Sheriff Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
561215
7/10/2008
Clause Notes
PART 1––PRELIMINARY
Clause 1sets out the main purpose of the Bill, which is to provide a legislative framework for the appointment of the sheriff, deputy sheriff and sheriff's officers and their functions, powers and duties.
Clause 2states that the Bill will come into operation on a day or days to be proclaimed. The clause provides for a provision of the Bill to come into operation on 1 January 2010, if it has not already come into operation before that date.
Clause 3defines key terms used in the Bill.
Clause 4defines who is an appropriately trained justice employee. Anappropriately trained justice employee is a person employed in the Department of Justice under Part 3 of the Public Administration Act 2004 who the sheriff considers to have the necessary competence, training or experience to exercise a delegated enforcement function or power.
Clause 5provides that the Bill will bind the Crown in all its capacities.
PART 2––THE SHERIFF AND THE DEPUTY SHERIFF AND SHERIFF'S OFFICERS
Division 1––The sheriff
Clause 6provides for the sheriff to be employed under Part 3 of the Public Administration Act 2004, and sets out the purposes of the employment.
Clause 7provides for the functions, powers and duties of the sheriff, which are those under court and enforcement legislation (as defined under clause 3) or under a warrant. The clause also provides for the sheriff to have the previous functions, powers and duties at law that the sheriff had under section 106(a) of the Supreme Court Act 1986, which are notinconsistent with the clause. The clause further provides that the sheriff may perform any other function or duty, or exercise any other power, that is authorised under any other law.
Clause 8provides that the sheriff may appoint specified persons employed in the Department of Justice under Part 3 of the Public Administration Act 2004 as deputised persons. A deputised person may only be appointed under this clause if the sheriff considers them to have the necessary competence, training or experience to perform or exercise a delegated enforcement function or power. The clause further provides that a deputised person has the functions, powers and duties imposed under an instrument of delegation, or that are authorised under any other law.
Clause 9permits the sheriff, by instrument, to delegate a function or power conferred,or duty imposed, on the sheriff under court and enforcement legislation (other than this power of delegation) or a warrant to a deputised person, a sheriff's officer or class of sheriff's officer, or an appropriately trained justice employee or class of appropriately trained justice employees. The clause contains requirements in relation to the instrument of delegation, including that it must state the name or class of the person delegated to and specify the function or power that is being delegated. The sheriff is obliged to notify in writing the person or class of person being delegated to, as soon as practicable after making a delegation.
Division 2––The deputy sheriff
Clause 10provides for the employment of a deputy sheriff under Part 3 of the Public Administration Act 2004 who can exercise an enforcement function or power of the sheriff, subject to the direction of the sheriff (other than a function or power under clause 9). The clause states that the deputy sheriff may also perform any other function or duty, or exercise any other power, the deputy sheriff is authorised to perform or exercise under any other law.
Division 3––Sheriff's officers
Clause 11provides for sheriff's officers, who are to be employed under the Public Administration Act 2004. The clause states that sheriff's officers shall assist the sheriff in the exercise of his or her functions and powers, as well as having the functions and powers conferred, and duties imposed, under an instrument of delegation.
Clause 12provides that the sheriff may appoint a sheriff's officer as a bailiff for the purposes of the Supreme Court Act 1986 or County Court Act 1958. The clause requires that the sheriff only appoint a sheriff's officer under this clause if that sheriff's officer has the necessary competence, training, or experience to be a bailiff.
PART 3––THE SHERIFF'S ENFORCEMENT FUNCTIONS AND POWERS
Division 1––Execution of warrants and other processes
Clause 13provides that the sheriff must execute and return all warrants and other processes as soon as practicable. The sheriff may only perform or exercise functions and powers that are reasonably necessary to execute the warrant or other process.
Clause 14sets out the circumstances in which the sheriff may execute a warrant that is not in paper form. These include where: (1) the warrant has been verified by electronic means; (2) specified warrant details have been provided to the person named in the warrant; (3) any seven day demands have been served; and,(4) a copy of the warrant powers summary is provided. The clause defines electronic means as a method of accessing a database on which details of warrants received by the sheriff are stored. Theclause also gives meaning to specified warrant details and warrant powers summary.
Division 2––Power to arrest
Clause 15provides that the sheriff may arrest a person named or described in a criminal warrant authorising arrest, or a person as provided for under relevant court and enforcement legislation.
Division 3––Power to restrain
Clause 16empowers the sheriff to temporarily restrain a person hindering the execution of a warrant. This power is limited on the basis that the person must be released as soon as the activity that the person was hindering is completed.
