Thursday, 7 April 2022

Bills

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

Second reading

Debate resumed.

Motion agreed to.

Read second time.

Committed.

Committee

Clause 1 agreed to.

Clause 2 (14:05)

The DEPUTY PRESIDENT: Dr Ratnam, I invite you to move your amendments 1 and 2, which are a test for your amendment 3.

Dr RATNAM: I move:

1. Clause 2, after line 32 insert—

“(1A) Sections 27A and 27B come into operation on 1 July 2022.”.

2. Clause 2, line 33, after “Part 2” insert “(other than sections 27A and 27B)”.

These amendments implement recommendation 15 of the Victorian Fines Reform Advisory Board’s 2020 report that:

… consideration should be given to the introduction of a concessional penalty rate for infringement fine recipients in financial hardship.

They create a new division in part 2 of the Fines Reform Act 2014 to give the director of Fines Victoria the power to reduce an infringement penalty, infringement fine or registered infringement fine by an amount of up to 80 per cent on receipt of an application by the fine recipient. To be eligible a person must be receiving a commonwealth government payment or allowance at the time of incurring the fine or where the person’s hardship is established as equivalent to that of a person in receipt of a benefit.

The aim is to capture groups such as single parents, aged pensioners, students and those on Newstart that are struggling financially. However, to provide flexibility and ensure the scheme provides fairness for a wide range of people and their economic and social circumstances, the specific amounts by which a penalty may be discounted as well as the full eligibility criteria will be set by the Attorney-General in published guidelines.

Here we have faith that the Attorney-General will be able to create guidelines that:

… strike the right balance, ensuring we hold people to account for breaking the rules and endangering our roads, but without placing undue burdens on disadvantaged members of our community …

These words I quote are from the Liberal Party Attorney-General when the New South Wales fines reduction scheme commenced in July 2020, because regarding road safety infringements we are not proposing removing the deterrent aspect of a financial penalty or cumulative demerit points or automatic licence suspension; we are simply saying that for an aged pensioner, for example, losing half rather than their entire weekly income is clearly a fairer and more proportionate financial penalty in most cases.

To summarise, we all know that receiving a fine is almost unavoidable at some stage of a person’s life. I think the Ombudsman said that they are up there with death and taxes. So we have a duty to ensure that we do not have a fines system that disproportionately penalises the most vulnerable via a flat rate that imposes a high penalty rate as a proportion of income, particularly when a person’s income level equates to at best a living wage. So this is about fairness, but it is also a concept whose time has come.

I acknowledge the work of the Attorney in trialling concessional fines in relation to the pandemic legislation and understand there are complexities to manage in implementing concessional fines reform across the system. However, the Victorian government has very few levers to ease cost-of-living pressures in the short term, and introducing a concessional fine rate is one of the few timely measures we can do something about, providing targeted cost-of-living relief to thousands of Victorians on fixed living allowances who are disproportionately burdened by penalty fines. For this reason I urge multipartisan support of these amendments today to provide some financial relief to thousands of the most vulnerable Victorians.

Mr BOURMAN: As with the pandemic legislation, I will state that I believe justice is blind and that we have courts to deal with this, rather than putting it in legislation, so I will not be supporting these amendments.

Ms PATTEN: I will support Dr Ratnam’s amendments. I think possibly we have a lot more work to do on fines reform and really ensuring we have got that equity under the law. I acknowledge that those are the objectives of these amendments, so I am happy to support them at this stage. I look forward to this Parliament or the next Parliament really furthering this, and I understand that the government is also doing some work on ensuring that fines are equitable.

Ms BURNETT-WAKE: I just rise to say that the Liberal-Nationals do not support the Greens amendments. We believe in equality before the law; we do not believe that this provides that.

Ms SYMES: I would love to be in a position to say, ‘Yes, let’s do this’, because I have got a lot of sympathy for this. I think the arguments are well put. As an Attorney-General who has only been in the role 16 months it is not a piece of work that I have been able to complete. It is something that I want to look at. I will put on the record: there is no government policy to implement it, but it is something that I am very keen to explore, because I think we can do better. In fact I think I am on the record of supporting fairer payment arrangements for fines, and I think that was demonstrated by the concessional fines trial in relation to the COVID-19 fines, which is about to commence. That will be a valuable exercise for us to be able to learn about how this would work and how we could expand to more flexible arrangements for vulnerable Victorians. I think from an economic perspective as well you actually might get more money in. I think that the discussion is worth having.

