Page 609 - Week 02 - Thursday, 24 March 2022
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and behavioural change. I have heard a lot about the ACT government’s “engage, educate and enforce” model of compliance. It is a model that I support, and it is an evidence-based approach reflective of the seminal work of local regulation expert Professor John Braithwaite.
Decisions by the ACT government on enforcement are based on five principles, the first being risk-based, to ensure that ACT government resources are targeted to where the risk of harm, unsafe practices or misconduct are the greatest, thereby strengthening the government’s capacity to take action where the community and environment are most at risk.
The second principle is proportionate, having regard for the harm or risk, the experience and the past conduct of a person when determining what our response should be. The third principle is effective—applying the appropriate compliance tool to ensure that our regulatory interventions are responsive to the circumstances and achieve the desired outcomes. It also needs to be constructive, to provide advice, guidance and support to help the Canberra community to comply with the relevant laws. Finally, it is about being accountable so that we are willing to explain our decisions and why we have taken that enforcement action.
I am not suggesting that we should get rid of fines. I am asking whether there might be an alternative that encourages looking at what is risk-based, proportionate, effective, constructive and accountable, and an alternative option that is also socially responsible, reduces administrative burdens and is cheaper and more effective at improving compliance.
The growing reliance on out-of-court, infringement or penalty notice provisions as an alternative to criminal prosecution is also happening for an ever-increasing range of offences. It is time to ask some questions about the agencies administering fines, how the discretionary powers are being exercised and whether the systemic impacts reinforce the values of being a risk-based, constructive, proportionate and effective response.
For vulnerable Canberrans, those who are struggling the most, who, as a result of a minor transgression, end up going through the Magistrates Court, getting a criminal record, and making their lives and livelihoods even more tenuous, I would ask the question: does this abide by the principles that I have mentioned? The possibility of an unpaid fine being taken to court is a very daunting one for a member of the community. We have to make sure our responses are proportionate, where court enforcement is the response we take for moral blameworthiness, not to be conflated with disorganisation or confusion.
Fines can have a disproportionate impact on the life of someone struggling financially, and represent a very real and serious source of stress. We must keep this in mind when we want to deter behaviour. There has to be a balance we can find to minimise unnecessary suffering. Of course, enforcement can be very important so that people know if they risk someone’s life by speeding they have to face up to and be accountable for that fact. But we also have a responsibility not to be so heavy-handed that we kick off a downward spiral for a community member.
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