For debts owed under the Victims of Crime Act 2001 (SA), see Where does the money come from?.

Part 8 of the Fines Enforcement and Debt Recovery Act 2017 (SA) enables the Chief Recovery Officer of the Fines Enforcement and Recovery Unit (the Unit) to recover a civil debt and a civil judgment sum on behalf of a public authority. An example of this is when a person owes a civil debt to the Department for Education for unpaid school materials and services charges. The Department can authorise the Unit to recover the debt on the Department's behalf.

The Unit can only exercise their powers of recovery when they are specifically requested to do so by the public authority, and only in respect of debts that are $100 000 or less.

A public authority is defined as:

See Fines Enforcement and Debt Recovery Act 2017 (SA) s 48.

Examples of public authorities include state government departments and agencies, such as the Department for Education, the Department for Child Protection, or Housing SA.

Recovery of civil debt

Where a public authority has provided to a debtor a written request for payment of an alleged debt, and has allowed the debtor a reasonable opportunity to pay the debt, the public authority may provide the Unit with notification of the debt if it remains unpaid [see s 49(2)]. This notification transfers the debt recovery process from the public authority to the Unit. There is no definition in the Act of what constitutes a reasonable opportunity.

It is not compulsory for a public authority to transfer their debt recovery processes to the Unit - it is an opt-in service.

Civil Debt Determinations

Once the Chief Recovery Officer of the Unit receives notification of the debt, they can make a civil debt determination that the debt is owed by the debtor to the public authority [s 49(3)]. A letter is sent to the debtor advising them of their options in paying the debt and the consequence if they fail to make payment.

The Chief Recovery Officer may also, by notice in writing to the public authority and the debtor, vary, revoke or suspend a civil debt determination [s 49(5)].

What options does a debtor have after receiving a civil debt determination?

After receipt of the written civil debt determination, a debtor can:

A debtor who fails to undertake any of the above options will be taken to have admitted liability for the debt [see s 51(2)], and the Unit can exercise their enforcement powers as contained in Part 8, Division 5 of the Act.

Voluntary payment arrangements

A debtor can make a voluntary arrangement with the Unit to pay the debt in installments, or to enable the taking of a charge over land, or to surrender property to the Unit [s 57(1)]. There is a fee payable to enter into such an arrangement with the Unit [s 57(1)].

A voluntary arrangement can be varied by agreement between the debtor and the Unit [s 57(5)(a)].

If a debtor fails to comply with a voluntary arrangement for a period of 28 days or more, the arrangement terminates, and the Unit may take enforcement action to recover the debt [ss 51(2)(b) and s 57(9)].

Disputing a Civil Debt Determination

Within 28 days of receipt of a written civil debt determination, a debtor can apply for a revocation or variation of the determination by application to the Magistrates Court [s 50(1)]. This application is an originating application heard by the Minor Civil Action jurisdiction of the Magistrates Court, unless the amount owed by the debtor exceeds $12 000 [s 50(5),Uniform Civil Rules r 294.1(4)].

There is no fee payable for making an application for review of a civil debt determination [s 50(6)].

Upon application the Court can affirm, vary or revoke the civil debt determination [50(3)]. If the Court affirms or varies the civil debt determination, the Unit can then exercise their enforcement powers to recover the debt as per Part 8, Division 5 of the Act.

Enforcement Action

A debtor who, within 28 days of receipt of a civil debt notification, fails to either:

may find themselves subject to enforcement action by the Unit [s 51(1)(a)]. Similarly, where the Magistrates Court has confirmed or varied the civil debt determination, the Unit can exercise their enforcement powers [see s 51(1)(b)].

Where a debtor has entered into a payment plan to pay the debt, but the arrangement is then terminated, the debtor is taken to have admitted liability for the debt and the Unit can exercise their enforcement powers to recover the debt [see s 51(2)(b)].

The enforcement powers of the Unit, as contained in Part 8 Division 5 of the Act, include:

Where a debtor has been issued a written enforcement notice requiring them to pay the debt by installments (where they have the means to do so) under section 61(1) and the debtor fails to pay those installments, the court may, on application by the Unit, issue a summons requiring the debtor to appear for examination before the court for examination.At this hearing the debtor will be asked to explain why they have not complied with the notice. If there is no valid reason for not complying with the notice, and where instalments are payable, the debtor is at least 2 instalments in arrears and they have the means to pay the instalments in arrears without suffering hardship or their dependants suffering hardship, then the court may order that the debtor pay a monetary penalty in addition to their debt [s 66A].

Enforcement Notices

Prior to exercising any enforcement power, the Unit must provide the debtor with a written enforcement notice advising them of the enforcement action that will be undertaken as well as their review rights in relation to the notice [see ss 51(3) and 51(4)].

A debtor who has received the enforcement notice may, within 30 days of receipt of the notice, apply to the Unit for an internal review of the notice [s 52]. The Unit may confirm, vary, or revoke the enforcement notice [s 52(4)].

Review of decision to take enforcement action

A debtor aggrieved by a decision of the Unit on internal review may apply to the Magistrates Court for a review of that decision [s 53(1)]. An application to the Court must be made within 28 days of the decision being made (or 28 days following receipt of the written reasons for the decision, if a request for reasons was made) [s 53(4)].

There is no fee payable for lodging an application pursuant to section 53 of the Act [s 53(7)].

The Court may confirm or reverse the decision of the Unit and make any consequential or ancillary order that it considers necessary or expedient [s 53(6a)]. This Court cannot be further appealed by the debtor [s 53(6b)].

Costs

Any costs incurred by the Unit in exercising their powers and functions under Part 8 of the Act may be added to and form part of the debtor's debt [s 66B].

Recovery of civil judgment sum

A public authority that is a judgment creditor under the Enforcement of Judgments Act 1991 (SA) may apply to the Chief Recovery Officer for them to assume the role of the authority for the purposes of recovering the debt and, if necessary, take proceedings under that Act for enforcement of the judgment [Fines Enforcement and Debt Recovery Act 2017 (SA) s 48B].