Western Australian Numbered Acts Western Australian Numbered Acts After Part 7
Division 6A insert:
This Division applies
to a warrant issued under Part 3 or 4.
(1) A warrant issued
in respect of a debtor entitles the Sheriff, in accordance with this Division,
to issue a garnishee order in respect of the debtor and the amount owed under
the warrant and any enforcement fees.
(2) A garnishee order
is —
(a) an
order (a garnishee order on earnings ) issued under section 95O that a
person who pays, or is likely to pay, earnings to a debtor pay an amount or
amounts of those earnings to the Sheriff; or
(b) an
order (a bank account garnishee order ) issued under section 95V that a
bank with which a debtor has 1 or more accounts pay an amount or amounts to
the Sheriff from those accounts.
(3) A reference in
this Division to a garnishee order is to the order as amended from time to
time.
(4) The Sheriff must
ensure that only 1 garnishee order is in force under an enforcement warrant at
any time.
95N. Duration, amendment and cancellation of
garnishee order
(1) A garnishee
order —
(a)
comes into force on the day that is 7 days after —
(i)
for a garnishee order on earnings — the day on
which a copy of it is served on the relevant payer to whom it is issued under
section 95O(4); or
(ii)
for a bank account garnishee order — the day
on which a copy of it is served on the bank to which it is issued under
section 95V(5);
and
(b) is
in force until whichever of the following occurs first —
(i)
it is cancelled under subsection (2) or (4);
(ii)
for a garnishee order on earnings — the
relevant payer gives the Sheriff a notice under section 95Q(4);
(iii)
for a single payment garnishee order — the
bank gives the Sheriff a return under section 95W(1)(c);
(iv)
for a bank account garnishee order — the bank
gives the Sheriff a notice under section 95X(2).
(2) A garnishee order
is cancelled when the warrant under which it is issued ceases to be in force.
(3) A debtor in
relation to whom a garnishee order is in force may apply to the Sheriff in the
approved form for the amendment or cancellation of the order.
(4) The Sheriff may,
if the Sheriff thinks fit, amend or cancel a garnishee order on an application
under subsection (3) or on the Sheriff’s own initiative.
(5) If a garnishee
order is amended or cancelled, notice of the amendment or cancellation must be
served on —
(a) the
debtor; and
(b) the
relevant payer or bank to whom the order was issued.
Subdivision 2 — Garnishee orders on earnings
95O. Issue of garnishee order on earnings
(1) The Sheriff may,
under a warrant issued in respect of a debtor, issue a garnishee order on
earnings to a person (the relevant payer ) if the Sheriff is satisfied that
the relevant payer pays, or is likely to pay, earnings to the debtor on the
relevant payer’s own behalf and not as an employee or agent of another
person.
(2) A garnishee order
on earnings must —
(a) be
in the approved form; and
(b)
state —
(i)
the amount owed under the warrant and any enforcement
fees; and
(ii)
the amount of the debtor’s earnings for each week
that is to be deducted from the debtor’s earnings and paid to the
Sheriff; and
(iii)
when deductions under the order must be made; and
(iv)
when and how amounts deducted under the order must be
paid to the Sheriff; and
(v)
when and how returns under section 95P(2)(c) must be
given to the Sheriff;
and
(c)
explain how the amount deducted from the debtor’s earnings for a pay
period is to be determined under section 95P.
(3) A garnishee order
on earnings must not include any information about —
(a) if
it is issued under an enforcement warrant issued under Part 3 in relation
to an infringement notice — the alleged offence for which the
infringement notice was issued; or
(b) if
it is issued under an enforcement warrant issued under Part 4 in relation
to a fine — the offence for which the fine was imposed.
(4) A copy of a
garnishee order on earnings must be served on the debtor and the relevant
payer.
95P. Compliance with garnishee order on earnings
(1) This section
applies if —
(a) a
garnishee order on earnings issued to a relevant payer is in force in relation
to a debtor; and
(b)
earnings are payable by the relevant payer to the debtor for a period (the pay
period ).
(2) The relevant payer
must —
(a)
deduct from the earnings payable to the debtor for the pay period an amount
determined under subsection (3); and
(b) pay
that amount to the Sheriff in accordance with the order; and
(c) give
the Sheriff a return in the approved form in accordance with the order.
Penalty for this subsection: a fine of
$2 000.
