Thursday, 7 April 2022

Bills

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.

Mr MELHEM (Western Metropolitan) (11:23): I rise to speak on the Justice Legislation Amendment (Fines Reform and Other Matters) Bill 2022. This bill makes some changes to the current legislation to give effect to the review which took place a while back and to make sure that we make the infringement or the fines system in Victoria a fairer system. The Fines Reform Advisory Board was established in mid-2019 by the then Attorney-General, the Honourable Jill Hennessy, comprising Julie Fahey and the Honourable David Harper AM. The board was asked by the government to provide independent advice about how we could improve the system, and as a result of their work the board made 24 recommendations, with the government supporting seven recommendations in full and six recommendations in principle and deciding to further consider the remaining 11 recommendations. So this bill gives effect to some of the recommendations produced by the board.

If I may talk about the important role the justice system plays in our society—you ask yourself, ‘Would we like to live in a world where there are no fines and there is no punishment?’. I think we would all like that, but unfortunately the downside of it would be: how you would deal with it when people broke the law and did not comply with various rules and regulations—how would you reinforce them? There is always that debate about fines being designed to be revenue raisers. It does not matter the colour of government; I hear it a fair bit when talking to people—‘They’re just revenue raisers’. I actually sort of disagree with that. I do not think that they are. We should never look at them as revenue raisers, and they should not be revenue raisers. I say to people—I have debates with some people, even close friends and family members—‘If you don’t speed, you don’t get fined’. Some of the comments I hear from people about some of the innovations with traffic camera operators—and now they have cameras at the front and the back of the car so they can catch you both ways—are interesting, and again I go back to the point that when you have a speed limit of 80 kilometres per hour, 60 kilometres per hour or 40 kilometres per hour, I think it is important that we obey these speed limits. I get it—from time to time a lot of people may breach, let us say, traffic rules, not intentionally in most cases, and may be unlucky and get fined. They accept the fine and pay the fine. The overwhelming majority of people respect our laws and obey our laws and pay the fines.

The purpose of having fines is basically to punish harmful behaviour, to protect the community’s safety and also to provide an incentive for the community to comply with laws and regulations. As I said earlier, our fines system is designed on the basis that any fine should not be more severe than is necessary and the punishment should be proportionate to the seriousness of the conduct. There is always ongoing debate about what a proportionate fine is and what conduct justifies a particular fine—whether it is too high or too low et cetera.

Also the bill looks at how we can assist vulnerable people who for one reason or another might have some problem in being able to pay a fine, so some of these reforms go a long way to making sure we have got a fair system. Some of the changes in this bill are based on the recommendations to improve the transparency of the fines system, create clarity on roles and responsibilities and, most importantly, create a more efficient and robust fines system.

Recommendation 1 states:

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

This will create a stronger common understanding of the objectives of fines reform among stakeholders. The proposed changes will amend the Fines Reform Act 2014 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.

Recommendation 5 states the Infringements Act 2006:

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

Transparency will be improved by creating a legislative obligation for the Attorney-General to publish an annual report on the infringements system. While these reports are currently prepared, there is no legislative requirement for the government to actually publish them. This bill will basically make it now mandatory that these reports are published to make sure people can actually look at the system and review what has been happening and that it is all out there for transparency’s sake.

Recommendation 12 goes to providing a more accessible time-served scheme. A time-served scheme allows prisoners’ fines, for example, to be expiated by their serving time in prison cumulatively with their other offences. The rationale for this scheme is to support prisoners’ rehabilitation and reintegration into the community. In effect, they are released with a clean slate. This recognises that some prisoners face significant disadvantage. I think this is very important. The purpose of prison is to encourage rehabilitation and reform and to encourage and work with prisoners to make sure when they have served their time and when they re-enter the community they can start a new life. Hopefully they will never go back into the system and go back to prison. So this goes a long way to helping that.

The bill will also give effect to recommendation 18, which will provide additional time to obtain evidence for an enforcement review application on the grounds of special or exceptional circumstances. We know sometimes people have some special and exceptional circumstances when they are fined, such that that their fines should be withdrawn or cancelled. I have had many people approach me in relation to similar cases, and my office has assisted these people in their special circumstances to deal with these issues. The bill will go a long way to assisting and taking into account the special circumstances of people in that category. A person can apply for a review with Fines Victoria if they meet certain criteria. Eligibility to apply for special circumstance exemptions include: first of all, people who have a mental or intellectual disability, disorder, disease or illness, including anxiety and depression; and people who have a serious addiction to drugs, alcohol or volatile substances. This includes marijuana or alcohol as well as drugs such as heroin, ice, speed or ecstasy. Also eligible is a person who is a victim of family violence and a person who is homeless.

