07/06/2012

Mr BARBER (Northern Metropolitan) -- All I can say in response to the speech of Mr Lenders is, 'Get down!'. He is feisty today! If you have a look at this piece of legislation -- this seemingly boring but important piece of legislation -- and when you start to unpack it, you begin to see its implications for the state of Victoria.

I would have thought that the contributions to this debate, not just from the lead speakers but from any speaker standing up today, would be extraordinarily wide-ranging due to the number of different types of fees and penalties that are enacted as a result of this seemingly brief piece of legislation. Not only does the bill give me extraordinarily wide scope to speak today, but the second-reading speech itself goes even wider.

I will just note, for the benefit of the record, some of the matters that are touched upon in the second-reading speech, which Mr Lenders said can often be a guide.

Apart from the dull and dry explanation in the second-reading speech of what this bill does mechanically, there is also the statement of compatibility relating to the human rights implications of the bill. It does not draw attention to any particular effect, but put together with the second-reading speech, we see that in fact this bill does deserve some detailed scrutiny, which I fully intend to give it during both the second-reading debate and the committee stage.

In the second-reading speech the government noted that maintenance and promotion of law and order, which it put in inverted commas, is a top priority for the government.

I would have thought that this was an essential function of all governments, but what does the bill do in this area? In the second-reading speech the government also promotes its significant achievements, which it says include the progressive introduction of 1700 additional front-line police and 940 protective services offices (PSOs). I do not think that the increase of monetary units necessarily makes the job of PSOs and serving police officers that much more enhanced, but since the government has raised this particular initiative, I may spend some time elaborating on what I think about it.

The PSOs initiative, which was dreamt up by the coalition when it was in opposition, is now widely derided. The efficacy of that particular proposal was always questioned. The initiative puts two armed guards on every railway station after dark. As the legislation and policy have been rolled out, more and more doubt has been heaped onto this initiative in terms of whether it is the best solution.

Just last week my colleague Ms Hartland was, as usual, making her way by train through Footscray station when she discovered, to her amazement, that Ted Baillieu, the Premier, was making his first visit to Footscray.

We understand he rocked up by limousine to announce that PSOs would be stationed from that day on Footscray station. Ms Hartland, who uses the station every day, attests that she does not believe Footscray station is a dangerous place. Those of us who use public transport, as I have for 30-odd years, know that the difficulties of using public transport often relate more to nuisance behaviour than to what would typically be known as crimes -- that is, assault and so forth. It is the nuisance behaviour of patrons for all sorts of reasons. Some of this behaviour is due to youth, some to alcohol and some to mental illness, but all of it is due to the systematic policies of Labor and Liberal governments over many decades to achieve what I call the dehumanisation of the system.

Once upon a time we had stationmasters and tram conductors. They did not carry semiautomatic weapons, but they had a strong measure of authority which goes with the uniform and what goes behind that, and they were able to deal with the majority of nuisance behaviour. Now, after many decades, railway stations have become seemingly dehumanised public spaces, and as they get busier and busier every year, that has become a problem for more and more people. It is not always the isolated spaces that are the problem. In fact we know that our biggest problems with either nuisance behaviour or crime are in the busiest areas -- that is, where the most people are.

As the government has rolled out its PSO policy it has backed down from its original plan or vision and is putting these PSOs onto the busiest stations, often those that are already staffed and have transit police stationed as well, as a supplementary measure in those areas. At Spencer Street station you can find private security guards associated with the privatised Spencer Street station. I call it Spencer Street but it is officially called Southern Cross station. You can find station staff working for Metro, Connex or whoever your latest operator is. You can find full-blown transit police and authorised officers with police-like powers and, in some cases, more jurisdiction than police, and now PSOs as well -- five different sets of authority figures. Yet that uncoordinated Balkanised system of providing public safety on the public transport system did not prevent an extraordinarily serious sexual assault from occurring in the toilets at Southern Cross, an assault which received some media coverage and which made us all most concerned.

When I am on a railway station, who do I look for to provide for my personal safety when five different groups of people, all with different overseeing powers and different responsibilities, all seem to be tripping over each other.

Mr P. Davis -- On a point of order, President, I acknowledge that the second-reading speech on this bill makes passing reference to PSOs and law and order, but the bill deals with the Monetary Units Act 2012. The substantive contribution of Mr Barber has not related at all to the amendments of the Monetary Units Act. I suggest that the member be brought back to the bill.