But this system is incredibly complex. We have 120 enforcement agencies; 60 of them are local councils. There are just so many things that we would need to look at before we would go there this early. The Fines Reform Advisory Board said that there were complex operational barriers to implementing a concessional fines scheme. It would have significant resourcing impacts for the state and for local governments, which we just really need to understand before we take any steps in this regard. I know that some Scandinavian countries do it. I have not had an opportunity to delve deeply into their arrangements, but as I said, I think there is merit, but it is just not this year and not at this time.

This is a fairly confined bill that picks out some of the easier things to implement that will make our fines system fairer and easier. It was requested, I guess, from Fines Victoria to make the system that they are working in a little bit more simple. So I acknowledge that this is a very small bill. It does not achieve grand-scale reform that I think some people would like me to at least explore, and so in that regard I do welcome the conversation with the Greens. It is a conversation that we had in light of the pandemic legislation. I am happy to put on the record that I said at that time to the Greens party that I am happy to work with them at a future time to explore whether this is something that our government might want to start looking at and bringing in reforms for down the track. Ensuring that you have deterrents as well as not crippling people unnecessarily—I think you can potentially get that balance, and I am really interested to see how we go with our COVID-19 fines and the concessional scheme that we have introduced there. I do thank you for bringing the amendments. I just think there is so much that we still need to think about.

For further context, the discount amount, which fines they could apply to, any impact on community safety, what the appropriate eligibility is and at what stage discounts could apply—at the start of the process or the end of the process—there are just so many questions. If there was more of me, I might have an opportunity to contribute more to see if this could be advanced, but at this point in time we have not advanced it. It is just something that I am attracted to as a policy as the Attorney-General that I should give due consideration to at some time.

Committee divided on amendments:

Amendments negatived.

Clause agreed to; clauses 3 to 37 agreed to.

New clause (14:21)

Mr BARTON: I move:

1. Insert the following New Clause to follow clause 37—

‘37A Director may decide that enforcement of infringement offence under this Act is not appropriate

(1) In section 20(1A) of the Fines Reform Act 2014—

(a) in paragraph (b), for “available.” substitute “available;”;

(b) after paragraph (b) insert—

“(c) if a tollway operator has withdrawn a request made to an enforcement agency to serve an infringement notice because the tollway operator considers it appropriate to do so having considered the circumstances of the person.”.

(2) In section 20(2)(a) of the Fines Reform Act 2014, for “a seven-day” substitute “subject to subsection (2A), a seven-day”.

(3) After section 20(2) of the Fines Reform Act 2014 insert—

“(2A) Subsection (2)(a) does not apply to a seven-day notice that has been served in respect of a registered infringement fine if the infringement offence in respect of which the infringement notice was issued is—

(a) an offence against section 204(1) of the EastLink Project Act 2004; or

(b) an offence against section 73(1) of the Melbourne City Link Act 1995; or

(c) an offence against section 69(1) of the North East Link Act 2020; or

(d) an offence against section 32(1) of the West Gate Tunnel (Truck Bans and Traffic Management) Act 2019.”.

(4) After section 20(4) of the Fines Reform Act 2014 insert—

“(5) In this section—

tollway operator means any of the following—

(a) the Freeway Corporation within the meaning of the EastLink Project Act 2004;

(b) the relevant corporation within the meaning of the Melbourne City Link Act 1995;

(c) the relevant North East Link Tolling Corporation within the meaning of the North East Link Act 2020;

(d) the relevant West Gate Tunnel Corporation within the meaning of the West Gate Tunnel (Truck Bans and Traffic Management) Act 2019.”.’.

I am moving these amendments because there is a disproportionate amount of taxi and hire car drivers caught up in these fines. These are some of the lowest paid and most vulnerable people we have working in our society. The last couple of years has just been disastrous for them, and what they have kept doing has been to keep trying to drive, keep trying to chase that fine, keep trying to get there—and they were not able to make it. That is why I am moving these amendments.

I am moving to amend the bill so that the police are required to withdraw tolling infringements where the toll road operator request it in line with their hardship scheme. We are essentially taking the discretion away from the police and saying that if it has been put up by the TRO, then it should happen. This recognises it is not appropriate for discretion to be left with the police, because they will not be equipped with all the right information to make this decision. It will amend the stage when the withdrawal request can be effected to include the time after the infringement has been registered with Fines Victoria for enforcement, and it will amend the bill to make it possible for the withdrawal and deregistration of toll fines to occur after a seven-day notice has expired and warrants have been executed. These changes will go a long way to making the fines system fairer, and I think that is very appropriate. And it is not a big deal.