The changes introduced by the government in 2021 made it easier to provide special circumstances. We are making the review mechanism for infringement fines more flexible by allowing applicants on the grounds of special or exceptional circumstances to request extra time to provide supporting evidence. In the original application, for example, many people may have lacked the supporting evidence to prove they were eligible. The proposed changes will allow the director to give the person extra time to provide this information beyond existing statutory limits where the director considers this is justified. This will go a long way to ensuring that vulnerable and disadvantaged people in our society, if they are fine recipients, have more time to gather evidence to support their application for review on their special or exceptional circumstances. The reason we are looking at providing assistance to people in this category is that other people are well-off and educated and have good jobs; they have the resources and the means to be able to put together a case if they want to review a particular fine which is issued to them. But unfortunately some people in our society—disadvantaged people—will not have the resources and the time to do that. This bill recognises that and makes sure we give these people a fair go so they are able to have their fines reviewed.

Recommendation 20 gives powers for toll operators to withdraw tolling infringements, and tolling companies can request that Victoria Police serve an infringement notice on a driver or serve a notice on a person nominated by a driver following non-payment of tolling charges. Tolling companies have launched programs to improve the way they support vulnerable Victorians and those experiencing financial hardship, and we know many, many Victorians unfortunately may experience difficulty from time to time. If they are going through a toll and the tag does not work or they did not have one—whatever the reason—they can be treated unfairly in some cases. A $2 fine or basically missing out on paying a toll could amount to hundreds and hundreds, and that could cause a lot of problems for a lot of people, especially people who may suffer some hardship such as financial hardship. So this will go a long way to addressing that and give assistance to people, and that is a very welcome change. I am sure that will benefit a lot of Victorians.

So in the last 2 minutes I have, I will go back to what I said earlier. This bill is designed to pick up some of the good recommendation work done by the board, and I want to congratulate former Attorney-General Hennessy and the Attorney-General in this place, Ms Symes, for the great work in listening to the concerns raised by Victorians in relation to making sure that we have a fair and balanced fines system—a balanced system making sure that people are complying with our rules and laws but at the same time not putting an unfair burden on individuals in our society, where we drive them to the wall and they are not able to comply, for example, with particular fines. So I think it is a fair and balanced bill. I am sure there will be more work to be done in that space, and the Attorney-General is working through those, as I said earlier in my contribution. So with these comments, I commend the bill to the house.

Dr RATNAM (Northern Metropolitan) (11:37): As my voice is still recovering, I will be brief in this contribution, but please do not misinterpret my brevity as an indication of the relative importance of fines reform. I am pleased to speak on this Justice Legislation Amendment (Fines Reform and Other Matters) Bill 2022. While fines and infringements are at the lower end of the seriousness scale in criminal law, having a fair, equitable and efficient fines system is appreciated by nearly all Victorians and is critical for disadvantaged Victorians. It is also clear that, despite rare political consensus on this issue, a fair, equitable and efficient system is yet to truly be achieved.

The coalition government started the recent reform process with the Fines Reform Act in 2014, which created Fines Victoria. But without apportioning blame to any side of politics, it is fair to say in the eight years since the act passed the implementation of these reforms is still a work in progress, so we need to keep working to improve the system and in particular implement the recommendations of the Fines Reform Advisory Board’s report of 2020 to the Attorney-General.

This bill does some good things, implementing some of these recommendations, so the Greens broadly support it. However, I know that stakeholders have contacted members across this place to raise concerns about some aspects of this bill. I would particularly like to thank representatives of community legal services for freely sharing their expertise and experiences with all members, because there really is no group of people who understand how fines affect the community more than these lawyers. I know Mr Barton has some amendments based on their feedback, and as my colleague in the other place Dr Tim Read indicated a couple of weeks ago, these are important amendments that the Greens will support.

The Greens, too, have amendments, which I would now like circulated.

