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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2020-10-15 Daily Xml
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Motions

Expiation and Fines Enforcement

Ms BEDFORD (Florey) (11:01): I move:

1. That, in the opinion of this house, a joint committee be appointed to review and report on the operation of the system of expiations and fines enforcement, having regard to—

(a) the proper role of expiations and fines;

(b) the effectiveness of expiations and fines as a deterrent;

(c) the relationship between expiations, fines and court penalties;

(d) the desirability of a system of penalty units for expiations and fines;

(e) the interaction of expiations, fines and enforcement policies;

(f) qualifications and training of enforcement officers;

(g) the exercise of discretion by enforcement officers;

(h) the accessibility and effectiveness of review mechanisms for expiations and fines;

(i) the need for transparent application of expiation and fines revenue;

(j) the interaction of expiations, fines and community education initiatives;

(k) the enforcement of expiations and fines;

(l) alternatives to expiations and fines;

and in conducting its inquiry, the committee must consider principles of fairness and substantive justice, impacts of expiations and fines on members of the public and best practice in other Australian and like jurisdictions.

2. That, in the event of a joint committee being appointed, the House of Assembly be represented thereon by four members, of whom three shall form a quorum of assembly members necessary to be present at all sittings of the committee.

3. That a message be sent to the Legislative Council transmitting the foregoing resolution and requesting concurrence thereto.

Over the course of the past year, I have been increasingly troubled by stories I have heard or been told about the operation of our system of expiations and fines enforcement. For me, it started with a number of concerns about on-the-spot fines being levied on pensioners in my electorate for voluntarily declaring and surrendering fruit at the Yamba quarantine station. Sadly, despite what many would consider are examples where discretion could be exercised, no waivers were granted.

It is clear the zero tolerance policy will continue to remain under scrutiny, with information provided to me suggesting PIRSA has one of the highest backlogs of fines under review of any agency, with something in the order of 240 outstanding reviews. I had hoped there may be room for a reset under a new minister, but to date I have not seen any encouraging signs.

As I have further investigated fines, it has become increasingly apparent the problem is not just in the primary industries portfolio. It is in fact a problem which is allowed to fester across the entire system of expiations and fines enforcement. That is why I bring this motion to the house today.

South Australia's system of expiations and fines enforcement rests on two major pieces of legislation: the Expiation of Offences Act 1996 and the Fines Enforcement and Debt Recovery Act 2017. The Expiation of Offences Act has been amended only eight times in its 24-year history, with the bulk of these amendments being consequential or technical in nature. In essence, the core workings of the act have been left undisturbed. When former Attorney-General Trevor Griffin introduced this legislation, it marked a seminal point in the development of regulation and law enforcement for South Australia and it is worth quoting from his second reading speech:

In the early 19th century, most crimes were indictable and, therefore, serious and triable by jury. The only question was whether the crime was a felony or a misdemeanour. It had been so for centuries. But the industrial revolution demanded changes in the criminal justice system, and one of the more important changes was the need to enact new regulatory offences. These were not seen as serious but were necessary to regulate the new urban industrial society. The technique used to this end was the creation of what we now call summary offences, triable by justices in a summary way…

He then went on to discuss the methods by which summary jurisdiction was deployed, before returning to his theme:

This Bill recognises and confirms that a similar revolution has been taking place over the past decade. The needs of modern social and economic regulation have produced a new class of offence. These are called expiable offences. The revolution has been—and is—just as significant for the criminal justice system as was the organisation and recognition of summary offences in the last century.

There is much more of interest for members to read in the second reading and committee stage of debate on the Expiation of Offences Bill and its companion bills, but I will not go any further now.

In any event, the point made by the then Attorney-General was this new category of offences, expiable offences, would be a revolutionary transformation of the justice system. I think in the quarter century since this has proven to be an accurate prediction. Oddly, though, it is difficult to find much information about how the system of expiations is now working. This is a theme to which I will return and is one of the principal reasons I have brought this matter to the house today. Simply put, we do not have a single system to monitor what is going on. We do not even know exactly how many expiations are issued in a year, although we have a fair idea it is many hundreds of thousands.

