonable diligence have ascertained that name and address.(1A) A notice for the purposes of subsection (1) (a) must:(a) in the case of a penalty reminder notice served on a person other than a corporation—be verified by a statutory declaration, and(a1) in the case of a penalty reminder notice served on a corporation:(i) be verified by a statutory declaration, or(ii) be a notice of a kind approved for the purposes of subsection (1B), and(b) be given to the appropriate officer for the penalty notice to which the penalty reminder notice relates (or other person or body specified in the penalty reminder notice).(1B) The State Debt Recovery Office may approve one or more kinds of notices (approved notices) for use by corporations when giving notice for the purposes of subsection (1) (a).(1C) Without limiting subsection (1B), the State Debt Recovery Office may approve notices under that subsection:(a) to be provided in printed or electronic form (or both), and(b) to be used in relation to more than one offence involving one or more vehicles or vessels.(1D) If a corporation gives an approved notice for the purposes of subsection (1) (a) instead of a notice verified by statutory declaration, an appropriate officer for the penalty notice to which the penalty reminder notice relates may, by written notice served on the corporation (a verification notice), require the corporation to supply a statutory declaration for use in court proceedings verifying such of the information contained in the approved notice as is specified in the verification notice.(1E) A corporation served with a verification notice must supply the required statutory declaration within the period specified in the notice (being a period of not less than 7 days after the date of service).Maximum penalty: 100 penalty units.
(2) A notice under subsection (1) (a) that is verified by statutory declaration if produced in any proceedings against the person named in it and in respect of the vehicle or vessel offence concerned is prima facie evidence that the person was in charge of the vehicle or vessel at all relevant times relating to the offence.(3) A statutory declaration that relates to more than one vehicle or vessel offence is not a statutory declaration under, or for the purposes of, subsection (1A) or (1D).(3A) A person must not, in a notice given under subsection (1) (a), make a statement or provide information knowing that it is false or misleading in a material particular.Maximum penalty: 50 penalty units.
(3B) If the same facts establish an offence under this section and an offence under the Oaths Act 1900, the person is not liable to be convicted of both offences.(4) In this section:vehicle or vessel offence means any of the following offences:
(a) an offence of standing or parking a vehicle or of causing or permitting a vehicle to stand, wait or be parked in contravention of any law,(b) an offence relating to a vehicle or vessel (such as exceeding the speed limit) that is detected by an approved average speed detection device, approved camera detection device or an approved speed measuring device within the meaning of the Road Transport (Safety and Traffic Management) Act 1999 and in respect of which the penalty notice is served subsequently on the owner or responsible person for the vehicle or the owner of the vessel,(c) an offence under section 23 of the Centennial Park and Moore Park Trust Act 1983,(d) an offence under section 161 of the Crown Lands Act 1989,(e) an offence under section 38C of the Forestry Act 1916,(f) an offence under section 32A of the Impounding Act 1993,(g) an offence under section 651 of the Local Government Act 1993,(h) an offence under section 30C of the Maritime Services Act 1935,(i) an offence under section 159 of the National Parks and Wildlife Act 1974,(j) an offence under section 29 of the Parramatta Park Trust Act 2001,(k) an offence under section 179 of the Road Transport (General) Act 2005,(l) an offence under section 244 of the Roads Act 1993,(m) an offence under section 22A of the Royal Botanic Gardens and Domain Trust Act 1980,(n) an offence under section 20A of the State Sports Centre Trust Act 1984,(o) an offence under section 78 of the Sydney Olympic Park Authority Act 2001,(p) an offence under section 116 of the Transport Administration Act 1988,(q) an offence relating to a vehicle or vessel that is of a kind prescribed by the regulations.
39 Withdrawal of penalty reminder notices
(1) An appropriate officer may withdraw a penalty reminder notice before the due date for payment under the notice.(2) The following provisions have effect in relation to an alleged offence, if a penalty reminder notice for the alleged offence is withdrawn in accordance with this section:(a) the amount that was payable under the notice ceases to be payable,(b) any amount that has been paid under the notice is repayable to the person by whom it was paid,(c) further proceedings in respect of the alleged offence may be taken against any person (including the person on whom the notice was served) as if the notice had not been issued.
