2017-11-27
Ms PENNICUIK (Southern Metropolitan) — I am pleased to contribute today to the Fines Reform Amendment Bill 2017, and this bill follows from a similar bill last year and makes amendments to the Fines Reform Act 2014 which will establish a new fines recovery model for the collection and enforcement of infringement fines and court fines. Responsibility for this will vest in the director of a new administrative body to be known as Fines Victoria.
The bill also amends the Fines Reform Act 2014 to establish a scheme to assist persons who are victims of family violence who come into contact with the infringement system. The key clauses are clauses 5 and 7, which aim to implement recommendations 102 and 103 of the Royal Commission into Family Violence. There are two aspects to this family violence scheme. The first allows victim survivors to have fines withdrawn or revoked where they incurred the fines as a result of their own offending that was, under the bill, substantially contributed to by their own experience of family violence. This reform to the Fines Reform Act is in conjunction with victims still being able to apply for fines to be revoked or withdrawn under the special circumstances list in the Infringements Act 2006, which was an amendment to that act made last year and in fact an amendment moved by me and supported by the rest of the chamber.
The second thing is that, where a victim survivor of a road safety offence is liable for the infringement by being unable to nominate the perpetrator, the bill allows for that fine also to be revoked. However, the most serious infringement notices are excluded from the scheme, such as drink-driving, drug driving and excessive speed. I do have a question that I will ask the minister in committee with regard to the excessive speed part of it.
The bill also makes amendments to support the introduction of the new fines recovery model by enabling the courts to refer to the director of Fines Victoria and empowering the director of Fines Victoria to deal with fines that are the subject of hearings or a person defaulting on an order; further standardising the powers available to the courts to deal with a person who defaults on a court fine or infringement fine; and providing the sheriff with certain powers with regard to detaining or immobilising vehicles. The bill also makes a range of minor and technical consequential amendments to ensure the efficient and proper operation of the fines recovery model to be established under the act.
Under the family violence scheme the bill will further implement recommendation 113 of the Royal Commission into Family Violence; that recommendation was that the Victorian government amend the Infringements Act 2006 to provide that the experience of family violence may be a special circumstance entitling a person to have a traffic infringement withdrawn or revoked.
In reference to its recommendation 112 the commission said on page 121 of the report:
The commission's preferred option is to amend the Infringements Act to ensure that family violence is a special circumstance that can 'contribute to' rather than 'results in' the offending conduct.
Last year I attempted to have family violence added as a special circumstance to the Infringements Act with the test 'contributing to' rather than 'results in', but this was not successful. I did manage to have family violence added as a special circumstance to the act, which the Attorney-General acknowledges in the second-reading speech without attributing it to me or the Greens. He also states:
However, the royal commission's recommendations reflect concerns that attempting to fit victim survivors of family violence into existing processes — nomination, internal review and revocations based on 'special circumstances' — does not provide for just outcomes. Most significantly, in many cases including under 'special circumstances', a victim survivor must admit the offending to be eligible for revocation.
Consequently, while retaining the option for a victim survivor to apply under 'special circumstances', this bill introduces measures to establish a new standalone scheme for victim survivors of family violence to be managed within the infringements system.
He goes on to say that this will be administered by trained specialist staff within Fines Victoria, providing consistent management for all victim survivors whether they have become liable for an infringement as a result of their own offending. Under new section 10T of the bill that is 'substantially contributed to' by their experience of family violence. Clause 7 of the bill amends section 165(2) of the Fines Reform Act so that a Magistrates Court has the power to discharge fines or take action if the person in default is a victim of family violence and that has substantially contributed to the person being unable to control the conduct which constituted the offending.
I argue that in keeping with recommendation 113 of the royal commission these provisions should be reworded to say 'if the family violence contributed to the offending'; that was the recommendation of the royal commission. The royal commission did not recommend using the wording 'substantially contributed to'. Hence I have had some amendments drawn up to remove that word 'substantially' from clauses 5 and 7, and I am happy to have those circulated.
Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.
Ms PENNICUIK — The bill also seeks to implement recommendation 112 from the royal commission, which is the second part of the family violence scheme and which again I requested the government implement in the bill last year. This states in effect that the government should investigate amending the Road Safety Act 1986 so that if a perpetrator of family violence incurs traffic fines while driving a car registered in the name of the victim, the victim is able to have the fines revoked by declaring that they were not the driver at the time of the offending and that they are a victim of family violence and are unable to identify the person in control of the vehicle at the time for safety reasons.
The bill provides for this under new sections 10T and 10V in clause 5 of the bill. The amendments that I have just had circulated remove the wording 'substantially', because under the bill in order to have an infringement notice revoked the family violence must have 'substantially contributed to the applicant being unable to control the conduct'; this is not what was recommended by the royal commission. I also think that establishing that the family violence contributed to the offending is probably a difficult enough process for a victim of family violence to go through without having to establish that it not only contributed to but substantially contributed to the offending. I also think 'substantially' is quite a subjective term; 'substantially' in one person's view may not be 'substantially' in another's. I do not think there is necessarily an objective test to establish whether something would substantially contribute to offending or not. That is why in this circumstance I think we should stick with the recommendation of the royal commission, which did not recommend using that high a bar.
