Tuesday, 5 April 2022

Justice Legislation Amendment (Fines Reform and Other Matters) Bill 2022

Second reading

Debate resumed on motion of Ms SYMES:

That the bill be now read a second time.

Ms BURNETT-WAKE (Eastern Victoria) (16:25): I rise to speak on the Justice Legislation Amendment (Fines Reform and Other Matters) Bill 2022. This is the second justice bill we have discussed in as many weeks, which can only be a good thing given the state of our justice system. As we learned through the recent inquiry into Victoria’s criminal justice system, the system is multifaceted. While fines were not directly discussed, I know from experience, from volunteering at a community legal centre, that they make up a large proportion of criminal work in cases before the courts, so it is very important that we see bills like this to try and get the system working as it should.

This bill seeks to implement numerous recommendations of the Fines Reform Advisory Board, which was established in 2019 after a scathing Ombudsman report into Fines Victoria and fines reform in this state. Fines reform was initiated by the previous Liberal-Nationals government when it secured passage of the Fines Reform Act 2014. The Labor government then delayed that bill coming into operation until 2018, and Victorians have been the ones who have felt the impact of those delays.

The fines system was described as ‘a monumental disaster’ by my predecessor, the Honourable Edward O’Donohue, and I think that sums it up perfectly. We have seen hundreds of Victorians have their licences wrongfully suspended, and we have seen Fines Victoria send enforcement letters to people who have passed away, despite having received a death certificate. Victorians have had their jobs impacted because of how fines reform was handled by the Andrews Labor government. There was a taxidriver who went without wages for a month while his licence was suspended, only for Fines Victoria to later backflip and accept he did not commit the traffic offence he was fined for. There were fines sent to households despite the agency being repeatedly asked to not send them there due to family violence risks. Given one of the main reasons for the fines reform was to make things easier for vulnerable Victorians, it is appalling that the system got itself into such a debacle and that it ended up making it worse for vulnerable Victorians. These were just some of the more than 600 complaints made to the Ombudsman about Fines Victoria. The system is broken and it has failed Victorians, so this bill is not something the opposition will be opposing.

This bill inserts a number of objectives into the Fines Reform Act 2014, which was a recommendation from the Fines Reform Advisory Board. It also makes amendments to the Infringements Act 2006 to reflect those recommendations. This bill will change the time-served provisions for prisoners. As it currently stands, the ability for prisoners to convert fines to time served differs depending on whether the fines are court issued or infringement fines. This new provision will harmonise the rules so that those applying to infringement fines will apply to all fines. It should clear up any confusion about what fines can count as time served and make things less complicated for all involved in our criminal justice system. This should also reduce the disastrous backlog we see in the Magistrates Court, as it will enable more fines to be resolved administratively through the time-served scheme. The time-served scheme is important as it allows people who have exited prison the opportunity to resolve their fines and move forward post release without their fines holding them back or putting them at risk of future arrest if they get to final stages.

The bill requires the Attorney-General to prepare and produce an annual report regarding infringements and the exercise of the internal review oversight function by the director of Fines Victoria. The report will be published on the Department of Justice and Community Safety website. This has come about because Fines Victoria do not have any capacity to undertake merits reviews of fines. It is essentially an administrative collection agency, because the power to review fines sits with the organisation that issues them, whether it be a local council, Victoria Police or a tolling company. The director of Fines Victoria overseas these internal reviews and will provide an annual report, which is a good thing, because this system is clearly flawed and requires adequate oversight.

Just last sitting week I spoke on the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022 and raised my concerns about the severe backlog in our courts at the moment. We have the worst criminal case backlog in the country in the Magistrates Court, which is where the majority of the smaller fines matters are heard. In that backlogged list would be people waiting for their day in court to contest fines wrongly issued or to explain their reasonings. If we can get the fines system working as it should, with only appropriate fines being issued and proper review mechanisms in place, it should go some way to reducing these cases in the future.

The bill also responds to a finding by the Ombudsman that some local councils were outsourcing their internal reviews to third-party agencies. I would have thought that the best place for a fine to be reviewed was the very agency that issued it, not some third party. This bill legislates that reviews cannot be outsourced.

Thousands of Victorians were hit with hefty fines during COVID-19 lockdowns regardless of their situation. The Andrews Labor government took a one-size-fits-all approach to handing out extraordinary fines, and only about 6 per cent of the 11 362 COVID-related fines issued last year were paid. I am told figures were not much better in 2020. The public health rules were in place to stop the spread of the virus, but was the size of these fines really proportionate? I ask that question.