Greens amendments circulated by Dr RATNAM pursuant to standing orders.

Dr RATNAM: These amendments implement recommendation 15 of the Fines Reform Advisory Board’s recommendation to create a low penalty rate, a concessional rate, to be applied to fines and infringements of the most financially disadvantaged Victorians. We believe that advisory board recommendation 15, delivering a concessional penalty rate, must be implemented without any further delay. Because in the prevailing economic environment, with cost-of-living pressures rising faster than they have for decades, the relative inequity of the current flat-rate sanctions on those already living in poverty and at risk of poverty on very low incomes becomes even greater. So now really is the most appropriate time to support a concessional fine rate.

In New South Wales Labor and the Greens recognised that with the cost-of-living pressures flat-rate penalties are unfair and inequitable and work counterproductively to the greater good of the community. They immediately did something about it, introducing amendments for a concessional penalty rate in the Fines Amendment Bill 2019 in the upper house, which the coalition government also agreed to support in the lower house, because a fair and equitable fines scheme is not a partisan issue and the need for cost-of-living relief is accepted universally. So the Greens are calling for all members to support this bill with our amendments today.

Mr BARTON (Eastern Metropolitan) (11:41): I rise to speak on the Justice Legislation Amendment (Fines Reform and Other Matters) Bill 2022. The bill seeks to implement a number of fines reforms from the Fines Reform Advisory Board recommendations to make the fines system fairer and more effective. While the bill is largely positive, we have concerns that the current draft does not address the toll fines withdrawal process adequately and risks it continuing to overburden people experiencing financial hardship with fines they simply cannot afford to pay, and that is why we will be moving amendments a little later.

When Melbourne toll roads were first established, criminalisation of the breach of contract between the toll road operator, the TRO, and the driver was built into the system as a cost-recovery mechanism. This means that once a fine is issued the matter is passed entirely to Victoria Police to pursue and the TRO retains no power to collect that debt. This has led to a significant administrative burden on the police, the courts and Fines Victoria. More often than not consumers do not realise they have significant fines issued until much further into the process, usually when the sheriff contacts them and well after the window for pursuing hardship considerations with the TRO. This is leaving some of the most disadvantaged drivers with disproportionate penalties. As an example, if you drove on a toll road every week for a year, you would be liable for fines in excess of $20 000.

In an attempt to address these issues TROs have recently developed nuanced hardship schemes for drivers who cannot pay and are experiencing other disadvantages to stop punishing people who can least afford it. While these measures are a valuable mechanism for consumers and go beyond the Victorian government’s fines system’s special circumstances measures, they have been hard to implement in the limited window in which the TROs can interact with drivers. I believe it is only appropriate to extend the period in which TROs have oversight of the debt fine and can implement their hardship schemes or have a fine removed. TROs are best placed to make decisions about toll fines withdrawal at every stage of the process, because the debts originated with them and because they have robust hardship schemes based on information that they cannot share with police because of privacy laws. Allowing TROs oversight in the entire process will also free up the time of the already overburdened police, the courts and Fines Victoria and have a positive impact on fines and recipients.

We will be moving some amendments. Can we circulate the amendments now?

Transport Matters Party amendments circulated by Mr BARTON pursuant to standing orders.

Mr BARTON: To achieve this I am putting forward the following amendments. The first is to amend the bill so that police are required to withdraw tolling infringements where a TRO requests it in line with their hardship schemes. This recognises it is not appropriate for discretion to be left with police, because they will not be equipped with the right information to make this decision. The second is to amend the stage when the withdrawal request can be effected to include the time after an infringement has been registered with Fines Victoria for enforcement, and the third is to amend the bill to make it possible for withdrawal or deregistration of all toll fines to occur after the seven-day notice has expired and warrants have been executed. These changes will go a long way to making the fines system fairer and more effective.

Most drivers who receive fines come from outer suburban areas, where alternative transport options are extremely poor. Many drivers have been stuck in the justice system for years because they have no means to pay the fines, and they will invariably end up in the Magistrates Court facing possible imprisonment. Simple early intervention under the TRO hardship scheme will stop these issues before they even get this far, which is good for the system and good for the people. I also want to make it clear that Transurban fully supports these amendments.