Dr CUMMING: I concur with Mr Barton and his definition of these COVID fines, especially for taxidrivers, but there have been many vulnerable in our community who have not deserved these COVID fines. All of the COVID fines, in my opinion, should be removed because there is no reason why you should have been fining people for masks, for going and breaking a curfew, for going to a church, especially not our most vulnerable in our community.

Mr BOURMAN: I just want to ask a couple of questions, regarding Mr Barton’s fines amendment, of the government. Are the fines a civil or criminal matter, the ones that are issued by CityLink?

Ms SYMES: We are referring to unpaid tolls.

Mr BOURMAN: Yes. Are unpaid tolls a civil or a criminal matter?

Ms SYMES: Criminal.

Mr BOURMAN: Are there any other matters that Victoria Police chase up for a private company that are in this sort of vein? Does anyone else, any other company, issue a fine to a person that Victoria Police does actually follow up?

Ms SYMES: Can you ask your question again, sorry?

Mr BOURMAN: I will try and be a bit briefer. Given that Transurban issue the unpaid toll notices but Victoria Police get to follow it up, is there any other private company, such as Transurban, in any other situation that is in a position to have Victoria Police chase its unpaid tolls?

Ms SYMES: I will double-check.

Mr Bourman, not to my knowledge or that of the adviser. I did take up the interjection in relation to private public transport providers, but those fines are actually still Department of Transport (DOT) fines, not Transurban fines, so it is a similar kind of thing there, but that would not be a private company fine that is chased up. This would be purely in relation to the toll companies, I am pretty sure.

Mr BOURMAN: I thank the minister. Minister, would it not be more appropriate to have the sheriffs follow this up than the police?

Ms SYMES: Well, that is not really a matter for this bill. There are no amendments proposing to change that. But we would say that there is a different function for sheriffs versus police.

Mr BOURMAN: Thank you, Minister. I understand that. I guess what I am saying is I do support Mr Barton’s amendments and it actually just is a little bit strange that you have got a private company issuing fines for the government effectively—or chasing tolls. It seems to be a very intertwined thing, but I think that Mr Barton’s amendments—and take this as a comment, I guess, and you can respond if you like—are trying to unwind a little bit of it so that if Transurban in this case, or whoever, decide that there are enough grounds it should be up to them if it is their tolls they are trying to follow up.

Ms SYMES: It might be useful in responding to Mr Bourman’s comments to give some general response to Mr Barton’s amendments. In terms of your earlier remarks, Mr Bourman, in relation to sheriffs and police, sheriffs are not an enforcement agency and the relationship with Victoria Police is established under contracts with tolling operators, and therefore that supports my comments in relation to the fact that those issues are related but not covered by the bill.

In relation to Mr Barton’s amendments, they are effectively wanting to say that when a toll operator identifies a genuine case for withdrawal of a fine then that should stick and Victoria Police should be held to that decision. That is certainly the intention of our legislation. What Mr Barton’s amendment will do is remove all discretion from Victoria Police. It is something that Victoria Police do not think will happen a lot, but to have their full discretion removed is a concern that they have. Victoria Police would generally withdraw an infringement based on a request by a tolling agency, but the discretion that Victoria Police would like to be maintained is in light of community interest and public interests. Victoria Police certainly do support the policy intent of removing tolling infringement fines from the enforcement system, particularly in cases of genuine hardship where people cannot pay their fines.

We agree with the intent, but we want to ensure that as many fines as possible are withdrawn where the operator makes that decision, because that is certainly appropriate. But if Victoria Police do not retain oversight and accountability to determine if there is a community safety risk, there might be some cases where it is not appropriate to withdraw. I think they will be few and far between, but this amendment completely removes the discretion to pick up matters where police would have a broader ability to see other matters that an individual might be caught up in; there might be investigations that someone is caught up in, and so it is their request to retain some discretion—not to review the hardship, that is not what their interest is. Their interest is in maintaining discretion to be able to enforce a fine if there is a broader public interest or community safety risk. They are not going to change someone’s mind and say, ‘That’s not genuine hardship’. That is not their interest. That is not what they want. They just want to make sure that in a broader sense there might be an occasion—and it is difficult for me to articulate examples because they think they will be few and far between, but removing discretion is something that this amendment will do. I do not necessarily think that it is good public policy to remove that discretion fully, however, because I do not think there is going to be any undermining of the intention to ensure that people in cases of genuine hardship can be acquitted of their fine at the will of the tolling operators. I am not sure if that answers some of the questions that you were asking. I am having a three-way conversation here.