The ABC recently told the story of a 25-year-old mother who was fined for leaving home without a valid reason during the 2020 lockdown. English was this woman’s second language, so she struggled to keep up with the ever-changing restrictions and rules. She suffered from family violence, had a history of depression, had missed mental health appointments and was struggling with her children, who were restless after being cooped up for months on end. She decided to take the kids to stay with extended family, but the neighbours tipped off police and she was fined $1652. Police said she did not have a valid reason to be out. Two years later the fine still hangs over her head. This woman needed a break, but, sadly, discretion did not exist. It is cases like these that are clogging up our community legal centres and worsening the backlog in our criminal justice system. These fines are disproportionate and can be crippling for Victorians from low socio-economic backgrounds.

As I said previously, fines reform was meant to provide better options for vulnerable Victorians issued with fines. We have that purpose on the one hand, and then on the other we have the Andrews government creating disproportionate fines. The 2020–21 figures show that areas with higher rates of disadvantage accumulated the most fines. The areas of Casey, Hume and Brimbank topped the list of council areas with the most. If this government is serious about fines reform, it cannot be handing out disproportionate, excessive fines. The excessive COVID fines have only added to Victorians’ hardship and added to court backlogs.

While we are on the topic of court matters, I wish to outline some concerns that the community legal sector has expressed over these reforms. These issues were raised by my colleagues in the other place as they require some clarity, but we are yet to receive answers from the government. The first issue the sector has raised is around the withdrawal of infringement notices by toll operators. This bill will allow tolling companies such as EastLink and CityLink to request an enforcement agency withdraw an infringement notice. This means that the toll company can request Victoria Police to withdraw infringement notices in respect of unpaid tolls. It makes sense that an agency with a power to issue fines is also able to withdraw them. This comes directly from recommendation 20 of the Fines Reform Advisory Board report. The issue and solution identified by the board was to amend the Melbourne City Link Act 1995, the EastLink Project Act 2004 and other relevant acts to provide toll operators with the power to withdraw tolling infringement fines if they want to do so. But this bill leaves Victoria Police with the discretion as to whether they will withdraw a fine in accordance with a toll operator’s wishes or not. The explanatory memorandum says:

The amendment preserves the discretion of the enforcement agency to withdraw an infringement notice.

If the police did not issue the fine, why do they need discretion as to whether they will proceed with the fine? This is the question for the government, and so far they have failed to answer it. There may be good reason for that, but at the moment it is not clear. The community legal sector makes a great point: it is the toll operator’s infringement, and if they no longer want to pursue it, why do Victoria Police have discretion to proceed with it regardless? I think that is a fair question that should be answered by the government for the sake of clarity.

There are two other issues the community legal sector have raised. The first is section 22 of the Fines Reform Act 2014. This section lists circumstances in which a fine can be withdrawn. At the moment, fines cannot be withdrawn under this section if a seven-day notice of warrant has been issued. The sector has questioned why this has not been amended to allow fines to be withdrawn after the seven-day notice has been issued.

The last issue they have raised is the stage in which the withdrawal request can be effected. They believe this bill will be more effective if withdrawal requests can include the time after an infringement has been registered with Fines Victoria. The community legal sector deal with Victorians impacted by the fines system every day, and they raise some great points about how we can improve this bill.

There are a few amendments that are floating around. The Greens did put forward an amendment that was issued last Friday. However, we will not be supporting that amendment. Equality before the law is a fundamental aspect of our legal system. Their amendment, to reduce fines by 80 per cent for people on a government payment or allowance, does not reflect the principle of equality before the law. The Transport Matters Party have also flagged some amendments. We believe that these are reasonable amendments, and we will be supporting them.

Overall, this bill implements five recommendations from the Fines Reform Advisory Board. There are still a number of recommendations to be considered by the government, and we would like to see them implemented as soon as possible to address the mishaps of Victoria’s fines system. Looking forward to the next few sitting weeks, we will soon be discussing the Road Safety Legislation Amendment Bill 2022. This bill will add to the list of serious offences that Victoria Police may use to trigger immediate licence suspensions and disqualification. It also seeks to allow for new camera technology to receive evidentiary status. Before we look at introducing new fines and offences, we need to get the fines system right. That is the only way we can stop adding to court backlogs. Victorians deserve a proper system. I encourage the government to get on with implementing the rest of the recommendations.