Ms TAYLOR (Southern Metropolitan) (11:45): I think it makes sense for me at this point to address some of the amendments that are being put forward—respectfully, obviously. We absolutely understand the intent behind them, but there are some nuanced and critical elements that have to be addressed; this is why we are not able to support them today. Noting that this bill introduces a process for toll operators to apply to withdraw tolling fines where it is appropriate to do so, it is an offence to drive an unregistered vehicle on a toll road, but I think that goes without saying because vehicles need to be registered for a whole raft of legitimate reasons. If a toll operator believes an offence has been committed, it can request that Victoria Police serve an infringement notice and commence court proceedings in respect of the offence as they see fit. So where tolls are unpaid the tolling legislation enables toll operators to notify Victoria Police of a request to issue an infringement notice.

Under the concession deeds which govern the responsibilities of the toll operators the state must treat toll avoidance fines no differently to other fines, with Victoria Police acting as the enforcement agency. Several measures have been taken by tolling operators to reduce the incidence of tolling fines and their impact on vulnerable people—and I know there has already been discussion here today regarding measures to mitigate impacts on vulnerable people, but I need to go further. However, in the absence of a specific statutory power permitting the withdrawal of tolling fines, additional information is required to ensure that discretion to withdraw a tolling fine is exercised properly and transparently by Victoria Police. I hope this goes to some of the issues that may have been raised by Mr Barton. As the issuing agency it is ultimately accountable for decisions to withdraw tolling fines. To remove doubt and support Victoria Police the government is introducing the process to withdraw tolling fines where appropriate.

So fundamentally—and I think this gets to the crux of the issue as to why we are unable to support the fines amendments proposed by Mr Barton—Victoria Police should always have discretion in performing its duties as the enforcement agency. While Victoria Police would generally withdraw the infringement based on a request by the tolling agency, Victoria Police should retain the option to apply discretion in the interests of the community, because there is that community safety aspect as well, which is fundamental. I think it also goes back to something that Mr Melhem was saying earlier with regard to the fact that we know the dangers with speeding and other issues as well—but in this case we are looking at tolls specifically—but fundamentally there are measures in place, with good reason, and it is reasonable to expect people to adhere to the law.

Victoria Police support the policy intent of removing tolling infringement fines from the enforcement system where the fine recipient cannot pay the fines. Victoria Police is concerned to ensure that any decision not to enforce a tolling offence is well founded. The Department of Justice and Community Safety committed to work with toll operators and Victoria Police to ensure the intent of the toll recall mechanism to support vulnerable and disadvantaged fine recipients is achieved. It is Victorian government policy not to limit the prosecutorial discretion of Victoria Police or any other enforcement agency under our fines system. While we do agree, as I said at the outset, with the intent of what is being proposed to ensure as many fines as possible are withdrawn where the tolling operator applies, it is very important that Victoria Police retain the oversight and accountability to determine if there is a community safety risk, and I think that is fair and reasonable under the circumstances. I anticipate that this will be well supported by the hardship policies of respectful tolling operators who work with those facing hardship to discount and cancel tolling fines.

The amendments are proposed also on the misconception that Victoria Police would make decisions on hardship grounds. That is not accurate. Victoria Police will rely on toll operators for hardship information, but they obviously have access to additional information on matters relating to community safety, well within the ambit of Victoria Police, which I think makes sense as well. I guess something perhaps for others in the chamber to consider is whether they do want to take away, by supporting the fines amendment, the discretionary capacity of Victoria Police. So I think that is something that those in the chamber might want to assess before proceeding—and I say this respectfully—to support Mr Barton’s amendments. So that is those amendments.

With regard to the Greens amendment on the concessional fines scheme, as noted by the Fines Reform Advisory Board, there are complex operational barriers to implementing a concession fine scheme. The implementation of any concession scheme would have significant resourcing impacts for the state and actually local government as well, which need to be carefully considered and consulted on. So the flow-on effect could be a lot more dramatic and a lot more significant than perhaps the Greens have anticipated. The proposed scheme purports to allow the director of Fines Victoria to apply a concession discount to fines issued by non-government agencies, such as municipal councils, even where those fines have not been registered with Fines Victoria for enforcement. This process is inconsistent with the independent role of these fine-issuing agencies and would impact on the revenue received by local government from these fines, which are payable to the council and not to the state. So that is a really significant nuance and I think one that should be carefully considered by the chamber.