Division 4 Penalty notice enforcement orders
40 What is a penalty notice enforcement order?
(1) A penalty notice enforcement order is an order made by the State Debt Recovery Office for the enforcement of the amount payable under a penalty notice.(2) A single order may be made for the enforcement of the amounts payable under 2 or more penalty notices.Note. Part 4 provides for the fine defaulter to be notified by the State Debt Recovery Office of the enforcement order and of the enforcement action that may be taken if the outstanding balance of the amount payable under the penalty notice (and enforcement costs) is not paid within 28 days.
41 How are penalty notice enforcement orders made?
The State Debt Recovery Office may, on application by an appropriate officer for a penalty notice or its own initiative, make a penalty notice enforcement order.
42 When a penalty notice enforcement order may be made
(1) A penalty notice enforcement order may be made only if:(a) a penalty notice has been served on a person in relation to a particular offence referred to in the order, and(a1) any review to be conducted under Division 2A has been completed and the applicant has been notified of the outcome of the review, and(b) a penalty reminder notice has been served on the person:(i) after the end of the time specified in the penalty notice as the time within which the amount payable under the notice may be paid, or(ii) if a review has been conducted under Division 2A, after that review, and(c) the due date specified in the penalty reminder notice has passed, and(d) the full amount payable under the penalty notice had not been paid before the order is made, and(e) the person has not, in accordance with this Part, declined to be dealt with under this Part, and(f) a court attendance notice in relation to the offence has not been issued, and(g) (Repealed)(h) the facts as alleged in or referred to in the order constitute the offence.(1AA) Despite subsection (1), the State Debt Recovery Office may also make a penalty notice enforcement order if it receives, in respect of an amount owed by a person under a penalty notice, an application by the person:(a) for an order under section 100 (Time to pay) in relation to the amount and the person is in receipt of a Government benefit, or(b) for a work and development order in relation to the amount.(1BB) The State Debt Recovery Office is not to make a penalty notice enforcement order under subsection (1AA) unless it determines to make the order under section 100, or the work and development order, sought by the person.(1CC) On the making of an order under subsection (1AA):(a) the person who has been served with the penalty notice to which the order relates can no longer elect to have the matter dealt with by a court in accordance with section 23A, and(b) the decision to issue the penalty notice can no longer be reviewed under Division 2A.(1A) A penalty notice enforcement order may not be made later than:(a) if the applicable limitation period in relation to the offence is less than 12 months—12 months from when the offence was committed or is alleged to have been committed, or(b) if the applicable limitation period in relation to the offence is 12 months or greater—the expiry of that limitation period, or(c) if a review has been conducted under Division 2A and a penalty reminder notice has been served under section 24F (1)—42 days after service of that notice.(1B) If more than one date is applicable under subsection (1A), the later of those dates is the relevant date for the purposes of that subsection.(2) An application for a penalty notice enforcement order made by an appropriate officer must certify:(a) that the matters specified in subsection (1) (other than subsection (1) (d)), or the relevant matters in subsection (1AA), are satisfied, and(b) that the full amount payable under the penalty notice has not been paid, and(c) that the period for making the order (as referred to in subsection (1A)) has not expired.(2A) The State Debt Recovery Office may rely on the certificate for the purpose of making the order.(3) A penalty notice enforcement order may be made in the absence of, and without notice to, the person concerned.
43 Form of penalty notice enforcement order
(1) A penalty notice enforcement order must specify the following matters:(a) the fine defaulter’s name, address and date of birth (if known),(b) a description of the offence in respect of which each fine to which the order applies was imposed,(c) the date on which the fine was imposed,(d) the amount required to be paid, being the amount that remains to be paid under the penalty notice, together with specified enforcement costs.(2) Any amount recovered in consequence of the making of a penalty notice enforcement order (other than for enforcement costs) is to be dealt with in the same way as if the amount had been paid on the issue of the penalty notice.
44 Enforcement costs under penalty notice enforcement order
(1) The regulations may prescribe the enforcement costs payable under a penalty notice enforcement order and an amount is not payable for enforcement costs unless it is so prescribed or is payable under section 76A (Sheriff’s additional costs of taking enforcement action under this Division).(2) The following applies to any such enforcement costs:(a) an amount may be prescribed as the enforcement costs payable to the State Debt Recovery Office on the making of the order,(b) an amount may be prescribed as the enforcement costs payable to Roads and Maritime Services if any enforcement action is taken by Roads and Maritime Services under Division 3 of Part 4 before payment is made under the order,(c) an amount may be prescribed as the enforcement costs payable into the Consolidated Fund if any enforcement action is taken by the Sheriff or other official under Division 4 of Part 4 before payment is made under the order.(3) Any amount recovered in consequence of the making of a penalty notice enforcement order is to be applied firstly towards enforcement costs payable under this section or section 76A and the balance towards the amount payable under the penalty notice.
