Monetary Penalties Enforcement Bill

20 Aug

Ms BURNET (Clark) - I rise to speak on the Monetary Penalties Enforcement Amendment Bill 2026. Firstly, I'd like to thank those people who provided submissions, for those people who might've provided submissions that looked in detail at this bill and highlighted some of those problems we have before us today. I'd like to recognise the UTAS academics, who Mr Bayley has also acknowledged, and their guidance on how we might approach some of these changes. It's never really ideal that a government would amend its own bill, because it makes everybody's job in this House more difficult and it takes up a lot of time and resources for the Office of Parliamentary Counsel (OPC), the department and stakeholders. In this case, though, I acknowledge the AttorneyGeneral, staff, the department and the director of monetary penalties for genuinely collaborating with members of the crossbench on how you've gone about this process. I think it's further proof that this government is learning how to get the best out of a minority parliament, by listening to the crossbench, and by letting that listening actually improve the legislation.

I will be supporting this bill, but I believe the bill is a missed opportunity to fix the way this government enforces fines against its own citizens, and I'll explain why. I don't dispute the government's need to recover money from debtors who have the means to pay and simply choose not to. The director has told us in briefing after briefing that tens of millions of dollars sit unpaid, with individual debts running into the tens of thousands, sometimes the hundreds of thousands. No-one in this place disputes that that debt should be pursued. My concern is for a different group entirely: the people who do not have the means to pay. When we have an overzealous Police minister tripling fines through legislation in this House, or driving them up further through private members bills, we risk building a justice system that punishes not offending, but poverty.

Let me walk through exactly how that happens. This could happen to any of us, really. It certainly can happen to people I know who have found themselves in this situation. Imagine you're stopped by police for driving without a licence, or driving an unregistered, uninsured car. Perhaps your car isn't registered because you cannot afford to register it, so the magistrate will fine you $1000. You cannot pay it, and remember, this government's mandatory minimum fines cannot be scaled to income. A fixed fine is a far heavier burden for a person with little, and barely felt by a person with plenty. That's precisely why mandatory minimums are so unfair. If you live in a regional area, as most Tasmanians do, you need that car to get to work. It happens in the city as well. You need that job to pay the bills and feed your family, so if you can't earn, the fine goes unpaid, and it grows. Under the Monetary Penalties Enforcement Act, the director can already take money straight from your wages. Under this bill, the director will be able to take it straight from your bank account too. The director can also suspend your licence, and we've already heard from Dr Broad and Mr Bayley, but last financial year alone, in 202425, the director issued 13,709 drivers licence suspensions and 2620 vehicle registration suspensions. That registration figure has almost tripled in a single year and risen almost 1000 per cent in four years. If you drive on a suspended licence and you're arrested, hauled before a court, then you're hit with a bigger fine. Drive an unregistered vehicle and the same thing happens again. So many people find themselves in this situation and a magistrate can send them to prison for that. The director can apply to the court for exactly that order, imprisonment, for the crime of being unable to pay. While you're in prison you can't work, you may lose your job and your family sinks further into that poverty cycle that put you there in the first place. It costs the taxpayer around $500 a day to keep you in prison.

I recognise that this scenario doesn't happen as much as it could. I recognise imprisonment for fine default is rare in Tasmania. I recognise also the current legislation gives the director considerable discretion, and that this director appears genuinely sympathetic to people who cannot pay. Now, that's welcome, but attitudes change, directors change, governments change. This government has no secret of wanting to find more revenue to help close its budget deficit. That is exactly why legislative guardrails matter, to protect the vulnerable, because discretion is not a substitute for a fair system; it is a hope that the system stays fair. We should not be legislating on hope, and I'll come back to that point in relation to one particular clause in the bill. I think it is also appropriate to acknowledge that, not only does the director have considerable discretion under this act, there is also no power, basically, for a court to review the merit of the director's decision. That decision that can have farreaching consequences for a person and for their family. This is something that needs to be changed and it's particularly relevant when the government is looking to automate some of the decisionmaking processes.