Since the commencement of fines reform, Fines Victoria has collected $63.5 million on behalf of local councils. So again I think what might seem conceptually like a good idea could actually have pretty dramatic ramifications for local government, and hence this goes a good way to explaining why we are not supporting these particular amendments. In turn I am concerned about, and I think generally our government, I should say, are concerned about, what impact this would have on the registration of fines with Fines Victoria. Councils may stop registering their matters with Fines Victoria and instead take their matters directly to court. I think we can conceptualise what that would mean in terms of overall ramifications, because court processes in themselves are generally quite onerous. This may in turn reduce the potential flexible options for vulnerable Victorians, and fewer people may have access to—so here is the further limb to the issue and the challenge with the Greens amendments—the family violence scheme, the work and development permit scheme and payment arrangements. We are on record as supporting fairer payment arrangements for fines, so let that be clear, and that is why we introduced the concession scheme for COVID-19 fines, which is about to commence. This is a valuable reform to learn whether and how we could expand more flexible arrangements for vulnerable Victorians.

So just to reflect on and to go to some of the issues that have been discussed here, with regard to when you are looking at the various amendments that have been put forward, you can see why we are unable to support the Greens’ amendments, because of the significant ramifications, if I can round that off—I went on a little tangent there but I am coming back—and the pretty significant and dramatic impact for local government but also potentially reducing flexible options for vulnerable Victorians, which would seem to be counterproductive. I think fundamentally the intent on their part is actually to assist vulnerable Victorians, but actually it could have quite a dramatic and, can I say, counterproductive effect which would be contrary to what they are intending to achieve. Hence we cannot support their particular amendments, but we respect them being put forward to be assessed and debated by the chamber.

Coming back to the fundamental principle of why we actually need this bill in the first place—I wanted to acquit the actual amendments because out of respect it is important that everyone is clear about the government’s position and why we do or do not support particular amendments—we know that infringements do, however unpalatable they may be, and I totally understand that, serve an important role in our justice system. You might think I am stating the obvious there, but they do punish harmful behaviour to protect community safety. I think that particular element should not be wiped away when we are having this discussion, because sometimes it is easy to focus purely on the fine but forget the actual intent and rationale behind the fine itself and not only the penalty at the end. They also provide an incentive for the community to comply with laws and regulations, and we know, as with any laws, that there has to be a general acceptance and respect. They have to be applied in a way that is deemed to be equitable, and we would proffer that that certainly is the manner in which they are being applied.

Our fines system is designed on the basis that any fine should not be more severe than is necessary and that the punishment should be proportionate to the seriousness of the conduct. Fines are also important in that they punish fine recipients but without having that person enter the criminal justice system. Again I am stating the obvious, but we can see how on the scale of measures that are undertaken to ultimately support community safety there is a good purpose behind them, albeit, as I say, unpalatable should one receive a fine.

Since the introduction and commencement of the Fines Reform Act 2014 we have continuously worked to improve the fairness and efficiency of our fines system, and I hope that that particular element is not lost in the debate today, because that has certainly been a concerted effort by our government. Community lawyers have highlighted areas for improvement, as have enforcement agencies, I note. This bill implements our government’s commitment to the recommendations of the Fines Reform Advisory Board. These changes will help build on existing work, which has already seen a number of recommendations implemented, and we also know that our fines system is complex and requires constant updating to ensure it is easily accessible and also functions efficiently.

Just to round off the discussion, noting that we are almost at question time: how does the bill help to create a fairer and more equitable fines system? I hope that that element is paramount and understood in the chamber, because that is fundamentally why we are implementing the legislation. The time-served scheme allows prisoners to have fines 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, in fact, compared to those without debt. So there you go—you just realise what a dramatic impact it can have in a very significant way on people’s lives.

In 2021 the Victorian government made this scheme more accessible by introducing an administrative process to apply for the time-served scheme. Implementing recommendation 12 will improve the existing scheme to support prisoners to reintegrate into the community without fines debt. 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 called for the time-served scheme to recognise time spent on remand even where 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 as well.

So how will this bill support people with special and exceptional circumstances? We go to recommendation 18, ‘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 their fine should be withdrawn or cancelled. A person can apply for a review with Fines Victoria if they meet certain criteria. An eligible person— (Time expired)

Business interrupted pursuant to sessional orders.