Investigation into the issuing of infringement notices to public transport users and related matters December 2010 Ordered to be printed Victorian government printer Session 2010 P.P. No. 2 This page has been intentionally left blank. www.ombudsman.vic.gov.au LETTER TO THE LEGISLATIVE COUNCIL AND THE LEGISLATIVE ASSEMBLY To The Honourable the President of the Legislative Council and The Honourable the Speaker of the Legislative Assembly Pursuant to sections 25 and 25AA of the Ombudsman Act 1973, I present to the Parliament a report of an investigation into the issuing of infringement notices to public transport users and related matters. G E Brouwer OMBUDSMAN 20 December 2010 letter to the legislative council and the legislative assembly 3 www.ombudsman.vic.gov.au CONTENTS Page EXECUTIVE SUMMARY 6 Authorisation of ticket inspectors 6 Failure of operators to report incidents 7 Use of excessive force 8 Issuing of infringement notices 8 Internal review of the issuing of infringement notices 8 BACKGROUND 10 The infringements system 10 Complaints to my office 11 Investigation methodology 11 Key stakeholders 11 Authorised officers 13 Revenue 14 APPOINTMENT OF AUTHORISED OFFICERS 16 Recruitment 16 Authorisation 16 Defects in authorisation process 17 Conclusions 19 Recommendations 20 REPORTING OF INCIDENTS INVOLVING AUTHORISED OFFICERS 22 Statutory requirement of the operators to report incidents 22 Failure of the operators to report incidents 23 Use of excessive force 23 Reporting of complaints under the Metlink Services Agreement 25 Conclusions 26 Action taken by the department 27 Recommendations 27 EXERCISE OF POWERS 29 Discretion and reporting of offences 29 Conclusions 30 Recommendations 31 4 issuing public transport infringements and related matters www.ombudsman.vic.gov.au INFRINGEMENT NOTICES 32 Issuing an infringement notice 32 Service of infringement notices 34 Internal review of the issuing of infringement notices 35 Exceptional circumstances 36 Review of appeal files 37 Quality assurance of appeals 39 Feedback on appeal outcomes to the operators and authorised 39 officers Prosecution of infringement matters 39 Conclusions 40 Recommendations 41 SUMMARY OF RECOMMENDATIONS 42 Appendix 1 – Schedule of infringement fines and associated penalties 45 Appendix 2 – Issuing Officer Code of Conduct 46 contents 5 www.ombudsman.vic.gov.au EXECUTIVE SUMMARY During 2008 and 1. During 2008 and 2009, my office received 189 complaints about 2009, my office infringement notices issued to public transport users for offences such received 189 as failing to travel with a valid ticket. Analysis of these complaints complaints about and enquiries with the department identified the following issues: infringement notices • Insufficient training of authorised officers in the use of issued to public discretion when issuing infringement notices. transport users for • The department’s processing of authorised officer reports is offences such as not a rigorous or transparent process. failing to travel with a valid ticket. • Commuters who request an internal review and challenge the issuing of their infringement notice are not provided with a specific response to address their concerns. 2. As a result, I decided to conduct an own motion investigation into the issuing of public transport infringement notices. 3. The Department of Transport (the department) is the lead agency responsible for the development and management of the public With a minimum transport network in Victoria. fine of $176 for 4. Public transport is provided by a range of private companies under adult offenders, the franchise agreements with the Victorian Government. fines are designed 5. The primary role of the transport infringements system and its to be a major authorised officers is to discourage fare evasion and protect the revenue deterrent, for what derived from ticket sales. To enable authorised officers to fulfil this role, in some instances are they must be ‘authorised’ by the Secretary of the department. There offences that equate are currently around 5451 authorised officers employed by transport to lost revenue of operators. These officers are variously referred to as ticket inspectors, only a few dollars. inspectors, revenue protection officers or customer service employees. 6. In 2009-10: • the department issued 171,835 ticket infringements • $638.4 million was generated in revenue from ticket sales • $15.6 million was generated from infringements or statutory My investigation fines. identified that the 7. With a minimum fine of $176 for adult offenders, the fines are oversight of the designed to be a major deterrent, for what in some instances are authorisation of offences that equate to lost revenue of only a few dollars. public transport officers and Authorisation of ticket inspectors their subsequent 8. As the regulator of the system’s authorised officers, the department compliance has an obligation to monitor and manage the officers’ behaviour and with conditions conduct for purposes of ongoing authorisation. My investigation attached to that identified however, that the oversight of the authorisation of public authorisation is transport officers and their subsequent compliance with conditions inadequate. attached to that authorisation is inadequate. 1 Department of Transport website as at 7 December 2010. 6 issuing public transport infringements and related matters www.ombudsman.vic.gov.au 9. My investigation identified a number of instances of officers being My investigation authorised and re-authorised despite non-compliant behaviour, identified a number including: of instances of • officers having accrued significant traffic infringements of officers being over $8,000 authorised and re- • an officer having been the subject of an intervention order for authorised despite alleged violent behaviour non-compliant behaviour, including: • two officers having been charged with drug possession significant traffic • several incidents where officers failed to comply with specific infringements, conditions inserted into their authorisation regarding non- being the subject compliant behaviour. of an intervention 10. In each of these examples the department failed to take appropriate order and being action to revoke or suspend the officer’s authorisation. charged with drug 11. The current oversight of the authorisation of public transport officers possession. and their subsequent compliance with conditions is inadequate. While the department clearly sets out the conditions of authorisation, and has more than sufficient legislative power to deal with non- compliance, it has failed to address unsatisfactory behaviour on a number of occasions. 12. The department’s officer authorisation process is inefficient and results in the authorisation of officers who may be inappropriate for such duties. The current oversight of the authorisation Failure of operators to report incidents of public transport officers and 13. There is a legislative requirement for accredited transport operators to their subsequent notify the department of any serious incidents involving authorised compliance with officers within 14 days of the incident occurring. My investigation conditions is identified that this reporting requirement was not being adhered inadequate. to by all operators, and that the department was not being vigilant in ensuring compliance. Where operators did provide reports of complaints about authorised officers, these reports were provided to the franchise relations area. My officers were told in May 2010 that the area responsible for authorised officer regulation and authorisation had only just become aware that these reports existed. 14. In the period 2008-10, the transport operators only reported three The notification by incidents. I find it difficult to believe that this represented a true picture. Since drawing this issue to the attention of the department operators of serious it advised that it had implemented a trial of agreed reporting criteria incidents involving and timeframes with three operators. From 27 September 2010 to 19 authorised officers November 2010, 66 notifications were received. This confirms that the in the two year notification by operators of serious incidents involving authorised period 2008-10, was officers in the two year period 2008-10, was unsatisfactory. unsatisfactory. executive summary 7 www.ombudsman.vic.gov.au Use of excessive force Closed Circuit 15. Closed Circuit Television (CCTV) footage provided to my office has Television (CCTV) highlighted a number of examples of inappropriate authorised officer conduct and use of excessive force. Of concern was that the incidents footage has in question were referred to the department by the operators for highlighted examples possible prosecution of the commuters involved. In my view this of inappropriate demonstrates that authorised officers and their managers are clearly authorised officer not aware of the limitations on the appropriate use of their powers, or conduct and use of are ignoring them. Similar concern about authorised officer conduct excessive force. has been expressed in recent court cases. I have decided to release the CCTV of four such incidents as I consider that it is in the public interest to do so. Issuing of infringement notices 16. Authorised officers do not issue infringement notices direct to offenders, but instead make a Report of Non-Compliance (RONC) that is forwarded to the department for it to issue an infringement notice. 17. My investigation identified that up until