volume 2 · 2016-11-05 · Project / On-the-Spot Fines and Civic Compliance Volume 2/ Final Report...

Appendix B: Outline of PERIN Court Process

Project / On-the-Spot Fines and Civic Compliance Volume 2/ Final Report - 2003

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Pay the fine and costs Pay the new amount due. Follow the payment instructions on the reminder notice/courtesy letter.

Or ask for extra time to pay Phone the authority that sent you the reminder notice and apply for the due date to be extended. Not all authorities will allow extra time to pay at this stage. Or, if you didn’t commit the offence or you genuinely believe you had a good reason for doing it, apply to have the infringement notice cancelled. There are different ways to do this depending on the type of offence. Driver licence loss offence: If the infringement notice is for excessive speed (i.e. travelling at 130 km/h or more or travelling at 30 km/h or more over the speed limit) or for a drink driving offence, your driver licence is suspended/cancelled 28 days after the issue of the notice. That 28 day period has now elapsed. If this is the first time that you have become aware that a conviction has been recorded against you, you may apply to the Magistrates Court for an extension of time to object to the original penalty notice. Note: Certain conditions apply to this type of application. In these circumstances it is in your best interest to urgently seek legal advice.

All other offences: If you did not commit the offence or you had a valid reason for committing the offence, send a written plea (signed letter), explaining the circumstances, to the address on the notice. If you were not the driver of an offending vehicle, fill in the Statutory Declaration which comes with the reminder notice and forward it to the address on the notice. Do not rely on the offender to do this. If a Statutory Declaration does not accompany your reminder notice/courtesy letter, contact the authority that issued the notice for instructions.

Stage 3: Court order made You still have not taken any action: Another fee has been added. The issuing authority has registered the matter with the PERIN venue of the Magistrates’ Court and that court has sent you a Notice of Enforcement Order and charged you costs. You have 28 days to do one of the following: Pay the fine and costs Send the new amount due to the PERIN Court at the address on the order. Or ask for extra time to pay Phone the PERIN Court and apply for the due date to be extended or to pay the amount by instalments.



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Or, if you did not commit the offence or you genuinely believe you had a good reason for doing it, apply to have the court order cancelled. If you did not commit the offence or you had a valid reason for committing the offence or if you were not the driver of an offending vehicle, then fill in the Statutory Declaration which come with the Enforcement Order and follow the instructions on the order.

Stage 4: A Warrant is issued

A Sheriff’s Officer will make a demand for payment and hand you a notice outlining your rights. You then have 7 days to do one of the following: Pay the fine and costs If you don’t pay immediately, the Sheriff’s Officer may seize and, if necessary, remove goods as security for payment. Or ask for extra time to pay Contact the PERIN Court and apply for the due date to be extended or to pay the amount by instalments.

Or, if you didn’t commit the offence or you genuinely believe you had a good reason for doing it, apply to have the court order cancelled. If you did not commit the offence or you had a valid reason for committing the offence or if you were not the driver of an offending vehicle, then fill in the Statutory Declaration and send it to the PERIN Court.

AFTER 7 DAYS The warrant authorises the Sheriff to either: Collect the amount due: or If payment is not made, seize assets (eg motor vehicle) of the person named in the warrant and sell the seized assets at public auction, or if payment is not made and there are no assets to seize, arrest the person named in the warrant. After arrest, if you are not eligible for a custodial community permit, you will be released to appear before a magistrate at a later date.

Other action which can be taken to ensure fines are paid: Drivers’ licences may be suspended until unpaid motor vehicle related fines are paid. Licence suspension is not an alternative penalty and unless the fine is paid or some other action previously discussed is taken, e.g., seizure of goods, the defendant will be arrested and may be taken before a magistrate.



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Special provisions relating to companies and company directors: For Traffic Camera Offences, companies must nominate the driver responsible for the offence, within 28 days of the original Notice of Detection. Companies that refuse or fail to nominate the driver are guilty of a separate offence and heavy fines apply. Directors of companies can be held personally responsible for penalties imposed against their companies and for infringements recorded against corporately registered vehicles. (The 7-day period referred to in ‘Stage 4’ is not applicable to companies).

________________________

Appendix C: Focus Groups Discussion Guide


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1 Introduction

A) Explanation of the focus group process, i.e. taping (anonymity, except for transcription and some observers who are interested in the process of getting information about the Penalty Infringement Notice system) and then destroyed.

B) Ethics procedures – copies of the Plain English Statement and the Informed Consent Form are to be given to each participant.

C) These documents will be read aloud by the moderator before the focus group session starts.

D) Participants will be asked to take the copy of the Plain English Statement with them, but they will be asked to sign the Informed Consent Form which will be kept by the moderator as part of the project’s documents.

2 General knowledge about the penalty system (10 minutes)

A) Which are the offences that you can get an on-the-spot-fine for? (if respondent does not know, check the following: parking (48%), speeding (22%), other traffic offences (17%), public transport offences (10%), bicycle offences (1%), animal offences (0.5%), heavy vehicle offences (0.5%), CityLink toll violations?).

B) Which of these offences is the most serious? Why?

C) What agencies gives out the penalty notices? Who can you get them from?

D) Are there too many laws in Victoria relating to these types of offences? In other words, is there is a problem with people getting too many fines?

3. Appropriateness of fines (10 minutes)

A) The penalty for each one of these offences is, normally, a standard on-the-spot-fine. Do you think this is fair?

B) Are on-the-spot fines the best way of dealing with those offences? Why? Why not?

C) What would be a better way? Why?

4. Direct experience of the penalty system (10 minutes)

A) Has anyone in the group had a penalty infringement notice or traffic infringement notice in the last year? (Count)

B) How often have you had one in the last 12 months? (Count)

C) What were they for and in what circumstances did you get one of the penalty notices?

D) Did you think that the level of the penalty you got was about right? Do you think it should have been higher or lower? Why?

E) When you received the infringement notice, what do you think you then had to do?

F) Were there any options/choices in what you were asked to do? What were they?

G) Has anyone heard of the PERIN COURT? (Penalty Enforcement Registration of Infringement Notices)



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H) What did the penalty notice say would happen if you did not pay within the set time? What did happen? Did you pay the fine in time? If not paid in time, what happened then?

5. Reasons why people commit ‘minor’ offences (10 minutes)

A) What in your opinion, are the reasons why people do break laws, even if only minor ones like the ones we mentioned earlier?

B) Do you consider any one these reasons to be acceptable/reasonable? Which ones? Why? Why are the others not acceptable?

C) What do you think would stop people breaking the law?

D) When you go about your daily life, does knowledge of the system affect or influence what you do, how you behave?

6. Reasons why people pay/don’t pay by the set time (10 minutes)

A) What, do you think, are the reasons why some people pay their fines by the due date and others do not?

B) What should happen to people who pay their fine late?

C) What should happen to people who do not pay their fine at all? [If not mentioned, refer to licence suspension, garnishee of wages/salaries, property seizure, arrest and imprisonment, etc.]