Mr BOURMAN: I am fine, thank you.

Mr BARTON: Can I just respond to the Attorney there? It is just that with real-life experience that we know, I personally know people that have got $5000 fines. For people who work in this area, the discretion for the police to make that decision has not always been happening, and we would not have brought it here if we did not have the views of the community and of the local legal support services as well. What is happening on the ground is different to what is being said in here, we think.

Ms PATTEN: I would just like to make a comment. I see no argument to maintain that discretion, and certainly the minister was saying that instances of their using discretion not to accept the hardship application of Transurban would be few and far between. So in that case I see no reason, given that these are civil matters as well—and if the police do think that there are other matters involved with that particular person, well, go after that. But we certainly have heard that in the Legal and Social Issues Committee when we looked at some of our inquiries—and I think the spent convictions inquiry was one where this was raised a couple of times—so I cannot see any argument for maintaining discretion here when it is a civil toll and the person who is issuing the toll says, ‘I want it withdrawn’, and then the police could say, ‘No, we don’t want to withdraw it’. Anyway, on that note I support Mr Barton’s amendment.

Ms SYMES: Just for some clarification, our amendments are bringing in the mechanism for Victoria Police to withdraw. Your experience is exactly right, because there is no capacity for Victoria Police to withdraw it now once it gets to them. That is why we are introducing it. So we want this to work. What Mr Barton’s amendments do is take it one step further to make it a compulsion that in every instance Victoria Police must withdraw on the basis that the toll company—and whilst there is merit in that argument, Victoria Police’s position is that in doing this we will be limiting their prosecutorial discretion, which is something that we have not done before. So although I think that there are going to be very few cases where it is going to ever be a problem, we are removing that right from Victoria Police to—in the interests of community safety, where they think there is public interest, not on the grounds of hardship, where there are other more complex matters afoot, potentially broader criminal activity, organised crime, I am not really sure, but matters that are outside a genuine hardship case. They are not going to go and question and ask for evidence about someone’s financial position. This is more about their capacity for broader investigations where there are individuals that might have other things going on.

So this is a request of the police that I wanted to articulate to the house, which is the reason that the government will be opposing Mr Barton’s amendment. It is just for that little extra step; it is a bit too far for Victoria Police and their operational requirements. But the intention of the toll companies being able to say to Victoria Police, ‘No, no. This person can’t pay. There’s family violence, there’s all these arrangements’—of course that is the intention of our amendment. So hopefully that explains the government’s position.

Mr LIMBRICK: The Liberal Democrats will be supporting this amendment. It seems fairly simple to us that if a private company has a debt and they are telling the police that they do not recognise that debt, then it should not be collected.

Ms BURNETT-WAKE: The Liberal-Nationals will be supporting this amendment. We are not persuaded by the arguments put forward on why the police should retain the discretion. If the police want to go and prosecute other people and continue investigations, they can still do that, regardless of whether the toll is withdrawn,

Ms SYMES: Thank you, members, for your contributions on this matter. I just do want to ensure that it is on the public record that it is Victoria Police’s request that their discretion not be removed, but I do acknowledge that other people have different views. As I said, it will be for small instances. Perhaps if Victoria Police can bring us any issues that become problematic, then the chamber might wish to reconsider its position if it becomes a problem in the future.

Committee divided on new clause:

New clause agreed to.

Clauses 38 to 98 agreed to.

Clause 99 (14:42)

The DEPUTY PRESIDENT: I invite Mr Barton to move his amendment 2, which tests his amendments 3 to 5.

Mr BARTON: I move:

2. Clause 99, line 25, omit “may” and insert “must”.

Amendment agreed to; amended clause agreed to; clauses 100 to 101 agreed to.

Clause 102 (14:44)

Mr BARTON: I move:

3. Clause 102, line 26, omit “may” and insert “must”.

Amendment agreed to; amended clause agreed to; clauses 103 to 104 agreed to.

Clause 105 (14:45)

Mr BARTON: I move:

4. Clause 105, line 31, omit “may” and insert “must”.

Amendment agreed to; amended clause agreed to; clauses 106 to 108 agreed to.

Clause 109 (14:46)

Mr BARTON: I move:

5. Clause 109, page 64, line 6, omit “may” and insert “must”.

Amendment agreed to; amended clause agreed to; clauses 110 to 113 agreed to.

Reported to house with amendments.

Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (14:47): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (14:47): I move:

That the bill be now read a third time.

Motion agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the same with amendments.