Wednesday 11 November 2015. 4.39 p.m.
(No. 46) Second Reading
Ms FORREST (Murchison) - Mr President, the purpose of this bill is obvious from the opening line of the speech. The bill is to recover some of the general costs of law enforcement and administration if a person is sentenced for offences in Tasmania.
The Government seems so keen to be seen to be tough on crime, but all it entails is that it is now seeking to inflict more arbitrary suffering. These people are not just statistics or numbers or budgetary targets. They are people who, because of this levy, may be unable to turn the heater on for a few weeks in winter or put a warm meal in their child's belly. Yes, they get financial support through our social welfare system, but many of them spend their very last penny before the end of the week meeting the needs of their families. For those people, $50 is a significant impost.
This is an arbitrary taxation and punishment on those who may be able to pay but it will also seriously impact those who can least afford it. There are already costs, fees and levies payable as a result of a conviction. Those costs are not able to be taken into consideration by sentencing magistrates and judges. It requires mental gymnastics by our judicial officers.
I am fundamentally opposed to recouping costs from offenders in this way. There are broader considerations at play beyond merely budgetary gains to be made. The criminal conviction costs are specifically unable to be considered by the judicial officer, the magistrate or judge. This levy is to be enforced by the Monetary Penalties Enforcement Service as a fine. This further signals that really this simply is a tax or punishment potentially, and more likely to be on the poor. A levy of $50 in the Magistrates Court and $150 in the Supreme Court will be extremely problematic for some Tasmanians, despite what some other members have said. That could quite easily result in financial penalties of more than three-quarters of a household's weekly budget. This is the point. Those of us sitting around this Chamber do not appreciate and understand that. We do not live that reality, but as the member for Launceston said, there are many out there who do.
There is no leeway in the timing of the payment of the levy under clause 6. Offenders have 28 days to pay. I have spoken to lawyers and a range of other stakeholders. I spoke to a lawyer who said he had a client who was feeding himself and buying toiletries, etcetera, on somewhere between $25 and $50 a week. She was poor and she was also an addict. You may say that is a choice she makes. Well, sorry, it is not always a choice. As those members who have sat on the preventative health committee would know, poor health is not necessarily a result of poor health choices. It is sometimes the circumstances in which people find themselves. We need to help these people, not condemn them. The lawyer was telling me that his client could definitely not afford to pay this levy within 28 days. As a result of that, she would then have to deal with the Monetary Penalties Enforcement Service to organise a payment plan. Again, that results potentially in other negative consequences, as the Leader said in her second reading, that under the Monetary Penalties Enforcement Act 2005 the failure to pay may result in enforcement action including suspension of a driver's licence and/or vehicle registration, seizure and sale of property, and redirection of money such as wages and savings.
This means they may end up seizing the only thing of any value that a person has. I know of a constituent who had her car seized and that was the last thing she had. I ended up getting it back for her because it had no value. She had no income herself other than the pension she was on. She was trying to deal with some other very unfortunate circumstances she found herself in through a misunderstanding with the place she lived in. It was terrible. The car did come back ultimately, but she was suicidal at times because of the pressure she was under. It was just awful. James in my office and I spent weeks dealing with this and trying to keep her from committing suicide.
In many respects, and others have said this too, it is shameless revenue raising. It will do nothing for our community and we will be the poorer for it. I have spoken to a range of stakeholders about this. Most of them have been in touch with me and I am sure they have with other members as well. I have had no representation seeking support for this legislation - not one. That is one of the important things here. In all the representations that I have had - and probably most other members, if not all - and all the discussions I have had in the community, there has not been support.
In regard to the survey in The Advocate that the member for Western Tiers referred to, I do not take a lot of notice of those generally. I do not know what the question was but it could have been 'Should criminals be required to pay for the crime and support the cost of administering justice?' Of course people say yes to that. It is a totally ill‑informed decision they are making. It is unfortunate we publish those things. We have access to much more information and greater understanding.
In my community where The Advocate is based, as for the member for Western Tiers and members for Montgomery and Mersey, we have one of the highest rates of poverty in the country, one of the highest rates of youth unemployment in the country, one of the highest rates of disadvantage in the country, and one of the highest rates of poor health outcomes in the country. Some of the poorest educational outcomes. Let us be real about the expectations of asking people what they think about matters such as this and show some compassion.
I will refer to some of the stakeholders' feedback. Yes, there was some from lawyers who have quite a strong view in this area. They are not all lawyers. These are the service providers who deal with the people who will be negatively impacted by this bill.
