Expiation of Offences Act 1996

This

Act may be cited as the Expiation of Offences Act 1996.

This

Act applies only in relation to an expiation notice issued after the commencement of this Act.

The provisions of this Act relating to trifling offences do not apply to offences of a class prescribed by regulation.

In this Act, unless the contrary intention appears—

Chief

Recovery Officer means the Chief Recovery Officer under the Fines

Enforcement and Debt Recovery Act 2017;

child, in relation to an offence, means a person who was under the age of

16 years at the time the offence is alleged to have been committed;

community corrections officer means an officer or employee of the administrative unit of the

Public Service that is, under a Minister, responsible for the administration of the Correctional

Services Act 1982 whose duties include the supervision of offenders in the community;

council means a council established under the Local

Government Act 1934 and includes a controlling authority established under that Act;

Court means—

in relation to an expiation notice issued to a person who was under the age of 18 years at the time of the alleged offence—the Youth

Court;

in relation to any other expiation notice—the Magistrates Court;

expiation period means the period specified in an expiation notice for payment of the expiation fee (in the absence of an arrangement under section 20 of the Fines

Enforcement and Debt Recovery Act 2017);

issuing authority means—

if an expiation notice is given by a member of the police force—the

Commissioner of Police;

in any other case—the Minister, statutory authority or council on whose behalf an expiation notice is given.

An alleged offence will, for the purposes of this Act, be regarded as trifling if, and only if, the circumstances surrounding the commission of the offence were such that the alleged offender ought to be excused from being given an expiation notice on the ground that—

there were compelling humanitarian or safety reasons for the conduct that allegedly constituted the offence; or

the alleged offender could not, in all the circumstances, reasonably have averted committing the offence; or

the conduct allegedly constituting the offence was merely a technical, trivial or petty instance of a breach of the relevant enactment.

Subject to this Act and the Fines

Enforcement and Debt Recovery Act 2017, a person expiates an offence if a person pays all of the amounts due under the expiation notice (including any levy payable under the Victims of Crime Act 2001) or such amounts are recovered from the person in accordance with this Act or the Fines

Enforcement and Debt Recovery Act 2017.

For the purposes of this and any other Act—

an offence expiated, or taken to have been expiated, under the Fines

Enforcement and Debt Recovery Act 2017 will be taken to have been expiated in accordance with this Act; and

an expiation fee paid under the Fines

Enforcement and Debt Recovery Act 2017 will be taken to have been paid under this Act.

If an expiation fee is fixed by or under an Act, regulation or by-law in respect of an offence, an expiation notice may be given under this Act to a person alleged to have committed the offence and the alleged offence may accordingly be expiated in accordance with this

Act.

Subsection (1) applies in relation to offences committed before or after the commencement of this Act.

Subject to subsection (4), a power under an Act to impose a penalty for the contravention of a regulation or by-law will be taken to include the power—

to provide that an alleged offence against the regulation or by-law may be expiated in accordance with this Act; and

to fix for that purpose an expiation fee not exceeding—

if the maximum fine prescribed for the offence is expressed as a divisional fine—a divisional expiation fee of the same division;

or

in any other case—

$315;

or

25% of the maximum fine prescribed for the offence, whichever is the lesser.

An offence against a regulation or by-law that is an offence involving violence is not and cannot be, despite subsection (3) or the provisions of any other Act, an expiable offence.

Notes—

• Various other Acts (eg the Controlled

Substances Act 1984) provide that certain offences may be expiated in accordance with this Act.

• Section

28A of the Acts

Interpretation Act 1915 sets out a scale of divisional expiation fees for use when an expiation fee is expressed as a divisional fee (ie not in dollars).

An expiation notice—

may relate to up to 3 alleged offences arising out of the same incident (ie if they are committed contemporaneously, or in succession, one following immediately upon another); and

must be in the prescribed form; and

must specify that the expiation fee is to be paid within 28 days from (and including) the date of the notice unless an arrangement is entered into under section 20 of the Fines

Enforcement and Debt Recovery Act 2017;

and

must specify to whom the expiation fee is payable; and

cannot be given after the expiry of the period of 6 months from the date on which the offence was, or offences were, alleged to have been committed; and

cannot be given to a person if a prosecution has been commenced against the person for the alleged offence or offences; and

cannot (except where some other Act provides otherwise) be given to a child; and

cannot, if the regulations or some other Act so provides in relation to a particular offence, be given to a person under the age of 18 years;

and

should not be issued in respect of a trifling offence; and

if a vehicle is involved in the commission of the alleged offence or offences and is found unattended—may be addressed to the owner or driver of the vehicle without naming or otherwise identifying him or her; and

may be given—

personally or by service on an employee or agent of the alleged offender; or

by post addressed to the alleged offender's last known place of business or residence; or

if a vehicle is involved in the commission of the alleged offence or offences and is found unattended—by affixing or placing the notice on that vehicle; and

must be accompanied by a notice in the prescribed form by which the alleged offender may elect to be prosecuted for the offence or any of the offences to which the expiation notice relates.