Mr ERDOGAN (Southern Metropolitan) (16:38): I rise to speak in support of the Justice Legislation Amendment (Fines Reform and Other Matters) Bill 2022. Fines play an important role in our justice system, as they punish harmful behaviour to protect community safety and provide an incentive for the community to comply with laws and regulations. The government works to ensure that the penalty for fines should not be more severe than necessary and that the fine should be proportionate to the seriousness of the offence. Our system also punishes people for doing the wrong thing without the person entering the criminal justice system.

The Fines Reform Act 2014 was introduced in 2014, and we have worked to improve the efficiency of our system but also to improve fairness. We have delivered more opportunities for people to work off their fine through the work and development permit system, expanding special circumstances and trialling new concessional fine schemes for COVID fines.

The bill demonstrates our commitment to implementing important recommendations from the Fines Reform Advisory Board, or FRAB. The Fines Reform Advisory Board was established in mid-2019 by then Attorney-General Jill Hennessy, comprising Julie Fahey and the Honourable David Harper AM, QC. These changes build on substantial existing work that has already seen a number of recommendations implemented and delivered. We know that our fines system is complex. It covers over 120 partner agencies, which requires a huge amount of work to ensure it is effective, accessible and fair. The board was tasked by the government to provide independent advice on how the fines system was working since the introduction of the Fines Reform Act, which took effect at the start of 2018.

The board made 24 recommendations, with the government supporting seven recommendations in full and six recommendations in principle and further considering the remaining 11 recommendations. Changes in this bill will add to the eight recommendations which have already been partially or fully implemented.

Creating a stronger understanding of the fines system was an important message from the review. Recommendation 1 is that:

… section 1 of the Fines Reform Act should be amended to provide a clear statement of the purposes of Fines Reform …

and this bill implements recommendation 1 of that review. This will create a stronger common understanding of the objectives of fines reform among stakeholders. The proposed changes will amend the Fines Reform Act to identify the four key objectives of fines reform: centralised collection and enforcement, stronger enforcement mechanisms, better support for the vulnerable and disadvantaged and enhanced review and oversight processes. As the fines system operates across a number of acts, including the Infringements Act 2006, the Road Safety Act 1986 and the Fines Reform Act, this inclusion will help provide a clear picture of the policy aims of our infringements system. This also addresses the challenge in the enforcement agencies of understanding the common purposes of fines in Victoria.

Improving transparency was also an important outcome of the recommendations from the board. Recommendation 5 states:

… the Infringements Act should be amended to require the publication of the Attorney-General’s Annual Reports on the Infringements System.

Transparency is improved by creating a legislative obligation for the Attorney-General to publish an annual report on the infringements system. While annual reports are currently prepared, there is no legislative requirement for the government to prepare or publish these reports. The annual report will also now include information on the director of Fines Victoria’s internal review oversight function. The inclusion of the director’s internal review oversight function goes further than the terms of the recommendation. This change will make reporting requirements more efficient and of clearer relevance to fines system stakeholders and the broader Victorian community. This is particularly relevant following recent investigations by the Victorian Ombudsman into some of the practices by local councils across our state. It is important; we saw what can happen with internal review systems and the failures at the local government level—at some municipalities, I might add. There were some very good examples as well; we need to balance that out with the full picture. But it also taught us its importance in relation to the fines framework across our state—and this bill addresses that.

Creating a fairer and more equitable fines system is important. It is recommendation 12, ‘A more accessible Time Served scheme’. That being implemented was one of the recommendations. The time-served scheme allows prisoners to have fines be expiated by serving time in prison concurrently or cumulatively with other offences. The rationale for the scheme is to support prisoners’ rehabilitation and reintegration into the community. In effect they are released with a clean slate. This recognises that many prisoners face significant disadvantage. In 2014 the Sentencing Advisory Council noted that prisoners who had debt were more likely to return to prison, 50 per cent more likely compared to those without debt, who were 30 per cent more likely to return to prison. So that is an important derivative—the financial stresses and strains and their contribution to reoffending.

In 2021 the Victorian government made the scheme more accessible by introducing an administrative process to apply for the time-served scheme—recommendation 13. These changes will ensure prisoners with unpaid court fines are treated in the same way as prisoners with unpaid infringement fines and remove the current requirement for prisoners to serve time in lieu of payment of their unpaid fine-related fees and costs. Recommendation 12 also calls for the time-served scheme to recognise time spent on remand, even when a prisoner was not sentenced to a term of imprisonment. The bill creates certainty that legislative changes made in 2021 to implement recommendation 13 apply to remandees also. It is important to provide that clarification.