45 Effect of making, or of payment under, penalty notice enforcement order
(1) If a penalty notice enforcement order is made in relation to an offence alleged to have been committed by a person:(a) the person is not as a result taken to have been convicted of the offence, and(b) the making of the order does not in any way affect or prejudice any civil claim, action or proceeding arising out of the same occurrence.(2) If the full amount payable under a penalty notice enforcement order is paid or recovered, no person is liable for any further proceedings for the alleged offence concerned. This subsection ceases to apply if the order is duly withdrawn under this Part and the amount paid under the order is repaid.(3) The payment of any amount payable under a penalty notice enforcement order is not an admission of liability for the purpose of and does not in any way affect or prejudice any civil claim, action or proceeding arising out of the same occurrence.(4) Nothing in this section affects the operation of any provisions of Division 5 relating to the annulment of a penalty notice enforcement order or any provisions of Part 4 relating to the enforcement of a penalty notice enforcement order.
(1) The State Debt Recovery Office may, on application or its own initiative, withdraw a penalty notice enforcement order if satisfied that:(a) a fine to which it applies has previously been the subject of a penalty notice enforcement order in respect of which any enforcement action has been taken, or(b) the person named in the penalty notice enforcement order is not the same person as the person in respect of whom a fine to which the order applies was imposed, or(c) the order relates to the owner of a vehicle or vessel, being a vehicle or vessel involved in an offence the subject of the fine at a time when the owner was not the owner of the vehicle or vessel concerned, or(d) the order was otherwise made in error.(2) A penalty notice enforcement order must be withdrawn if application for its withdrawal is made by the appropriate officer who applied for the order.Note. Section 49A (5) also requires a penalty notice enforcement order to be withdrawn if an issuing agency determines that a penalty notice should be withdrawn following a review under section 49A.(3) A penalty notice enforcement order may be withdrawn completely or only to the extent of some of the penalty notices to which it applies.(4) If a penalty notice enforcement order is withdrawn completely:(a) the order then ceases to have effect, and(b) any enforcement action already taken is to be reversed, unless the same enforcement action is authorised under another penalty notice enforcement order or a court fine enforcement order, and(c) enforcement costs are not payable in respect of the issue of the order and, if paid, are repayable, and(d) any amount that has been paid under the order is repayable to the person by whom it was paid.(5) If a penalty notice enforcement order is withdrawn only to the extent of some of the penalty notices to which it applies:(a) the order continues to have effect in respect of the remaining penalty notices to which it applies, and(b) any amount that has been paid under the order is to be applied to payment of the remaining penalty notices to which it applies and any enforcement costs in respect of that order.(6) The withdrawal of a penalty notice enforcement order does not prevent the making of a further order in respect of the penalty notice.(7) Despite subsections (4) and (5), if a penalty notice enforcement order is withdrawn (whether completely or only to the extent of some of the penalty notices to which it applies), any amount paid under the order that would otherwise be repayable to a person may instead be allocated by the State Debt Recovery Office towards the payment of amounts payable under any other fine enforcement order that is in force in relation to the person.(8) The State Debt Recovery Office must notify the person concerned of any allocation made under subsection (7), but a failure to notify the person does not affect that allocation.
47 Regulations relating to orders
The regulations may make provision for or with respect to the making or withdrawal of penalty notice enforcement orders, including the following:(a), (b) (Repealed)(c) the form of any such order,(d) the manner of making any such order.
Division 5 Annulment of penalty notice enforcement orders
48 Applications for annulment of orders
(1) An application may be made by or on behalf of any person for the annulment of a penalty notice enforcement order made against the person under Division 4.(2) (Repealed)(3) An application for annulment is to be made in writing to the State Debt Recovery Office.(4) (Repealed)(5) A person may not, except with the leave of the State Debt Recovery Office, make more than one application in relation to the same matter.(6) The regulations may make provision for or with respect to applications under this section (including application fees).