Dr Chris Jones from Anglicare in part of his email to us said -
Anglicare is deeply concerned that an additional financial penalty levied on people found guilty of a crime will have deleterious effects on their families, many of whom are already experiencing entrenched poverty and disadvantage.
While imposing additional hardship on these families, the measures as proposed in this bill would not furnish the state with substantial revenue balanced against the cost of administration, nor act as an effective deterrent to those at risk of engaging in criminal behaviour.
Based on Tasmania's experience in implementing the Victims of Crime Levy, less than half of the fines levied would be collected. The introduction of an additional levy would likely present a significant administrative burden and cost for the courts.
You would be well aware that a complex set of circumstances usually surrounds a person's arrival in the criminal justice system. For this reason Anglicare believes that courts should be able to take into account these individual circumstances rather than apply a generic approach as presented in the bill in its current form.
The member for Elwick very adequately covered the unpaid fees and that sort of thing. I am not going to go into it. Her contribution covered it very well.
TasCOSS -
This bill proposes to fine anyone convicted of a crime of a sum of between $50 when sentenced by the Magistrate's Court and $150 when sentenced by the Supreme Court. These fees will be on top of existing court fees and Victims of Crime levies.
As the member for Western Tiers has already told you, when there has been harm to other people who may well be suffering from poverty and disadvantage too, it is right that people contribute to that. They do through the Victims of Crime Compensation Levy. That is already in place. This is on top of that. It does not help. It does not go back to those people.
TasCOSS understands that law enforcement and the administration of justice come with a cost. However, apart from a general statement that those sentenced by the courts for their wrongdoing should make a contribution to the justice system, no specific evidence has been given of why Tasmania needs an additional levy beyond existing court fees.
Furthermore, the measures proposed by this bill are the wrong way to meet that cost.
Fixed fines are profoundly regressive with little impact on high income earners but a high impact on low income earners.
It is disproportionate in its effect.
As a reminder, in 2013-14 31.2 per cent of Tasmanians were in the state's lowest income quintile. A further 22.9 per cent were in the second-lowest.
In other words, 54.1 per cent of Tasmanians were in the bottom 40 per cent of the state's incomes - more than half. Unfortunately those people are more likely to be the ones to find themselves in front of the courts and wrapped up in the criminal justice system.
The current high level of debt to the Monetary Penalty Enforcement Service, nearly $23 million more than a year overdue, is just further evidence of a population with a lack of capacity to pay.
As the member for Elwick pointed out. The member for Rumney said some of these people could well be paying and choose not to. That could be the case but the majority would fit into the first category.
The compounding nature of the monetary penalties can have a long-term devastating impact, not just on individuals but on whole families living on a low incomes. Failure to pay can lead to suspension of a driver's licence and/or vehicle registration, seizure and sale of property and the redirection of money such as wages and savings. These measures do not discriminate in their impact between an individual incurring the penalty and those dependent on them, particularly children.
It is not only the person who has committed the crime, it is their families and those dependent on them who also could be negatively impacted.
Other members have quoted the email from the Australian Lawyers Alliance and Henry Bill who is the signatory of that. For completeness, I would like to read some of that communication where they outline the problems they see with the bill, and they say -
Our concerns regarding the bill are as follows:
1. The levy is applied on every guilty plea. There is no discretion for the magistrate to remove it.
The member for Launceston was commenting on her concern about the mandatory nature of it.
2. The levy will be levied overwhelmingly on minor offences in the Magistrates Court as these are the most common type of matter. A lot of these offences, disorderly conduct, driving whilst license suspended, et cetera, are charges with which young people, people with disabilities, are often brought up on.
3. The levy will be imposed even when a conviction is not imposed under 7(f) or (h) of the Police Offences Act 1935. This effectively means that people get a $50 fine even when their charges are dismissed for good reasons including trauma, mental health problems, or other extreme mitigating circumstances.
4. The levy triplicates fees already in place. People already pay a Victims of Crime levy and the costs of the court on conviction. This would create a third mandatory fine on top of those, in addition to any fine imposed for the offence itself. This means that people will end up paying four fines (in cases where there are other statutory penalties, even five) for a single offence. That makes justice extremely confusing.
5. The funds are directed at consolidated revenue, not at the administration of justice.
It could be according to the Leader's second reading speech but it goes into consolidated revenue.
Basically the magistrates and judges are collecting a tax.
That is their view.
Also, they note the comments made by the Honourable Justice Stephen Estcourt regarding the Productivity Commission's recommendation regarding a user-pays system in the civil jurisdiction, that 'they represent the single greatest threat to access to justice and consequently to the rule of law that I have witnessed in my professional lifetime'. I will come to his comments in a moment.