For example, we know in 2018-19 SA Police issued 151,776 traffic expiations and 27,090 expiations for other offences. But of course this does not include other agencies or local councils, and I am advised that at an earlier stage it was even more than this. When you consider the number of police arrests for the same year was 25,624 and the DPP received 1,122 new prosecution briefs, with the balance being police prosecutions, you get a picture of how important the expiation system is.

While we do not know the full extent to which other agencies or local councils use expiations, we do have some idea. As an example, the Adelaide City Council received $10,457 million in parking and other expiations for the 2018-19 reporting year. Given the normal expiation for a parking overstay is $56, this equates to some 178,000 expiations being issued. There is likely to be a range of different expiations, so it is probably less fines than that number.

Public data supplied by the Adelaide City Council for financial year 2019-20 indicates there were 100,861 parking expiations paid for that council alone. The City of Adelaide will no doubt have many more expiations than other councils, but this is very suggestive of the extent of the use of the expiation system.

Disturbed as I have been by the effect of the zero tolerance policy undertaken by the government in relation to fruit fly fines, the examples of what I would call unjust or unfair outcomes I found on review of my office files has really astounded me. I would like to give you a few examples of those now:

a woman who was fined for her car headlights, with automatic dimming features as part of the vehicle, not being fully illuminated when driving in a floodlit area despite clearly operating in accordance with the manufacturer's specifications;

a diabetic pensioner who carries an apple on long-distance travel in case of a hypoglycaemic episode and declared it immediately at the quarantine station but was unable to have a fine withdrawn on the basis of medical need;

a driver hauling a two-tonne trailer load along a deserted six-lane arterial road at 2am is issued with an expiation for a red-light camera offence, despite photographs illustrating he was braking safely for the size of the load;

a driver receives a reminder notice by post for a parking violation for which he claims he never received the original fine. After appealing the matter to the Ombudsman, the council finally agrees to waive the reminder fee;

a single mum and survivor of domestic violence on her P-plates detected for a minor speeding infringement threatened with loss of licence, which would prevent her from going to work and taking her child to school;

as is the case for many truck drivers, a man decides the threat to his livelihood and risk of incurring automatic demerit points creates a dilemma which results in nomination of a partner or other person as a driver and paying that fine, rather than electing to be prosecuted and risking the uncertainty of an adverse fining even where there are strong grounds for a defence—all of this in a rigid system;

a self-funded retiree travelling from Victoria is told he will be cautioned when he declares tomatoes at a quarantine fruit station, voluntarily handed in of course, only to be subsequently sent an expiation notice by mail with no further explanation;

a cyclist issued with a fine for momentarily having his hands off the handlebars of a bike he is riding while reaching into his pocket. The fine is subsequently withdrawn on the basis it is trifling, but then it is reissued again with no explanation; and, finally

a home owner fined for parking on the road, partially encroaching on his own driveway, on a temporary basis, in a highly congested suburban street. No waiver and no discretion was exercised by the council in this particular case.

These are only a few examples from the otherwise law-abiding and hardworking people of Florey leading to the crushing fines they have been given, and I am sure members of this house and members in the other place would have many more examples. Reasonable people can agree or disagree on the merits of each particular case. The problem for the many people we see in our electorate officers is navigating the bureaucracy, often unhelpful or even obstructive, assuming everyone who has been given a fine is totally in the wrong.

Once a person has exhausted their review and appeal options, they are then left with only the option of going to court. This is a daunting prospect in anyone's book and one which involves far too much risk for most people to take and so, reluctantly and with resentment, they pay the fine or negotiate a payment plan. How many of those who do so could have succeeded if they had elected to be prosecuted we will never know, but we do know very few people go to court.

On occasion, there have been successful court challenges. Most recently, we have seen a successful challenge to red-light camera offences. In its finding, the court found that South Australia Police had failed to properly calibrate red light cameras in accordance with statutory requirements. I will come back to this point—trusting the validity of an expiation and whether it is raised legally—later.

How many people have paid fines that were founded on what has turned out to be noncompliance by police with legal requirements? We saw similar mistakes made in relation to heavy vehicle fines for the South Eastern Freeway. Ultimately, it turned out that up to one in three fines issued had to be withdrawn. Of course, this parliament acted on the initiative of my colleague in the other place the Hon. Frank Pangallo to amend the drafting inconsistencies in the legislation which gave rise to this unfortunate situation, but was there ever an official apology for this mistake?