49 Determination of applications by State Debt Recovery Office
(1) When dealing with an application for annulment, the State Debt Recovery Office:(a) must annul the penalty notice enforcement order if it is satisfied that:(i) the person was not aware that a penalty notice had been issued until the enforcement order was served, but only if the application was made within a reasonable time after that service, or(ii) the person was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the penalty notice, but only if the application was made within a reasonable time after the person ceased being so hindered, or(iii) the penalty reminder notice was, or both the penalty notice and the penalty reminder notice, in relation to a particular offence were, returned as being undelivered to its sender after being sent to the person at the person’s recently reported address (within the meaning of section 126A) and notice of the enforcement order was served on the person at a different address, and(b) may annul the penalty notice enforcement order if:(i) it is satisfied that a question or doubt has arisen as to the person’s liability for the penalty or other amount concerned, but only if the person had no previous opportunity to obtain a review of that liability, or(ii) having regard to the circumstances of the case, it is satisfied that there is other just cause why the application should be granted.(2) The State Debt Recovery Office must not annul a penalty notice enforcement order under subsection (1) (b) (ii) if doing so is not permitted under, or would circumvent the restrictions in, subsection (1) (a) or (b) (i).(3) If the State Debt Recovery Office annuls a penalty notice enforcement order under subsection (1) (a), it must refer the matter to the Local Court unless:(a) the person concerned does not dispute the person’s liability to pay the amount payable under the penalty notice, and(b) that amount was paid to the State Debt Recovery Office at the time of making the application for the annulment of the order.(3A) For the avoidance of doubt, payment of the full amount under a penalty notice under subsection (3) results in there being no further liability for further proceedings for the offence to which the notice relates.(3B) If the State Debt Recovery Office annuls a penalty notice enforcement order under subsection (1) (b), it must refer the matter to the Local Court.Note. Section 51 provides that the Local Court is to hear and determine the alleged offence as if no penalty notice enforcement order had been made.(4) Applications for annulment are to be dealt with by the State Debt Recovery Office in the absence of the parties, unless that Office otherwise determines.(5) The State Debt Recovery Office must give notice of the determination of an application for annulment to all parties interested or concerned.(6) The regulations may make provision for or with respect to the practice and procedure of the State Debt Recovery Office when dealing with applications for annulment.(7) The State Debt Recovery Office may, but is not required to, refund any application fee for an application for an annulment that is successful.(8) For the avoidance of doubt, the State Debt Recovery Office may grant an application for annulment (and annul the penalty notice enforcement order) on the ground that the person was not aware that a penalty notice had been issued until the enforcement order was served even if section 126A (1) permitted the issue and service of a penalty reminder notice in relation to a particular offence referred to in the enforcement order or section 126A (2) permitted the making of the penalty notice enforcement order (or both).
49A Review of penalty notice before annulment
(1) Before it annuls a penalty notice enforcement order, the State Debt Recovery Office is to seek a review of the decision to issue each penalty notice to which the penalty notice enforcement order applies if:(a) it has reason to suspect that the penalty notice should be withdrawn having regard to any of the matters set out in section 24E (2), and(b) a review of the decision to issue the penalty notice has not been conducted under this section or Division 2A.(2) A review is to be conducted by the relevant issuing agency.(3) A review is to be dealt with in the absence of the parties, unless the issuing agency otherwise determines.(4) The issuing agency must notify the applicant for the annulment and the State Debt Recovery Office of its determination on the review of the decision to issue the penalty notice.(5) If the issuing agency determines that a penalty notice should be withdrawn (in whole or in part), the State Debt Recovery Office must withdraw the penalty notice enforcement order (in whole or in part) under section 46.(6) The State Debt Recovery Office must, if a penalty notice is not withdrawn on review or there is no decision on a review within 42 days after referral for review, grant the application for annulment and annul the penalty notice enforcement order under section 49.(7) An issuing agency may enter into arrangements with another person or body (including the State Debt Recovery Office) under which the functions of the issuing agency under this section are exercised by that person or body on behalf of the issuing agency.
