Waking up in Geelong

Over the past few months the subject of Melbourne public transport users fighting their myki fines in court has appeared in the mainstream media a number of times – most recently the case of someone who through they had touched on, received a fine and decided to challenge it, and then had the case dropped by the prosecutor shortly before the court date rolled around. So what is going on?

In 2012 the Victorian Auditor General has this to say on fare evasion:

Effectively protecting revenue and controlling fare evasion requires:

• a well-designed, understandable, accessible and user-friendly ticketing system
• education and marketing—to help passengers understand how to use the system correctly and persuading persuade them to do this
• revenue protection measures—ticket barriers and station staff
• enforcement—detecting passengers travelling without a valid ticket and addressing this behaviour.

Doing these things effectively will help address fare evasion where it is:

• unintentional—when passengers don’t understand the ticketing system or when machine failures mean they are unable to purchase or validate tickets
• deliberate—when passengers purposely travel without a valid ticket.

PTV predecessor Metlink did understand why different passengers evaded the payment of fares, with the 2010 edition of the ‘Network Revenue Protection Plan’ having this to say:

To address the problem of fare evasion it is important to understand its underlying causes.

Fare evasion is a complex behaviour. it can be inadvertent, opportunistic, based on an economic decision, or encouraged by perceptions to attitudes that allow the customer to rationalise fare evasion. Although we talk generically about fare evasion it is in fact a catch-all phrase for a continuum of behaviours.

• Never evade
• Inadvertent
• Opportunistic one off
• Opportunistic – learned behaviour
• Game players
• Always evade

Once someone has fare evades and ‘got away with it’ they are predisposed to fare evade especially when a similar circumstance arises.

It also has this to say about the ‘game players’ who never pay their way:

A pragmatic, rational exercise in game play – it is cheaper to be caught occasionally and pay fines than to buy a ticket every day.

In 2012 PTV awarded a $107,546 contract to Monash University for additional research into the psychology of fare evasion, which found that recidivist fare evaders accounted for 68 per cent of all revenue loss, but only 1.7 per cent of the Melbourne population.

PTV used this research to justify the introduction of on-the-spot penalty fares, – the 2014 edition of the Network Revenue Protection Plan has this to say about the change in strategy:

The Monash University study found that the risk and perceived risk of being caught for fare evasion has a significant impact on the decision to fare evade, particularly for recidivist fare evaders. This is borne out by historical trends in fare evasion and fines issued.

The introduction of penalty fares will provide Authorised Officers with the capacity to check more tickets and increase the risk to fare evaders of getting caught. This approach, which allows Authorised Officers to issue an on-the-spot penalty fare of $75, will also reduce the risk of unpaid Ticket Infringement Notices by requiring immediate and full payment. Penalty fares provide an opportunity to increase fare evasion detection rates, thereby reducing overall levels of fare evasion.

If a passenger elects to pay the penalty fare, a receipt is issued but no further enforcement activity is required. This reduces the time of each interaction between the Authorised Officer and the passenger, thereby allowing each Authorised Officer to check more tickets during each shift.

Six months after the trial of penalty fares commenced, PTV had this to say about the new penalties:

“Of more than 140,000 people who were caught freeloading in the past six months, 28 per cent chose to pay the on the spot fine.

Over the six months from August 2014 to February 2015, Authorised Officers in the metropolitan area checked 6,743,300 tickets across Victoria.

In total, 103,229 reports of non-compliance and 41,001 On-the-Spot Penalty Fares were issued.

However PTV seems to have missed something their predecessor knew:

it is cheaper to be caught occasionally and pay fines than to buy a ticket every day

With the new on-the-stop fines only costing $75, a fare evaders now only needs to dodge two weeks of fares to come out in front – compared to the almost five weeks of inspector dodging required under the old regime.

The end result – Public Transport Victoria treats every traveller without a ticket as someone out to game the system, with anyone who unintentionally forgets to pay their way opting to pay the penalty fare to avoid the time and effort of a court appeal, while those who choose to fare evade now have a cheaper way to keep on dodging the law.

An alternate strategy

Back in 2004 the State Government and PTV predecessor Metlink introduced what appears to be a fairer system – one of graduated penalties:

Public transport fines will increase from 13th July 2004
6 July 2004

Fines for public transport offences will increase from 13 July 2004, Metlink Chief Executive Officer, Mr Bernie Carolan advised today.

The fine increases and the introduction of a graduated fine system for repeat offences comes into effect following legislation introduced last year as part of the State Government’s Rights and Responsibilities Package.

“Customers should be aware that fines will go up but the vast majority of people who do the right thing when travelling on public transport will not be affected,” Mr Carolan said.

“However for those who do break the rules, particularly repeat offenders, this fine increase sends a strong message that fare evasion and other offences are taken seriously and are just not worth the risk.”

