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Wednesday, 2 June 2010
Page: 4917


Mr TRUSS (Leader of the Nationals) (10:15 AM) —I am speaking today about the Airports (On-Airport Activities Administration) Validation Bill 2010. It is interesting that we are debating this bill so soon after the Minister for Infrastructure, Transport, Regional Development and Local Government has introduced a correction to an explanatory memorandum. This bill proposes to rectify another administrative oversight dealing with the issuing of infringement notices at Commonwealth leased airports. The airports in question are Adelaide, Alice Springs, Archerfield, Bankstown, Brisbane, Camden, Canberra, Darwin, Essendon, Gold Coast, Hobart, Jandakot, Launceston, Melbourne (Tullamarine), Moorabbin, Mount Isa, Parafield, Perth, Sydney (Kingsford Smith), Tennant Creek and Townsville, although it is not clear that the problem being rectified has occurred at each and every one of those airports.

Specifically, the bill will validate potentially invalid infringement notices issued by people who were not properly authorised under the Airports (Control of On-Airport Activities) Regulations 1997 to issue infringement notices. Whilst examining parking infringement notices issued at a number of airports, it became apparent that due to administrative oversight on the part of the Department of Infrastructure, Transport, Regional Development and Local Government and a number of airports some infringement notices were issued by individuals who were not ‘authorised persons’ under the regulations and were therefore not properly able to issue those infringement notices. To become an ‘authorised person’ under the regulations, an individual must be appointed by the secretary of the department or the secretary’s delegate. Authorised persons are empowered to issue infringement notices at airports when regulations on a variety of matters, including parking, are breached.

In 2004, the list of authorised persons was up to date and accurate. However, since that time, individuals who were not authorised persons have begun issuing infringement notices for parking offences. For instance, airports often contract out their parking services, and some of these subcontractors have employed people who had not been previously appointed as authorised persons. I understand that, as of 25 March 2010, the problem of unauthorised persons issuing infringement notices has now been rectified and the department of transport list of authorised persons is now up to date and accurate again. Naturally, I welcome this development.

As an observation, one wonders why the authorisation process is even necessary. We have a massive bureaucracy in this country and sometimes many of the approval processes are mere formalities. One wonders why there is a necessity to go through that kind of bureaucratic activity. Labor promised when it came into government that it would reduce the number of regulations in our country. It said, ‘One-on, one-off,’ but this is another broken election promise. Since Labor has been in office it has introduced 9,997 new regulations and it has abolished just 52. I am suggesting at the present time that maybe there are a few in this whole authorisation process that could be on the list for removal.

To get to the detail of this particular problem, it seems as though there could be up to 100,000 infringement notices—mostly related to parking offences—issued since 2004 that may be invalid and without legal effect. Australians who have received and paid infringement notices over the last six years may feel aggrieved at this. It is, however, important to remember what an infringement notice is. Those who commit parking offences at airports and are issued an infringement notice can choose to pay the fine stipulated by the notice or they can choose to have the matter heard in court. If they choose not to pay the infringement notice, they are liable to have a much larger fine levied against them. This cost can be up to five times the amount stipulated by the notice. If an individual parks illegally at an Australian airport and is issued with an invalid infringement notice—that is, an infringement notice that is without legal effect—the option to pay a lesser fine is removed. The only option is to have the matter heard in court and risk having to pay the full amount and, of course, court costs on top of it.

For the airports, invalid infringement notices cannot be used as evidence in any legal proceedings. The issuing officer can, however, still testify to what they witnessed. I also understand that invalid infringement notices could simply be reissued now that the list of authorised persons is once again accurate. Of course, this could be more administratively complicated for both parties than the solution proposed by this bill. Additionally, the invalid infringement notices also pose questions about immunity from prosecution. In addition to the implication that an individual has accepted culpability in an offence, paying the fine attached to a valid infringement notice makes that person immune from further prosecution. If, however, an infringement notice is not valid, there is some uncertainty that this immunity applies. As a result, thousands of individuals who paid invalid infringement notices in good faith could be prosecuted further. The bill will confirm immunity from prosecution by retroactively validating the infringement notices.

Naturally, retrospective legislation arouses suspicion amongst many legislators, me included, and many Australians. In this case, however, no new offences are being created retrospectively. This bill is simply an administrative fix aimed at ensuring that the option of paying an infringement notice remains in play and guaranteeing that those who have paid infringement notices over the past six years remain immune from prosecution. Retroactively validating legal instruments in this way is not a new or unknown concept.

Last year the parliament passed the Military Justice (Interim Measures) Bill (No. 2) 2009, which imposed disciplinary sanctions on persons corresponding to punishments imposed on them by the Australian Military Court after they had been declared unconstitutional by the High Court. The High Court decision was issued on 26 August 2009. The Military Justice Bill (Interim Measures) Bill (No. 2) 2009 was introduced in the Senate on 9 September, passed the next day and immediately sent onto the House of Representatives, which passed it on 14 September. The bill received royal assent on 22 September, less than a month after the decision of the High Court was made. The coalition and all other parties supported the bill and assured its swift passage through parliament. Obviously the matters under consideration in that case were of much greater substance than the parking infringements and other infringements that we are dealing with in this bill. So it sets a powerful precedent.

The bill currently before the House was introduced earlier this month, and the government is keen for it to be passed quickly through the parliament. The Minister for Defence, Senator Faulkner, when dealing with the previously mentioned bill, pointed out that it is ‘critical that the ADF has a functioning military discipline system’. Retroactively upholding the decisions of the Australian Military Court was a transitional arrangement while the government worked out a new and permanent system that was impartial, independent and met the constitutional requirements. The bill before the House similarly seeks to deal with the question of retrospective validity. Given the example of the Military Justice (Interim Measures) Bill (No. 2) 2009, retroactive validation is not without precedent. Indeed, if retroactively validating the judgments of a military court is a legitimate exercise, retroactively validating infringement notices mainly related to parking offences seems to be a pretty small issue.

Parking at airports is, however, a contentious issue, and nobody likes being issued an infringement notice for a parking offence. There are some who think that the airport operators adopt a very heavy-handed approach. On the other hand, those who arrive at an airport which is blocked up by people parking illegally are keen to see the laws enforced. I think the reality is that we need to see proper judgment and that the laws need to be both sound in the first place and enforced.

I can appreciate that many Australians might instinctively find a bill that retroactively validates parking infringement notices that were improperly issued to be objectionable. Indeed, it would seem to offend against our notion of a fair go. This bill, however, will not impose new parking fines on the many Australians who park at Commonwealth leased airports. Instead, it will provide an administrative solution to the problem of invalidly issued infringement notices and guarantee immunity from prosecution for those who have paid the fines associated with those infringement notices.

I resist the temptation to seek to make any kind of political capital out of the debate on this bill and am mindful that the problem has affected both the previous government and this one. It seems to me that there would only be losers if this bill were not passed, because even people who may think that they will be let off their infringement notice currently face a greater penalty than they would if this legislation were able to pass. So, whilst it may not appeal to our sense of fair play, this bill not only seeks to correct an administrative oversight but also delivers relief to people who might otherwise be picked up by an invalidly issued infringement notice which could lead to a greater penalty than would apply if this bill were passed.

The opposition will be supporting this legislation before the House because we believe it is the best way to resolve an administrative flaw which obviously should not have arisen in the first place. There is a question as to whether the regulations themselves are even necessary, but the problem has arisen and needs to be fixed.