Page 4394 - Week 14 - Wednesday, 30 November 1994
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MR LAMONT (Minister for Urban Services, Minister for Housing and Community Services, Minister for Industrial Relations and Minister for Sport) (5.10): Madam Speaker, the Government will be opposing this amendment. To remove the discretion to withdraw infringement notices has a natural corollary - to propose the alternative, which is prosecution. This amendment would not allow a person to exercise discretion in assessing the merits of an issue, but basically means that an appeal against an infringement notice would be a judicial process; you would need to go to court. Mr De Domenico is trying to replace a discretionary process with a judicial process. Similar discretionary provisions exist elsewhere. There is discretionary power to do a range of things. One is to speed up the process and not bog down the courts. If you do not wish to have a discretionary process such as the one outlined here, then you must have a court based process. That is one of the reasons for the wording in the legislation.
If a person is refused a withdrawal by the nominated officer, the matter will be decided by a court if the person does not pay. On the grounds of natural justice, a person must be given an opportunity to have their day in court and get an answer. That is what is provided for within the legislation as it is currently framed. If they are knocked back and they do not pay the fine, the matter goes to court for determination. If it were a requirement that reasons be given for a rejection, as proposed by Mr De Domenico, the reasons would become the subject of legal challenge, rather than the original fine. I go back to my first point about the difference between the exercise of discretion and the judicial process. For those reasons, we believe that we need to object to Mr De Domenico's amendment.
Section 13C of the Interpretation Act presents difficulties with setting out findings, which is what Mr De Domenico is essentially seeking to have happen. Again, it makes a bit of an absurdity to say, on the one hand, that we will provide a discretion but, on the other hand, that this person will have to follow a judicial-like process in coming to a decision. The amendment flies in the face of the discretion intended in this clause. The withdrawal of a notice would, I suspect, be on fairly straightforward grounds. The offences for which an on-the-spot fine can be used are very straightforward and do not involve a degree of subjective judgment about elements of the offence. The offences that we are talking about are offences such as failure to validate a ticket, standing on a seat, et cetera. They are the types of things which, quite frankly, do not need a lot of subjective judgment. If the offence is challenged and the fine is not paid, the court determines the issue at the end of the day.
For those reasons, the requirement that Mr De Domenico would impose upon the officer is unreasonable and is inconsistent with the way in which discretions of this nature are exercised in other areas. For those two reasons - for the sake of consistency and the nature of the issues that we are talking about - the amendment moved by Mr De Domenico should not be supported.
MS SZUTY (5.14): Madam Speaker, I am a bit puzzled by the Government's reaction to this particular amendment, because it was my assumption earlier today that the Government was going to support it. I have been listening rather intently to the discussion and I understand the nature of the discretion which would be introduced by this particular provision of the Bill. In fact, I have just referred to the Scrutiny of Bills Committee report and noted that the Scrutiny of Bills Committee did not have any
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