D) What, do you think, are the reasons why some people pay their fines by the due date and others do not?

7. Perceptions of fairness (10 minutes)

A) Generally speaking, is the law dealing with penalty notices fair?

B) Think of the process which you were involved in when you got the penalty notice? How fair was that process?

8. Perceptions of issuing officer/agency

A) Think of the people who run the system of penalty notices. How good a job do you think they are doing?

B) Some people have said (or you have said) that the attitude of the issuing officer (or agency) has an impact on whether you pay the fine or not. Why should the attitude of the issuing officer have any effect on whether you pay a fine or not?

C) Should people who issue the fines be allowed to use their discretion regarding the issue of fines even when it is clear that the law has been broken? In what circumstances would this be a good idea?

D) Should people who issue the fines be permitted to withdraw them without further action? In what circumstances would this be a good idea?

9. Suggestions for improvement (10 minutes)

A) What do you think would get people to pay their fines on time?

B) Should the government make greater use of this non-court-based system for getting people to obey the law for minor offences?



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C) Can you give some examples where greater use should be made? Any areas where there should be lesser use?

D) Is it desirable to continue with this form of deterrence, of making people obey the law?

10. Conclusion

A) If you were to advise the government, what would you tell the government about the future of the system?

________________________


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Appendix D: Quantitative Survey Questionnaire


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COPYRIGHT ©

Millward Brown Australia Job No: 8101261

245 ST KILDA ROAD Date: 08/05/02 ST KILDA VIC 3182 Ph: +61 3 9537 2255 Start time: . Fax: +61 3 9534 4373 Finish Time: .

Total Time(in mins): .

(a) Good morning/afternoon/evening. My name is ... from Millward Brown Australia Market Research. We are currently conducting a survey on behalf of Monash University and the Department of Justice about on-the-spot fines for minor offences.

(b) Good morning/afternoon/evening. My name is … from Millward Brown Australia Market Research. May I please speak with _______________ .

We are currently conducting a survey on behalf of Monash University and the Department of Justice about on-the-spot fines for minor offences.

Either:-

(a) Your number has been randomly selected from the White Pages. May I please speak with someone 18+, whose birthday is closest to today.

(b) Your name was supplied to us from the PERIN Court

The information you provide is completely confidential and will assist in improving the fairness of the on-the-spot fines system. The survey will take approximately 15 minutes to complete. Do you have time to complete this survey now?

Should you have a query about the survey there is an enquiry line for this research. (1 800 882 340)

DURING THE COURSE OF THIS INTERVIEW MY SUPERVISOR MAY LISTEN IN TO CHECK THE QUALITY OF MY WORK

Note: If respondent fails a screener question, they will get the following screen before terminating:-

At this early stage, we would like to thank you very much for your time today. But due to certain selection criteria you do not fall within survey requirements.

Project On-the-Spot



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Q.0 Date and time of interview [AUTO RECORD]

Q.1 To ensure we get a good cross-section, could you give me your age? [READ OUT CODES]

TERMINATE – LESS THAN 18

1

2

TERMINATE – REFUSED 98

Q.2

RECORD SEX [DO NOT READ OUT]

MALE 1

FEMALE 2

KNOWLEDGE, UNDERSTANDING & AWARENESS

Q.3 Do you know what an on-the-spot fine is?

YES 1

Ask Q.3B – NO 2

Ask Q.3B – DK 0

ASK THOSE WHO ANSWERED CODE 2 (NO) OR 0 (DK) TO Q.3

Q.3B [INTERVIEWER TO READ OUT: This is also known as a penalty or an infringement notice. It is a fine you

get for committing offences such as illegal parking or speeding, have you heard of this type of fine?]

Skip to Q.4 – YES 1

Terminate – NO 2

Terminate – DK 0

Q.4 What can you get them for? What else? Anything else? [DO NOT READ OUT – RECORD BY CATEGORY – 3 RESPONSES ONLY]

DRINK DRIVING 1

SPEEDING 2

RUNNING A RED LIGHT 3



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OTHER TRAFFIC OFFENCES 4

ANIMAL CONTROL/NUISANCE 5

LITTERING 6

PARKING 7

FARE EVASION 8

TOLL EVASION ON CITYLINK 9

JAYWALKING 10

NOT WEARING A HELMET 11

OTHER (Specify) ___________ 99

DK 0

Q.5 Why do you think we have the penalty notice system, or on-the-spot fines system in Victoria? [If necessary: What are the benefits of having this system?] [DO NOT READ OUT – MULTIPLE RESPONSE]

SAVES GOING TO COURT 1

TO FREE UP COURT SYSTEM 2

EFFICIENT/ MORE CONVENIENT 3

EASIER FOR GOVT/POLICE 4

TO DETER PEOPLE FROM BREAKING THE LAW 5

SAFETY/ TO MAKE VICTORIA A SAFER PLACE 6

REVENUE RAISING 7

TO DEAL WITH MINOR OFFENCES 8

OTHER (Specify) __________ 99

DK 0

Q.6 When people receive an on the spot fine, what options do they have in dealing with the fine? [DO NOT READ OUT – MULTIPLE RESPONSE]

PAY THE FINE 1

PAY THE FINE WITHIN SET TIME PERIOD 2

ASK FOR EXTRA TIME TO PAY 3

APPLY TO CANCEL THE INFRINGEMENT/FILLIN NOTICE OF OBJECTION

4

SEND IN A WRITTEN PLEA/LETTER 5

FILL IN STAT DEC NOMINATING PERSON RESPONSIBLE 6

TAKE NOTICE TO COURT 7

NOT PAY IMMEDIATELY 8

COMMUNITY SERVICE/WORK 9


DK 0



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Q.7 What happens if you don’t pay within the set time? [DO NOT READ OUT – MULTIPLE RESPONSE]

COSTS ADDED (OWE MORE MONEY) 1

ANOTHER FINE IS ISSUED 2

RECEIVE A REMINDER NOTICE 3

COURT NOTICE/ COURT ORDER MADE/ GO TO COURT 4

SHERIFF COMES OUT/ A WARRANT IS ISSUED 5

POSSESSIONS CONFISCATED 6

JAIL 7

GIVEN MORE TIME TO PAY 8

OTHER (Specify) ______________ 99

DK 0

Q.8 What do you think is the main reason that people do not pay their fines on time? [DO NOT READ OUT – SINGLE RESPONSE]

THEY CAN’T AFFORD TO 1

REFUSE TO PAY ON PRINCIPLE 2

REFUSE TO PAY BECAUSE THE AMOUNT OF PENALTY IS TOO MUCH 3

REFUSE TO PAY BECAUSE THE PROCEDURES IN IMPOSING THE FINE ARE NOT FAIR

4

REFUSE TO PAY BECAUSE THE OFFENCES ARE UNFAIR 5

FORGOT ABOUT THE FINE 6

TOO BUSY TO DEAL WITH IT 7

INSUFFICIENT TIME TO PAY 8

DIDN’T RECEIVE NOTICE 9

OTHER (Specify) ______________ 99

DK 0

Q.9 What can happen to those people who don’t pay the fine at all? [DO NOT READ OUT – MULTIPLE RESPONSE]

GET TAKEN TO COURT 1

GO TO PRISON 2

HAVE PROPERTY CONFISCATED 3

REQUIRED TO DO COMMUNITY WORK 4

HAVE FINE DEDUCTED FROM SALARY 5

GIVEN MORE TIME TO PAY 6

NOTHING WOULD HAPPEN 7

GET ANOTHER REMINDER LETTER 8

MORE COSTS/FINES ADDED/OWED 9

MENTION OF WARRANT OR SHERIFF 10

LICENCE CANCELLATION/SUSPENDED 11

OTHER (Specify) ______________ 99

DK 0



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Q.10 Have you ever heard of the PERIN court?

