What if I am unable to pay by the due date?
If you are unable to pay an expiation fee or fees you can enter into an arrangement with the Fines Enforcement and Recovery Unit for an alternative means of payment [Fines Enforcement and Debt Recovery Act 2017 (SA) s 20]. This can be done at any time during the period for payment of the expiation fee and payment of a prescribed fee is required ($19.10 as of 30 April 2018). The fee may be waived in cases of financial hardship, or added to the amount owing for the expiation notice.
The types of alternative arrangements that can be entered into include:
- payment by direct debit instalments over a period not exceeding 12 months;
- payment by instalments over a period exceeding 12 months;
- an extension of time to pay;
- the taking of a charge over land;
- the surrender of property to the Chief Recovery Officer;
- the undertaking of community service;
- participation in a treatment program
See Fines Enforcement and Debt Recovery Act 2017 (SA) s 20.
Undertaking community service or participating in a treatment program can only be arranged in lieu of paying the expiation notice if the Chief Recovery Officer of the Fines Enforcement and Recovery Unit is satisfied that you do not have the ability to pay the amount due without you or your dependants suffering hardship [see ss 20(7) and 20(8)]. To agree to community service, the Chief Recovery Officer must also have already made an enforcement determination in relation to the expiation notice [see s 20(7)(b)]. To agree to participation in a treatment program, you must be eligible to participate and there must be services available at a suitable time and place [see s 20(8)].
If you undertake community service or complete (or substantially complete) a treatment program, the amount owing for the expiation notice must be reduced or waived in accordance with the regulations [see ss 20(13) and 20(14)].
Once you have entered into an arrangement you are considered to have expiated the offence (or offences) to which the arrangement relates, even if the arrangement is subsequently terminated [s 20(21)].
If you are an undischarged bankrupt or you have previously had enforcement action taken against you, the Chief Recovery Officer may refuse to enter into an arrangement with you or may require you to provide security or obtain a guarantee [s 20(9)].
Community service in lieu of payment
You are able to enter into an agreement to perform community service in lieu of paying an expiation notice in the following circumstances:
- an enforcement determination is made under section 22 of the Fines Enforcement and Debt Recovery Act 2017 (SA); and
- the Chief Recovery Officer is satisfied that you do not have, nor are you likely to have within a reasonable time, the means to pay the amount owed without you or your dependants suffering hardship.
Therefore, an agreement to undertake a period of community service in lieu of paying an expiation notice cannot be made at the pre-enforcement stage, as the Fines Enforcement and Recovery Unit must have made an enforcement determination for this option to be considered. Once an enforcement determination has been made, however, an agreement to perform community service can be reached with the Chief Recovery Officer and does not involve an application to court.
Community service can be also be ordered by the court when an enforcement process has failed or upon application of the Chief Recovery Officer, and where the court is satisfied that the person does not have capacity to pay an expiation notice without themselves or their dependants suffering hardship. This involves a court process and the court making a community service order, default of which is punishable by a term of imprisonment [see Fines Enforcement and Debt Recovery Act 2017 (SA) ss 46 and 47].
If you undertake a period of community service the number of hours to be performed is 7.5 hours for every $200 owing [see Fines Enforcement and Debt Recovery Regulations 2018 (SA) reg 22].
If you have entered into an arrangement to perform community service but the Chief Recovery Officer subsequently finds that you have the means to pay the amount owed without you or your family suffering serious hardship, the arrangement can be terminated [s 20(17)].
Persistent Driving While Unlicensed
The Chief Recovery Officer has specific powers if you have incurred expiation notices for driving while unlicensed.
- have been found guilty of, or expiated, on at least two occasions an offence relating to driving while unlicensed [see section 74 of the Motor Vehicles Act 1959 (SA)]; and
- the debt you owe relates, at least in part, to an offence of driving while unlicensed; and
- since committing the offence to which the debt relates:
- you have not incurred any further expiation notices for driving while unlicensed; and
- you have obtained a driver's licence,
then the Chief Recovery Officer can waive all or part of the debt you owe, or agree to enter into other arrangements with you in relation to the debt [see Fines Enforcement and Debt Recovery Act 2017 (SA) ss 20 and 21].
