October 3, 2014

Little kings

By Russell Marks
Little kings
On the spot fines and the unchecked power of Melbourne's transport officers

“Authorised officer; ticket, please.” It’s become an unyielding refrain on Melbourne’s trams and trains since ticket inspectors replaced conductors in 1996.

On this occasion five inspectors in pack formation – the one who talks is flanked by two others, while the remaining officers hang back at the carriage entrances – are making the demand of a dreadlocked passenger in his 40s. He’s wearing sunglasses. Shopping bags lie at his feet. He’s sitting alone. I’m sitting a couple of seats away, and turn to watch.

The passenger hands over his Myki card, and the authorised officer touches it to her portable reader. “This card is not validated, sir,” the officer tells him. “It’s in negative balance.”

Taking him at face value, the passenger doesn’t have a clue what that means. Amid a more or less floridly unwell rant about Christians and Muslims and the Preston market, he makes it known that he doesn’t understand what’s meant by “negative balance” and that he rarely catches trams.

He might be lying, or he might be telling the truth. His unhinged ravings about Abrahamic religions might be an act. None of that matters, though. “You need to pay a fine, sir,” says the officer.

“What fine? Why fine?” The dreadlocked man is now oscillating between standing and sitting. “This is sick, Christian stuff, this is. This is why the Christians are crazy. What is negative balance? The Muslims invented maths.” And so on.

“Sir,” says the officer, who has clearly been in this situation before. The four others give each other knowing looks. “You can go to court, or you can just pay a reduced fine now.”

Explaining the new “on-the-spot” fine payments that began in August, former Public Transport Victoria CEO and current chairperson Ian Dobbs said they’d be more efficient for authorised officers who find issuing infringement notices time-consuming. “We think we will actually get a lot more coverage from AOs (authorised officers), as well as giving people the option, those who are caught accidentally in the system, so they don’t have to have their names and addresses taken and go through the Magistrates’ Court.” Dobbs wanted to improve on the rate of fines per AO shift, which until the introduction of on-the-spot fines was about one. In other words, Dobbs wanted more fines, more often.

The word “court” clearly has its intended effect. The dreadlocked passenger switches to a rave about the “Christian terrorists” who populate courts, and takes out his wallet. “I don’t know why I’m being fined, man,” he says again, even as he’s taking his bank card out of his wallet. The AO takes the card and pay-passes an amount of $75 – significantly less than the $212 infringement notice he’d face if he hadn’t paid on the spot – before handing the card back to him. She tries to give him a receipt, but the passenger seems barely aware he’s paid.

I try to intervene, to suggest to the AOs that I don’t think the passenger understands what’s going on, but I’m told firmly to “stay away” or risk being fined or arrested myself. The AOs leave the tram at the next available opportunity. I try to speak briefly with the passenger but conversation is difficult. He’s angry, bewildered and, in my unqualified opinion, mentally unwell.

*          *          *

Had this interaction taken place before August, this passenger would have been issued with an infringement notice. That notice could have been reviewed administratively and then also challenged at court. There’s a Special Circumstances list in Victorian magistrates’ courts, where people who are fined on trams and trains sometimes end up if they’re homeless or mentally unwell. The review procedure has plenty of its own problems, but at least it affords a review of executive authority. And as the Age reports this week, the myriad problems with the new Myki “smart-card” ticketing system mean that those who do challenge their infringement notices often succeed.

Conductors are recalled, now (even by those too young to remember them), in the same way as suburban footy before the AFL era. But there’s more than nostalgia in that memory. 1996 was the year that the experience of taking Melbourne’s trams and trains became profoundly undemocratic.

When the inspectors and automatic ticket dispensers – which didn’t accept bank notes – replaced conductors, fare evasion skyrocketed. The government responded with more AOs. Their heavy-handed methods, employed to crack down on the severe crime of being on “public” transport without a valid ticket, have been the subject of complaints and investigations by the Victorian ombudsman, to little effect. Ticket prices continued to rise.

