Withdrawal of Infringement Notices
1.1 Introduction
The infringements system plays a critical role in regulating
community behaviour across industries and occupations as well as
protecting the physical environment to achieve public order, safety
and amenity.
Around 130 agencies—government departments and authorities,
local councils, universities and hospitals issue infringement
notices for minor statutory offences relating to parking, speeding,
polluting the environment, public transport offences,
non-registration of animals and breaches of industry
regulations.
Commencing in mid-2006, the new infringements framework
introduced significant changes for enacting and administering
around 2 000 infringement offences. The changes aim to provide a
fairer and firmer fine system.
Fairer, in that the system seeks to better protect
those who are vulnerable and inappropriately caught up in the
system. People who receive an infringement can also request that an
agency review the decision to issue the infringement. For
firmer enforcement, the system also introduces a range of
sanctions where payment has not been made.
The Department of Justice (DOJ) established the Infringements
System Oversight Unit (ISOU) in mid-2006 to provide
whole-of-government system monitoring and oversight.
Specifically
this involves:
- maintaining and amending the
Infringements Act 2006 (the Act) and
regulations
- consulting across government on proposed
infringeable offences
- stakeholder engagement including
supporting the Infringements Standing Advisory Committee to resolve
issues and assist agencies in meeting their obligations under the
infringements framework
- collecting data from enforcement agencies
and providing the Attorney-General with information to facilitate
publication of an annual report on the infringements
system.
However, ISOU does not have the power to investigate or
discipline agencies.
The infringements system is two and a half years old and is a
large system with significant implications in terms of the
information required to be collected, verified and analysed on an
ongoing basis. Typically, a new system can take several years to
bed down.
The audit focused on the withdrawal of infringements. In
2007–08, almost 4.2 million infringement notices were issued and
over 209 450 notices were withdrawn. While withdrawal of notices is
only one part of the overall infringements system, it is
significant and central to the initiative to make the system
fairer. The internal review process provides a check on the
legitimacy and fairness of the original decision and enables
inappropriate decisions to be overturned before any significant
enforcement action has commenced. It also affords the agency the
opportunity to ascertain the recipient’s circumstances and to
consider, even if the initial decision is confirmed, the
appropriateness and prospects of pursuing payment of the fine.
The audit objective was to determine:
- the extent to which DOJ has complied with
its responsibility to monitor the operation of the infringements
system, specifically in relation to the withdrawal of infringement
notices and the conduct of internal reviews
- whether the withdrawal of infringement
notices by selected enforcement agencies is appropriate and in
compliance with the Act.
The audit focused on the withdrawal of infringement notices by
five enforcement agencies: City of Ballarat, City of Greater
Geelong, City of Port Phillip, City of Stonnington and Victoria
Police.
1.2 Overall conclusion
ISOU—system oversight
ISOU has made progress in establishing the infringements system
monitoring and oversight function over the past two years, but it
is not yet fully effective in monitoring the operation of the
system.
Since mid-2006, ISOU has concentrated its efforts on assisting
agencies with the basic requirements of the infringement framework
such as setting up internal review capability and making agencies
aware of the reporting requirements. To this end ISOU has developed
guidelines and information papers, established a stakeholder forum
and a network of relationships with enforcement agencies. ISOU
guidance material is relevant and useful.
Our review of enforcement agency practices, however, found
several fundamental areas of non-compliance. This points to a need
for ISOU to adopt a more systematic and planned approach to both
identifying agency needs and assisting them to meet their
obligations.
ISOU has not undertaken any assessment of whether the state’s
infringements system is operating as intended and the Act is being
properly administered by enforcement agencies.
ISOU conducts limited desktop review of agency data to check if
agencies are applying and interpreting the legislation for internal
review and the withdrawal of notices. The unit also informally
follows-up where agencies advise of issues. ISOU relies heavily on
its stakeholder advisory committee to inform it of issues in the
field. In the absence of specific operational information, it is
difficult to see how ISOU can effectively monitor and oversee the
infringements system and facilitate improvements.
ISOU had not identified inaccuracies and anomalies in agency
data provided to it over the two-year period which were evident to
the audit. Reliance on erroneous agency information could lead to
ill-informed policy or legislative decisions. Changes have now been
made by ISOU to put in place more checks to assure the integrity
and quality of data it receives from agencies.
It is pleasing to note that timely action has been taken by ISOU
to address some key issues raised by the audit and to enhance their
monitoring and oversight of the infringements system.
Agencies—the withdrawals system in practice
Movements in key infringement indicators are consistent with the
system becoming fairer. However, variations between agencies
indicate that the legislative requirements are not applied
consistently. Our review disclosed inconsistent decision-making
within and across agencies. This means further progress is needed
to achieve fairness.
The implementation of the new infringements framework has been a
significant task for enforcement agencies. Agencies reviewed, in
the main, had developed and implemented internal review capability,
procedural guidance and management systems to administer the
appeals and withdrawals processes and data collection and reporting
systems. Notwithstanding, the audit found repeated issues of agency
non-compliance with the legislation and their own guidelines.
Withdrawal of infringement notices by agencies was efficient in
that appeals were processed within statutory time limits. Given the
level of non-compliance in most agencies reviewed, this has been
achieved at the expense of quality.
