Infringements Bill: tough action needed on street crimes

Hansard: 6 February 2008 ASSEMBLY

Mr CLARK (Box Hill) — The principal purpose of the Infringements and Other Acts Amendment Bill is to extend on a trial basis the application of the infringements regime to an additional number of offences. In particular the bill will apply the infringements regime to offences specified in the Liquor Control Reform Act 1998 — firstly, the offence of supplying or consuming liquor on unlicensed premises of various types that are specified in the legislation. The offence that is currently in section 113(1) of the Liquor Control Reform Act will be replaced by offences to be set out in sections 113(1) to 113(1C). The other offence in the Liquor Control Reform Act to which the infringement regime will apply is the failure by a person who is drunk, violent or quarrelsome to leave licensed premises when requested to do so, which is currently contained in section 114(d) of the act and which will be replaced with new section 114(2).

Additional offences to be covered by the trial infringements are set out in the Summary Offences Act 1996 — namely, wilful damage, which is contained in section 9(1)(c); indecent or obscene language, which is contained in section 17(1)(c); and offensive behaviour, which is contained in section 17(1)(d). In addition the new regime will apply to a new offence of shop theft, to be inserted as section 74A of the Crimes Act 1958.

It will be constituted by theft from retail premises or property of goods valued at or displayed for sale at a price less than $600.

The bill provides that the trial will sunset no later than 30 June 2011. It also provides that persons aged under 18 years will be excluded from being served with infringement notices under the regime. In addition to these provisions relating to the trial extension of the infringements regime there is a range of other enforcement-related measures, both in relation to the infringement regime and otherwise.

Those consist of extending the time available for an enforcement agency to proceed against a person who defaults on a payment plan; authorising the sheriff and the sheriff’s officers to restrain a person who hinders the execution of a civil warrant; authorising the court to make an order for imprisonment in default of payment when ordering the partial discharge of a fine; allowing an agency to grant more time to provide supporting material to an applicant for internal review; and allowing an infringements registrar to reduce the costs and fees payable where there are not what constitute special circumstances but nonetheless a reduction is considered appropriate.

The infringement extension provisions of the bill arise following a consultation paper issued by the government in May last year. That paper proposed, in addition to those offences being covered by the bill, the extension of the infringements regime to the offence of careless driving under section 65 of the Road Safety Act.

According to the Attorney-General’s announcement, the government intends to do that, but it will be done by way of regulation rather than being effected by the bill.

The consultation paper also proposed the infringement regime be extended to the placing of an obstruction on a road in breach of section 7(a) of the Summary Offences Act; the discharge of a missile in breach of section 7(g) of the Summary Offences Act; and wilful trespass in breach of section 9(1)(d) of the Summary Offences Act. It would appear that the government, for reasons of which I am not aware, has decided not to proceed in this bill with those additional offences that were proposed in the consultation paper.

From the opposition’s point of view, we strongly support a sensible, measured and fair application of an infringement system where that system is genuinely and effectively directed towards cracking down on crime and is not motivated by revenue raising. In particular we support measures that will reduce the level of lawlessness on our streets. As we heard in question time today, the government and Victoria Police have at last admitted that this is a serious problem, as indeed it is. It is a problem that the Leader of the Opposition and many others on this side of the house have been highlighting for a long time, and it is pleasing that the government has at last recognised the problem. Whether the measures that have been announced to date will be adequate to effectively address it is a different matter.

It is important that this Parliament and the government strongly send a signal that drunken, loutish, threatening and violent behaviour on our streets will not be tolerated and that people who engage in such behaviour can expect to be dealt with by the law. This is going to require more than just changing the law; it will require sufficient police on patrol and a willingness to apply the law firmly to send a message not just to a particular offender but to all others who might be minded to commit similar offences.