The functioning “Metcard” ticketing system was then replaced, for no good reason and without either electoral mandate or popular support, with so-called “smart card” technology that is confusing to keep track of, difficult to top up, and relies on enormous user trust. Myki purports to work by automatically deducting fare amounts from a pre-established balance, and when it deducts the wrong amount it’s almost impossible to fix up. (This is why many court prosecutions fail.) Tickets now can’t be purchased at all on trams, and single-trip tickets (for tourists and spontaneous passengers) aren’t available at all.

These changes make sense to authorities and system architects, but not to passengers – and certainly not to disadvantaged passengers, to whom a democratically conceived transport network would pay the most attention. Imagine a public transport policy that encouraged drivers not to use their cars, which offered low-income health care cardholders and students free transport – or everyone, given the urgent need to reduce car congestion and pollution. But the reduced $75 on-the-spot amount is not even available to anybody who’s not carrying a credit or debit card.

The new on-the-spot fine regime extends the undemocratic experience. Already trained to issue infringements in all circumstances, regardless of excuse, and to leave any review of the infringement notices to the department or the courts, AOs now have every incentive to encourage or coerce passengers to pay on the spot. It saves them from having to write out time-consuming infringement notices.

Ironically, purchasing an on-the-spot fine from AOs is much more straightforward than topping up a Myki ticket using the automatic machines.  And absurdly, although AOs can and do fine passengers $75 who make genuine mistakes, they can’t assist by selling them $3 fares.

*          *          *

I’ve often heard AOs tell passengers there’s “no excuse” for not having a valid Myki, but that’s wrong at law. They’re not allowed to say that, yet they do. They’re also not allowed to use more than “reasonable force” to detain a passenger they suspect of having broken the law. In the context of evading a $3 fare, what constitutes “reasonable force” should have a very high bar indeed.

Too often, AOs act as if they’re the front line in the war on terror. If they could, police would stop us randomly on the street and search us for drugs or weapons. That they can’t – that their executive power is restricted by law – is one of the things that separates western democracies from authoritarian regimes. To sit on a train and be confronted by five or six minimally-trained officers who assume you’re a criminal until you prove otherwise is profoundly unsettling.

Yet, for a proudly anti-authoritarian people, Australians are very uncomfortable about reviewing and challenging authority. Even at the height of the protests against Australia’s participation in the war in Vietnam during the early 1970s, Michael Hamel-Green (now a professor at Victoria University) found a high level of “domain legitimacy” among the vast majority of the population: even as we whinge about it, we tend to believe that people in authority ultimately have good and valid reasons for doing what they’re doing. Or we believe that someone, somewhere is overseeing the exercise of that authority. After all, we’re not fascist Italy or communist China.

But these beliefs about authority – which often translate into a vague belief that we have “rights”, even if we rarely choose to exercise them – sometimes mean that authority is actually quite unchecked here. Many of us even welcome the ticket inspection regime, which also exists in other states. The logic of neo-liberal economics requires a "user pays" principle, and sanctions flow from the desire to prevent freeloading. Sydney has threatened its bus, train and ferry passengers with on-the-spot fines for years, and a new squadron of 150 inspectors began patrolling its network last year in readiness for the city's own smart-card, called Opal.

Public transport fines are small beer when compared with the kinds of laws passed on the grounds of “national security” in 2005 and then this week. But our attitudes to executive authority can be measured by our tolerance of its smaller intrusions.

My ticket was checked by an AO as I left my train station this morning. I’d validated before 7am, which meant my fare was free. But here were the AOs, checking for “negative balances” and unvalidated cards. “You guys made your quota yet?” I asked him. His reply looms rather large in the history of unchecked executive authority: “Just following my orders, man.”

* The title, "Little Kings", is Paul Kelly's, from Words and Music (1998). An earlier version of this article had incorrectly referred to PTV Chair Ian Dobbs as "Peter". Thanks to those who pointed this out, and apologies to Mr Dobbs for this inadvertent error.

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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