Supporting people with special and exceptional circumstances is important. Recommendation 18 of that review requires additional time to obtain evidence for enforcement review applications on the grounds of special or exceptional circumstances. We know that sometimes people have special and exceptional circumstances when they are fined such that fines should be withdrawn or cancelled. A person can apply for a review with Fines Victoria if they meet certain criteria. Those eligible to apply for a special circumstances exemption include people that have a mental or intellectual disability, disorder, disease or illness including anxiety and depression; have a serious addiction to drugs, alcohol or a volatile substance, which includes marijuana or alcohol as well as drugs such as heroin, ice, speed or ecstasy; are a victim of family violence, which is world leading; or as a homeless person are affected. Changes introduced by our government in 2021 make it easier to prove special circumstances.

We are making the review mechanism for infringement notices more flexible by allowing applicants on the grounds of special exceptional circumstances to request extra time to provide supporting evidence. On original application many people may lack the supporting evidence to prove they are eligible. The proposed changes will also allow the director to give a person extra time to provide the information beyond the existing statutory limits where the director considers this justified in the circumstances. This will ensure that vulnerable and disadvantaged fine recipients will have more time to gather evidence to support the application for review under special exemption or exceptional circumstances.

Supporting the removal of tolling fines where appropriate I think is an important reform as well and one that has had great public interest, as we always hear stories about people with toll fines being referred to Victoria Police and the effect that has on the justice system, especially on the backlog in our Magistrates Court system. Recommendation 20 is for powers for all toll operators to withdraw tolling infringements. Tolling companies can request that Victoria Police serve an infringement notice on drivers or serve a notice on a person nominated by a driver. This follows non-payment of a tolling charge. Tolling companies have launched programs to improve the way they support vulnerable Victorians and those experiencing financial hardship. Legislative change allows tolling companies to withdraw tolling fines if they consider the person’s circumstances mean that a fine is not appropriate. This typically occurs after a fine has already been discovered and may occur due to a person rapidly accruing significant tolling debt. This means that when a tolling company discovers hardship after a fine has been registered with Fines Victoria, they may apply to have it withdrawn. Again this will ease the burden on the justice system and provide a more equitable outcome for those directly affected. This may include where a person is experiencing financial hardship. The proposed changes will acquit the recommendation by allowing tolling companies to request that Victoria Police withdraw the tolling fine, making our fines fairer, more efficient and robust.

It is also proposed that other important changes to enhance the operation of the fines system are made, including enforcement agencies and the courts being required to provide prescribed information when referring a fine to the director to ensure the fine can be enforced and the Ombudsman’s recent recommendation for legislative change to clarify that enforcement agencies cannot outsource their internal review function being implemented. The bill will allow credit reporting bodies to release additional information about fine recipients directly to the sheriff to enable them to make more informed decisions about enforcing fines. The bill makes changes to facilitate the electronic service of infringement-related notices if enforcement agencies choose to do this and fine recipients are aged 16 or over.

Obviously I also reflected on the Ombudsman’s recent findings in relation to local councils. In early 2020, as you know, the Victorian Ombudsman tabled a report on the use of private contractors by certain local councils. The Ombudsman recommended legislative change to clarify that municipal councils cannot engage external parties to perform the internal review of parking fines. In 2021 the Ombudsman tabled its report identifying additional councils that had incorrectly outsourced this function. The bill clarifies the requirement for internal review—that is important to provide that clarity. The bill implements the Ombudsman’s recommendation by providing expressly in the Infringements Act that an internal review must be carried out by the enforcement agency itself, which is authorised to prosecute the relevant offence or a prescribed body or person or member of the prescribed class of persons or bodies.

Ensuring fairness in fines is an important theme of this bill, as I touched upon earlier. With existing schemes and previous reforms it is important to understand how we have arrived at this point. The government has implemented and funded a range of assistance measures to support people who have experienced hardship and have outstanding fines. This includes improvements to the special circumstances test, the family violence scheme, and work and development permit and payment plans. This means that people have a number of options to resolve their fines. In 2021 the government made it easier for people to apply for special circumstance exemptions as recommended by the Fines Reform Advisory Board. This change, included in the Public Health and Wellbeing Amendment Act 2021, broadened ‘special circumstances’ so that a person who has been issued an infringement notice will only need to show that the circumstances contributed to rather than resulted in them having substantially reduced capacity to understand or control their offending. It introduces a new category of ‘special circumstances’ for people who cannot establish a causal link between their condition and their offending.