SKIP TO Q.11 – YES 1

NO 2

DK 0

ASK ALL THOSE WHO ANSWERED CODES 2 (NO) OR 0 (DK) AT Q.10

INTERVIEWER TO READ OUT: PERIN stands for Penalty Enforcement by Registration of Infringement Notice, this is the court where unpaid infringements are registered for enforcement.

Q.10B Have you ever heard of this court?

YES 1

SKIP TO Q.11 – NO 2

SKIP TO Q.12 – DK 0

ASK ONLY THOSE WHO ANSWERED CODE 1 (YES) AT Q.10

Q.11 What does it do? [RECORD VERBATIM]

ENFORCES FINES 1

APPEAL COURT 2

DEALS WITH MINOR OFFENCES/ ON THE SPOT FINES

3

ADMINISTRATIVE SIDE FOR JUSTICE DEPARTMENT

4

EXTENDS TIME TO PAY FINE 5

OTHER (Specify ________) 99

DK 0

PERCEPTIONS & FAIRNESS

Q.12 How serious do you rate the following offences? [RANDOMISE]

Not at all

serious

Not serious

In between

Somewhat Serious

Extremely serious

DK

DRINK DRIVING 1 2 3 4 5 0

SPEEDING – MORE THAN 10K OVER THE SPEED LIMIT

1 2 3 4 5 0

SPEEDING – LESS THAN 10K OVER THE SPEED LIMIT

1 2 3 4 5 0

RUNNING A RED LIGHT 1 2 3 4 5 0



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LITTERING 1 2 3 4 5 0

EXPIRED METER PARKING 1 2 3 4 5 0

ILLEGAL PARKING (OTHER THAN EXPIRED METER) [IF NECESSARY: PARKING IN A PEDESTRIAN CROSSING OR LOADING ZONE]

1 2 3 4 5 0

Q.13 How fair do you consider the following …. [RANDOMISE]

Very unfair

Unfair Neither unfair

nor fair

Fair Very fair

DK

NOT APPLICABL

E

THE DOLLAR AMOUNT OF ON THE SPOT FINES IN GENERAL

1 2 3 4 5 0 97

THEY WAYS OF DETECTING OFFENDERS (IF NECESSARY: CAMERAS, RADAR, ETC.)

1 2 3 4 5 0 97

PROCEDURES OF OBJECTING TO A FINE, INCLUDING THE WAYS YOU CAN OBJECT & THE AUTHORITIES RESPONSE TO YOUR OBJECTION

1 2 3 4 5 0 97

Q.14 To what extent do you agree or disagree with the following statements

Strongly disagree

Disagree Neither disagree

nor agree

Agree Strongly Agree

DK

I ALWAYS TRY TO OBEY THE LAW EVEN IF I THINK IT IS UNREASONABLE.

1 2 3 4 5 0

THE INFRINGEMENT NOTICE ENFORCEMENT SYSTEM IN VICTORIA DETERS PEOPLE FROM BREAKING THE LAW AGAIN.

1 2 3 4 5 0

WHEN CITIZENS ARE CAUGHT FOR OFFENCES (THAT RESULT IN ON THE SPOT FINES) THEIR RIGHTS ARE WELL PROTECTED IN VICTORIA.

1 2 3 4 5 0



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Q.15 How supportive are you of using speed cameras and radar or laser to: [RANDOMISE]

Not supportive

at all

Not really

supportive

Neither supportive

nor not supportive

Supportive Very Supportive

DK

CATCH CARS BREAKING THE SPEED LIMIT ON FREEWAYS AND HIGHWAYS.

1 2 3 4 5 0

CATCH CARS BREAKING THE SPEED LIMIT ON RESIDENTIAL STREETS.

1 2 3 4 5 0

CATCH CARS RUNNING RED LIGHTS. 1 2 3 4 5 0

ASK HALF SAMPLE 16A AND HALF 16B

Q.16a Thinking about traffic offences, excluding parking, that result in on the spot fines, in addition to the fines, how supportive are you of the use of: [RANDOMISE]

Not supportive at all

Not really supportiv

e

Neither supportive nor

not support

ive

Supportive Very Supportiv

e

DK

DEMERIT POINTS 1 2 3 4 5 0

LICENCE SUSPENSION 1 2 3 4 5 0

LICENCE CANCELLATION 1 2 3 4 5 0

COMMUNITY WORK 1 2 3 4 5 0

CONFISCATION OF ASSETS 1 2 3 4 5 0

PRISON 1 2 3 4 5 0



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Q.16b Thinking about parking offences that result in on the spot fines, in addition to the fines, how supportive are you of the use of: [RANDOMISE]

Not supportive at

all

Not really supportive

Neither supportive

nor not supportive

Supportive Very Supportive

DK

DEMERIT POINTS 1 2 3 4 5 0

LICENCE SUSPENSION 1 2 3 4 5 0

LICENCE CANCELLATION 1 2 3 4 5 0

COMMUNITY WORK 1 2 3 4 5 0

CONFISCATION OF ASSETS 1 2 3 4 5 0

PRISON 1 2 3 4 5 0

EXPERIENCE

Q.17 In the last 12 months, have you received an on the spot fine for any offence?

YES 1

SKIP TO Q.35 – NO 2

SKIP TO Q.35 – DK 0

Q.18 How many notices have you received in the last 12 months?