A 2018 Australian Law Reform Commission inquiry put it plainly: fine default schemes fall disproportionately on the most vulnerable, particularly Indigenous women, and do nothing but deepen poverty and disadvantage while failing even on their own terms, neither deterring default nor recovering revenue. In short, this punishes poverty and achieves nothing else. The Australian Law Reform Commission's answer was not to abandon fines, but to look beyond them. This is a great opportunity to do that; to look to innovative approaches that let a debtor pay in ways that actually benefit them and their community, instead of a punitive model that fails on almost every measure of justice. That's why stakeholders across the legal and community sectors, people who work with the disadvantaged every day, organisations like TasCOSS and the Community Legal Centres Tasmania, keep urging this government to rethink how it uses fines as punishment.

One concrete reform was set out in detail in the submission from the Community Legal Centres Tasmania, and I want to read it onto the record and then put questions to you, AttorneyGeneral. I quote:

The Act currently provides that offenders must pay their monetary penalty or if impecunious are referred to Community Corrections to be assessed for a Monetary Penalty Community Service Order (MPCSO). Whilst we support the inclusion of a MPCSO as an alternative to payment of monetary penalties, we believe that treatment orders should also be made available to disadvantaged debtors as a means of finalising the debt. In New South Wales and Victoria for example, debtors ordered to undertake a Work and Development Order (NSW) or Work and Development Permit (Vic) can attend drug and alcohol programs, educational, vocational, or life skills courses, receive medical or mental health treatment or attend counselling as an alternative to payment of monetary penalties.

Although the Community Corrections website notes that 'debtors may complete some of their hours by attending approved rehabilitative and educational courses or programs', none of these programs are available if a debtor has the financial means to pay the monetary penalty in full or in instalments with the Department of Justice, noting that even, 'If a person's only source of income is welfare benefits, then payments of $25 a fortnight are usually approved'. The lack of alternative options for the disadvantaged is highlighted in the Department of Justice's Annual Report which reported that over the last three years, seven offenders in Tasmania (0.001) finalised their debts through undertaking community service whilst 358,946 debts were finalised in other ways, mostly by repayment of the monetary penalty.

The paucity of alternative options in Tasmanian [sic] can be contrasted with Victoria and New South Wales where eligibility for a Work and Development Order (NSW) or a Work and Development Permit (Vic) is based solely on a debtor having a monetary penalty and being disadvantaged due to having a mental or intellectual disability, disorder or illness; a drug or alcohol addiction; experiencing homelessness; acute financial hardship; or being a victim-survivor of family violence.

We strongly recommend the adoption of the Victorian and NSW models which provide for a much wider range of alternative options for repayment of monetary penalties and where the focus is on addressing the underlying cause/s of the offending rather than the offender's ability to pay.

That's the end of that quote from Community Legal Centres.

Seven offenders out of 358,953 finalised debts. That is the scale of the failure. I raised this at the bill briefings and raised it again at budget Estimates. I asked why so few Tasmanians are able to work off their fines through community service and what the department intends to do about it. The honest answer, it seems, is very little. So, I ask you, AttorneyGeneral, directly: will you commit to a review of this part of the act? Will you examine what legislative or administrative barriers are stopping more people from expiating their fines through community service, which benefits us all, and whether more therapeutic pathways, the kind Victoria and New South Wales already offer, could support rehabilitation, rather than simply punishing poverty?

Let me turn to what is in the bill, rather than what has been left out of it. When this bill was first circulated for public comment, there was no mention in the explanatory materials that it purported to give the government the power to use automated decisionmaking. For those who don't know what automated decisionmaking is, I can tell you in one word: Robodebt. It is allowing a machine to make a decision that is normally made by a human. This is a significant step for a government to take and, while other governments have taken it and, in some instances, it has ended very badly, as far as I can tell, this is the first time this government has sought such a power. This bill and the power it seeks to give the director of monetary penalties to outsource his decisionmaking to a computer largely went unnoticed, except for Carers Tas, who picked it up in their submission. When I read their submission, I immediately wrote to academics at the University of Tasmania Law School. They too were surprised and concerned by what the government was proposing, because there were clear safeguards that have been developed for use of this sort of technology in Australia, particularly when it is first being used by the government.