In relation to the proliferation of violence, particularly the street violence and family violence which our community is experiencing, we also need to ask ourselves more broadly why such a proliferation of the culture of violence and aggression is occurring within our community. Why do an increasing number of people think it is acceptable or even enjoyable to engage in increasingly aggressive and dangerous acts of violence against others and in seeking and provoking violent confrontation?

Is it linked to family breakdown and dysfunctional families? Is it linked to the violent nature of much contemporary entertainment? Is it linked to aggression-provoking drugs, such as ice? Is it due to the proliferation of copycat behaviour based on norms that are being set and expectations that others feel they need to follow in relation to their public or family behaviour?
We need solid demographic and socioeconomic data to get better insights into these issues and into what broader social policy measures could and should be introduced by governments or others. However, regardless of the answers to these very pressing broader questions, what is clear is that an important element of the solution is to give clear messages that this sort of violent and aggressive behaviour is unacceptable to the community and can be expected to have significant consequences. All the psychology in this area tells us that a key aspect of behavioural management is the need to set clear rules and limits and to give a message to those minded to infringe those rules and limits that their conduct has consequences. It is against that test that this bill needs to be assessed.

As to whether the bill passes that test, whether it will be a successful additional tool in the repertoire available and appropriately deployed by police, is something on which the jury is still out.

Certainly there is the potential for these measures to help in law enforcement by saving police time in prosecuting offences by means of offering a lower penalty and the non-recording of a conviction for offenders who do not dispute the case. This has the potential to both free up the time of police for other law-enforcement activities and also to put them in a position where they are more easily and more readily able to issue penalties against those offenders who deserve them. This is a potential positive of the legislation.

However, there are many unanswered questions, and some of those issues reinforce the opposition’s concern that while the state’s Attorney-General is big on the grand statements, he is very much lacking when it comes to attention to detail and the nuts and bolts of the actual implementation of measures that will have a real and practical effect in the community.

In relation to this bill we need to ask whether it will, in the way it is going to be applied, help with the crackdown on street offences, or will it end up being used in a manner that proves to be soft on those offences? Will it have the unfortunate effect of some police using the convenience of simply handing out infringements and being tempted not to proceed with prosecutions in court when such prosecutions are deserved, so that those offenders will end up receiving penalties which are only around one-tenth of the maximum penalty available and well below the median of penalties that have been handed out in the past when these matters have gone to court?

We need a reassurance that there will be measures to make sure that the system does not end up being used in this way and that the police will not be handing out inadequate fines simply because they are channelled down that route so they are able to get on with attending to other duties required of them.

We also have concerns that some of the guidelines that are to be issued will send the wrong messages. The draft guidelines are set out in the May consultation paper. As far as I am aware, there are no later guidelines in the public arena. I refer to two particular concerns with the draft guidelines. One of those concerns relates to the draft guideline for indecent/obscene language or offensive behaviour. I should make it clear that these guidelines are intended to be issued for use by police as to how they should exercise the powers which are to be conferred on them in relation to these offences. The aspect that caused me concern in relation to this set of the guidelines is the following bullet point:

The primary objective when dealing with behavioural offences is to modify behaviour in line with community expectation and this is often best achieved by informal means.
My concern is that this is a very open-ended statement that could easily send the wrong messages to police. In some respects it may be said to be a sensible point, but it is open to the misinterpretation that the police are being encouraged to be soft on these sorts of behavioural offences and that it will be enough for them if they can get the particular offender to desist from the behaviour concerned by informal means. That would be sending the wrong message, because we cannot have the message being out there in the community that if you engage in offensive public behaviour you will get a ticking off by the police if they happen to be around when you perpetrate that behaviour, but you will get off totally scot free if there are no police around.

The police need to be sending the signal that if people are clearly stepping over the line and engaging in offensive behaviour, then if they are detected in that behaviour they are likely to cop an infringement notice at the least. The deterrent effect of these notices will be lost if offenders expect that in a first encounter with the police they can get away with being ticked off and escape any punishment, but if the police do not happen to come across them, they can carry on at will.