ASK ONLY IF Q.18 IS GREATER THAN 1

Q.19 What were they mainly for? [MULTIPLE RESPONSE - DO NOT PROMPT]

DRINK DRIVING 1

SPEEDING – BELOW 10K OVER LIMIT 2

SPEEDING - ABOVE 10K OVER LIMIT 3

SPEEDING NFI 4




LITTERING 8

EXPIRED METER PARKING 9

ILLEGAL PARKING (other than expired meter) 10




19

OTHER (Specify) ______________ 99

DK 0

Q.20 In relation to the most recent notice that you received. What was it for? [DO NOT PROMPT]

DRINK DRIVING 1

SPEEDING – BELOW 10K OVER LIMIT 2

SPEEDING - ABOVE 10K OVER LIMIT 3

SPEEDING NFI 4




LITTERING 8


ILLEGAL PARKING (other than expired meter) 10


OTHER (Specify) ______________ 99

DK 0

Q.21 Why did you commit this offence? [DO NOT PROMPT]

RUNNING LATE/IN A HURRY 1

NO PARKING SPOTS 2

SIGNAGE UNCLEAR 3

DIDN’T SEE THE SIGN 4

RULE UNFAIR/UNREASONABLE 5

SYSTEM DIDN’T WORK (MACHINE DIDN’T WORK)

6

NO CHANGE 7

LAZY 8

DIDN’T UNDERSTAND RULE/LAW 9

DIDN’T KNOW IT WAS AN OFFENCE 10

THOUGHT I’D GET AWAY WITH IT 11

NO REASON 12

OTHER (Specify ______) 99

DK 0

Q.22 Before you received the fine, how did you rate your chances of getting caught for this particular offence? [READ OUT SCALE]

VERY LOW 1

LOW 2

NEITHER HIGH NOR LOW 3

HIGH 4



20

VERY HIGH 5

DK 0

Q.23 How did you receive the on the spot fine? [READ OUT – SINGLE RESPONSE]

SKIP TO Q.26 – IN THE MAIL 1

SKIP TO Q.26 – ON YOUR CAR 2

FROM A POLICE OFFICER 3

FROM A PARKING OFFICER 4

FROM A PUBLIC TRANSPORT/TRAIN/TRAM OFFICER 5

[DO NOT READ OUT] SKIP TO Q.26 - OTHER (Specify ______)

99

[DO NOT READ OUT] SKIP TO Q.26 - DK 0

ASK Q.24 & Q.25 ONLY OF THOSE WHO ANSWERED CODES 3, 4 OR 5 AT Q.23

Q.24 How satisfied were you with the attitude of the issuing officer?

Very dissatisfied 1

Dissatisfied 2

Neither satisfied nor dissatisfied 3

Satisfied 4

Very satisfied 5

DK 0

Q.25 How did the attitude of the issuing officer effect your willingness to pay the fine on time?

Much less likely to pay on time 1

A little less likely to pay on time 2

Didn’t change my opinion 3

A little more likely to pay on time 4

Much more likely to pay on time 5

DK 0

Q.26 Did you try to communicate with any authority regarding the on the spot notice?

YES 1

NO 2

DK 0



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ASK ONLY THOSE WHO ANSWERED CODE 1 (YES) TO Q.26

Q.27 Who did you try to communicate with?

THE COUNCIL 1

THE PERIN COURT 2

THE ISSUING AUTHORITY (NFI)

3

THE POLICE 4

CITYLINK 5

OTHER (Specify ___________) 6

DK 0

Q.28

Do you feel there was adequate opportunity to explain your circumstances?

YES 1

NO 2

DK 0

Q.29 Did you pay the fine on time? [If the fine is not yet due: Do you intend to pay the fine on time?]

YES – paid on time 1

YES – intend to pay on time 2

Skip to Q.31 - NO 3

Skip to Q.31 - DK 0

Q.30

What made you pay the fine on time? [If necessary: What will make you pay the fine on time?] [DO NOT READ OUT – MULTIPLE RESPONSE]

FEAR OF ADDITIONAL FINE 1

EMBARASSEMENT 2

DESERVED PENALTY 3

EASE OF PAYING 4

RIGHT THING TO DO 5

DIDN’T WANT TO PAY ADDITIONAL COST

6

OTHER (Specify_____) 7

DK 0

Q.31

Did you pay the fine at all? [If necessary: Will you pay the fine at all?]

SKIP TO Q.31B – YES – paid the fine 1

SKIP TO Q.31B – YES – will pay the fine 2

SKIP TO Q.31C - NO 3

SKIP TO Q.32 - DK 0



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Q.31B

ASK ONLY IF ANSWERED CODE 1 (YES) AT Q.28

What made you pay the fine? [DO NOT READ OUT – MULTIPLE RESPONSE]

FEAR OF ADDITIONAL FINE 1

EMBARASSEMENT 2

DESERVED PENALTY 3

EASE OF PAYING 4

RIGHT THING TO DO 5

DIDN’T WANT TO PAY ADDITIONAL COST

6

REMINDER NOTICE 7

OTHER (Specify_____) 99

DK 0

Q.31C

ASK ONLY IF ANSWERED CODE 2 (NO) AT Q.28

Why didn’t you pay the fine? [DO NOT READ OUT – MULTIPLE RESPONSE]

COULDN’T AFFORD TO 1

REFUSED TO PAY ON PRINCIPLE 2

REFUSED TO PAY BECAUSE THE AMOUNT OF PENALTY IS TOO MUCH

3

REFUSED TO PAY BECAUSE THE PROCEDURES IN IMPOSING THE FINE ARE NOT FAIR

4

REFUSED TO PAY BECAUSE THE OFFENCES ARE UNFAIR

5

FORGOT ABOUT THE FINE 6

TOO BUSY TO DEAL WITH IT 7

DIDN’T RECEIVE NOTICE/FINE 8

OTHER (Specify) ______________ 99

DK 0

Q.32 Please indicate how much you agree with the following statement. [READ OUT SCALE]

Strongly disagree

Disagree Neither disagree nor agree

Agree Strongly Agree

DK

YOU CONSIDER THE LAST PENALTY NOTICE YOU RECEIVED WAS DESERVED.

1 2 3 4 5 0

Q.33 How much was the fine?

DK 0



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Q.34

What should the amount of the fine have been for that offence?

DK 0

IMPROVEMENTS

Q.35 Is there anything else you'd like to say about the circumstances in which people get an on-the-spot fine? Probe: Improvements? Changes? Things you’d like to say to the enforcement authorities? [RECORD VERBATIM]

Q.36 Is there anything else you’d like to say about how the fines are enforced (what happens after you get the fine)? Probe: Improvements? Changes? Things you’d like to say to the enforcement authorities? [RECORD VERBATIM]

EXPERIENCE [ASK OF ALL]

P.1 Have you ever had a PERIN court notice?

YES 1

SKIP TO DEMOGRAPHICS - NO 2

DK 0

REFUSED 98

P.1B How many PERIN court notices have you received in the last 12 months?

1

DK 0

REFUSED 98

P.2 Have you ever had a warrant from the Sheriff’s office?

YES 1

NO 2

DK 0



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P.2B

How many warrants have you received in the last 12 months?

1

DK 0

REFUSED 98

IF CODE 2 AT P.1 AND P.2 – SKIP TO DEMOGRAPHICS AND NOTIFY SUPERVISOR

P.3 What was the most recent notice or warrant for?

DRINK DRIVING 1

SPEEDING – BELOW 10K OVER LIMIT

2

SPEEDING - ABOVE 10K OVER LIMIT

3




LITTERING 7


ILLEGAL PARKING 9

OTHER (Specify) ______________ 99

DK 0

ASK THOSE WHO ANSWERED 1 OR GREATER AT P.1B

P.4 How satisfied are you with the PERIN Court?

