Parking fine review legal glitch could cost some Victorian councils millions

Some 50,000 parking fines will be overturned by two Melbourne councils after a legal hitch — and more Victorian municipalities could follow suit. This is why.

The City of Monash is understood to use the contractor caught up in a fine fiasco. Picture: Nathan Dyer

Councils could be forced to pay back millions of dollars in parking fine revenue after it was revealed that the process for reviewing fines was allegedly illegal.

The City of Monash is among several councils using parking contractor Tenix that have been caught up in the fiasco, as reported by Neil Mitchell on 3AW.

A second council this morning has admitted it fell foul of enforcement laws and will refund people who unsuccessfully appealed parking fines.

FINED TWO MINUTES BEFORE TICKET EXPIRY

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THE SPOT WHERE MOTORISTS ARE FINED $6K A MONTH

The City of Kingston said $2.3 million in fines issued between 2006 and 2016 that were appealed under the Infringements Act 2006 and then paid, will be refunded.

It is estimated that around 20,000 fines are affected, the council said in a statement.

Kingston Mayor Georgina Oxley said the wording of the Infringements Act 2006 was unclear and advice on the issue had been mixed.

“It is common for councils, and potentially some state agencies, to outsource the issuing of infringement tickets to an external contractor,” she said.

“However, there have been concerns raised that the legislation may not allow external agencies to conduct appeals.”

“In 2016 we received advice that, although the wording of the Act wasn’t clear, our processes were acceptable. We wanted to remove any confusion and since 2016 have conducted all reviews ourselves.”

“We are in the final stages of preparing the refund process and will have further details in coming weeks.”

Kingston will write to Attorney General Jill Hennessy to “express concerns about the wording of the legislation and to urge State Government to immediately address these concerns through legislative changes”.

Sources said other councils that may be affected by the problem include Port Phillip, Bayside and Glen Eira.

The Monash council earlier confirmed it will pay back $2.6 million to motorists who had their fines illegally reviewed between 2006 and 2016.

It sent more than 26,000 letters to affected people.

“This applies to drivers who sought a review of their fine under the Infringements Act 2006 but did not have their fine withdrawn,” a council statement said.

Fines going back a decade could be subject to repayment. Picture: Nathan Dyer

“Council has served many infringement notices for parking and related offences through its enforcement contractor who had carried out this process for more than 20 years on council’s behalf, in accordance with the Attorney-General’s and council guidelines.”

“The contractor issued and reviewed fines under this process. In 2006, the Infringements Act was introduced. Council believed at the time that it was still able to continue contracting out the review function to a third party as it had done for more than 20 years.”

“However, the introduction of the Act in 2006 altered council’s ability to do this. Council now believes that the introduction of the Act meant the final decision of the review should not have been outsourced, and that council rather than its contractor should have undertaken the review.”

Monash Mayor Shane McCluskey blamed the problem on a flaw in the process that needed government intervention to fix.

“This has been a complex and challenging issue on a number of fronts,” he said.

“We believed we were following the right process when our contractor undertook the reviews and the fines were paid.”

Motorists whose fines were reviewed between 2006 and 2016 are set to receive a refund. Picture: Lawrence Pinder

“However, after considerable investigation we have now formed the view that those fines were paid under a flawed process not of our making,” Cr McCluskey said. “It’s our view is that we now have a moral and legal obligation to refund the fines to those motorists.”

The council has written to the government asking it to retrospectively amend the legislation, but this had been refused.

Cr McCluskey said the council had written to each person believed to be affected by this process and asked them to get in contact with council to assess their eligibility for a refund.

The funds will come from council savings and no charges special charges will be introduced to pay for the refunds.

The Andrews Government has confirmed it rejected a request by some councils to introduce retrospective legislation to ensure their fines review system was legal.

In recent months, the Attorney-General’s Department had become aware that some councils had reviewed their historic practices involving fines, with some acting incorrectly in reviewing fines.

A government spokesman said councils were responsible for ensuring that they complied with the law when collecting and reviewing fines.

“While we do not back retrospective legislation as an appropriate response – as this would undermine confidence in the infringements system and disadvantage those affected – we’ll continue to support councils to ensure this doesn’t happen again,” the spokesman said.

Monash Council parking inspectors dish out a fine on Kingsway, Glen Waverley. Picture: Nathan Dyer

The City of Glen Eira, which also uses Tenix, said it was important to note that that no two councils’ contracts or processes with the company were identical.

“We have considered our unique arrangements and are of the view that Glen Eira City Council’s infringement reviews have been undertaken in a manner that is consistent with our legislative obligations under the Infringements Act,” Glen Eira Mayor Jamie Hyams said.

And City of Stonnington chief executive officer Warren Roberts said: “Stonnington’s process to review parking infringement appeals has been, and remains, compliant with the Infringements Act 2006.”

City of Port Phillip Council CEO Peter Smith said the council was aware of Monash’s position.

“We believe our council’s infringement appeal process is compliant with the legislation and that we are not in the same position,” he said.

“We therefore do not propose to take any further action on this matter.”

City of Greater Geelong’s planning and development director, Gareth Smith, said: “The City is currently reviewing how appeals for parking infringements issued between 2009-2018 were processed to ensure that all appeals against parking infringements were processed appropriately.”

City of Bayside spokesman Dr Hamish Reid said the council assessed appeals for parking and other infringements through an internal team using clear guidelines under the Infringements Act.

“Council has never outsourced this important function,” he said.

Shadow Minister for Local Government Tim Smith said it was another example of the “shambles” in the Victorian fines system.

“This come off the back of the massive cost blow out associated with the establishment of Fines Victoria,” he said.

“Reportedly this issue has been with Daniel Andrews for some time, he now needs to explain what he’s going to do to fix it.”

Comment on the fines glitch has been sought from the Andrews Government.

HOW THE GLITCH AROSE

It is believed that a legal problem arose because of Tenix’s involvement when motorists requested reviews of their fines.

Reviews must be done by the council itself, a legal source has told the Herald Sun.

It’s believed that fines going back a decade may be subject to repayment, with the possibility of a class action going ahead.

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Tenix Solutions was created in 1997 to manage the Victorian government’s speed camera program on behalf of the Department of Justice and Police Services.

Its website said that last year the company processed over four million infringements for more than 20 government agencies.

These included 385,000 infringements issued by on-street parking officers.

People who believe they may have been affected by fines from Monash can email [e-mail]