The penalty notice scheme in NSW forms the backbone of the criminal justice system, issuing 2.8 million infringement notices in the 2010/11 financial year. However a Law Reform Commission Report has criticised the scheme as being opaque, inconsistent and inflexible and proves it needs fundamental reform say The Greens NSW.
Fast facts on the penalty notice scheme:
- In 2009/10 more than 2.7 million penalty notices were issued by NSW agencies;
- In 2009/10 only 28,214 (1.04%) recipients of a penalty notice challenged it in Court;
- In 2010/11 some 2.83 million penalty notices were issued for fines totalling $491 million;
- In 2009/10 the Local Court imposed only 116,915 penalties of which 53,543 were fines;
- The fine for spitting on a railway station ($400) exceeds the fine for endangering peoples’ lives by driving through a red light ($353);
- There is no ability to seek an administrative review of a penalty issued by the NSW Police;
- Vulnerable groups like juveniles, the mentally ill and indigenous people are unfairly impacted by the penalty notice scheme.
Key recommendations from the review:
Section 53 of the Fines Act 1996 (NSW) should be amended to provide that Part 3 of the Act, except the cautions provisions contained in Division 1A, does not apply to a person younger than 14 years at the time of the offending behaviour.
The Fines Act 1996 (NSW) s 19A should be amended to provide that, in every case where a penalty notice offence is committed, the appropriate officer must consider whether it is appropriate to issue an official caution instead of a penalty notice.
The Attorney General’s Caution Guidelines should be amended to include a statement of principle reinforcing the need to reduce the involvement of vulnerable people in the penalty notice system.
The Attorney General’s Caution Guidelines should be amended to require issuing officers to consider whether the issue of multiple penalty notices in response to a single set of circumstances would unfairly or disproportionately punish a person in a way that does not reflect the totality, seriousness or circumstances of the offending behaviour.
Section 24E(2)(d) of the Fines Act 1996 (NSW) and the Attorney General’s Internal Review Guidelines should be amended to provide that a penalty notice must be withdrawn if the person to whom it was issued has an intellectual disability, a mental illness, a cognitive impairment or is homeless, which was a contributing factor to the commission of an offence or reduced the person’s responsibility for the offending behaviour.
The State Debt Recovery Office should extend, develop, and increase the frequency of its licence restoration activities, especially in rural, regional and remote areas and in relation to Aboriginal and Torres Strait Islander communities.
Prisoners and detainees (whether on remand or under sentence) who meet the eligibility criteria for a work and development order should be able to count voluntary activities and work undertaken while in custody or under supervision as eligible activities for a work and development order.
Mutual obligation activities undertaken for the purposes of Centrelink benefits should be eligible activities for a work and development order.
The exemption in section 120(2) of the Fines Act 1996 (NSW), which provides that the Minister is not required to make public the guidelines on writing off unpaid fines, should be reversed to contain a requirement that these guidelines be made public.
Media comment by Greens NSW MP and Justice spokesperson David Shoebridge:
“In the past decade the penalty notice scheme has grown like topsy and there are now more than 7,000 offences on the books.
“There is no consistency in the scheme, with spitting on a railway station carrying a greater penalty that endangering people’s lives by running a red light.
“At present many agencies don’t have any guidelines for issuing penalty notices; some, like the NSW Police, don’t allow for any administrative review of penalty notices once they have been issued.
“There needs to be a standard set of guidelines for penalty notices that is applied by the whole of government.
“Because there is no discretion in the size of a penalty once a notice is issued, they can have an unfair impact on vulnerable groups like juveniles, the mentally ill and indigenous people.
“No child under 14 years of age should be issued with a penalty notice.
“The unfair impact on vulnerable groups must be addressed by greater use of cautions and more accessible administrative review of notices once they are issued.
“There are a range of recommendations in this review that need to be urgently addressed.
“The first cab off the rank must be providing publicly available and whole of government guidelines that force some consistency on the scheme,” Mr Shoebridge said.