The PRESIDENT -- Order! I just sought a copy of the second-reading speech because I was also concerned about the amount of comment in terms of the enforcement issues rather than a focus on the major thrust of the bill, which, as Mr Davis said, is to adjust penalty unit rates.

My dilemma is that the second-reading speech included a point made by the government about the importance of maintenance and promotion of law and order as a top priority for the government, and it indicated some achievements and that it intended to have a strong hand in terms of enforcement.

In that sense, an opening speech by a member can be wide-ranging, and it can certainly leverage off that statement in the second-reading speech. It is difficult for me to direct Mr Barber to move on from his point; however, I suggest, and I am sure Mr Barber is aware, that this bill is more about the penalty units and so forth, and he should in due course come back to that. As I said, I recognise that the second-reading speech has opened the issue.

Mr BARBER -- It also struck me when I read the second-reading speech that, according to the government, the entire rationale for the increase in monetary penalty units is to assist with the delivery of law and order.

Mr Lenders, not being too cynical, has already suggested that that is hokey and it is actually about revenue. The government is desperate for more revenue. It is appropriate that the government balances its books, and ex post facto it has delivered this new rationale, which is that this bill is absolutely essential for the maintenance of law and order.

President, what is the necessary quorum? I think it is 13; would that be right?

The PRESIDENT -- Order! It is 14.

Mr BARBER -- President, I direct your attention to the state of the house.

Hon. D. M. Davis interjected.

The PRESIDENT -- Order!

That is the sort of comment that could have Mr David Davis spending a bit of time outside the chamber.

Quorum formed.

Mr BARBER -- We return to the next aspect in the second-reading speech, where the government refers to front-line police. On my favourite theme of public transport, I notice that the government also now makes the claim, which the previous government used to claim -- --

Mr P. Davis -- On a point of order, President, I accept your ruling that on the matter of law and order the member is entitled to make some observations; however, I cannot for the life of me see how this bill is in any way connected with public transport, which the member is now going to.

Mr BARBER -- On the point of order, President, I was working my way systematically through the second-reading speech, and the next thing I noted was mention of the 1700 additional front-line police. I was going to make some reference to where I thought the front line actually is when it comes to law and order in Victoria, being relevant to the mechanics of the bill, which is the necessity of increasing penalty units so as to ensure law and order.

The PRESIDENT -- Order! I cannot uphold the point of order given that the second-reading speech opened up these matters.

Mr BARBER -- The government claims that there are 250 transit police on the system. This is something the previous government also used to say.

If there were 250 transit police on the system, that would almost be one for every train, which I am sure would provide a level of comfort to many people. But what we know from information that has been published in the Age after accessing police rosters is that in fact only about 99 of those police are on the front line in the sense that they are out on the system doing protective activities. It seems that the majority of the rest of those officers get involved in investigation, coordination and so forth. Even the police strategy document in relation to safety on public transport noted that having varying bodies and officers under different types of powers is, to quote, 'complex'. This relates to penalty units quite directly because, as we know, there is a big problem with fare evasion -- not to mention the big debate about the increase in the cost of fares.

Mr P. Davis -- On a point of order, Acting President, the bill and the second-reading speech do not go to the detail of fare evasion, and the member is raising matters that are extraneous to the substance of the consideration of the bill.

Mr BARBER -- On the point of order, Acting President, by adjusting monetary units we adjust fines across a vast number of pieces of legislation. It is the magic wand that does that all in one go, and that would mean any fine given under any act.

The ACTING PRESIDENT (Mr Tarlamis) -- Order! I do not uphold the point of order.

Mr BARBER -- I would certainly like to see more transit police on the front line, but this question of a front line seems to mean in some minds public crime against persons in public spaces. As we know, there is also the very serious and totally underreported issue of domestic crime. Frequently when we ask questions in this place, as I know Ms Hartland does on notice, about specific services in relation to front-line police, we are told that it is a police decision. Yet when it comes to the protective services officers policy, the government seems to be setting very specifically where those PSOs will be located.

Moving right along, the second-reading speech notes that:
  The government intends to complement these and other initiatives by deterring unlawful behaviour through the imposition of adequate fines.

We have just had an interesting debate in relation to car dooring fines in my Road Safety Amendment (Car Doors) Bill 2012, and I will not go into the details because Mr Davis would quite rightly raise the anticipation rule as a point of order, given that my bill is still before the house. When it returns from the committee that is currently investigating it we will have a vote on that bill. With my mind on that bill it does raise the very interesting question of deterrence. In consideration of my bill and other sorts of matters we need to remember that not only does a fine need to be a significant deterrent, we also hope it is proportionate to the crime. The necessary key link is that there is a high likelihood of a person being caught. Effectively that is the rational matrix by which we believe law and order works as a deterrent.