VERY DISSATISFIED 1

DISSATISFIED 2

NEITHER DISSATISFIED NOR SATISFIED 3

SATISFIED 4

VERY SATISFIED 5

SKIP TO P.5 IF CODE 1 OR GREATER AT P2B OR SKIP TO DEMOGRAPHICS DK

0

P.4b Why were you satisfied/dissatified?



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ASK THOSE WHO ANSWERED 1 OR GREATER AT P.2B

P.5 How satisfied are you with the Warrant System?

VERY DISSATISFIED 1

DISSATISFIED 2

NEITHER DISSATISFIED NOR SATISFIED 3

SATISFIED 4

VERY SATISFIED 5

SKIP TO DEMOGRAPHICS – DK 0

P.5b Why were you satisfied/dissatified?

DEMOGRAPHICS

Finally, we would like to ask you a few questions about yourself which help us to classify the data. Some of these

questions may relate to race and ethnicity. May I have your permission to ask you these questions?

Yes

No

D.1 In which country were you born?

Skip to D.3 – Australia 1

Great Britain 2

China 3

Greece 4

Japan 5

Italy 6

Vietnam 7

Russia 8

Poland 9

India 10

Algeria 11

Egypt 12

New Zealand 13

Other (Specify) _________ 99

Skip to D.3 - DK 0

Refused 98



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D.2 In what year did you first arrive in Australia to live here for one year or more?

DK 0

Refused 98

D.3 Do you speak a language other than English at home?

YES 1

Skip to D.5 – NO 2

Skip to D.5 – DK 0

Refused 98

D.4 And what language is that?

Arabic 1

Cantonese 2

Croatian 3

Greek 4

Hindi 5

Italian 6

Japanese 7

Mandarin 8

Polish 9

Russian 10

Spanish 11

Portugese 12

Vietnamese 13

Other (Specify)____________ 99

Refused 98

D.5

Would you please tell me the highest level of formal education qualification you have completed?

POSTGRADUATE DEGREE 1

GRADUATE DIPLOMA OR GRADUATE CERTIFICATE

2

BACHELOR DEGREE 3

ADVANCED DIPLOMA OR DIPLOMA

4

CERTIFICATE 5

YEAR 12 OR EQUIVALENT 6

YEAR 11 OR EQUIVALENT 7

YEAR 7 OR YEAR 10 8

PRIMARY SCHOOL 9




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DK 0

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D.6 In a normal week, how often do you drive? [DO NOT READ OUT]

DAILY 1

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3 TIMES OR LESS 3

NONE AT ALL 4

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$40-$79 2

$80-$119 3

$120-$159 4

$160-$199 5

$200-$299 6

$300-$399 7

$400-$499 8

$500-599 9

$600-$699 10

$700-$799 11

$800-$899 12

$1,000-$1,499 13

$1,500 or more 14

DK 0

REFUSED 98

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Appendix E: Literature Review


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1. Introduction The purpose of this literature review was to provide a conceptual framework to guide the gathering of empirical data for the On-the-Spot Fines and Civic Compliance project. Its aim was to identify what themes and concepts were to be examined – first, public knowledge of and attitudes towards use of the infringement notice system to enforce monetary penalties imposed for breaches of minor offences and, second, factors relevant to obedience or disobedience of the laws creating such offences. The first general area carries policy implications for ensuring that, in the short term, offenders discharge their penalties in accordance with court or other formal orders. The second general area addresses policy concerns regarding long-term compliance with the normative standards represented by the underlying rules and regulations, particularly in the area of motor vehicle usage.

The literature on civic compliance with laws creating less serious classes of offence can be broadly divided up into research emanating from a social psychological perspective and research which has a more legal and regulatory focus. While the literature from these two perspectives is reviewed in more detail below, it should be noted that there is a growing body of research on regulatory compliance generally (see papers delivered at the Australian Institute of Criminology conference, Current issues in Regulation: Enforcement and Compliance, Melbourne, 2-3 September 2002 www.aic.gov.au/conferences). This includes studies on traffic safety, tax compliance and avoidance, conformity with labour laws, measures for enforcing environmental protection regulations, and the enforcement of competition and consumer protection laws as well as the use of on-the-spot fines in occupational health and safety contexts (Gunningham, Sinclair and Burritt 1998).

Friedland (1989) led the way when he assembled a set of papers representing the first stage of a program on sanctions and rewards in the legal system undertaken by the Canadian Institute for Advanced Research. These explored general theories of compliance in areas as diverse as income tax, traffic safety, work place accidents, medical malpractice, environmental pollution, family violence, prostitution and securities regulation. It was pointed out that the criminal law typically sought to control behaviour by means of deterrent sanctions. Economists were willing to support this on the basis that behaviour is the consequence of well informed, rational choice, but they suggested that certainty of punishment contributed more to compliance than severity. (Cook P.J. ‘The economics of criminal sanctions’ in Friedland 1989: 62-64).

However, in the same work, psychologists were pointing out (Grusec J.E. ‘Sanctions and rewards: the approach of psychology’ in Friedland 1989: 109-136) that more effective than external surveillance and aversive measures was the internalisation of rules, values and behaviours so that citizens behaved in accordance with such internalised moral and social standards without the sense of having been coerced to do so. Taking up the same theme when writing about the political scientist’s view of compliance control, Tuohy (Toohey C. ‘Achieving compliance with collective objectives: a political science perspective’ in Friedland 1989: 179-202) distinguished between: (1) ‘command’ mechanisms in which compliance is based on a superior-subordinate relationship in which an authority (e.g. police or courts) directs another to comply under pain of sanction; (2) ‘exchange’ mechanism whereby compliance is voluntary having been induced by the benefits to be gained; and (3) the ‘persuasion’ mechanism whereby



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compliance is achieved through agreement with the objectives of the normative standards being advanced.

When subsequently focusing on the regulation of traffic safety, Friedland and his colleagues (Friedland, Trebilcock and Roach 1990) examined driver centred counter measures such as conventional criminal law prosecutions; forms of civil liability, rewards, better licensing regimes and educational programs as well as environment-centred counter measures which emphasised vehicle and highway safety design and post accident injury care. They warned (Friedland, Trebilcock and Roach 1990: 51) that:

Attempts to increase the severity of punishment are often met by significant distortion effects throughout the criminal justice system. Trial delays and not guilty pleas can more than double, as accused drivers seek to avoid or delay a more severe punishment. Severe penalties, such as mandatory goal sentences, can also over-burden prison capacities and do not seem to reduce recidivism.

However no coverage was given to whether changing the mode of allocating sanctions from judicial to administrative was a more favourable approach or had, or was likely to have, any influence on the levels of compliance.