Division 4––Powers to enter and search
Clause 17provides for entry to premises for the purposes of serving a seven day demand if the sheriff reasonably believes that a person named or described in a warrant, which requires a seven day demand to be given, is at the premises.
Clause 18enables the sheriff to break and enter any premises where the person named or described in a criminal warrant authorising arrestis suspected to be, and to search for the person at that premises.
Clause 19provides that the sheriff, in the execution of a warrant that authorises the seizure of property,may enter premises for the purpose of searching for and seizing property and, after entering the premises, may search for and seize property. For the purposes of this clause, the sheriff may only enter premises occupied by the person named or described in the warrant, or premises where the sheriff reasonably suspects there is property belonging to that person.
Clause 20provides that the sheriff,in accordance with a warrant of possession, may enter premises owned by the person named or described in the warrant for the purpose of taking possession of that premises.
Clause 21provides that the sheriff may, subject to clause 22, use any reasonably necessary force and assistance to enter premises for the purposes of exercising powers under court and enforcement legislation or a warrant. Force must not be used to enter premises in order to serve a seven day demand.
Clause 22provides for the circumstances in which the sheriff may enter and use force in the execution of civil warrants, other than warrants of possession. This clause sets out particular requirements that must be adhered to when enforcing civil warrants. Entry is limited to when the sheriff believes on reasonable grounds that there is or may be personal property that is recoverable property at the premises. The sheriff must first request the consent of the owner or occupier to enter the premises. The sheriff may only use force and assistance as provided under the Division where consent is unreasonably withheld, or where the sheriff is unable to contact the owner or occupier after making reasonable attempts to do so, or where the sheriff reasonably believes the owner or occupier is avoiding being contacted by the sheriff. Force and assistance in these circumstances must only be used between 9a.m. and 5p.m., in relation to residential premises.
Division 5––Powers to seize, sell and deal with property
Clause 23provides that, subject to this Division, the sheriff may seize or take possession of recoverable property in accordance with relevant court and enforcement legislation or a warrant that authorises the seizure of property. This can occur irrespective of who has possession of the property.
Clause 24provides the sheriff, subject to this Bill, with the power to sell or deal with property seized in accordance with relevant court and enforcement legislation or a warrant that authorises seizure of property. The clause outlines the purposes for which this can occur.
Clause 25provides that a person who buys seized property sold by the sheriff under this Division acquires good title if the property is bought in good faith and without notice of any defect or want of title. The sheriff is not liable in respect of the sale of property under this Division unless it is proved that the sheriff had notice, or after making reasonable enquiries might have ascertained, that the property was not that of the person named in the warrant authorising seizure of the property.
Division 6––Powers to demand and receive payment
Clause 26sets out requirements for when the sheriff may collect enforcement order payments. The clause provides that, where the sheriff is about to execute a money warrant against a person who also has an outstanding enforcement order against them, the sheriff must inform the person that they can make a payment relating to the enforcement order, if they wish to do so. Anenforcement order in this context has the same meaning as in the Infringements Act 2006.
Clause 27provides that the sheriff, in the execution of a money warrant, may demand and receive payment of a payable amount or a part of such amount in the case of an infringement warrant or a civil warrant. The sheriff may only receive the whole of the payable amount in the case of a warrant to imprison issued under section 68(b) of the Magistrates' Court Act 1989; a warrant to seize property issued under section73 of that Act; a warrant to arrest issued under section 62 of the Sentencing Act 1991; or a warrant of delivery. It also enables payment to be received from a third party, subject to the limitations specified.
The clause outlines that the sheriff may receive payment of the payable amount or a part of the payable amount under a money warrant that is a criminal warrant from a third party, unless the person named or described in the warrant informs the sheriff that he or she does not consent to the making of the payment by the third party.
The clause provides that the sheriff must not receive payment of the payable amount or a part of the payable amount under a money warrant that is a civil warrant from a third party, unless the person named or described in the warrant informs the sheriff that he or she consents to the making of the payment by the third party. The clause states that the sheriff may inform the third party of the payable amount, but must not give any other information about a money warrant.
As soon as practicable after receiving a payment from a third party under this clause, the sheriff must serve on the person named or described in the money warrant a notice that specifies the name of the third party, the date of the payment and the amount paid relating to the warrant. The notice must also state that the person may apply to the court that issued the warrant within 28 days after service of the notice for a reinstatement of the warrant under clause 28.