Another lawyer I spoke to did actually give me a couple of case examples that are helpful to help people understand what we are really talking about. I particularly want to read these after the member for Rumney's contribution if members need convincing.
This lawyer suggests -
People to whom I think the law will disproportionately apply are people with a mental illness, young people, migrants and the homeless. Minor offences to which the law will apply which typically hurt vulnerable people -
And we are looking at some of the offences that we are referring to and it was the member for Elwick who mentioned begging, under section 8 of the Police Offences Act, surprisingly, it is still prosecuted in Hobart; prohibited language and behaviour, swearing in public for example, under section 12 of the Police Offences Act; public annoyance, section 13 of the Police Offences Act; and driving an unregistered motor vehicle.
These are examples that have been identified based on typical cases at the Magistrates Court -
Woman 29, employed as a cleaner. Client is a single mum living in East Devonport and raising two kids under 10 and working part-time as a cleaner in a business in Latrobe. Client's ex-partner stops making child support payments, leaves her without that source of income. Her registration is due this week and she cannot make the payment. She drives to work at 5.00 a.m. rather than miss a shift and lose her job. Police intercept her and find that the car is unregistered. No prior history of offending. Under the current law, this person would likely receive no penalty under 7(f) of the Sentencing Act. Under the new law, mandatory $50 penalty, placed on her record. Client would also have no capacity to pay.
Woman, 18, student at a Launceston secondary college. Client is living with mother but leaves home due to sexual abuse of her stepfather. She is too scared to ask for help so ends up begging in the mall, is arrested under the Police Offences Act. No prior history of offending. Under the current law this person would likely receive no penalty under 7(f) or (h) of the Sentencing Act. Under the new law, mandatory $50 penalty of placed on her record. Client would also have no capacity to pay.
Male, 30, recently migrated as a refugee. Client is a refugee from Iraq. After having his payments cut off due to his inability to properly complete forms in English, he attends Centrelink and shouts at staff. No prior history of offending. After being arrested and charged with disorderly conduct, it is revealed that he suffers from post traumatic stress disorder. He is admitted to the Mental Health Diversion List and makes a good recovery. Under the current law, this person would likely receive no penalty under section 7(f) of (h) of the Sentencing Act. Under the new law, mandatory $50 penalty, placed on his record, no capacity to pay. The department of Immigration may also use the fact that he was fined $50 as evidence of the seriousness of the offence to remove him into immigration detention for a breach of the refugee code of conduct.
These are real cases and these are real people, and this is the impact we could have in supporting this legislation.
The Law Society also made some interesting points in my consultation with them. Neasey J noted in Broughton v Lowe in 1979 TASR (NC7)that, 'Imposition of a fine which is beyond the offender's reasonable capacity to pay never is just or rational'. With that in mind, the Law Society of Tasmania then highlights that the minimum a first offender on one count of exceeding 0.05, with a BAC below 0.10, would receive is a financial impost of at least $440.16. The maximum fortnightly Newstart allowance for a person with no children is $519.20. They add that it is unclear how the unreasonable hardship may be applied and what evidence a court might require. This will make it very difficult for many self-represented litigants.
Another point they raise is that when United Kingdom lawmakers passed similar legislation, the editor of the Criminal Law Journal referred to it as 'one of the most unworthy pieces of legislation ever placed on the statute book'. The member for Elwick also talked about the United Kingdom experience.
The Law Society of Tasmania's Criminal Law Committee was concerned about the lower socio‑economic backgrounds of defendants in the criminal justice system. The enforcement of a levy by the Monetary Penalties Enforcement Service can result in suspension of a driver's licence, which could then result in charges of driving while suspended. The society says that the introduction of such a levy may have the effect of further criminalising behaviour that, but for the imposition of a levy and a failure to pay, would not be criminal.
The Law Society also says:
In our view, such a levy is regressive and adds burden to an already burdened and disadvantaged community. The levy forms no part of the sentencing process … Finally, in the event the levy is introduced, it is the strong view of the society that any revenue raised be directed at increasing funding to the under-resourced community-based rehabilitation programs.
Their strong view is that it should not be supported.
I finish with comments made by Justice Stephen Estcourt QC. This was reported in the Mercury on 6 November:
A Tasmanian judge has criticised a report promoting a user-pays model for people accessing civil courts and tribunals, saying this is the single greatest threat to the rule of law he has seen in his professional lifetime.
