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Warrant for failure to perform community service (unpaid fines)

Where a person has not paid a fine or a costs order (‘pecuniary sum’), the Fines Enforcement and Recovery Unit may take steps to recover the amount owed.

The Chief Recovery Officer of the Fines Enforcement and Recovery Unit must issue a reminder notice to the debtor [Fines Enforcement and Debt Recovery Act 2017 (SA) s 18]. A prescribed reminder notice fee will be added to and form part of the pecuniary sum in respect of which the notice is issued.

Under section 19, if a person fails, within 14 days of the reminder notice being issued, to pay or enter into an arrangement for payment under section 15, the Chief Recovery Officer may at any time do one of the following:

  • enter into an arrangement for payment, or a further arrangement, under section 15(1)(b) [see s 19(1)(c)(i)]; or
  • exercise one or more powers under Part 7 [see s 19(1)(c)(ii)]; or
  • waive payment of the amount owed in its entirety or in part [see s 19(1)(c)(iii)]; or
  • write off the amount owed if there is no reasonable prospect of recovering the amount owed or the cost of recovery exceeds the amount to be recovered [see s 19(1)(d)].

The Chief Recovery Officer may at any time investigate a debtor’s means to pay and may give them written notice requiring them to produce relevant documents or other material [see s 29(3)]. A person who, without reasonable excuse, refuses or fails to comply is guilty of an offence [s 29(4)]. The maximum penalty for this offence is a fine of $10 000.

Powers under Part 7 of the Fines Enforcement and Debt Recovery Act 2017 (SA) include:

  • making an aggregation of the amounts owed [s 35];
  • seizure of the debtor’s assets [s 36];
  • garnishment of money owing to a debtor [s 37];
  • suspension of driver's licence [s 38];
  • placing a restriction on transacting business with Registrar of Motor Vehicles [s 39];
  • suspending the operation of section 97A of the Motor Vehicles Act 1959 (SA) (applying to interstate and foreign drivers) [s 40];
  • clamping or impounding a vehicle belonging to the debtor [s 41];
  • disposing of uncollected seized vehicles [s 42];
  • seizure of number plates of debtor's vehicle [s 43];
  • the publication of the names of debtors subject to enforcement action [s 44].

Under Part 2, Division 2, the court may, on application of the Chief Recovery Officer, make community service orders where satisfied that the debtor does not have, and is not likely to have in a reasonable time, the means to pay the debt without them or their dependants suffering hardship [s 46(1)].

Where a person fails to comply with a community service order section 47 allows that a term of imprisonment may be imposed. Under section 47(4) the court may issue a notice requiring the person to appear before the court to show cause why a warrant of commitment should not be issued against them for the default or issue a warrant for their arrest [s 47(4)]. If a person fails to appear before the court a warrant may be issued for their arrest [s 47(5)]. The term of imprisonment to be imposed is determined with reference to the hours of community service to be performed [s 47(2)].

Where the debtor is a youth, the court may make an order for home detention [s 47(6)(b)].

If the court is satisfied that the failure to perform community service was trivial or that proper grounds exist for excusing the failure, the court may refrain from issuing a warrant of commitment and may extend the period of the order (however not for more than 6 months) or impose a further order if the order has since expired. The court may also cancel the entire number of unperformed hours or a part thereof [s 47(8)].

GENERAL ADVICE
Duty solicitors will only be called upon to give persons in this category some general advice, for example as to payment arrangements or the possibility of community service (where the person has no means of meeting his financial obligations) and the Chief Recovery Officer’s investigation and enforcement powers.
Warrant for failure to perform community service (unpaid fines)  :  Last Revised: Wed May 15th 2019