In some categories of crime involving some categories of person, though, that breaks down, and because we are dealing with large numbers of fines across large numbers of different acts it is worth noting that for some groups, such as homeless people, for example, the fine given to them might not actually have the intended effect -- that is, to deter the behaviour. I know this from my experience as a former local government councillor and from other debates that we have had in the Parliament before about this very question of how high fines should be.

For example, at the City of Yarra we noted that homeless people often become homeless and end up living in their cars. Their cars might then become either unroadworthy or out of registration or they might accrue large numbers of parking fines, and there is simply no way for those people to pay those fines. Another approach is needed in relation to some groups where consideration is given to their particular circumstances.

If we go back to the oldest known system of written laws, the code of Hammurabi from thousands of years BC -- this was the one that talked about an eye for an eye and a tooth for a tooth, which I do not necessarily subscribe to -- set different levels of fines for poor people and rich people. In the modern day this is just as relevant.

A parking fine or some sort of road infringement notice posted on a car which represents the home of a homeless person is clearly a much bigger impost on that person, and therefore a greater punishment for them, than slapping the same fine on some guy's Lamborghini, the owner of which has spent the same amount on lunch as he is going to spend on his parking fine. Different levels of fines have started to be rolled out in local government, and it is a necessity across the whole governmental system to start to provide measures whereby some alternative diversionary mechanism can be used to deal with those who have fallen foul of these penalties but simply have no capacity to pay.

We also need stronger mechanisms for those who have absolute capacity to pay and simply avoid it. Every year large amounts of fines are written off, notably in the local government sector, for people who have fled the state or who have become so difficult to prosecute that they get away with it. Right in the middle of that group are the vast majority of Victorians who, if they do the wrong thing, simply cop it sweet.

This kind of situation falls foul of the black-and-white language that appears in this bill. The government is very clear that persons who offend against the laws of Victoria should be punished and that these punishments should have unwelcome consequences for those who offend. It is the intention of the government to increase fines so that people are deterred from unlawful behaviour. As I say, if you bring a bill before this Parliament seeking to move one fine, you get a parliamentary inquiry!

Here the government has suggested that as a magic wand, an across-the-board movement, it can increase every fine, and the rationale for this is that we will all become that little bit more law abiding.

In fact life is more complicated than that. The minister goes on to say in the second-reading speech:
  It is in the power of each person to behave in a way that does not cause them to incur a fine. Ideally, no person will incur a fine. Fines should not be a regular part of the budget of any household or business in Victoria.

As I say, life is a little bit more complicated than that, and therefore it is quite surprising to see that in the statement of compatibility of the human rights charter no consideration is given to the issues that I raised.

The government clearly sees the world as 'Do the crime, get the fine', yet we know that across our policing and judicial systems there is a complex and nuanced human rights debate.

I can say quite safely that even within the parties represented in this place there are all shades of opinion on this.

This bill amends the principal act. Section 13 of the Monetary Units Act 2004 sets out the meaning of penalty units. It states:
  If in an Act or subordinate instrument (except a local law ...) there is a statement of a number (whether whole, decimal or fractional) of what are called penalty units, that statement must, unless the context otherwise requires, be construed as stating a number of dollars equal to the product obtained by multiplying the number of penalty units by the amount fixed from time to time by the Treasurer --
using the Government Gazette or the Monetary Units Act. That is how this works. Instead of having to adjust the amount for every single fine in every piece of legislation every time we want to do this, the monetary units are referenced. Then, when you change the monetary unit you change every reference in every act to that monetary unit. From time to time I have asked members around this place, as part of a pop quiz, 'What is the current value of a monetary unit?'. Most people do not know, even in this place. It was the Leader of The Nationals, Peter Ryan, who got it right last time I asked him. I genuinely wanted to know; I did not know at that stage.

What is happening here is that that mechanism is being left in place. As Mr Lenders noted some time ago, an inflation escalator was built into the legislation, which caused a huge uproar from the coalition. Now the Treasurer has determined to make a jump in the amount of those units to deliver a virtually guaranteed amount of money. -- I was going to say a one-off jump, but it is clearly not going to be a one-off because if he does it once, he will find it habit-forming. That amount is guaranteed because we know that people will continue to accrue fines. While we hope those fines have a deterrent effect, we also know, as sure as night follows day, a certain amount of money will be coming in.