This change was called on by the community legal centres and Victoria Legal Aid and was highlighted in a number of submissions to the Fines Reform Advisory Board. Again, our government delivers. It consults with appropriate stakeholders, and it delivers on the reforms. It listens and acts—again, a good pattern of behaviour of our government, and I am proud that this bill is reflective of that consultation. Other key social justice programs to improve fairness of the fines system are functioning well. In the 2020–21 financial year the family violence scheme received 678 applications and determined 616 applications. Approximately 91 per cent of determined applications were found eligible for more than $3.5 million in infringement fines withdrawn on a family violence basis.

The work and development permit scheme received 1242 applications and finalised 1044 of those; $2.39 million worth of fines were worked off. An additional 25 accredited sponsors to support the scheme were found. The family violence scheme, as I said, is world leading and Australia leading in many regards. The scheme is unique to Australia and allows people to have their fines withdrawn if the experience of family violence has substantially contributed to them committing an offence or it is not safe for them to name the responsible person. The family violence scheme commenced on 31 December 2017. A review of the scheme found that it is innovative in its response to family violence impacts, and the fines system has reduced the disproportionate impact of fines on victim-survivors. By freeing successful applicants of unfair debt and demerit points it supports the recovery from family violence. It also avoids further entanglement in the justice system. In its first two years of operation the scheme assisted hundreds of victim-survivors in having their fines withdrawn. The review found no evidence the scheme has had unintended consequences for road safety.

Obviously there has been much publicity about the rollout of fines reform and the IT infrastructure in place. Obviously we have invested significantly in improving the capacity for delivery in this regard. Enhancements to the fines IT system have been delivered this year and will focus on greater efficiency moving forward. The next generation technology program will deliver further technology to the current fines IT system for Victoria, complementing existing technology to ensure assistance for vulnerable Victorians and more debtor-centric services. The next generation program will also support increased flexibility and responsiveness to futureproof the fines system.

As I stated earlier, fines play an important role in our justice system. They are crucial to ensuring that harmful behaviour—to protect community safety—is punished accordingly and provide an incentive for the community to comply with our laws and regulations in place, for good reason. That is why I am proud that this government, after its broad consultative approach, has brought this bill before the house. I commend it to the house. I am sure that this bill will lead to a fairer and more just fines system in our state. I commend the bill.

Dr CUMMING (Western Metropolitan) (16:53): I rise to speak on the Justice Legislation Amendment (Fines Reform and Other Matters) Bill 2022. My contribution on this will be brief. The bill implements a number of recommendations made by the independent Fines Reform Advisory Board, and I support these recommendations. However, in her second-reading speech the Attorney-General said that this government ‘is committed to ensuring Victorians have access to a fair and effective fines system’. I certainly support that, but the history of the fines system in Victoria is far from having been effective. Let us think back to 2019, to the debacle of Fines Victoria. Many Victorians did not know they owed parking fines and speeding tickets. Problems with the Fines Victoria database meant people who had not paid their fines at a court missed out on a reminder notice. Significant IT problems potentially left the state more than $300 million out of pocket. In the Magistrates and County courts alone there were 123 000 outstanding fines, while local councils were owed millions in outstanding debts. So while it is well and good to bring in these reforms, I hope that Fines Victoria is really up to the job.

Another point I would make on the consultation undertaken on this bill: the Municipal Association of Victoria and, I believe, local councils were not consulted. This is horrific for two reasons: firstly, local councils are responsible for issuing a large number of fines, and they will no longer be able to outsource the review of fines as part of this bill; secondly, this government has legislated that it is vital for local councils to undergo extensive deep-dive community engagement, yet it fails to do so itself with one of its most important stakeholders—local government.

Finally, I would just like to make mention of the current backlog of cases before our courts. We have the highest backlog in Australia, which will be made even worse by the additional changes that we will see in the upcoming transport bill. At the same time we have thousands of unpaid COVID-related fines, ranging from $200 for not wearing a mask to $4957 for an unlawful gathering. There are over 8200 fines outstanding, so I suggest that the government should withdraw all the outstanding COVID notices to help clear the backlog in our courts now.

Ms SHING (Eastern Victoria) (16:56): It is my time to shine. I move:

That debate on this matter be adjourned until later this day.

Motion agreed to and debate adjourned until later this day.