Key areas of non-compliance included:
- inadequate procedures to support the
withdrawal of notices, and lack of guidance for assessing appeals
claiming special circumstances
- poor records to justify decisions to
withdraw notices
- failure to adequately verify claims or a
lack of evidence that agency processes had been
followed
- inaccurate classification of appeals, data
capture and reporting to ISOU.
The level of agency non-compliance in the audit sample was
significant in many cases. In some cases agencies’ internal review
and withdrawal frameworks were inadequate or had gaps. Agency staff
who processed appeals and exercised discretion in withdrawing
infringements did not understand legislative requirements, agency
procedures and sound business practice including recordkeeping.
Agencies have indicated that staff turnover is an issue. In such an
environment, management should have rigorous quality assurance
programs in place to provide reasonable assurance that practice
complies with legislative requirements.
Cases of inappropriate withdrawals and inconsistent
decision-making within agencies were identified. Such circumstances
do not illustrate a fairer system.
A key aspect of the new infringements system is the requirement
for agencies to consider a person’s circumstances. The Act seeks to
divert those with special circumstances from the infringements
system. Councils reviewed did not manage a high level of special
circumstance cases. In 2007–08, Victoria Police denied a high
proportion of appeals claiming special circumstance. This is at
variance with the Attorney-General’s 2006 Guidelines and
the intent of the legislation to divert such persons from the
system. Further review is required to ascertain whether Victoria
Police should change its practices or a change or clarification in
policy is needed. Once resolved, guidelines to operationalise the
intent of the legislation and to assist review staff in assessing
this unique cohort’s claims, should be developed by agencies
as
a priority.
The audit findings relate specifically to the five agencies
examined in detail, which together issued around 64 per cent of all
2007–08 infringements. Nevertheless, they are likely to be
indicative of practices in other enforcement agencies.
1.3 Recommendations
ISOU—system oversight
ISOU should:
- review and maintain, on an ongoing basis,
the robustness of its quality assurance mechanisms in providing
assurance of the accuracy of agency information provided
(Recommendation 4.1).
- clarify its responsibility for detecting
non-compliance with the Act by enforcement agencies, and any
remedial action to be taken
(Recommendation 4.1).
- periodically assess how the infringements
system is working and whether enforcement agencies are applying and
interpreting the Act in accordance with the Attorney-General’s
2006 Guidelines. Developments and challenges identified should
be referred to in the Attorney-General’s annual report
(Recommendation 4.2).
- better leverage its oversight and
monitoring role by collating and disseminating examples of good
practices to enforcement agencies (Recommendation
4.3).
- meet periodically with enforcement
agencies (in addition to the Infringements Standing Advisory
Committee) to assist them to identify systemic and operational
issues and to share knowledge about managing their infringements
(Recommendation 4.4).
- expand the performance information it
includes in the Attorney-General’s annual report to provide more
comprehensive information and analysis of the operations of the
infringements system (Recommendation
4.5).
Agencies—the withdrawals system in practice
Enforcement agencies should:
- periodically review their infringement
policies, procedures and guidelines to make sure they:
- are consistent with legislative requirements, including
recordkeeping requirements
- are comprehensive
- reflect current practices
- are approved by the governing body (Recommendation
5.1).
- ascertain the extent to which they use
multiple reviews and if significant, confirm that:
- these reviews comply with the
Infringements Act 2006
- they are a cost-effective use of
resources
(Recommendation 5.2).
- develop, in consultation with DOJ,
guidelines that clearly articulate operational processes consistent
with legislative requirements for appeals claiming special
circumstances (Recommendation 5.3).
- undertake annual reviews of the
competencies and capabilities of personnel involved in processing
internal reviews and implement a targeted training strategy to
address knowledge gaps (Recommendation
5.6).
- strengthen their quality assurance
processes to confirm that:
- personnel are maintaining full, accurate
and timely records of actions to support decisions
- decisions comply with approved policies
and guidelines
- internal review and withdrawal processes
comply with the legislation
- performance information reported to ISOU
is accurate and reliable (Recommendation 5.7 and
6.2).
- periodically review the information they
provide to the community so that it adequately includes information
on appellant rights and options, the internal review process and
agency requirements (Recommendation
5.9).
In addition to the above, Victoria Police
should:
- in consultation with ISOU, clarify the
legislative requirements for appeals claiming special circumstances
and whether its practices comply, or further policy guidance is
needed (Recommendation 5.4).
- better educate staff of the procedural
requirements in seeking an exemption from complying with the road
rules, and proactively monitor their compliance
(Recommendation 5.8).
DOJ should review the provision of services to
people with special circumstances in regional centres
(Recommendation 5.5).
Agencies—quality assurance and analysis
Enforcement agencies should:
- in consultation with DOJ, develop a
framework for measuring the performance of their infringements
systems. It should include key performance indicators, benchmarks
and reporting arrangements for assessing the extent to which the
enforcement agency has fulfilled its obligations under the
Infringements Act 2006 (Recommendation
6.1).
- analyse infringements information with a
view to achieving potential improvements in issuing infringements
and appeals and withdrawals processing (Recommendation
6.2).
Victoria Police should assess the accuracy of
its 2007–08 internal review statistics and, if necessary, re-submit
the data to DOJ for analysis (Recommendation
6.3).