In Friedland’s next work in the series, Securing compliance: seven case studies (Friedland 1990) he continued to explore the distinction between two basic models of enforcement: one relying on prosecution, the other on non-coercive methods. Comparisons were made between two agencies, one of which used prosecution as a sanction of last resort while the other imposed administrative monetary penalties without resort to the courts (Brown R. and Rankin M. ‘Persuasion, penalties, and prosecution: administrative v. criminal sanctions’ in Friedland 1990). This research exposed how administrative penalties were often far larger than fines imposed by the courts and that the differing degrees of stigma associated with the two types of sanction were an important factor in electing to accept an administrative penalty. The criminal process was regarded as more stigmatising than the administrative, not only by the offenders but also by those responsible for enforcing the law. The regulators believed that the stigma of a conviction was not warranted where the offences were minor and the harm negligible. It was also more convenient to those enforcing the law not to have to prove mens rea. Overall, the administrative approach was found to be far less cumbersome, time consuming and expensive than conventional criminal procedures and seemed to be more effective than the latter.

This Canadian work invited future exploration of a number of themes including (Friedland 1989: 12):

• Are rewards more effective than sanctions?

• Is internalisation of values the best technique for gaining compliance?

• Will certainty of penalty have a greater deterrent effect than severity of penalty?

• Will enforcement displace one type of crime for another?

• What target or targets should enforcement be aimed at?

• Is it better to concentrate on ‘designing out’ undesirable conduct?

Notwithstanding the expanding use of infringement notices and ‘electronic’ courts, to date there has been little by way of empirical examination of the factors which may contribute to the enhancement of compliance in these contexts. Indeed there is limited understanding of the concepts underpinning the various models of infringement penalty notices in use in the Australian context.



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Much effort is being applied by both regulatory scholars and practitioners to the selection of techniques which will assist in promoting compliance. This is currently the subject of the Australian Law Reform Commission’s attention. It was given a reference on civil and administrative penalties in January 2000 and has been called upon to identify those areas in which provision for such penalties is more appropriate. It is to undertake this important evaluation having regard to:

• the importance of maintaining an effective and efficient criminal justice system;

• the need in relation to various economic, financial, business, industrial, environmental, social, law enforcement and other areas of Australian government responsibilities, to achieve effective and efficient regulation and supervision and to counter wrongdoing with a fair, effective and practical system of decision-making and enforcement;

• the advantages and disadvantages of a uniform system for imposing monetary penalties by means of administrative and civil penalties (including a system allowing for the prosecution of an offence by a civil procedure);

• the balance which ideally should be maintained in deterring and punishing wrongdoing in regulatory and supervisory regimes between the use of the criminal justice system and administrative and civil penalties;

• the need, having regard to considerations of fairness, effectiveness and efficiency, for appropriate relations to be established between administrative, civil and criminal offences, processes and penalties . . . .; and

• Australia's obligations under international law and Australia's commitment to human rights and civil liberties . . . .

In 2002 the Australian Law Reform Commission released a discussion paper on the role of penalties in government regulation (ALRC 2002). It canvassed ways of securing compliance with laws and regulations. In dealing with procedures for both corporate and individual offenders it gave prominence to the greater use of infringement notices and penalties in its draft proposals for reform (ALRC 2002: 395-419). The final report which was released in March 2003 (ALRC 2003) recommended the enactment of a Regulatory Contraventions Act of general application under federal law to maintain the distinction between criminal and non-criminal penalty laws and to systematise the latter. It supported the continued use of infringement notice schemes as one of a number of approaches to both criminal and civil regulation, but recommended that such schemes only be applied to minor criminal offences of strict or absolute liability and minor civil contravention in which no proof a fault element or a state of mind is required. The report recommends that federal infringement notices should follow a model to be contained in the proposed statute. The recommended features of that model are set out at length in Australian Law Reform Commission Report 95, Principled regulation: Federal civil and administrative penalties in Australia (ALRC 2003), Chapter 12, recommendations 12.8 and 12.9.

It has been argued by Braithwaite (2002) and by O’Malley (1999) that contemporary societies are not only risk management societies (where legal prohibitions are used to minimise risk across a wide range of behaviours), but they are also regulatory societies in which monitoring of behaviour and enforcement by a variety of mechanisms in the case of non-compliance is widespread. As Friedland pointed out, the conventional wisdom has been to rely on deterrent-



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based approached, but current researchers continue to offer alternative perspectives. Thus Murphy (2002) reported on the findings of an empirical study on the role of trust in voluntary compliance in tax collection showing how the use of threat and coercion as a regulatory tool, as well as being more expensive to implement, can produce the opposite behaviour from that advocated. It undermined the likelihood of longer-term compliance with the law. She found that in the area of tax avoidance, social-psychological variables such as trust and fairness are just as important for determining compliance. If people trust the motives of authorities, they are more likely to consider them legitimate, to view them as acting fairly, and to defer to their decisions voluntarily. She argued that to effectively shape behaviour, regulators need to move beyond motivation linked to deterrence only and suggested that strategies directed at reducing levels of distrust between the authorities and the public may prove particularly effective in gaining voluntary compliance with rules and regulations. Similarly, McIntyre and Moore (2002) contend that traditional responses to road transport breaches have been enforcement rather than compliance oriented with too great a reliance on the physical detection and prosecution of offenders and on gearing up deterrence by increasing the maximum fines. These authors suggest that a suite of complementary compliance strategies be developed to create a more effective compliance culture.

The theoretical foundations of compliance have also been probed in the context of the effectiveness of community penalties by Bottoms (2001). He has drawn a useful distinction between short-term compliance - obeying the conditions of the penalties imposed (or in the context of this project, the requirements of the enforcement procedures), and long-term compliance - compliance with the underlying law. Drawing on existing literature, he has distinguished four principal mechanisms underpinning compliant behaviour (Bottoms 2001: 90):

a. Instrumental/prudential compliance.

(a) Incentives (e.g. penalty discount and no record for payment of ‘on the spot’ fine) (b) Disincentives (e.g. court imposed punishment, loss of licence, demerit points, etc.)

b. Normative compliance

(a) Acceptance of/belief in norm (e.g. conscious belief in or moral acceptance of the norm in question)

(b) Attachment leading to compliance (e.g. socialisation producing a mental disposition conducive to an habitual compliance with the law)

(c) Legitimacy (e.g. compliance with a rule because it has been promulgated by a person or body with legitimate authority acting in a proper way to exercise that authority)

c. Constraint-based compliance

(a) Physical restrictions or requirements on individuals leading to compliance (e.g. being locked in a prison or police cell; various forms of electronic surveillance

(b) Restrictions on access to target (e.g. ignition interlocks designed to prevent drink driving; confiscation of vehicles)

(c) Structural constraints (e.g. other restrictions on opportunity for crime)

d. Compliance based on habit or routine (e.g. wearing seat belts in motor vehicles)

2. On-the-spot fines in Victoria The principal researcher on the legal nature and growth of on-the-spot fines is Fox (1995a & b). His pioneering work was set in Victoria and documented the history, growth and effects of the shift from judicial to administrative modes of dealing with lesser summary offences. Though he



