If you live in Melbourne, and don't have the money or patience to drive, you know about Myki fines. If you're caught without a valid Myki card, you can pay an on the spot penalty, pay a larger fine later, or contest the whole deal in court. Not a lot of people can take a day off to talk to a judge about why they didn't pay a fare, so the first two options tend to win out.
But this week a Melbourne magistrate dismissed the fare evading charge of a commuter who allegedly failed to provide a valid ticket. The man pleaded not guilty, provided his side of the story, and stated he took all reasonable steps to purchase a ticket. After hearing his testimony, the magistrate waived the fine. As it turns out, it was hardly a one off: the majority of cases of this type end with fines either dismissed or withdrawn.
Which raises the question, why aren't we all contesting our fines? To find out, we asked Julian Burnside QC, a Melbourne barrister and an Officer of the Australian Order who is currently representing select commuters against the Department of Transport pro bono, what would happen if we all demanded our day in court.
VICE: Julian, what would happen if everyone with a Myki fine decided to contest it in court?
Julian Burnside: If people fail to take the reasonable steps to have a valid ticket, I wouldn't be advising them to contest the charge. It's a lawyer's obligation to not clog up the courts frivolously. I would only do it if they actually took all reasonable steps to validate their tickets.
Okay, lets assume reasonable steps were taken. I'm guessing that would still be a huge amount of people. Would the courts become clogged to the point that it messed up the wider state legal system?
The court system is pretty robust and it would cope. The more contests there are in the court, the more everything is delayed but I don't think it would be a very significant effect. What they would do is have direction hearings and scheduled hearings; they would make it work.
What about the people issuing the fines?
I think the public transport system would quickly recognize that they were wasting a lot of public resources.
Could a mass action like that actually make a change to something as large as the Department of Transport?
If everyone contested the Myki summons, I think the prosecution of public transport fines would break down. Let's say there's a raft of cases where people say they touched on, and Public Transport says they didn't touch on, and everyone takes them on. That would have two consequences: First of all, in each case, there would have to be evidence that the touch on machine was operating properly, and they're not going to be able to prove that.
Secondly, the conversation between the commuter and the Authorised Officer typically involves two or three officers. If there's a dispute about what was said in that conversation, then it will be necessary for each of the two or three officers to come along with their version of what was said. That's going to involve lots and lots of officers going along to court hanging around, waiting to give evidence instead of doing their job.
Which would get pretty expensive.
That will very quickly show itself to be unworkable and it's unworkable because people should not be stood over and shaken down for hundreds of dollars. Plus they'd have to provide records, and with all those officers standing around, it'd probably cost them $1000 a case in order to pick up a lost fare of three or four dollars. That's the sort of thing where someone senior in the system needs to get sensible about what's going on.
When people are found not guilty, does the Department have to pay their legal fees?
If commuters are found not guilty, the charge could be dismissed with costs against the Transport Department. There is the possibility that volunteer barristers would apply for costs to the Department.
Could this have the desired effect of really taking a bite out of Myki?
I would hope so. I think it would change their policy settings from intercepting people, charging them, and prosecuting them, to the alternative where they'd intercept commuters, and give them a chance to pay the fare if their Myki card doesn't record a proper touch on. Only in cases where you're satisfied that there was an attempt to evade the fare; only then would I suggest prosecution. I'm assuming that somewhere in the system there are people with common sense who would behave rationally.
So what would be your advice to commuters wanting to plead not guilty?
Put fare evaders to one side, I'm not interested in them. For the rest, I think the only way to prevent Government departments from overreaching is to take a stand and that can only be done by lots of individuals saying "I'm not going to put up with this, I don't care if it costs me a day off work, I'm going to resist it."
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