The second guideline that causes me even greater concern is a draft guideline in relation to failure by a person who is drunk, violent or quarrelsome to leave licensed premises when requested. Indeed this draft guideline is so strange that it is hard to believe it has actually been set out. That guideline says:

An infringement notice must not be issued to a person whilst they are drunk or in a state of intoxication.
Here we have an offence, one of the key elements of which is ‘drunk, violent or quarrelsome’, yet the guideline is saying to police not to exercise their capacity to issue an infringement notice if the person is drunk. Why on earth is the offence being constituted in that way in the first place, if police are being told never to exercise it? If you are going to tell the police not to issue an infringement notice if the person is drunk, why not simply split the offence and apply the infringement notice only to the offence of being violent or quarrelsome? This of course flows on to broader concerns about what the Attorney-General has in mind in relation to drunkenness.

I refer to a report in the Herald Sun of 29 November last year, which says in part:

Public drunkenness would be decriminalised and trouble-spot venues charged more to operate in a $20 million anti-booze offensive to be considered by the state government.

…

Details of the proposal are contained in a high-level departmental submission seen by the Herald Sun.

The submission reveals Attorney-General Rob Hulls wants to decriminalise public drunkenness …

On the one hand we have the Attorney-General saying that the government is going to be tough on street misbehaviour and tough on drunken and obnoxious conduct — and we heard the Minister for Police and Emergency Services echoing those sentiments in question time today — yet on the other hand we have the Attorney-General being revealed as wanting to abolish this offence altogether. That would deprive the police of what is believed by all the police from whom the opposition has had feedback, both here and in other states, to be a very important offence in their repertoire. They can use it to charge people not only to protect other members of the public but also in circumstances where a person’s drunken behaviour puts them at risk as well.

The feedback the opposition is getting from the experience in New South Wales, where there is no public drunkenness offence, is that it is far harder for police to carry out the very difficult role of dealing with people who are drunk and behaving inappropriately in public when this offence has been abolished.

I would have thought that in the current context, where obnoxious, violent, aggressive and disruptive behaviour out on the street, fuelled by alcohol, is an increasingly serious problem in this state, the last thing the government should be doing is sending the wrong message by abolishing the offence of public drunkenness. This is a matter that causes us considerable concern, and we very much look forward to the Attorney-General’s response on this issue.

There are other issues on which we also seek the Attorney-General’s response. One of those is what effect this new regime will have on the statistics for reported crime. The consultation paper indicates that 20 per cent of all reported crime is theft.

My understanding is that the introduction of this infringement regime will not result in offences not being recognised — in other words, an offence which gives rise to an infringement notice should still be recorded in the crime statistics as a recorded criminal offence and that should not affect or distort the figures that are made public each year, but I certainly request the Attorney-General’s confirmation of this point. In particular I seek the Attorney-General’s assurance that the creation of the new crime of shop theft under this legislation will not be used in order to diminish the reported levels of the crime of theft in crime statistics. It would be a travesty if shop theft which gave rise to the service of infringement notices were taken out of the recorded figures for that crime and were recorded under some other heading which gave the distorted impression that levels of theft had fallen when in fact they had not.

I also ask the Attorney-General to place on the record what the position will be in relation to recording of infringement allegations on a person’s police record and how this will be dealt with in relation to the reported results of police checks. I understand offences still will be recorded by the police, for the very sensible reason that officers need to know when an infringement notice has previously been served on an offender so they can make the decision whether or not to take a subsequent offence to court, but we also ask that the Attorney-General place on the public record how the issue of infringement notices will be dealt with when a person who has been subject to one of these infringement notices requests a police check for various purposes.

I also raise the issue of whether the infringement enforcement system will be able to cope with the additional number of potential infringement notices being issued under this extended regime. As I referred to earlier, the consultation paper says theft amounts to almost 20 per cent of all reported crime.