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described the legal situation in other Australian states, his empirical research on the statistics of issuing and enforcing infringement notices was confined to Victoria. He showed that the use of ‘on-the-spot fines’, or penalty infringement notices, as a punishment for minor offences in Victoria had grown steadily since they were first introduced in 1959 to the point where it had become the primary means of dealing with minor violations of the law. The growing use of this system for dealing with minor offences can be attributed to the efficiency with which it deals with large numbers of offenders in a convenient manner and the significant financial benefits it provides in terms of reduced court costs and raised revenue (Bagaric 1998). Before the infringement notice scheme was established, figures on offences brought before the lower courts from 1954 onwards in Australia supported United Kingdom estimates that 50-70% of Magistrates’ Court time was devoted to road traffic offences. For instance, in 1971 in Victoria, of 270,045 convictions recorded in the Magistrates’ Courts, 69.4% (187,328) were for driving offences. Twenty years later, in 1991, after infringement notices were well in place in the state, these offences amounted only to 28.8% of all offences charged (Fox 1995a: 145). In 1990/91 the 2.3 million infringement notices issued in Victoria alone had a face value of between $142 and $157 million (Fox 1995a:111).

From an administrative and bureaucratic perspective, infringement notices are largely an efficient, cost effective and even profitable means of achieving civic compliance and enforcing the law even though each year 10-20% of infringement notices issued lead to unpaid and overdue fines being registered with the PERIN Court for enforcement (Victoria Parliament 1997). Despite the enthusiasm with which government has embraced on-the-spot fines, the increased automation of the detection of offences through use of surveillance devices and of the enforcement process, including the PERIN Court, itself, may have negative effects on the public’s perceptions of the fairness of the process and of the motivations of the authorities who impose it. Fox did not gather data on public knowledge of, or attitudes to, the growing reliance on on-the-spot fines, but he made recommendations designed to remedy what he regarded as procedural and due process deficiencies in the system. In light of recent research into the psychological basis of civic compliance with the law, adverse public opinion may pose a danger to this form of technocratic justice not only because of non-compliance with infringement notices, but also in the erosion of public support for the authorities running the system.

Fox’s data indicated that approximately 85 percent of infringement notices issued in Victoria were paid by the due date (Fox 1995a). Therefore, the majority of people do comply with infringement notices. However, about 15 percent are not paid on time, including some which are not paid at all, resulting in reminder letters, referral to the PERIN court, and ultimately action by the Sheriff’s office to enforce payment under threat of imprisonment.

3. Why people obey the law – the determinants of civic compliance

3.1 Social psychological perspectives

3.1.1 Motivating obedience to the law - instrumental and normative models

The research literature suggests that the motivations for people to obey the law are not limited to concerns with personal gain and loss and the desire to maximise positive outcomes for themselves. People also obey the law because they feel that it is the right thing to do. Most conventional policies designed to maximise compliance with the criminal law focus on the use of external threats as a primary means of deterring non-compliance. This focus clearly reflects a fundamental belief that people obey the law primarily because they fear the legal and social effects of being caught and punished. However, the modern psychological literature reviewed



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below suggests another, perhaps more important, motivation for complying with the law. People obey the law because they feel it is just and fair and therefore ought to be obeyed regardless of the gains or losses associated with doing so. These alternative perspectives are referred to as the ‘instrumental’ and ‘normative’ views respectively (Tyler, Rasinski and Griffin 1986).

The instrumental model of the citizen, upon which most economic, legal and political thinking is based, views persons primarily as self-interested individuals whose behaviour is a function of their rational assessments of the likely outcomes of their actions. According to this view people obey the law primarily because it is believed to lead to the best outcome for them, or because doing so avoids the potential costs and stigma associated with violating the law. Conversely, people disobey the law when the benefits of doing so are thought to outweigh the potential costs of compliance. This conceptualisation underlies the use by the infringement notice system of technology as an aid to achieving high levels of detection and fixed financial penalties as an immediate and economically meaningful sanction for breaking the law. The instrumental model underlies most legal policies designed to maximise civic compliance (Tyler and Lind 1992).

The instrumental view of citizen’s behaviour is clearly evident in tax compliance literature where several models of tax-related behaviour have been developed (e.g. Carroll 1987; Cullis and Lewis 1997; Klepper and Nagin 1989). These models focus on variables such as the severity of the sanction, the probability of detection, and the tax rate to predict variations in compliance. Research suggests that the severity of the sanction and the risk of prosecution are powerful deterrents to tax evasion, and that citizens’ perceptions of the risks involved are generally quite accurate (Klepper and Nagin, 1989). Consequently, policies designed to minimise tax evasion have focused on manipulating these factors with the aim of making tax evasion an unacceptable risk for taxpayers.

Another example of law enforcement based on the instrumental model of the citizen is Victoria’s speed and red-light camera program. This road safety strategy, introduced in 1989, focused heavily on increasing the number of speed and red light cameras used throughout Victoria, improving facilities to process fines, and the use of advertising to increasing public awareness of the risks of detection. These incentives were effective, resulting in a significant decrease in traffic collisions, injuries and fatalities over three years with an estimated saving of over $800 million in accident-related costs (Bourne and Cooke, 1993). It also produced a thirty-fold increase in the number of infringement notices issued and so represented a significant source of additional revenue for the Victorian government.

There is little doubt that detection and punishment for law breaking do function effectively to encourage compliance. However, the instrumental approach has been criticised for several reasons (Tyler, Rasinski and Griffin 1986). Firstly, the use of external threats and rewards is both costly and time consuming. For example, the enforcement of traffic speed regulations requires the use of surveillance technology and police time, the issuing of infringement notices, an expensive process of following up unpaid fines, and a significant portion of court time to deal with defendants who take their case to the open court. Secondly, the instrumental approach to law enforcement ‘ultimately fails to control behaviour because it can neither eliminate private disobedience nor assure continued obedience when the mechanism of coercion (or reward) is removed’ (Tyler and Lind 1992: 118).

The most serious shortcoming of the instrumental perspective is that it has difficulty explaining why 15 percent of people fail to pay their infringement notices despite the certainty of further action by the issuing authority or, in Victoria, via the PERIN court and Sheriff’s officers. Non-compliance with infringement notices does not seem to be a rational decision for an individual



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acting out of self-interest. Even if the dispute leads to a lifting of the fine in court the cost in terms of the defendant’s time is usually greater than the cost of the fine itself.

In contrast to the instrumental view, the normative model of the citizen suggests that people obey authorities because they feel a sense of social obligation, rather than simply because they fear the threat of sanctions (Tyler, Rasinski and Griffin 1986; Bottoms 2001). The normative model emphasises the role of morality and the belief that social rules and laws ought to be obeyed not simply to avoid punishment, but because it is the right thing to do. This view is significant in that it emphasises voluntary compliance rather than coerced compliance. It examines compliance in terms of the relationships between authorities and citizens, focusing on concepts such as legitimacy and fairness, rather than simply the probability of detection and the severity of punishment.