Clause 28outlines that the court that issued an executed money warrant, on the application of a person named or described in the executed money warrant, reinstate that warrant as a money warrant. Aperson may make an application under this clause within 28days after being served with a notice under clause 27(9).
If the court reinstates an executed money warrant as a money warrant, the amount paid by the third party must be refunded to the third party and—
- if the amount has been paid into the Consolidated Fund, the Consolidated Fund is, to the necessary extent, appropriated accordingly; or
- if the amount has been paid into another fund or account, the amount is to be refunded from that fund or account.
For the purposes of this clause, an executed money warrant is a criminal warrant in respect of which the sheriff has received the whole of the payable amount from a third party in the absence of the person named or described in the warrant. Third party in this context has the meaning given by clause27.
An executed money warrant may only be reinstated once by a court under this clause.
Division 7––Power to request name and address
Clause 29provides the sheriff with the power to request the name and ordinary place of residence or business of a person who the sheriff believes on reasonable grounds is the person named or described in a warrant to be executed. It is an offence for a person to refuse or fail to comply with a request without a reasonable excuse, state a false name, or state an address that is not correct. The person requested by the sheriff to provide details under this clause, may ask the requestor for details of his or her name, position and place of business. Failure to provide these details or to state false particulars, is an offence with a penalty of 5 penalty units. Where the sheriff believes on reasonable grounds that the information provided in response to his or her request may be false, he or she may request evidence in relation to the name and address. The person must not, without reasonable excuse, refuse or fail to comply with such a request.
Division 8––Performance and exercise of enforcement functions and powers at police road checks
Clause 30provides that the sheriff may give directions at road checks, in accordance with the clause. This clause applies if a member of the police force exercises a power conferred by the Road Safety Act 1986 and requests or signals the driver of a motor vehicle to stop the vehicle where the sheriff is placed. The clause provides that the sheriff may give directions to the driver to enable the sheriff to determine whether the person, or any person accompanying the driver, is named or described in a warrant. Directions can include to keep the vehicle stationery, to drive to a designated spot, to produce his or her driver licence or permit document, or comply with any other reasonable direction. Theclause provides that a person must not, without reasonable excuse, refuse or fail to comply with a direction of the sheriff. Apenalty of 5 penalty units applies.
Division 9––Other enforcement powers
Clause 31provides that, for the purposes of executing a warrant or other process, the sheriff may give reasonable directions to the person named or described in the warrant or other process, or a person who is considered to be resisting or hindering the execution of the warrant or other process. A penalty of 5 penalty units can apply if a person, without reasonable excuse, refuses or fails to comply with the reasonable direction of the sheriff.
Division 10––Cost of execution of warrants
Clause 32provides that the sheriff is able to recover all reasonable costs and expensesincurred in the execution of a warrant. It will cover costs and expenses such as locksmith and removalist fees, and costs and expensed incurred when seizing property and conducting an auction. It does not include prescribed fees or charges.
Division 11––Miscellaneous matters
Clause 33outlines the sheriff's duties and requirements on receipt of money to satisfy debt or on seizing property. If the sheriff does not comply with this clause, the sheriff is liable to pay any damage incurred by a person named in a warrant in consequence of the non-compliance.
PART 4––EXECUTION OF MULTIPLE WARRANTS
Division 1––Execution of more than one warrant at the same time
Clause 34defines key terms used in this Division.
Clause 35sets out that, in the case of a multiple warrant situation, the sheriff must execute all warrants at the same time.
Clause 36outlines the conditions that apply to this clause for execution of warrants with related seven day demands. The clause applies if the sheriff has more than one warrant to execute against a person, at least two of the warrants require a seven day demand, and at least one of the seven day demands has expired. In these circumstances the sheriff can execute all warrants at the same time if the person named in the warrant consents in writing to waive his or her right to the unexpired seven day demands, in order to promptly resolve matters.
Clause 37outlines the conditions that apply if the sheriff has a property seizure warrant (warrant of seizure and sale or a warrant to seize property issued under section 111 of the Magistrates' Court Act 1989), and a warrant to imprison to execute against the same person. The clause states that the sheriff, in accordance with the relevant court and enforcement legislation, must execute the property seizure warrant before executing the warrant to imprison.
Clause 38outlines the conditions that apply in the execution of a warrant to imprison and an infringement warrant. The sheriff must execute the warrant to imprison and must only execute the infringement warrant when the person named or described in the warrants is inthe legal custody of the Chief Commissioner of Police in a police gaol, or the Secretary in a prison. The clause notesthat Division2 of Part 12 of the Infringements Act 2006 applies.