That is a big claim from a senior member of our legal fraternity. He was speaking at a recent Australian Lawyers Alliance conference in Hobart. He urged the legal community to resist any changes in this regard. Justice Estcourt said the recommendations 'had largely gone under the radar and they ought not to have done'. I want to read a couple of sections from the paper he presented to the Australian Lawyers Alliance. In his introduction he said:
Apart from an extremely valuable contribution by Justice Steven Rares on behalf of the Judicial Conference of Australia, the recommendations of the Productivity Commission, in chapter 16 of its report entitled Report on Access to Justice Arrangements, appeared to me to have largely gone under the radar. They ought not to have done. In my view they represent the single greatest threat to access to justice and consequently the rule of law that I have witnessed in my professional lifetime.
He then goes on to talk about those two recommendations. Further he said, 'In this paper I wish to focus on the last of those identified problems' - the problems identified by Justice Rares, being justice for sale, as he calls it:
As was said in BGEU v British Columbia (Attorney-General), there cannot be a rule of law without access. Otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice.
The notion of access to justice has evolved. Clause 40 of the Magna Carta translates roughly from the original Latin as, 'To no-one will we sell, to no-one deny or delay right or justice'. This clause enshrined the notion of a formal right for citizens to have their grievances determined impartially by a court. Essentially it represented movement away from the partisan and inconsistent justice meted out by monarchs, towards open, principled decision-making. That principle is enshrined in chapter III of Australia's Constitution and in article 10 of the UN Universal Declaration of Human Rights, which states that:
Everyone is entitled in full equality, to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charges against him.
The High Court protected the right to unrestricted access to courts by holding, in Coco v The Queen, that such access could only be removed by an express enactment of parliament.
Today, the idea of a fundamental right to access the court system is understood in the context of providing effective means to assert legal rights. The thinking is that having rights does not do much good if one lacks the capacity, or the system lacks mechanisms, for their effective vindication. This links to the key point, justice does not come cheap. It is a fact that the dominant barrier to parties seeking access to the civil justice system is the prohibitive cost associated with almost every stage of the litigation process.
The connected factors of delay, complexity, procedural formality and an adversarial culture also represent barriers to litigants, especially those of a disadvantaged background. In a time of meagre government funding for legal aid, and of limited availability of pro bono civil representation, those connected factors are particular hurdles for litigants and defendants who are forced to represent themselves. This retards a less obvious goal of access to justice reform - that is, that in order to be truly accessible, the system should be understandable to those who use it.
The final comment was about changes planned under the federal Attorney-General George Brandis QC to increase some Family Court filing fees, as a response to the Productivity Commission's recommendation.
He went on to say that -
User-pays (or user supplements) policies treat justice as a service that can be bought rather than as a public good provided by the judicial arm of government.
As Rares J said in his paper:
Court fees should not be used as a form of taxation or a mechanism to sell justice to litigants. Chapter III of the Constitution establishes the federal judiciary as an arm of government. Under section 52(ii), the Parliament may make laws to impose taxation. Taxation is the usual way in which the Parliament raises money to conduct the business of executive government and to provide the resources necessary to run both the other two arms of government, namely the parliament and the judiciary. Imagine how unacceptable it would be if people were made to pay, let alone at user-pay rates, separate charges to have access to a senator, member of the House of Representatives or parliamentary committee, or to petition one of the Houses. Brennan CJ put it this way:
Courts, being labour-intensive, draw on the public purse for their maintenance; so do the political branches of government, the parliament and the executive. Governments have been attracted to the notion of user pays in order to assist in defraying the costs of the judicial branch, seemingly disregarding the fundamental importance of ensuring the enforcement of the rule of law.
Perhaps the most poignant expression is the view of Sir Richard Scott:
The civil justice system is an integral and indispensable part of the structure of administration of justice that must be put in place in every state in which public and private affairs are to be conducted in accordance with the rule of law; and … a policy which treats the civil justice system merely as a service to be offered at a cost in the market place, and to be paid for by those who choose to use it, profoundly and dangerously mistakes the nature of the system and its constitutional function.
Justice cannot be sold and as a profession we must resist any such notion.
They are strong and important words from one of the well-regarded members of our judiciary and justice system. This legislation is fundamentally wrong. For people who can afford to pay in the Magistrates Court, $50 is not going to have a major impact or be a deterrent for them. For those who do not have the capacity to pay, and they are the majority of people who will find themselves in front of the court, there must be better ways to deal with these challenges.
We have a taxation system. We have a social welfare system and a tax-and-transfer system that supports people in times of need. We do not need to go down such a draconian path such as this. I believe it was the member for Elwick who said this is mainly to fulfil an election promise. The Government has backed down on other election commitments. Regarding the racing industry, the minister made it clear in his contribution to us some time ago they had decided that was not the most appropriate way to proceed in that area. The Government should have a rethink about this one. I hope our House rejects it unanimously.
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