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As we have noted in Chapter 12, given that for public nuisance matters:

• the volume dealt with in the courts is high

• the proportion contested is small

• the majority of offenders are convicted

• the vast majority of offenders receive a fine

• the number dealt with ex parte is high,

it begs the question of whether there should be an option for public nuisance to be a ticketable offence (that is, an on-the-spot fine or infringement notice offence) to provide a practical alternative for police and offenders, rather than proceeding through the courts.

It was frequently suggested to this review that public urination in particular could become a ‘ticket’ offence. It was also suggested, although less frequently, that public nuisance in its entirety or other limited aspects of the offence, such as offensive language, should be a ticket offence (see Chief Magistrate, p. 3; QPS (Townsville) consultations, 11 September 2006; QPS (Sunshine Coast) consultations, 5 October 2006; LAQ (Sunshine Coast) consultations, 5 October 2006; QPS (Cairns) consultations, 18 September 2006;

LAQ (Cairns) consultations, 19 September 2006; LAQ (Toowoomba) consultations,

70 It should be noted also that a number of Queensland cases have explicitly considered whether, in the surrounding circumstances, the defendant’s offensive behaviour may have been justified and lawful (Dowling v. Robinson [2005] QDC 171; Parson v. Raby [2007] QCA 98).

CHAPTER 14: MANAGING PUBLIC ORDER: DISCUSSION AND RECOMMENDATIONS 129 25 September 2006; QPS (Toowoomba) consultations, 25 September 2006; QPS (Inala) consultations, 26 September 2006; RIPS consultations, 27 September 2006; QPS (Fortitude Valley) consultations, 10 October 2006).

Traditionally tickets have been used only to deal with minor offences that are regulatory in character, such as speeding fines, parking fines and fare-evasion. More recently there have been moves in Australia and the United Kingdom to expand the use of tickets for offences usually characterised as criminal in nature — in some jurisdictions this has included public order offences. The United Kingdom, New South Wales and the Northern Territory have introduced systems whereby police have an option to issue a ticket for public order offences including the relevant disorderly/offensive language and behaviour offences (see Criminal Justice and Police Act 2001 (UK), Criminal Procedure Act 1986 (NSW), Summary Offences Regulations 1994 (NT) respectively). A trial of a similar system is currently being put in place in Victoria (see Infringements Act 2006 (Vic)) and is proposed for the ACT (see Crimes (Street Offences) Amendment Bill 2007).

Infringement notice schemes generally work in the following way:

• The infringement notice system is optional: police exercise their discretion whether to issue an infringement notice or proceed down a more traditional route; the defendant may also elect to have the matter dealt with before a Magistrates Court for summary determination.

• The penalty is always fixed and is usually a monetary amount.

• Payment of the fine within the prescribed time effectively ends the matter — there is no need for court involvement. Most commonly, no conviction can result. A record is kept that tracks offenders’ infringement notice histories.

• When fines are not paid in the prescribed period, enforcement procedures are activated.⁷¹

There are clear advantages in such systems in terms of cost, efficiency and consistency.

They reduce the enormous expense involved in criminal justice proceedings and reduce time police spend doing paperwork; in fact, such systems have been described as ‘bargain basement justice’ (Fox 2003, p. 13). Concerns about such infringement notice systems include that they:

• may be seen to trivialise crime and result in a reduction in the quality of criminal justice due to fewer people having their day in court

• remove procedural protections warranted by the seriousness of the offence

• may lead to inappropriate exercise of discretion and heavy-handed enforcement

• are unable to take adequate account of an individual’s circumstances, including financial circumstances when imposing a penalty

• may diminish the level of deterrence provided by matters being dealt with by the court

• are perceived as being primarily about revenue raising; they risk the law losing its moral legitimacy

• may lead to a reduction in informal resolution; across several jurisdictions there is evidence to suggest that the introduction of on-the-spot fines is accompanied by a reduction in the use of informal resolution of matters as an alternative (see Bagaric 1998; Fox 1995, 2003; NSW Ombudsman 2005; Spicer & Kilsby 2004).

71 In Queensland, tickets for an on-the-spot fine are ‘SETONs’ or Self Enforcing Ticketable Offence Notices; the State Penalties Enforcement Register (SPER) is responsible for enforcement when the fine is not paid.

