Interviews with Julian Burnside QC & Dr Andy Schmulow.
Much has been written on the deficiencies of Melbourne’s myki ticketing system. However, the myki controversy has raised more serious issues regarding public administration in Victoria. The Victorian Department of Transport has come under legal criticism for its application of the absolute liability concept to myki fines.
Dr Andy Schmulow is a former legal academic at Melbourne University and now Principal at Clarity Prudential Regulatory Consulting Pty Ltd. He referred an early myki infringement case to prominent Melbourne barrister Julian Burnside QC. Mr Burnside has since established a pro bono ‘flying squad’ of barristers and law students who have helped over three hundred commuters fight their myki fines in court.
The Department’s application of absolute liability
Absolute liability offences are crimes where a person is guilty regardless of their intentions. By performing the prohibited act, they are automatically guilty, regardless of whether they meant to do it or not. The terms ‘absolute’ and ‘strict’ liability are interchangeable and both are used by lawyers to refer to this single concept.
Mr Burnside described the common case of a commuter who receives a fine for not having a valid myki and declines the option of paying $75 on-the-spot. The commuter is sent a routine letter by the Victorian Department of Transport which sets out the increased fine of $223 and lists several payment options. If the commuter writes back and requests that the Department review the fine they are then sent another letter. This letter informs the commuter that they must pay the fine because it is a crime of ‘strict liability.’
In 2014 Dr Schmulow received a letter from the Department of Transport stating that his myki fine was a matter of absolute liability. According to Dr Schmulow, these instructions regarding absolute liability are received by every commuter who is issued with these letters. Dr Schmulow stated that often a commuter will ask the Department to review the fine, arguing that they touched on and touched off with their myki and requesting CCTV footage. However they are always met with the same response that their crime is one of absolute liability.
Dr Schmulow pressed the Department of Transport about how they came to understand that myki fines are crimes of absolute liability. In response to his question, the Department cited the 2002 Victorian Supreme Court case Mounsey v Lafayette as an authority that myki fines are crimes of absolute liability.
In Mounsey v Lafayette the defendant, Lev Lafayette, was approached by a ticket inspector on a Melbourne tram and failed to produce a ticket upon request. This was an offence under section 221(4) of the Transport Act 1983 and he was duly charged. He submitted that he had the legal tender to buy a ticket but the ticket machine only accepted coins. At first instance the Magistrate acquitted him under Section 221(2) of the Act. This section states that an individual can travel on public transport without a ticket if they have taken reasonable steps to buy one before the journey, there is no reasonable opportunity to buy one during the journey and they intend to buy one at the journey’s end. Mr Lafayette’s assertion that he intended to buy a ticket at the end of his journey was held to satisfy section 221 of the Act.
On appeal however, the Supreme Court held that the existence of a coin only ticket machine was in fact a reasonable opportunity for Mr Lafayette to purchase a ticket during his journey. The court also held that Mr Lafayette’s intention to purchase a ticket after his journey was not enough to satisfy a defence under section 221(2) of the Act. During the judgment, Justice Nettle touched on the concept of absolute liability, stating that he saw no room in section 221(4) of the Act for a defence of honest and reasonable mistake. He explained that it would be excessive given the defences already available under section 221(2). According to Justice Nettle, section 221 of the Act ultimately creates an absolute liability offence while being subject to a statutory defence via section 221(2).
Legal criticisms of the Department
After receiving his myki fine Dr Schmulow sent an email to Andrew Walker, the then head of the Department of Transport. This email expressed Dr Schmulow’s concern that ‘the Department of Transport is contending that certain legal conditions exist, when, in my view, they do not.’ Dr Schmulow pointed out that Mounsey v Lafayette was decided in 2002, while the Infringements Act – the legislation currently governing myki fines – was passed in 2006. He informed Mr Walker ‘a first year law student would have advised you that legislation trumps precedent.’
According to Dr Schmulow, Mounsey v Lafayette is no longer good law. Dr Schmulow advised Mr Walker that in the case, Justice Nettle relied on section 221 of the Transport Act 1983 when he made his ruling. This Act was repealed and replaced in 2010 by the Transport (Compliance and Miscellaneous) Act 1983. There are no such comparable sections in the subsequent Act. Dr Schmulow stated that the relevant provisions are now contained in section 22 of the Infringements Act. Dr Schmulow said these provisions ‘clearly state’ in subsection 1 (b) & (c) that appeals against an infringement may be made where ‘special or exceptional circumstances exist.’ Dr Schmulow advised Mr Walker that if his reading is correct, an internal review would seem incompatible with the concept of absolute liability.
Mr Burnside’s criticism of the Department of Transport is based on the way in which they have applied the doctrine of absolute liability. Mr Burnside concedes that on a ‘strict legal analysis’ the relevant legislation can be interpreted as creating an offence of strict liability as “I didn’t mean to” is not a defence. However, Mr Burnside asserted that the Department applies the doctrine in a misleading way; effectively telling commuters ‘we don’t have to prove that you did something wrong…. our assertion is enough’. This approach is predicated on the commuter having committed an offence, but the claim of absolute liability is made before a court has decided whether or not the commuter is guilty of fare evasion.
Mr Burnside’s view of the Department’s misapplication of absolute liability is highly relevant when seen in light of his courtroom experience. Out of the three hundred commuters who have contacted his pro bono team, not a single one has had a myki fine upheld in court. According to Mr Burnside, cases that proceed to court are either dropped by the prosecution before the hearing, or result in the Magistrate finding the matter proved but dismissing the offence. There have been over one hundred myki prosecutions withdrawn by the Department of Transport. This certainly supports Mr Burnside’s view that the Department are using the doctrine of absolute liability to avoid legal arbitration. When forced to prove the commuter’s guilt in court, the Department has been wildly unsuccessful.
The collapse of absolute liability as the Department’s centrepiece strategy in court has implications for the myki regime. According to Dr Schmulow, the absence of absolute liability challenges the rationale for the 2013 introduction of optional seventy five dollar on the spot fines as commuters have a chance to win in court.
Dr Schmulow stated that Transport Minister Jacinta Allan must abolish the on-the-spot fines, and set up an independent internal review panel to review myki fines. Dr Schmulow has written to the Department offering to take on the role of an independent reviewer pro bono, but so far has not heard back from them.
Meanwhile, Mr Burnside’s pro bono team continue to fight on behalf of commuters threatened with myki fines. He is not interested in helping fare evaders but has represented many defendants whose fines look like a ‘crook exercise.’ Dr Schmulow has commented on Mr Burnside’s team, stating: ‘if public interest lawyers are scoring three hundred out of three hundred, the way you are applying the law is wrong.’ The Department’s absolute liability argument, according Dr Schmulow, is ‘not the nature of a society based on rule of law.’
What to do if you are unjustly fined
According to Mr Burnside, if a commuter receives a fine for having an invalid Myki but they have touched on properly, there are some steps that they can take. Mr Burnside advises commuters in this situation to write the Department of Transport a letter asking for CCTV footage of the Myki machine they purchased their card from. The commuter should also request the Myki machine’s service records the twelve months leading up to the incident, as well as any reports concerning functionality in the Myki system.
Interestingly enough Mr Burnside stated that the Department has so far been unwilling to provide this information. Mr Burnside said that if it came to a contest between the commuter and the ticket inspector’s accounts, the Department’s refusal to provide evidence would mean there would not be a conviction.