First, there is the national framework for the assurance of AI in government, which was released in 2024 as a joint state and federal government approach to AI, something the state signed up to. The framework incorporates eight AI ethical principles: human, societal and environmental wellbeing; human-centred values; fairness; privacy protection and security; reliability and safety; transparency and explainability; contestability; and accountability. These have sub-principles. I will refer to some of them which will help explain some of the government's amendments, subsection 1.2:

Governments should identify and consult with stakeholders, including subject matter and legal experts, and impacted groups and their representatives.

6.3 Provide clear explanations

Governments should provide clear, simple explanations for how an AI system reaches an outcome. This includes:

• inputs and variables which have influenced the reliability of the system

• the results of testing including technical and human validation

• the implementation of human oversight

It goes on to talk about contestability, and 7.1 is:

Understand legal obligations

Governments will ensure their use of AI in administrative decisionmaking complies with law, policy and guidelines that regulate such processes.

This includes principles of legality, fairness, rationality and transparency -

Communicating those is very important, as is accountability. I raise these because when this bill was first tabled, virtually none of those safeguards or protections were in there. It took a sixpage letter from a group of UTAS Law School academics to identify the safeguards that were lacking. I seek leave to table that submission.

The SPEAKER- The practice is that you circulate it beforehand so that all members are aware of it so that leave can be granted, but the honourable Attorney-General has agreed, so I take it that other members are okay. The question is that leave be granted.

Leave granted.

Ms BURNET - Thank you, and my apologies. I'll certainly make this available. Attorney-General, did your department obtain advice from the Solicitor-General prior to preparing section 110 in the original bill? If not, why not? Also, recommendation 3 of your government's policy on AI requires the Department of Justice, who developed this bill, to develop an agency-specific policy and guidance that is aligned with government and industry standards and frameworks. What policy and guidance has the department developed to inform the use of AI within the department, and will you table that? What we have before us today with the amendments is a huge improvement. It brings in some safeguards. There are more that could be considered, but I appreciate the Attorney-General and his staff for listening to the feedback and taking that on board.

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Ms BURNET - Chair, I thank the Attorney-General for that amendment. It is clearly a response to stakeholders and the concerns that have been raised. It has those guardrails. I have a question which is a little complicated: under section 84 (2)(a), the director has the power to redirect earnings from the debtor. The section imposing the guardrails for the exercise of the power to redirect earnings is section 86(2). The amendment to clause 11, the fourth amendment, introduces another guardrail when the director is considering a redirection of a debt, which is whether the enforcement debtor has had a reasonable opportunity to apply for a variation of payment conditions under section 27, which is welcome. If we go back to the power to redirect earnings, which comes from section 84 (2)(a) and the guardrails which govern that power that are set out in section 86(2), where is the requirement in the act for the director to consider whether the enforcement debtor has had a reasonable opportunity to apply for a variation of payment conditions under section 27? In simpler terms: shouldn't the guardrails for the exercise of power in section 84(2) be the same, irrespective of whether it is a redirection of earnings or a redirection of a debt, and isn't that what clause 11 is trying to achieve?

Mr BARNETT - As the member has indicated, it's quite a complex matter. My advice is with respect to the fourth amendment and subsection (d) which says:

whether the enforcement debtor has had a reasonable opportunity to apply for a variation of payment conditions under section 27.

This is explicitly for bank redirections. It doesn't relate directly to salary redirections, which are normally dealt with through garnishee or other arrangements. As I indicated in my summary, these are providing additional matters the director is to consider when deciding whether to issue a redirection of money owing order under section 84(2)(b) or not. I think it's providing an additional safeguard, but my advice is it's explicit to bank redirections.

Amendment agreed to.

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Mr BARNETT - As the member has indicated, it's quite a complex matter. My advice is with respect to the fourth amendment and subsection (d) which says:

whether the enforcement debtor has had a reasonable opportunity to apply for a variation of payment conditions under section 27.

Amendment agreed to.

Clause 11 as amended agreed to.

CHAIR - A ruling regarding the minister's amendments to the Monetary Penalties Enforcement Amendment Bill 2026. The minister's new clauses A and B to follow clause 14 seek to replace the existing clause 15. While the practice of the Committee of the Whole House is for a new clause to be moved at the point of consideration at which the new clause is to be inserted in the bill, on this occasion, the proposed new clause seeks to replace the existing clause 15. Accordingly, the committee must first agree to remove clause 15 before the minister can move a new clause in its stead.