Repeat offences committed after 13 July 2004 are subject to graduated fines. For example, fare evasion will incur a fine of $150 for a first offence, $200 for a second offence and $250 for the third and subsequent offences within a given 3-year period.

AT first glance, the graduated penalty regime does exactly what you want a penalty regime to do: allow any inadvertent offenders a chance to learn their lesson, while changing the rules of the game for recidivist fare evaders.

So what happened to graduated penalties?

On 2 March 2006 then-Shadow Minister for Transport Terry Mulder questioned the Attorney-General in parliament regarding the number of repeat offenders:

With reference to individuals who have been fined a second or greater number of times for a public transport related offence since the graduated fines came into existence in July 2004 —

(1) How many individuals were fined for offences committed in —
  (a) the Melbourne metropolitan area;
  (b) rural Victoria.

(2) What offence did each repeat fine involve.

(3) What was the postcode of residence, if known, of each offender.

(4) How much is the total amount of fines imposed upon repeat offenders since July 2004.

But unfortunately no data was available at that time:

This matter falls within the responsibility of the Minister for Transport. My Department does not have access to the data requested.

In November 2009 Metlink still considered graduated penalties an important part of legislative framework around revenue protection.

However the end came in February 2010 with the passing of the Transport (Infringements) Regulations 2010:

The objectives of these Regulations are to—

(a) ensure that users of public transport services fairly contribute to the cost of services and behave safely and responsibly, by prescribing ticket and transport infringements including infringements for offences relating to fare evasion, conduct, etc.

(b) align public transport penalties for children with the principles of fairness underlying the youth justice system by recognising that children should be treated differently from adults and prescribing different penalties for children.

With it regulation 138/2006 Transport (Infringements) (Further Amendment) Regulations 2006 and 90/2004 Transport (Infringements) (Penalties) Regulations 2004 were revoked, taking with them graduated penalties for fare evaders.

So why the change?

It seems that graduated penalties are the perfect solution for stamping out habitual fare evasion in Melbourne, but the question remains – why was it killed off in 2010?

In 2012 the Auditor General suggests the transition to Myki led to a spike in fare evasion:

The department’s oversight framework was effective in controlling fare evasion between 2005 and 2008, but failed to cope with the transition to myki and the new tram and metro train contracts that commenced in November 2009.

The overall fare evasion rate for Melbourne has come full circle over the past six years. Between 2005 and mid-2008, the percentage of passengers without a valid ticket fell from 13.5 per cent to a low of 7.8 per cent. However, these gains were lost, with a return to an overall evasion rate of 13.5 per cent for the first half of 2011. Since this time overall fare evasion has fallen to 11.6 per cent in the first half of 2012.

Which leads me to a possible explanation – graduated fares gave offenders the chance to challenge their fines in court – a fight that the Department of Transport, Planning and Local Infrastructure are unsure that they will win, if this December 2013 article from The Age is anything to go by:

Fines issued under Victoria’s myki system have never been contested in court, amid claims the government has been forced to waive infringement notices because the troubled technology cannot withstand legal scrutiny.

The Department of Transport, Planning and Local Infrastructure has been warned by staff that a successful legal challenge could undermine the integrity of the $1.5 billion ticketing system, which has operated for more than three years.

A former contractor said he provided the department with verbal and written advice that false readings, administrative errors and poor calibration of machines would damage the chances of a prosecution in court.

”They [the transport department] don’t want it to be tested in court, they just want the revenue. They need to prove beyond reasonable doubt and they simply can’t. I know of several cases where people have challenged infringement notices on the basis of faulty technology, but the prosecution has withdrawn the fines,” the source said. ”As a prosecutor, you have an ethical duty to the court and I would regularly explain to them that this system won’t stand up to scrutiny.”

Another former employee of the department said concerns about the prosecution of myki fines in court had influenced a recent plan by Public Transport Victoria to give fare evaders the option of cheaper on-the-spot fines. Due to be introduced next year, the proposal would allow commuters without a valid ticket to accept liability immediately and pay a lesser $75 fine with cash or a credit card, rather than the full infringement of $212.

The end game being PTV deciding $75 in revenue in their pocket is a better outcome than a higher fine that might never get paid, and might even bring their entire enforcement regime crashing down.

May 2016 update

In 2015 the government initiated a review into the penalty fare system, and came to the same conclusions as I did – their media release, dated 26 May 2016 has this to say.

The review found the enforcement system unfairly punishes those who do the right thing, while rewarding those who deliberately fare evade.

The $75 penalty fare means a passenger can get caught fare evading more than 20 times in one year, and still pay less than the cost of a regular Zone 1 & 2 yearly pass.

Penalty fares are also anonymous, so there is no record kept of serial offenders, meaning the worst fare evaders cannot be identified and targeted.

As a result of this review, on-the-spot penalty fares will be abolished, and a new single infringement system will replace it.

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