The paper also says the most predominant class of theft is shop-steal offences, which represent the highest number of offences recorded since the implementation of LEAP (law enforcement assistance program). It is believed the figure of $600 would capture approximately 90 per cent of shop steal offences. The paper also points out that in 2003-04 there were 13 546 shop-steal offences detected. That implies there will potentially be a very large volume of infringement notices being issued in relation to the new offence of shop theft.
We know considerable strains are already placed on the infringement notice system and we seek the Attorney-General’s report to the house as to his assessment of whether or not the infringement system will be able to cope with the additional number of notices and how he intends to achieve that outcome. I and other members of Parliament have already had experience of constituents contacting us about infringement notices that have been sent to the wrong address, triggering cases of demand down the track on totally innocent citizens, often causing great shock and distress. We certainly would not want the number of those cases to be multiplied as a result of this regime.

Last, but certainly not least, I wish to raise what I believe is probably the single biggest problem confronting the new regime that the government is introducing, and it is a problem that has not been addressed in the government’s outline of the regime. The problem is the issue of identity — in particular the potential use by offenders of false or stolen identification. All that the guidelines and discussion papers say in this respect is that it is up to the police to ensure that the offender concerned has been properly identified and that there is no issue with identification prior to an infringement notice being issued, but they say nothing about how that is going to happen in practice.

There are two primary risks. The first is that the police will be taken in by false identification. Certainly most members hear reports that false IDs are quite common in many contexts, particularly in the context of under-age people who are seeking to get into licensed premises and nightclubs and the like.

There is the related issue of the availability of stolen IDs. That has the potential consequence, first, that the offender will get away scot free because, while they have given identity on the spot, they are unable to be found or identified in the follow-up. Even worse, of course, is that when stolen identification is used by an offender, down the track a totally innocent citizen finds out from the Sheriff’s Office or receives other demands through the post stating that they have been identified as being the party to an offence.

The other aspect of the problem is this: if the police are diligent in only issuing infringement notices when they have absolutely, positively identified the person concerned, how narrowly is this going to shrink the operation of the regime? This regime is supposed to be applying in a street context, in the context of licensed venues and groups of people out in public places.

If the police are being rigorous enough to verify the ID in those contexts, how often will it be that they are in fact unable to issue an infringement notice and are forced to resort to the processes of issuing summonses or arresting the person concerned — in other words, making this new regime completely ineffectual in those cases?

When New South Wales conducted a similar trial, it was the subject of a detailed report in April 2005 by the NSW Ombudsman. The New South Wales trial was also considered in the Victorian discussion paper. What the Ombudsman’s report and the Victorian consultation paper made clear was that in New South Wales the government avoided that problem through empowering police to require the fingerprinting of offenders. To quote the consultation paper:

Under the CIN pilot scheme police members may request the name and address of offenders, and may request proof of those particulars.

In addition police may request the suspect to consent to having finger and palm prints taken with special portable equipment. The prints are to be destroyed on payment of the CIN. This aspect is not proposed for Victoria. If there were uncertainty about identification of the person, the issuing officer would not issue a notice. Instead, the person may be arrested and charged.
It is clear that the bill is not proposing the New South Wales method of verification of ID. That gives rise to the concerns which I have elaborated on. It is not good enough just to say that the police will not use it if the person cannot be identified. The potential for misuse of identification through forged or stolen IDs is a real one, as is the other risk that the scheme will be rendered ineffectual through lack of attention to this question of proper identification.

In conclusion, if this bill represents a regime that implements a sensible and measured and fair extension of the infringement system and if it empowers our police to more effectively crack down on transgressors, and in particular to tackle more effectively the proliferation of street violence and family violence that our society is experiencing, then we wish it well and we hope it is successful. But we are very concerned that it has the various flaws that I have referred to. Those flaws have not been properly addressed by the Attorney-General and as result Victoria is not going to get the effective support for our police and the enhancement of our law enforcement regime that all Victorians are looking for.