That is where the crude description of fines being just revenue raising is a nonsense statement. There is no such thing as just revenue raising. Fines bring in revenue. As long as people keep breaking the law, there will be a certain amount of revenue.

Yet when in opposition, time and again coalition members of Parliament slammed various programs as just revenue raising, including the speed cameras program. It looks very different now they are in government. Even when it came to drafting the second-reading speech, they could not get their tongues around it; they could not admit that this is more than just revenue raising and that there is no 'just' about it. They cannot even acknowledge now that it is revenue raising. The entire second-reading speech puts this forward as a law and order mechanism. In a way it is gratifying that one can change one's firmly fixed views on things and that when someone sees something from a different perspective they can have the blinkers taken off and start to look at things differently.

I am just doing a quick headcount again, Acting President, and I draw your attention to the state of the house.

Quorum formed.

Mr BARBER -- As we go to the true mechanics of the legislation, we see that fines and penalties of various sorts under a vast number of acts will be impacted on by this bill, which Mr Lenders has said he will vote against and on which I am still considering my position as I stand here.

The Petroleum (Submerged Lands) Acts 1982 is covered by the bill. The penalties and fees in various acts have been converted to penalty units and therefore will immediately jump later today when this bill passes, which we know it will. They include the Consumer Credit (Victoria) Act 1995, the Cooperatives Act 1996, the Court Security Act 1980 and the Disposal of Uncollected Goods Act 1961. These are not simply, as the second-reading speech suggests, law and order issues. In many cases fines and fees are being levied in order to regulate certain types of behaviour. Gratifyingly there are very few offences -- at least those that come to light -- under the Electoral Act 2002.

We have an extraordinarily high standard of democratic behaviour in Victoria, so it is doubtful whether an increase in the penalty of monetary units under the Electoral Act is necessarily going to dramatically improve the operation of that act.

We have an expert on that here in the house, and that is Mr Finn. He is the chair of the Electoral Matters Committee, and I am sure that as a result of his recent investigation he would be able to detail for me the small number of offences that occurred during the election.

Mr Finn -- At length, if you like.

Mr BARBER -- He would be able to at length and in detail the offences that occurred during the 2010 election.

I am sure he would agree with me that we have an extraordinarily good standard of behaviour when it comes to elections in Victoria, and that is something which makes this state great. The Electoral Boundaries Commission Act 1982 also contains penalties, and that surprises me.

The Electricity Industry Act 2000 is an important piece of legislation. It regulates the entire basis of our electricity supply and licences the behaviour of all participants in the electricity market. In some ways that is being moved off into the federal jurisdiction, but we have never ceded our powers in that area. The Electricity Industry Act is the very basis on which we keep on the lights. I do not intend to digress particularly to talk about that, because I could go on talking about electricity for ever. It is bit like the ad on TV where a guy is talking to his friends at a party and he says, 'I am excited about electricity'; he works for a power company or something. I am definitely up there when it comes to that.

Penalties under the Freedom of Information Act 1982 are covered by this legislation, which means that the amount for all the many FOI request cheques I write is going to go up again -- can you believe it? It used to be $20, but I think the last time I wrote a cheque, which was probably just a couple of days ago, it was up around $22.40.

I cannot believe that my cheque for an FOI application going from $22.40 up to $23, or whatever it will be.

Hon. M. P. Pakula -- It will be $24.40.

Mr BARBER -- It will be $24.40; but as of today, when this bill passes -- which we know it will -- it will go up again.

As manager of scrutiny of government business, if Mr Pakula walks back to his office and puts in an FOI request, he should not follow the cheque stump from last time; there is going to be a new amount. If Mr Pakula sends in a cheque for $24.40, the first reply he will get from the FOI officer is, 'Actually, you owe me another $2.30; I can't process your request, Mr Pakula, until you front up the rest of the money. I could not allow that debt'. This is what the government refers to in its second-reading speech as the maintenance of law and order.

Mr Finn -- Let the taxpayer pay. The poor taxpayer again.

Mr BARBER -- Mr Finn interjects about the 'poor taxpayer', seemingly in relation to FOI requests. He is suggesting that the cost of FOI requests is a burden on the taxpayer. Those who spend a lot of time doing it, like myself and Mr Pakula, attract significant costs of our own in defending what is usually a simple request.