Note—

Certain other Acts (eg the Local

Government Act 1934 section 789D and the Road

Traffic Act 1961 section 174A) require that an expiation notice given to the registered owner of a motor vehicle must be accompanied by a notice relating to the question of whether the owner was the driver at the time of the alleged offence.

If an expiation notice is served on an employee or agent of the alleged offender, the employee or agent must, as soon as is reasonably practicable after receiving the notice, give the notice to his or her employer or principal.

Maximum penalty: $50.

An expiation notice may only be given by—

a member of the police force; or

a person who is authorised in writing by—

the

Minister responsible for the administration of the Act against which the offence is alleged to have been committed; or

the statutory authority or council responsible for the enforcement of the provision against which the offence is alleged to have been committed, to give expiation notices for the alleged offence; or

a person who is authorised to give expiation notices for the alleged offence by or under the Act against which the offence is alleged to have been committed.

If an officer or employee of a council is authorised by or under an Act to exercise powers as an inspector (or other authorised person) for the purposes of the enforcement of a provision of that Act, the officer or employee—

is authorised to give an expiation notice for an alleged offence against that provision; and

in giving such a notice, will be taken to be doing so on behalf of the council.

Subject to subsection (6), if an expiation notice is given to an alleged offender, no further expiation notice can be given to that person in respect of any other alleged expiable offence arising out of the same incident.

If the expiation notice already given to the alleged offender relates to an offence, or offences, against the Road

Traffic Act 1961 or the Motor

Vehicles Act 1959, a further expiation notice may be given to him or her in respect of an alleged offence against section 74, 75A, 81, 81A or 81AB of the

Motor

Vehicles Act 1959.

Any amount payable under an expiation notice may be paid by using a credit card, charge card or debit card, if facilities for their use are available in relation to the payment to be made.

An alleged offender may, by notice in the prescribed form given personally or by post to the issuing authority, elect to be prosecuted for the offence or any of the offences to which the expiation notice relates.

An election to be prosecuted for an offence cannot be made after—

if the alleged offender enters into an arrangement under section 20 of the Fines

Enforcement and Debt Recovery Act 2017—the day on which the arrangement is entered into; or

in any other case—the day on which an enforcement determination is made under section 22 of the Fines

Enforcement and Debt Recovery Act 2017 in relation to the expiation notice.

However, if an enforcement determination made under section 22 of the

Fines

Enforcement and Debt Recovery Act 2017 is revoked on the ground that the alleged offender had not had a reasonable opportunity to elect under this section to be prosecuted for an offence to which the expiation notice relates, an election to be prosecuted for the offence may be made within 14 days of the alleged offender being notified of the revocation.

If an election is made under this section, the expiation notice will be taken to have been withdrawn in respect of the offence to which the election relates.

A person who has been given an expiation notice issued after the commencement of this section may apply to the issuing authority for a review of the notice on the ground that an offence to which the notice relates is trifling.

The issuing authority is not obliged to conduct an inquiry on the application but may require the applicant to provide further information.

An issuing authority may require information contained in, or supporting, an application for review to be verified by statutory declaration.

An application made under this section must be determined by the issuing authority before it can provide the Chief Recovery Officer with relevant particulars under section 22 of the Fines

Enforcement and Debt Recovery Act 2017 in respect of the offence to which the application relates.

If the issuing authority is satisfied that the offence is trifling, the authority must, by notice in writing given personally or by post to the alleged offender, withdraw the notice in respect of that offence.

However, an expiation notice cannot be withdrawn under this section in respect of an offence if—

any amount due under the notice in respect of that offence has been paid; or

the alleged offender has entered into an arrangement under section 20 of the Fines

Enforcement and Debt Recovery Act 2017;

or

an enforcement determination has been made under section 22 of the

Fines

Enforcement and Debt Recovery Act 2017 in relation to the expiation notice.