50 Appeal against refusal of application by State Debt Recovery Office
(1) If the State Debt Recovery Office refuses an application for annulment, the applicant may, not later than 28 days after notice is given of the refusal, lodge an application in writing with a registrar of the Local Court to have the original application determined by the Local Court.(2) The relevant registrar of the Local Court must, as soon as possible, give written notification to the applicant and the parties of the date, time and place on or at which the application is to be determined.(3) An application under this section may be determined by the Local Court in accordance with this Division and the Local Court may make any decision about the application that the State Debt Recovery Office may have made.(4) The Local Court may proceed to determine an application despite any omission or error in the notice referred to in subsection (2) or its non-service if:(a) the Local Court is satisfied that the applicant and the parties interested and concerned had knowledge of the date, time and place on or at which the application was to be determined and were not prejudiced by the omission, error or non-service, or(b) the Local Court is satisfied that the applicant is avoiding service of the notice or cannot, after reasonable search and inquiry, be found.(5) The regulations may make provision for or with respect to applications under this section (including application fees).
51 Proceedings for alleged offence if penalty notice enforcement order annulled
(1) If a penalty notice enforcement order is annulled by the Local Court (or is annulled by the State Debt Recovery Office and referred to the Local Court), the Local Court is to hear and determine the matter as if no penalty notice enforcement order had been previously made.(2) If the Local Court annuls the penalty notice enforcement order, the Local Court may proceed either immediately or at a later sitting of the Court to hear and determine the matter.(3) (Repealed)(4) For the purposes of hearing and determining the matter, a court attendance notice in relation to each alleged offence to which the annulment of the penalty notice enforcement order relates is taken:(a) to have been filed when the penalty notice enforcement order was made, and(b) to have been filed by the appropriate officer for the penalty notice.
52 Provisions relating to annulment of enforcement orders
(1) The State Debt Recovery Office or the Local Court, if dealing with an application for annulment, may stay enforcement action under the penalty notice enforcement order subject to such terms and conditions as that Office or Court thinks fit.(2) (Repealed)(3) An application may be made for the annulment of a penalty notice enforcement order completely or only to the extent of some of the penalty notices to which it applies.(4) If a penalty notice enforcement order is annulled completely:(a) the order then ceases to have effect, and(b) any enforcement action already taken is to be reversed, unless the same enforcement action is authorised under another penalty notice enforcement order or a court fine enforcement order, and(c) enforcement costs are not payable in respect of the issue of the order and, if paid, are repayable, and(d) any amount that has been paid under the order is repayable to the person by whom it was paid, unless the amount was paid to the State Debt Recovery Office at the time of making an application for the annulment of the order under section 49 (1) (a).(5) If a penalty notice enforcement order is annulled only to the extent of some of the penalty notices to which it applies:(a) the order continues to have effect in respect of the remaining penalty notices to which it applies, and(b) any amount that has been paid under the order is to be applied to payment of the remaining penalty notices to which it applies and any enforcement costs in respect of that order.(6) Despite subsections (4) and (5), any amount paid under a partially or completely annulled penalty notice enforcement order that would otherwise be repayable to a person may instead be allocated by the State Debt Recovery Office towards the payment of amounts payable under any other fine enforcement order that is in force in relation to the person.(6A) The State Debt Recovery Office must notify the person concerned of any allocation made under subsection (6), but a failure to notify the person does not affect that allocation.(7) If a penalty notice enforcement order is annulled, the period within which proceedings for an offence may be instituted in respect of the matter under section 179 of the Criminal Procedure Act 1986 or any other Act commences on the date the order is annulled.
Division 6 Application of Part
53 Application of penalty notice procedure to children
(1) This Part applies to a person of any age.(2) However, this Part does not apply to a person who is younger than 10 years or who, although 10 years or older, was younger than 10 years when the person is alleged to have committed the offence to which the relevant penalty notice relates.(3) This Part applies despite anything in the Children (Criminal Proceedings) Act 1987, except that the provisions of this Part relating to the hearing or determination of an alleged offence on the annulment of a penalty notice enforcement order is subject to that Act.
54 Part not to apply to certain forestry penalty notices
This Part does not apply to or in relation to a penalty notice under section 46A (2) of the Forestry Act 1916 if the amount payable under the notice includes any royalty as defined in section 46A of that Act.
55 Regulations may exclude penalty notices from operation of Part
The regulations may provide that this Part does not apply to or in relation to any specified class or description of penalty notices.
56 Other provisions not affected
The provisions of this Part are supplemental to, and do not derogate from, the provisions of any Act that relate to proceedings that may be taken in respect of offences that are or may be the subject of penalty notice enforcement orders.