(3) For the purposes
of subsection (2)(a), the amount to be deducted is the lowest of the
following —
(a) the
amount determined by multiplying the weekly amount specified in the garnishee
order under section 95O(2)(b)(ii) by the number of weeks in the pay
period;
(b) the
amount, if any, that would reduce the debtor’s earnings for the pay
period to the protected earnings amount;
(c) the
amount that would result in the total amount deducted under the order for all
pay periods being equal to the total amount stated in the order under
section 95O(2)(b)(i).
(4) If the
debtor’s earnings for the pay period are equal to or less than the
protected earnings amount, the relevant payer must not deduct any amount from
the earnings under subsection (2).
(5) If the pay period
is not a number of whole weeks, the number of weeks in the pay period for the
purposes of subsection (3)(a) is to be determined by dividing the number
of days in the pay period by 7 (rounded to 2 decimal places).
(6) A reference in
this section to a debtor’s earnings for a pay period is a reference to
the amount remaining after deducting any amount the relevant payer is required
to withhold or deduct from the earnings under —
(a) the
Taxation Administration Act 1953 (Commonwealth) or another law of the
Commonwealth; or
(b) a
written law (other than the Civil Judgments Enforcement Act 2004
Part 4 Division 4).
95Q. Notices and returns to be given in relation
to garnishee orders on earnings
(1) This section
applies if a garnishee order on earnings issued to a relevant payer is in
force in relation to a debtor.
(2) If the relevant
payer pays earnings to the debtor for a pay period, the relevant payer must,
no later than 7 days after the earnings are paid, ensure that the debtor
is notified of —
(a) the
amount deducted under the garnishee order; or
(b) if
no deduction was made — that no deduction was made under the
garnishee order.
Penalty for this subsection: a fine of
$2 000.
(3) If, in a
particular month, the relevant payer does not deduct any amount from the
debtor’s earnings under the garnishee order, the relevant payer must
give the Sheriff a return in the approved form within 7 days after the
end of the month.
Penalty for this subsection: a fine of
$2 000.
(4) If the debtor
ceases to be a person to whom the relevant payer pays, or is likely to pay,
earnings, the relevant payer must give the Sheriff notice of the cessation in
the approved form within 14 days after the cessation.
Penalty for this subsection: a fine of
$2 000.
95R. Discharge of liability to pay debtor
If a relevant payer
deducts an amount from a debtor’s earnings in compliance with
section 95P, the relevant payer’s liability to pay the amount to
the debtor, or any person other than the Sheriff, is discharged.
95S. Records to be kept by relevant payers
(1) A relevant payer
to whom a garnishee order on earnings has been issued in relation to a debtor
must keep records of —
(a) the
debtor’s earnings payable by the relevant payer while the garnishee
order is in force; and
(b)
amounts deducted from the debtor’s earnings and paid to the Sheriff
under this Subdivision; and
(c)
returns and notices given in accordance with this Subdivision.
Penalty for this subsection: a fine of
$2 000.
(2) Records kept under
subsection (1) must be retained for 2 years after the garnishee
order on earnings ceases to be in force.
Penalty for this subsection: a fine of
$2 000.
(1) If a garnishee
order on earnings is issued to an employer of the debtor, the employer must
not, on the ground of the issue of the order, treat the debtor less favourably
than it would treat an employee whose earnings are not the subject of a
garnishee order in the same circumstances or in circumstances that are not
materially different.
Penalty for this subsection: a fine of
$5 000.
(2)
Subsection (3) applies if —
(a) an
employer is charged with an offence under subsection (1) that is alleged
to have been committed within 6 months after the employer was served with
the garnishee order on earnings concerned; and
(b) all
of the elements of the offence are proved except the grounds for the
employer’s treatment of the debtor.
(3) The onus of
proving that the grounds for the employer’s treatment of the debtor were
not the issue of the garnishee order is on the employer.
95U. Regulations for this Subdivision
(1) The regulations
may prescribe a method for determining the protected earnings amount for a pay
period for the purposes of section 95P.
(2) Different methods
may be prescribed for different classes of debtors.
(3) The regulations
may include provision for determining, in cases where a relevant payer pays
earnings to a debtor otherwise than for a particular period, the period for
which those earnings are taken to be paid for the purposes of this
Subdivision.