However, if an enforcement determination made under section 22 of the Fines

Enforcement and Debt Recovery Act 2017 is revoked on the ground that the alleged offender had not had a reasonable opportunity to apply for review of the notice under this section, and the alleged offender makes an application under this section within 14 days of being notified of the revocation, the expiation notice may be withdrawn under this section.

If an expiation notice is withdrawn under this section in respect of an offence, no further expiation notice may be issued in respect of that offence.

If, by the end of the expiation period, an alleged offender has neither paid the expiation fee nor entered into an arrangement under section 20 of the Fines

Enforcement and Debt Recovery Act 2017 and the issuing authority has not received a nomination, statutory declaration or other document sent to the authority by the alleged offender in accordance with a notice required by law to accompany the expiation notice, the issuing authority must, before it takes any action under this Act or the Fines

Enforcement and Debt Recovery Act 2017 to enforce the expiation notice, give an expiation reminder notice, in the prescribed form, to the alleged offender.

An expiation reminder notice—

must specify the amount of the expiation fee and to whom the expiation fee is payable; and

must be accompanied by—

a notice in the prescribed form by which the alleged offender may elect to be prosecuted for the offence or any of the offences to which the notice relates; and

if the notice is issued to the owner of a motor vehicle involved in the alleged offence and the expiation reminder notice is required to be accompanied by a notice relating to the owner sending the issuing authority a nomination, statutory declaration or other document—a form suitable for use as the nomination, statutory declaration or other document (as the case may require).

Note—

Certain other Acts and regulations (eg the Local

Government Act 1934 section 789D and the Road

Traffic Act 1961 section 174A) require that the expiation reminder notice sent to the registered owner of a motor vehicle must be accompanied by a notice relating to the question of whether the owner was the driver at the time of the alleged offence.

If a reminder notice is given to an alleged offender, the prescribed reminder notice fee will be added to the unpaid expiation fee and, for the purposes of this Act and the Fines

Enforcement and Debt Recovery Act 2017, forms part of that fee.

If the issuing authority has received a nomination, statutory declaration or other document sent to the authority by the alleged offender in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice, the issuing authority must, before taking action under this Act or the Fines

Enforcement and Debt Recovery Act 2017 to enforce the expiation notice, give an expiation enforcement warning notice, in the prescribed form, to the alleged offender.

The expiation enforcement warning notice—

must contain a statement that the nomination, statutory declaration or other document is not accepted by the authority as a defence to the alleged offence or offences; and

must specify the amount of the expiation fee and to whom the expiation fee is payable; and

must be accompanied by a notice in the prescribed form by which the alleged offender may elect to be prosecuted for the offence or any of the offences to which the expiation notice relates.

If an expiation enforcement warning notice is given to an alleged offender, the prescribed warning notice fee will be added to the unpaid expiation fee and, for the purposes of this Act and the Fines

Enforcement and Debt Recovery Act 2017, forms part of that fee.

An expiation enforcement warning notice is not to be regarded as an expiation reminder notice for the purposes of any other law.

The issuing authority may accept late payment of the amount due under an expiation notice at any time before an enforcement determination is made under section 22 of the Fines

Enforcement and Debt Recovery Act 2017.

Subject to this Act, if the offence, or offences, to which an expiation notice relates are expiated in accordance with this Act, the alleged offender is not liable to prosecution for that offence or those offences or any other expiable offence arising out of the same incident.

Subject to this Act, if an expiation notice is given in respect of an offence, or offences, arising out of the use of a motor vehicle and that offence, or those offences, are expiated in accordance with this Act, no person is liable to prosecution for that offence, or those offences, or any other expiable offence arising out of the same incident except for an offence that is the subject of another expiation notice.

If—

an expiation notice relates to more than one offence; and

the alleged offender expiates one or more of those offences but not all of them, the alleged offender is liable to prosecution for any offence that is not expiated.

The expiation of an offence under this Act (or the entry into an arrangement under this Act or the Fines

Enforcement and Debt Recovery Act 2017)—

does not constitute an admission of guilt or of any civil liability; and

will not be regarded as evidence tending to establish guilt or any civil liability; and

cannot be referred to in any report furnished to a court for the purposes of determining sentence for any offence.

However, if anything seized under an Act in connection with the alleged offence would be liable to forfeiture in the event of a conviction or finding of guilt, that thing is, on expiation of the alleged offence under this Act, forfeited to the Crown.