The Chief Recovery Officer cannot decide to waive all or part of the debt if a similar determination has been made previously [see s 21(2)].
What if I default on a payment arrangement?
If you default or fail to comply with a payment arrangement (or other arrangement with the Fines Enforcement and Recovery Unit) it will be terminated after a period of 28 days [Fines Enforcement and Debt Recovery Act 2017 (SA) s 20(15)].
Once the arrangement is terminated the Chief Recovery Officer may make an enforcement determination. They must first be provided with particulars by the issuing authority that contains all relevant details such as your name, the offence or offences to which the unpaid amount relates and the amount due [s 22(1)].
If the Chief Recovery Officer makes an enforcement determination, an amount of $99 * is added to the amount that you owe (although this amount can be waived) [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 26(1)(a); Fines Enforcement and Debt Recovery Regulations 2018 (SA) reg 19(1)].
You can apply to the Chief Recovery Officer to have the determination varied or for it to be revoked (i.e. cancelled). The fee for applying for a revocation of an enforcement determination is $24.00 *.The Chief Recovery Officer can vary an enforcement determination at any time [s 22(5)(a)] and may revoke an enforcement determination if an application to revoke is made within 30 days of the enforcement determination being given, sent or published [see s 22(5)(b)].
The grounds on which you can apply for a revocation (cancellation) of the enforcement determination are that:
- the expiation notice should not have been given to you in the first place; or
- procedural requirements were not followed; or
- you did not have a reasonable opportunity to elect to be prosecuted or to apply for review of the expiation notice; or
- you failed to receive both the notice and the expiation reminder notice; or
- the issuing authority failed to receive a notice you sent electing to be prosecuted; or
- the issuing authority failed to receive a statutory declaration or other document sent by you; or
- you have expiated (i.e. paid the amount fined for) the offence or offences.
See Fines Enforcement and Debt Recovery Act 2017 (SA) s 22(10).
However, when arguing that you did not have reasonable opportunity to either elect to be prosecuted or to apply for a review of the expiation notice, the determination will only be revoked if exceptional circumstances apply [see s 22(11)].
If the amount you owe remains unpaid 30 days after an enforcement determination was made (i.e. you have not applied to have the determination reviewed and have not otherwise dealt with the fine), a further $180 * will be added to the amount that you owe [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 26(1)(b); Fines Enforcement and Debt Recovery Regulations 2018 (SA) reg 19(2)].
*Amounts correct as of 30 April 2018.
Alternatively, you can apply to the court for a review of a decision of the Chief Recovery Officer not to revoke an enforcement determination [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 23]. Such an application must be made within 30 days of receiving the Chief Recovery Officer's decision not to revoke the enforcement determination. The court can confirm or reverse the decision of the Chief Recovery Officer. The decision of the court in such matters is not subject to further appeal [s 23(6)].
If an enforcement determination is revoked (either by decision of the Chief Recovery Officer or by order of the court) and you do not, within 14 days, either elect to be prosecuted or apply for a review of the expiation notice, a further enforcement determination can be made i.e. the process to enforce can start again [see s 23(5)].
What if I make late payment of an expiation fee?
An authority can accept the late payment of an expiation fee at any time before an enforcement determination is made. This means that if the date for payment on an expiation notice or expiation reminder notice has passed, but an enforcement determination has not yet been made, you may still be able to offer payment to avoid the enforcement fees.
See Expiation of Offences Act 1996 (SA) s 12.
By paying an expiation fee, am I admitting guilt?
The expiation of an offence does not amount to an admission of guilt or of any civil liability and cannot be used as evidence of such an admission.
See Expiation of Offences Act 1996 (SA) s 15(4).
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