Subdivision 3 — Garnishee orders on bank accounts
95V. Issue of bank account garnishee order
(1) The Sheriff may,
under a warrant issued in respect of a debtor, issue a bank account garnishee
order to a bank if the Sheriff is satisfied that the debtor has an account
with the bank.
(2) A bank account
garnishee order may be —
(a) an
order (a single payment garnishee order ) that a single payment be made to the
Sheriff from money that is or may be held for the debtor in an account with
the bank; or
(b) an
order (a multiple payments garnishee order ) that multiple payments be made to
the Sheriff from money that is or may be held for the debtor in an account
with the bank at times, or in circumstances, specified in the order.
(3) A bank account
garnishee order must —
(a) be
in the approved form; and
(b)
state —
(i)
the amount owed under the warrant and any enforcement
fees; and
(ii)
the amount or amounts required to be deducted and paid
under the order; and
(iii)
when deductions under the order must be made; and
(iv)
when and how amounts deducted under the order must be
paid to the Sheriff; and
(v)
when and how returns under section 95W(1)(c) or
(2)(c) must be given to the Sheriff;
and
(c)
explain how an amount deducted under the order is to be determined under
section 95W.
(4) A bank account
garnishee order must not include any information about —
(a) if
it is issued under an enforcement warrant issued under Part 3 in relation
to an infringement notice — the alleged offence for which the
infringement notice was issued; or
(b) if
it is issued under an enforcement warrant issued under Part 4 in relation
to a fine — the offence for which the fine was imposed.
(5) A copy of a bank
account garnishee order must be served on the debtor and the bank.
95W. Compliance with bank account garnishee order
(1) If a single
payment garnishee order issued to a bank is in force in relation to a debtor,
the bank must, as soon as practicable after the order comes into
force —
(a)
deduct the amount determined under subsection (3) from the account or
accounts the debtor has with the bank; and
(b) pay
that amount to the Sheriff in accordance with the order; and
(c) give
the Sheriff a return in the approved form in accordance with the order.
Penalty for this subsection: a fine of
$2 000.
(2) If a multiple
payments garnishee order issued to a bank is in force in relation to a debtor,
the bank must, whenever required to make a payment under the
order —
(a)
deduct the amount determined under subsection (3) from the account or
accounts the debtor has with the bank; and
(b) pay
that amount to the Sheriff in accordance with the order; and
(c) give
the Sheriff a return in the approved form in accordance with the order.
Penalty for this subsection: a fine of
$2 000.
(3) For the purposes
of subsections (1)(a) and (2)(a), the amount to be deducted is the lowest
of the following —
(a) the
amount specified in the order as the amount for the relevant deduction;
(b) the
amount, if any, that would reduce the total amount held for the debtor in
accounts with the bank at the time of the deduction to the protected bank
account amount;
(c) the
amount that would result in the total amount deducted under the order
(including any previous deductions) being equal to the total amount stated in
the order under section 95V(3)(b)(i).
(4) If, when a
deduction is required to be made under a bank account garnishee order, the
total amount held for the debtor in accounts with the bank is equal to or less
than the protected bank account amount, the bank must not deduct any amount
under subsection (1) or (2), but is still required to give the Sheriff a
return under subsection (1)(c) or (2)(c), as the case requires.
(5) If money is held
for the debtor in more than 1 account with the bank, the bank may decide the
account or accounts from which to make the deduction under subsection (1)
or (2).
(6) The bank must not
make a deduction under subsection (1) or (2) that would result in any of
the debtor’s accounts becoming overdrawn.
(7) A deduction under
this section is to be made after deducting any amount the bank is required to
deduct from the account under —
(a) the
Taxation Administration Act 1953 (Commonwealth) or another law of the
Commonwealth; or
(b) a
written law (other than the Civil Judgments Enforcement Act 2004
Part 4 Division 5).
95X. Notices to be given by banks
(1) If a bank deducts
an amount from a debtor’s account under a bank account garnishee order,
the bank must ensure that the debtor is notified of the amount deducted under
the garnishee order within 7 days after the deduction is made.
Penalty for this subsection: a fine of
$2 000.
(2) If a debtor closes
all of the debtor’s accounts with a bank while a bank account garnishee
order issued to the bank is in force in relation to the debtor, the bank must
give the Sheriff notice in the approved form within 7 days after the end
of the month in which the debtor closes the account.
Penalty for this subsection: a fine of
$2 000.
