Lawyers slam “unconscionable” fine evaders Bill
18/06/2013
http://indaily.com.au/news/2013/06/18/lawyers-slam-unconscionable-fine-evaders-bill/
Adelaide | A State Government Bill targeting fine evaders due to be voted on next week has been slammed as “draconian” and “unconscionable” by the South Australian Law Society.
The Bill would create a new agency to target government fine dodgers, with beefed up powers including the ability to repossess cars and homes to recover unpaid debts. Both the Law Society and the Legal Services Commission – which operates legal aid – have made submissions strongly opposing the passage of the legislation. The State Government says the powers in the Bill would only be used as an absolute last resort. The Law Society is concerned the Bill gives a public servant enormous powers with little accountability. “The extent and impact of the powers and their potential exercise is considerable … the State may in its discretion confiscate assets. It bypasses the ordinary safeguards with which a civil creditor must comply,” the submission says. “The problem of serial defaulters does not require this level of unfettered administrative power. “These provisions have the potential to cause serious injustice, and they will be implemented by an administrative body with little accountability. “The powers, discretions and processes of the Bill are wrong in principle. The removal of review and appeal rights is specifically draconian. The effect is to dispossess people without due process.” Law Society President John White told InDaily the process of taking someone’s house away had been streamlined to the point of “almost sudden death”. “We’re talking about a government official, the fines commissioner, who can just decide,” he said. “The fines commissioner may not misuse it, but it’s almost sudden death.” The Bill would create a public service position, the Fines Enforcement and Recovery Officer, empowered to seize and sell assets, including houses and cars, to recover money from people with unpaid debts to the Government. Houses can only be sold if the size of the debt exceeds $10,000. Once sold, any balance after the debt is paid is returned to the debtor. Current legislation protects the sale of a primary place of residence to pay government debts, but this protection is removed in the proposed Bill. The officer would also be empowered to cancel drivers licences and clamp vehicles to force debtors to pay up. The Bill would give people who face action from the officer the right to appeal the decision in court. But the Law Society says that’s an unaffordable option for most people, particularly debtors. “The only avenue of accountability would seem to be judicial review – an expensive and limited course, and certainly out of the reach of many fine-debtors.” Attorney-General John Rau defended the legislation, saying the power to sell property would only be used as a last resort. “Before overdue debts get to this stage, in most cases debtors will have the opportunity to enter into a time payment plan, and will receive several reminders via post, email and phone and various notices, warning them about the escalation of their overdue debt. “We are also introducing easier ways for people to pay their fines, including online and phone payment options. “For debtors who persistently and intentionally evade paying an overdue debt, the Fines Enforcement and Recovery Officer is able to clamp a car or seize property, and then sell those assets if the debtor does not pay the overdue amount. “This enforcement action would only be considered after other reminders and enforcement actions had been exhausted and, in many cases, as an action of last resort. “The creation of the Fines Enforcement and Recovery Officer would bring South Australia more in to line with states that have a more successful rate of recovery.” In the past InDaily has reported on welfare organisations’ concerns the Bill would hit society’s most vulnerable people the hardest. The Law Society makes the same point in its submission. “We do not doubt there are problem serial defaulters. “However many people who are fined are, for various reasons, less blameworthy. They include people who are poor, struggling, mentally ill, or simply unable to cope. “It plainly has the potential to work serious oppression on people who are on the margins of society and the justice system. “There must also be a real question whether the provisions of the Bill will recover money from people who cannot pay, or whether it will merely push them further into hopeless debt.” The Law Society’s submission says it is concerned about the removal of the ability for courts to waive fines for people suffering hardship. That power is now given to the fines officer. The measure is designed to make some headway on the 187,000 South Australians who between them hold about $350 million in unpaid fines. More than 85 per cent of that number have less than five unpaid fines. The Bill already passed parliament’s house, and is likely to come to a vote in the Upper House next week. Shadow Minister for Justice Stephen Wade told InDaily his party supported the Bill in principle but wanted to see the government’s response to the Law Society’s concerns. InDaily understands the Greens have serious reservations about the bill and are unlikely to support it when it comes to a vote. Dignity for Disability MLC Kelly Vincent told InDaily she had serious concerns about the Bill. “Dignity for Disability is concerned that this legislation does not take into consideration why people are serial fine defaulters. Some people may have serious mental illness, be homeless or struggling financially – how does imposing draconian measures against these people facilitate better outcomes?” Family First has in the past thrown its support behind the bill.