The bill sets out all the requirements necessary for Fines Victoria to be satisfied before determining applications for eligibility under the family violence scheme.
Another change that has been raised is in clause 12, which inserts new section 23 into the Fines Reform Act 2014. Subsection (3) states:
On the service of the notice of final demand, the prescribed fee is payable by the person.
This will remove the three-week grace period that presently exists under the act. At the moment the legislation allows fine defaulters a period in which to take action regarding their fines — for example, by applying for a payment plan, enforcement review or a work or development permit. This particular subsection seems to remove that three-week grace period, and I am not quite sure whether that is what the government intended. Certainly we will be asking some questions about that because that seems to be a retrograde step in the bill before us.
The bill also requires the family violence scheme to be reviewed within two years of commencement of the scheme. This review must be conducted in accordance with the terms of reference determined by the minister. A written report must be provided by the person appointed by the minister to conduct the review. The bill makes other technical amendments to the Fines Reform Act and to other acts.
While we are on this subject, I would like to raise again some issues I have raised whenever we have discussed fines and infringements bills in this place. We certainly welcome the government allowing concession-based fines — that is, fines that are in proportion to what a person can afford. The current system of fines continues to have a disproportionate impact on people with low incomes. As outlined by Homeless Law, an infringement for not having a ticket on public transport is approximately 83 per cent of a Newstart recipient's weekly income, and a fine for being drunk in a public place is 235 per cent of that weekly income. In addition, enforcement fees and costs are added to the original infringement penalty at different stages of the infringement system.
A concession scheme was also recommended by the Sentencing Advisory Council in its 2014 report, The Imposition and Enforcement of Court Fines and Infringement Penalties, for people experiencing hardship. That is in recommendations 39 and 40 of that report. Provision for concession-based fines would not only allow for a fairer system, but it would also allow for a more efficient collection of fines.
In its submission to the Department of Justice and Regulation review of infringement regulations the Law Institute of Victoria also recommended that the amount of a person's fine should be proportionate to their income to prevent the criminalisation of poverty. Victoria Legal Aid also supports such a move based on the recommendations from the Sentencing Advisory Council. They have said they believe the council's recommendation that infringement penalties be reduced by 50 per cent for people on government concessions is much fairer. It will help to ensure that people who do not have the means to pay fines are not dealt with more harshly than those who can afford to do so.
Furthermore, they refer to the infringements working group reporting that issuing infringements is not always an appropriate mechanism to address the underlying cause of offending. There are instances where a warning and linking an offender to support services would be more appropriate than issuing an infringement — for example, for offences such as being drunk in a public place. The increasing use of infringement notices also means that community legal centres and Victoria Legal Aid are increasingly burdened with a rising number of people requiring assistance with these matters.
A matter that has been raised by me and others in this place is the escalating number of infringement matters and fine defaults that the community legal sector is having to deal with, and it really is something that the government needs to look clearly at because it impacting on the most vulnerable and disadvantaged people in the community. I might say too that it was many, many years ago, under this government and the previous two governments, when changes were made to the fines and infringements system that I said this was going to be the likely outcome of it, that more and more people in vulnerable positions would find themselves not being able to pay fines, then incurring fees and costs for not being able to pay those infringements and deal with those infringement matters. This is a burden that is falling on the community legal centre sector.
There should be a reduction of fines for all infringements for children under 18 years of age as well, and consideration should be given to taking reforms further in relation to public transport by abolishing public transport fines for all young people under 18 years and providing free public transport for students and/or those under 18 years.
As highlighted in the Law Institute of Victoria's submission and also in the WEstjustice and co-located Visy Cares Hub youth support workers report, public transport infringements and also other infringements are extremely problematic for young people, who usually have far less income with which to pay their fines. Offences that impose the same monetary penalty on children as on adults include refusing to move on, being drunk in a public place, disorderly conduct, possession of a graffiti implement and carrying a knife. The Sentencing Advisory Council also made similar recommendations in their report for fines to be lower for children to ensure that the infringement system is fairer and more equitable.
WEstjustice also recommends abolishing the public transport fines system for all young people under the age of 18. The WEstjustice report highlights the difficulties that many disadvantaged and low-income families have with meeting the costs of education at all, let alone dealing with myki infringement fines incurred by their young children who are students.
These issues have been raised many times with the government, and I think it is something that they really need to set their mind to looking at. The last one is to transfer toll debt collection to the civil justice system to relieve pressure on Victoria's Magistrates Court, support services, communities and families.
There is still more to do with regard to fines reform and making the fines and infringements system in this state fairer and more equitable than it is. Having said that, the Greens welcome this bill in terms of the family violence scheme that is established by the bill. However, I think some sections of that have set the bar a bit high, and that is why I will move my amendments to change that. Otherwise the Greens will be supporting the bill.
To read more in the committe stage, click here.