95Y. Records to be kept by banks
(1) A bank to which a
bank account garnishee order has been issued in relation to a debtor must keep
records of —
(a)
amounts deducted from the debtor’s accounts and paid to the Sheriff
under this Subdivision; and
(b)
returns and notices given in accordance with this Subdivision.
Penalty for this subsection: a fine of
$10 000.
(2) Records kept under
subsection (1) must be retained for 2 years after the bank account
garnishee order ceases to be in force.
Penalty for this subsection: a fine of
$10 000.
95Z. Administration fee for deduction under bank
account garnishee order
If a bank charges a
debtor an amount for the administrative cost of making a deduction under a
bank account garnishee order, the amount of the charge must not exceed the
amount prescribed by the regulations.
Penalty: a fine of $10 000.
95ZA. Requirements for debtor if bank account
garnishee order issued
(1) This section
applies if a bank account garnishee order has been issued to a bank in
relation to a debtor.
(2) The debtor must
not, with the intention of preventing the execution of the order, do any of
the following —
(a) make
a withdrawal or transfer of money from any of the debtor’s accounts with
the bank that results in a deduction not being able to be made under the
order;
(b)
prevent any earnings or other amount from being paid into any of the
debtor’s accounts with the bank;
(c)
close any of the debtor’s accounts with the bank.
Penalty for this subsection: a fine of
$2 000.
(3) The debtor must
notify the Sheriff if —
(a) the
debtor closes all of the debtor’s accounts with the bank; or
(b) a
person who makes regular deposits of earnings or other amounts into any of the
debtor’s accounts with the bank discontinues those deposits.
Penalty for this subsection: a fine of
$2 000.
95ZB. Regulations for this Subdivision
(1) The regulations
may prescribe a protected bank account amount, or a method for determining a
protected bank account amount, for the purposes of section 95W.
(2) Different
protected bank account amounts or methods may be prescribed for different
classes of debtors.
Subdivision 4 — General provisions
95ZC. Sheriff may refund money deducted under
garnishee order
(1) A debtor may apply
to the Sheriff, in accordance with the regulations, for a refund of any
money —
(a)
deducted from the debtor’s earnings under a garnishee order on earnings
and paid to the Sheriff; or
(b)
deducted from the debtor’s accounts with a bank under a bank account
garnishee order and paid to the Sheriff.
(2) On an application
under subsection (1), the Sheriff may, if the Sheriff thinks fit, refund
the amount or part of it to the debtor.
95ZD. Obtaining information relevant to garnishee
order
(1) The powers in this
section can only be exercised by the Sheriff after receiving a warrant and for
the purpose of determining whether to exercise a function under this Division.
(2) The Sheriff may,
in writing, request any person who the Sheriff suspects pays, or may pay,
earnings to the debtor to disclose to the Sheriff specified information about
the following —
(a)
whether the person pays, or is likely to pay, earnings to the debtor;
(b) the
debtor’s earnings;
(c) any
other information the Sheriff considers is or may be relevant to determining
whether to exercise a function under this Division.
(3) The Sheriff may,
in writing, request any bank that the Sheriff suspects holds or may hold money
for the debtor in an account to disclose to the Sheriff specified information
about any of the following —
(a) the
debtor’s accounts (if any) with the bank;
(b) the
balance of those accounts and any payments into those accounts;
(c) any
other information the Sheriff considers is or may be relevant to determining
whether to exercise a function under this Division.
(4) A person commits
an offence if the person does not comply with a request made under
subsection (2) or (3).
Penalty for this subsection: a fine of
$2 000.
(5) A person commits
an offence if the person discloses information to the Sheriff in response to a
request under subsection (2) or (3) that the person knows is false or
misleading in a material particular.
Penalty for this subsection: a fine of
$2 000.
95ZE. Relevant payer or bank must not disclose
information
(1) This section
applies to a person who is or has been —
(a) a
relevant payer or bank to whom a garnishee order has been issued in relation
to a debtor; or
(b) a
person employed by, or performing services for, a relevant payer or bank
referred to in paragraph (a).
(2) The person must
not, directly or indirectly, collect, use or disclose information about a
debtor obtained because of the issue of the garnishee order, or in performing
the person’s duties under this Division, except —
(a) for
the purpose of, or in connection with, performing the duties of the relevant
payer or bank under this Division; or
(b) if
it is necessary to do so in carrying on the business affairs of the relevant
payer or bank.
Penalty for this subsection: a fine of
$10 000.