Indeed, after the law was changed, a well-known South Australian business person driving a minibus for his niece's birthday was forced to go to court to get a $1,000 fine withdrawn, along with the threat of an automatic licence disqualification, after it was established the vehicle had been incorrectly recorded as a heavy vehicle on the registration database. These are only some of the more recent examples of poorly administered fines.

Members with longevity in this place may recall the previous similar controversies during the 1990s and the early 2000s prompted by self-appointed watchdog of unfair traffic and parking fines Mr Gordon Howie. This is very similar to our own champion on speeding cameras, our late colleague and former Speaker in this place the Hon. Bob Such.

Mr Howie, described by one former member as a traffic controversialist, was, I am told, a serial letter writer to the transport department, councils and many ministers in his quest to find ways to unpick what he saw as poorly administered traffic fines and laws. He was notable for testing traffic and parking controls whenever he felt they had been unlawfully put in place and succeeded in proving his point in court on more than one occasion.

It should not be up to citizens to ensure the system of fines and expiations is working properly. When we vest enforcement agencies and officers with the power to issue on-the-spot fines for a range of strict liability offences, we expect it to be done responsibly. We expect these people to exercise discretion. We expect them to admit when a mistake has been made and we expect them to recognise a penalty is not an end in itself; it is merely a tool to enforce reasonable compliance.

The inquiry I am calling for will not only permit a review of practice and procedure of our fines system but also present a useful opportunity to explore fine levels and the effectiveness of fines as an enforcement tool.

For the past few budgets, SACOSS has called on the state government to implement a system of income-based fines, similar to the model applying in Finland and a number of other countries. While it has not been rejected totally out of hand, the Treasurer has gently batted away this model by claiming, among other things, that it would be impracticable given the state does not have ready access to income data.

In my view, the inquiry I am proposing could examine this issue more fulsomely because it is not just the practice and procedure of our aged fines system that is in need of review. Fine levels for many common offences have now reached levels that are looking more and more like a tax on the poorest in our community, and that is just not on. We know from the annual report of the Chief Recovery Officer under the Fines Enforcement and Debt Recovery Act that, as of 1 July 2018, the Fines Enforcement Unit in the Attorney-General's Department was managing $263.9 million in debt as payable from expiation notices, with $155.3 million of that becoming payable in that year.

A briefing provided to my office indicated the unit manages around 90,000 payment plans, with at least a third of those involving direct deductions managed by Centrelink, with up to half of the plans likely to involve welfare recipients. I will repeat that: at least a third and up to a half of the payment plans being administered by the Fines Enforcement Unit are Centrelink beneficiaries. As I say, this suggests something fundamentally wrong with our fines system.

In a 2016 research paper sponsored by Uniting Communities SA titled 'From Start to Finnish: Reforming South Australia's traffic fine system', The Australia Institute found South Australia had the highest average traffic fines in the nation. This paper examined traffic fines across six jurisdictions: New South Wales, Northern Territory, Queensland, Tasmania and Victoria, with South Australia having by far the highest.

In the financial year 2014-15, South Australia issued $174 million in traffic fines for 423,000 traffic fines, representing $103 per capita, 10 times the per capita rate of Tasmania. At $410, the average traffic fine amount in South Australia was the highest of any of these jurisdictions. This particularly reflects a significant rise in fine levels from 2000 to 2012, and fines rose by up to 160 per cent, or nearly four times the rate of inflation during that period.

No-one denies that road safety is a priority, but whether these fine increases have resulted in improved road safety outcomes compared to other jurisdictions is a fair question to ask, and it is a question which I expect this inquiry to properly examine.

I have elected to bring this motion to the house in the form of a motion for a joint committee of the parliament, but I am more than willing to negotiate an alternative approach should that secure a timely and thorough inquiry. This could be a select committee or a reference to a standing committee. Given that, I am content to let this matter lie on the table to allow the government to consider its response. With those words, I commend the motion to the house.

Debate adjourned on motion of Dr Harvey.

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