Mr DAVID SHOEBRIDGE: I note the offensive interjection from the former Government Whip. The object of the bill is to amend the Fines Act 1996 to allow the Commissioner of Fines Administration:
(a)to take civil enforcement action against a fine defaulter who is an individual without first suspending or cancelling the fine defaulter’s driver licence or vehicle registration, and
(b) to take enforcement action to recover an amount payable under a confirmed order for restitution made by the Commissioner of Victims Rights against an offender or another person (a restitution amount).
It removes that first immediate step of cancelling a driver licence or registration. I will speak to the benefits of that in due course. Instead of the traditional civil enforcement path of attending the Local Court, the restitution amount or debt will be enforced with greater finesse and less expense using the enforcement system that applies for fines in New South Wales. The Greens support changes to the process for dealing with fines that delivers flexibility within the system, especially where this allows appropriate people to keep their driver licence. Often people require a driver licence for work or health-related activities and its removal only increases the likelihood that they will not be able to pay fines. The option to avoid cancelling a licence requires the commissioner to be satisfied that removing the person’s licence is unlikely to induce payment of the fine and/or would have an excessively detrimental impact on the fine defaulter.
Any unpaid restitution amount under the victims compensation system will now no longer require court action for recovery but will be treated as though it is a fine with enforcement under the Fines Act, as amended by this bill. That is a positive step. Enforcement costs will come from payments for any remaining amount deposited into the Victims Support Fund. By reducing the enforcement cost, the amount payable to victims is increased. Transferring enforcement from the Local Court to the fines commissioner will substantially reduce enforcement costs. The Greens are concerned about the focus on recovering restitution amounts from perpetrators who have little or no capacity to pay. The Greens are also concerned about Government funding cuts to victims compensation. In that context, critics of the Government could see this bill as a cost-cutting measure that risks causing entrenched disadvantage and creates a vicious circle that hinders rehabilitation.
Offenders often have distressed personal circumstances, live in poverty and become indebted by way of a restitution order. That restitution order becomes readily enforceable through this process. In circumstances where the choice is either to have the debts enforceable through the local courts or through the fines commissioner, The Greens recognise the sense in shifting it to the fines commissioner. There is substantial concern that the process will entrench disadvantage. The Greens will continue to monitor that situation. Victims support should be independent of an offender’s capacity to pay restitution.
I will deal specifically with the way the current fines system visits disadvantage upon Aboriginal citizens of New South Wales. In the 2009 NSW Ombudsman’s report the Ombudsman found that Aboriginal people accounted for 7.4 per cent of all penalty infringement notices issued in New South Wales. Of the penalty infringement notices issued, 83 per cent were issued for offensive conduct or offensive language. That is extraordinary. Aboriginal people accounted for 7.4 per cent of all penalty notices issued, yet constitute 2.5 per cent of the New South Wales population. They are massively over-represented. In a 2014Criminal Justice article Elyse Methven stated:
A serious shortcoming of the penalty notices scheme is that police can issue notices without considering the recipient’s social or financial circumstances.
That is a harsh and unjust impact, particularly on Aboriginal people. The 2009 Ombudsman’s report found that 89 per cent of Aboriginal recipients fail to pay their penalty notices on time. Aboriginal communities, in particular, are caught up in a cycle where they do not pay the fines and non-payment of the fine leads automatically to a cancellation of the driver licence. Many Aboriginal people live in rural and regional New South Wales where the only transport option is a private motor vehicle. They continue to drive without a licence as there is no other way to go to town for food, to pick up the kids or to attend medical appointments. The final outcome is escalating criminality: An unpaid fine becomes a cancelled driver licence, which escalates to a criminal offence. Aboriginal people are going to jail for this reason. There must be alternatives to the automatic cancellation of driver licences. The 2013 Auditor-General’s report looked at improving legal and safe driving among Aboriginal people. The executive summary states:
In 2011, Aboriginal people represented only 0.4 per cent of all driver licence holders, while being 1.9 per cent of the eligible driver licence population.
Aboriginal people are at least 25 per cent less likely to have a driver licence compared to non-Aboriginal people, and the rate of Aboriginal people with cancelled driver licences is escalating. The report further states:
Where there are few alternative transport options, the need for Aboriginal people to travel may result in them driving unlicensed. Being caught for repeated unlicensed driving offences can also lead to imprisonment. In 2011, 201 Aboriginal people were imprisoned for “driver licence” offences.
The Government has implemented ad hoc initiatives through the State Debt Recovery Office. The Auditor‑General further stated:
However, these initiatives have been slow to reduce the number of licence suspensions among Aboriginal people. Aboriginal people’s driver licences are suspended for fine default at over three times the rate of non-Aboriginal people’s driver licences.
Aboriginal people are 25 per cent less likely to have a driver licence in the first place. Almost 90 per cent of Aboriginal people do not respond to penalty notices in time and the first response from authorities is to cancel their driver licence. If they are caught driving unlicensed, they are three times as likely to face serious criminal consequences. This is entrenching disadvantage. The Auditor-General continued:
However, Aboriginal people continue to be imprisoned for “driver licence” offences. In 2011, 12 per cent of Aboriginal people found guilty of a “driver licence” offence were imprisoned, compared to 5 per cent for non-Aboriginal people …
In 2011, 61 per cent of Aboriginal “driver licence” offenders were repeat “driver licence” offenders.
This is often related to nothing more than geographical and personal circumstances. The Greens support reform that does not automatically cancel a driver licence as the first step. The bill does not identify vulnerable people or commit to correcting the historic wrong in relation to Aboriginal people. It does not require the commissioner to allow Aboriginal people to retain their licences. The Government must address the unfair rate at which Aboriginal people’s driver licences are cancelled and invest in licensing Aboriginal people in the first place. It must support Aboriginal communities.
I am informed that the recent implementation of mobile drug testing has resulted in the last person with a driver licence in a remote Aboriginal community losing that licence. The driver avoided alcohol but may have used cannabis occasionally and so had their driver licence cancelled, leaving the community completely isolated. This needs to be on our agenda more than just being a reference in a second reading speech. It should be the core business of this Parliament to fix this kind of unjust outcome for Aboriginal people. I hope that this bill is a first step in that direction. The Minister said that work will be done in his office and in the department to try to identify Aboriginal people—they are not yet even identified in the data—who are coming through the system so that they can be treated as a group of vulnerable people and so that we can do everything possible to help them to keep their licence and their mobility and keep them engaged in society.