Do not even tempt me to go back to the matter of the network revenue protection plan that still has not been fronted up in the house today, which could have saved everybody a lot of time and money if it had been published on the website as a matter of course.

I think Mr Finn is heading us down the path of a user-pays FOI system -- that is, a full cost recovery system for the whole time those departmental staff devote to sending memos to ministers, to and from the Premier's office and to the various spin units to decide how they are going to handle an FOI request. Mr Finn is suggesting that this time should be charged out at full rates to me and Mr Pakula. I hope that is not the case. I hope this bill is not the thin edge of the wedge when it comes to making FOI out of the reach of not just the ordinary person but even opposition members.

Hon. M. P. Pakula interjected.

Mr BARBER -- For that matter, as Mr Pakula whispers into my left ear, it would include the media. The Gaming and Betting Act 1994 previously contained provisions for $5 million fines. Those $5 million fines, which obviously relate to extremely serious matters, were previously converted to a monetary units -- that is, 50 000 times the value of what was then a penalty unit. I do not have time to access the Gaming and Betting Act 1994 and work out what it is for, but it is obviously for an egregious breach of that act.

That is now going to be increased as a result of this bill, and that may be a good thing. That may be a reason for Mr Lenders to reconsider his opposition to this bill, because it is not simply a matter of day-to-day fines to the average Joe. We are talking about a large number of different cases. We are talking about electoral offences, we are talking about gaming regulation offences and we are talking about offences in the Electricity Industry Act 2000.

There is a bit of a balancing act here, where in some areas it may become critical to have fines that are relevant and that certainly do not lose their value due to inflation alone.

Mr Lenders -- Are the Greens voting to put up public transport evasion fares?

Mr BARBER -- There is the Land Act 1958. Mr Lenders interjects that I am voting to put up fines for public transport fare evaders. I can assure Mr Lenders that I have the solution to all that. If you have staff at the stations and a tram conductor on every tram, then fare evasion will disappear overnight. However, at the risk of being ruled out for relevance on a point of order, Acting President, I will assist you by not going back on to what is currently my favourite subject.

There is the Land Act 1958, the Landlord and Tenant Act 1958, the Lotteries Gaming and Betting Act 1966, the Maintenance Act 1965, the Marine Act 1988, the Mines Act 1958 and the Police Assistance Compensation Act 1968.

Mr Lenders -- There is the public transport act.

Mr BARBER -- We are going through the Ps, so I would remind Mr Lenders to be patient. There is the Private Agents Act 1966, the Public Notaries Act 2001 and the Road Safety Act 1986 -- that is one that I tried to amend recently. There is the Second-hand Dealers and Pawnbrokers Act 1989, the Sentencing Act 1991, the Shrine of Remembrance Act 1978, the Stock (Seller Liability and Declarations) Act 1993 -- I presume that relates to livestock, since we no longer regulate in Victoria traded market stocks. I am not familiar with this legislation, but it must relate to livestock.

There is something here for everybody and for every member's interests. I am hoping that in the government's consideration of this bill, this broadbrush measure simply to whack up fines conveniently across every area, it has have thought about how that may play out quite differently, according to the size of the fine that is indexed to the monetary unit, and of course to the individual matter itself.

There is the Summary Offences Act 1966, the Survey Co-ordination Act 1958 and the Unlawful Assemblies and Processions Act 1958. I did not even know we had such a thing as the Unlawful Assemblies and Processions Act 1958. It sounds very Joh Bjelke to me, but I will go back and read up on that one and become aware of what is in it. Then there is the Victorian Civil and Administrative Tribunal Act 1998 -- where Mr Pakula will be off to soon enough when his FOI request is rejected. The $120 fee that I think it requires to even get in to VCAT is rapidly moving up.

This is slightly off topic, but it is another form of wastage of everybody's time the way the government acts in the VCAT when it comes to FOI. In fact on many occasions the government has handed documents over to me almost literally at the courthouse steps when I have already accrued the cost of applying to VCAT and the filing of associated documents.

These are just some of the bits of legislation that are impacted by the bill that we will vote on today. For that reason I believe the bill deserves better scrutiny. The government clearly put it forward for one reason only: it needed revenue. This is an extraordinarily simple way of getting revenue, just as the indexation of monetary units to inflation carried out by the previous government was an extraordinarily simple way to ensure that money came in regularly without the acrimony of having to make an executive decision to adjust it. When it comes to the committee stage of the bill we will have a bit more discourse with the minister at the table about how all this works.

 

 

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