Clauses 12 to 14 agreed to.

Clause 15 -

Section 110 substituted

Mr BARNETT - To assist the honourable members, clause 15, section 110, the amendment here is to vote against the clause which inserts new section 110 in relation to the information system that facilitates the operation of MPES, including automated decisionmaking. This is because the later amendment proposes to insert a replacement section 110 with a substantially narrower scope and enhanced safeguards that will promote people's access to quick decisions on payment plans, while ensuring their access to human review of any decision. I think the honourable Chair summarised that a few moments ago. Thank you.

Amendment negatived.

New clause A, new clause B, section 110

Mr BARNETT - New clause A, section 110. After the bill was introduced to parliament, feedback was received in relation to section 110 of the bill, which authorised automatic decisionmaking. Particularly, I want to acknowledge the member for Clark, Helen Burnet, for the questions she raised about the proposed ADM framework, and members of the University of Tasmania's faculty of law for their detailed and constructive feedback on this provision. That feedback has been carefully considered and has informed the amendments proposed to section 110. Proposed House amendments significantly narrow the scope of ADMs and strengthen safeguards in the bill. The bill previously allowed ADMs for any decision approved by the director. The amendments limit ADM to decisions under section 27 of the MPES act, which relate to applications to the director for variation of payment conditions. Allowing ADMs for decisions under section 27 of the act would support more efficient and accessible payment arrangements. It is envisaged that it would enable enforcement debtors to apply to set up or vary payment plans online, 24 hours a day, seven days a week. This provides a more flexible and convenient way for debtors to engage with the monetary penalties enforcement system and manage their obligations. Similar arrangements that allow applicants to automatically set up payment plans operate successfully in other jurisdictions.

The amendments provide that prior to using an information system, the director must determine the criteria, parameters, requirements, and safeguards relating to the information system, including the ongoing testing and validation of the information system. An information system may only generate a decision automatically in accordance with those determinations and within the act. This means the director must first approve the criteria and parameters that apply to a class of decisions. The system can then generate decisions only within those preapproved criteria and parameters. The information system does not exercise judgment or discretion; decisions are generated automatically in accordance with the judgment or discretion that the director has first exercised personally.

The amendments also add important safeguards, including: providing that the director may, either on application of the person subject to the automated decision, or on the director's own initiative, review, confirm, or substitute an automaticallygenerated decision; providing that a decision made to confirm or substitute an automaticallygenerated decision is to take effect on a day specified by the director or otherwise on the day the decision was automatically generated; providing that additional decisionmaking criteria, parameters,requirements, and safeguards relating to the information system to be prescribed by regulation, the regulations would take precedence over an inconsistent determination by the director under subsection (2), as the director's determinations cannot be inconsistent with the act, which includes regulations.

The amendments increase transparency of the use of ADM by requiring that a person who is subject to an automaticallygenerated decision be provided information that ADM was used, the basis on which the decision was generated automatically, and their right to apply for a review of the decision; providing that the director is to publish information explaining the operation of ADM on a departmental website. These amendments ensure that automatic decisionmaking is confined to a limited administrative function intended to support more accessible and efficient payment arrangements while providing transparency, accountability and oversight.

New clause A to follow clause 14.

A - section 110 inserted.

Section 110 of the principal act is repealed and the following section is substituted:

110. Director may approve and use information system

(1) The Director may approve and use a system (an information system) for any or more of the following purposes:

(a)enabling or facilitating electronic communication between the Director and an issuing authority;

(b)enabling or facilitating electronic communication between the Director and an enforcement debtor or other person;

(c)enabling an enforcement debtor or other person to access, manage or update the enforcement debtor's or person's account information, including to make payments or enter into payment arrangements;

(d)generating decisions of the Director under section 27 of this Act automatically and facilitating the storing and processing of any such decisions.

(2) Before an information system is used for a purpose referred to in (1), the Director must determine in writing the criteria, parameters, requirements and safeguards applying to the use of the information system, including:

(a) generating a decision automatically;

(b)security and access controls;

(c)record keeping, traceability, and audit requirements;

(d)notification requirements in relation to decisions or communications generated automatically by the information system; and

(e)ongoing testing and validation of the information system.