A 12-month trial was conducted by New South Wales before the introduction of its infringement notice scheme from November 2007. The trial evaluation found:

• significant administrative savings for police and courts

• a significant proportion of the infringement notices were issued for offensive language and behaviour offences

• some evidence of infringement notices being issued in circumstances unlikely to be considered criminal if determined by the courts

• some evidence of the diminution of the seriousness of the criminal act; for example, infringement notices were used to deal with assault matters that may have required a more significant sanction than a fine (NSW Ombudsman 2005).

During the trial only 2.6 per cent of the total number of infringement notices issued were challenged in the courts, and 0.9 per cent were withdrawn after being issued (NSW Ombudsman 2005, p. ii). These percentages are not dissimilar to the small percentages of public nuisance matters currently challenged under the current Queensland system whereby all matters proceed through the Magistrates or Childrens Courts.

The CMC believes that ticketing for public nuisance offences in Queensland would provide a valuable alternative for police and offenders in relation to a substantial proportion of public nuisance matters, rather than proceeding through the courts. This may lead to improved efficiency and cost savings for police and Queensland courts. The advantage to the offenders may be lower fine levels, convenience of payment, consistency of approach and no conviction recorded.

However, if a ticketing option is to be introduced, care must be taken to ensure that the potentially adverse effects seen in other jurisdictions, such as the decline in the use of informal resolution for public order incidents, do not eventuate in Queensland. The conduct of the trials in Victoria and the ACT should also be closely monitored in order to ensure that a best-practice ticketing option is provided in Queensland.

Recommendation 4:

That ticketing should be introduced as a further option available to police to deal with public nuisance behaviour. Ticketing should be introduced only in conjunction with a focus on ‘de-escalation’ and informal resolution of public order issues. The introduction of ticketing as an option should be evaluated to ensure it is not having an adverse effect in Queensland.

beyond tHe CrIMInAL JuStICe SySteM: pArtnerSHIpS wItH otHer AgenCIeS

A universal theme expressed during this review was a sense of frustration at the ineffectiveness of the criminal justice system to address the underlying factors that may lead to public nuisance offending, especially in the case of repeat offenders. A number of people suggested to the review:

• at times the prosecution of this offence could be seen as a waste of resources (LAQ (Toowoomba) consultations, 25 September 2006; LAQ (Cairns) consultations, 19 September 2006; Magistrates’ consultations, 6 October 2006; RIPS 2004, p. 11)

• there is a ‘hard core’ group of people with complex problems who tend to be the repeat public nuisance offenders; these people are difficult to assist and criminal justice system processes, including penalties and sentences, are particularly

CHAPTER 14: MANAGING PUBLIC ORDER: DISCUSSION AND RECOMMENDATIONS 131 ineffective (LAQ (Toowoomba) consultations, 25 September 2006; Townsville

City Council consultations, 12 September 2006; Magistrates’ consultations, 14 September 2006)

• that fine penalties are ineffective and problematic; for example, Walsh (2004b, pp. 8 & 21) states that fine penalties ‘lack creativity’ in that they fail to address the underlying causes and others asserted to the review that fines ‘mean nothing’ to offenders (QPS (Mt Isa) consultations 13.09.06; Magistrates’ consultations 14 September 2006).

This report has identified the anti-social behaviour associated with the consumption of alcohol by ‘party people’ as the primary focus of public nuisance law enforcement. The effective management of this type of anti-social behaviour has policy implications beyond putting more police on the streets around licensed premises at the times when they are heavily patronised. The primary implication, as described by some police, is ‘cut back on the alcohol consumption and you will see a cutback on the public nuisance arrests’ (cited in Meers 2007). Police and the courts cannot effectively implement strategies to reduce and control the excessive consumption of alcohol alone. This must necessarily involve working in partnership with licensees, liquor licensing officials and others.

In addition to being used for dealing with behaviours associated with the excessive consumption of alcohol and other drugs by ‘party people’, there is no doubt that, particularly in some areas, public nuisance is commonly used to respond to issues associated with ‘street people’. Our review has highlighted that in Townsville, Cairns and Mt Isa, in particular, public order issues — often primarily relating to Indigenous people

‘living rough’ in parks — are a significant and continuing problem. Police and the courts must also continue to work with other agencies to develop and implement a distinct range of strategies to address the underlying issues associated with ‘street people’.

The current QPS Strategic Plan not only identifies public order and safety as a key priority area, but also appropriately emphasises preventive and partnership approaches. The