(3) A determination of the Director under (2) must not be inconsistent with the provisions of this Act. For the purposes of (1)(d), an information system may generate a decision automatically only in accordance with this Act and by applying the criteria, parameters, requirements and safeguards determined by the Director under (2).

(5)A decision generated automatically by an information system in accordance with this section is taken to be a decision made by the Director.

(6)If a decision is generated automatically by an information system in accordance with this section, the person in respect of whom the decision is made must be provided with the following information in relation to the decision

(a)that the decision was generated automatically by the information system;

(b) information explaining the basis on which the decision was generated automatically by the information system; and

(7)On the Director's own initiative or on an application made in an approved manner by a person referred to in (6), the Director may review a decision generated automatically by an information system under this section and may confirm or substitute the decision if the Director considers that it is correct or preferable to do so.

(8)If the Director makes a decision under (7), the Director is to notify the person in respect of whom the decision was made in an approved manner of that decision.

(9)A decision made by the Director under (7) takes effect on the day specified by the Director or, if no day is specified, on the day on which the decision generated automatically by the information system took effect.

(10)Without limiting (1), an information system may be operated so as to enable access and functionality on a continuous basis, including outside ordinary business hours and on any day of the year.

(11)The Director is to publish on the website maintained by the department information explaining the operation of automated decisionmaking undertaken by an information system used in accordance with this section.

(12)The regulation may prescribe additional decisionmaking criteria, parameters, requirements and safeguards that apply to the use of an information system under this section.

Ms BURNET - There's a lot to get through in that one, so I just want to talk to the new clause A, section 110. These amendments the department has prepared to section 110 significantly improve the bill and largely implement all the guardrails required by the national framework. However, I would've liked to have seen subsection (2) require the director to have to prescribe the parameters, requirements and safeguards for use of information systems to undertake automatic decisionmaking, which would have been the gold standard, noting that with automatic decisionmaking, transparency is key, which is something I put in my speech earlier. The fact that all the director needs to do is send an email or create a written record somewhere of the criteria, parameters and safeguards for the system does not really ensure it's publicly accessible.

Subsection (12), Attorney-General, shows the director to prescribe these things, but doesn't require the director to do so, which is less than ideal. Now, while I recognise that subsection (11) requires the director to publish on a website maintained by the department information explaining the operation of automated decision-making, it doesn't require the director to do so before they implement such a system. Nor does it require them to publish things like the criteria, parameters and safeguards it will be using. So, I just put those concerns on the record for the AttorneyGeneral to address.

I also have a question about the wording in subsection (12). Attorney-General, can you please explain why the word 'additional' appears in this subsection? It suggests that the matters the director will determine under section 110(2) are equivalent to those prescribed under 110(12) when in fact they are not legislative instruments and are not publicly available.

Is it correct there is no obligation for the director to prescribe the criteria, safeguards, parameters and requirements for automated decision-making? How does this comply with the principles of the national AI framework, which your government has adopted? So, it's less complicated than the last question. I'm just asking questions; I'm not suggesting to move any amendments to this already amended bill.

Mr BARNETT - To the honourable member, and to members in this place, thank you very much for your questions and diligence in terms of these matters, and for and on behalf of some of the relevant stakeholders. I can understand where your question is coming from. I just wanted to indicate that the department and the director have considered some of these matters. Obviously, it's designed in such a way to provide some discretion to the director, and in terms of promulgating further regulations, providing some discretion in terms of that decisionmaking criteria. You've made reference to subclause (2) as well, so let me just address that.

Clause 110(12), in terms of the word 'additional', why does that appear? It suggests the matters the director will determine under subsection 110(2) are equivalent to those prescribed under 110(12). The word reflects that the regulations can be additional to the matters the director must determine under section 110(2). The regulations would take precedence over any inconsistent determinations by the director under subsection (2), as the director determinations cannot be inconsistent with the act, which includes the regulations. In other words, the director determinations are not regulations, but both can cover similar matters, so the regulations do take precedence. I thought I'd put that on the record to assist the honourable member.

New clause A agreed to.

Helen Burnet