This normative view is reflected in a number of psychological and sociological theories about law related behaviour. These theories all imply that the degree to which the citizen feels part of, bonded to, and identified with the larger group or society is an important factor determining his or her response to the law and its sanctions (Sherman 1993). For example, it is well known that praise increases compliance with the law while shame decreases compliance (Makkai and Braithwaite 1993, 1994). Makkai and Braithwaite (1993: 73) theorise that praise increases compliance with the law because it promotes a ‘fusion of identities between individuals and the collectivities to which they belong’. Similarly, Lind and Tyler (1988) argue in their group value model of compliance that interactions with an authority have strong implications for citizens’ perceived relationship to the society that the authority represents. Compliance is reduced when the message received from the authority is one of exclusion from society.

Sherman (1993) proposed a theory to account for the variable effects of sanctions on future compliance with the law. In his paper ‘Defiance, deterrence, and irrelevance: a theory of the criminal sanction’, he argued that sanctions act as a deterrent only when the authority is viewed as legitimate, the offender has strong social bonds to the community and when the citizen acknowledges the shame of the offence. Each of these theories describes a process underlying attitudes and behaviour towards authorities that turns on citizen’s psychological attachment to society, rather than concerns with outcomes. Concepts of fairness and legitimacy are central to the normative model.

3.1.2 Research into fairness

While traditional interventions to reduce the level of non-compliance may look towards increasing the probability of detection and the severity of the sanctions, but recent social and psychological literature suggests that focusing on the perceived fairness of the prohibitions and of the particular enforcement approach adopted may be more effective in increasing compliance. The role of fairness and justice in shaping people’s behaviour is a large and long-standing field within social psychology.

However, it is only relatively recently that this perspective has been applied to the specific relationship between citizens and legal authorities (Lind and Tyler 1988; Tyler and Lind 1992; Tyler 1998). What this research suggests is that fairness (particularly that in procedure) is critically important to an authority’s ability to secure the support, affection, and voluntary compliance of its citizens. Furthermore, it has been found that at the interface between the authority and the citizen, that is, during actual encounters between citizens and the police, parking attendants, magistrates and court officials, that perceptions of justice and fairness are most important. The implications of this research are that efforts to increase compliance with law, and with infringement notices in particular, may benefit by focusing on the perceived



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fairness of the procedures used rather than on increasing the level of surveillance, or applying stricter penalties.

Social behaviour is heavily influenced by beliefs about fairness, particularly where authorities are involved. For example, research has shown that fairness issues have a large impact on people’s attitudes and behaviour towards legal and political authorities and employees’ satisfaction with employers (e.g. Alexander and Ruderman 1987; Folger and Konovsky 1989; Tyler 1984; Tyler, Casper and Fisher 1989; Tyler, Rasinski and McGraw 1985). Research has also found perceptions of fairness to be an important factor in compliance with the law (Tyler 1990).

Social psychological research into fairness began with the work of Adams (1965) who examined perceptions of fairness in the context of resource distributions. This area of research, referred to as distributive justice or equity theory, examines what people believe to be the fairest way to distribute resources throughout a group or community. Early research suggested that distributions were perceived as fair when they were made on the basis of equity. People feel that rewards and profits should be distributed to people in accordance with their contributions. If resources are not distributed equitably group members, even those who are advantaged by the distributions, are motivated to restore equity.

Later research showed that under certain conditions, equality and needs-based distributions are preferred. The vast majority of distributive justice research has been carried out in the context of positive outcomes, with relatively little research devoted to fairness perceptions of negative resource allocations and outcomes such as sentencing and fines. The little research that has been conducted on distributions of negative outcomes has done so in the context of business losses and costs and in this context equality is the dominant principle (Sabbagh and Schmitt 1998; Thörnblom and Ahlin 1998; Törnblom and Vermunt 1999; van Dijk, Engelen, van Leeuwen, Monden and Sluijter 1999).

In the context of the compliance with on-the-spot fines, distributive justice relates to the fairness of the outcomes received from an authority such as the severity of the sanction, including the loss of ‘points’, and the outcome of court hearings for unpaid fines. While there has been some research examining the effects of outcome fairness on people’s experiences with authorities, showing that outcome fairness does have an effect (Jasso 1998; Tyler 1990). The effect of outcome fairness is typically overshadowed by concerns for procedural fairness.

The study of fairness was significantly expanded by the work of Thibaut and Walker (1978) who examined the role of procedures in people’s perceptions of fairness. This area, commonly known as procedural justice, has proven extremely fruitful for studying social behaviour including compliance, particularly in legal, political and organisational contexts where procedures are a large part of the social structure. There is substantial evidence to suggest that the perceived fairness of procedures is one of the most important determinants of attitudes and behaviour towards authorities (Lind and Tyler 1988). The experience and perceptions of fair procedures leads to higher evaluations of an authority’s performance, increased satisfaction with experiences and outcomes, a greater level of support for the authority, and a willingness to obey their laws and abide by their decisions. In the context of the current study on compliance with on-the-spot fines, procedural fairness relates to the fairness of the procedural aspects of an experience with on-the-spot fines, such as the perceived fairness of the law itself, surveillance procedures used in detection, procedures for issuing tickets, payment procedures, and also the fairness of the authority figures involved.



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3.1.3 Perceived fairness and procedure

Research into the effects of perceived fairness on the attitudes and behaviour of citizens towards authorities has strong implications for the issue of compliance with legal prohibitions and penalties. Findings tend to show that by experiencing the procedures and outcomes of authorities as fair, people come to view the authority in a favourable light, seeing them as competent and legitimate. Because of this they are more willing to abide by the authority’s laws and respect their decisions even when those decisions are personally undesirable – as in the case of receiving heavy fines.

While researchers in this area have continued to find it useful to conceptually separate the fairness of outcomes from the fairness of procedures in empirical research, the two are not entirely independent. On the one hand, the process by which offenders are prosecuted may be perceived as fair, while the penalty outcome imposed may be perceived as unfair. On the other hand, when outcomes are seen as fair the procedures used to arrive at those outcomes tend to be rated as fairer, and when the procedures are seen as fair, the outcomes are seen as fairer, regardless of whether the outcomes are favourable or unfavourable (Tyler, 1990).

In studies that have examined the effects of both procedural and distributive justice outcome concerns on attitudes and behaviour towards a legal authority, procedural justice is consistently more important, leading researchers to conclude that ‘procedural concerns consistently take precedence over distributive concerns’ (Tyler 1990: 97). This may be because outcomes are evaluated largely in terms of the procedures used to arrive at them. People assume that fair procedures lead to fair outcomes and that fair outcomes are usually arrived at through fair procedures. In addition, while outcomes may be attributable to transient characteristics, such as the particular temperament of a police officer or parking attendant, procedures are enduring, stable features of a system and have stronger implications for future interactions with that system. Because of this, unfair procedures pose a more serious threat to the security of the citizen than do unfair outcomes (Tyler and Lind 1992).

The research findings of relatively stronger effects of procedural fairness judgments over the fairness of outcomes suggests that people are likely to be more concerned with the fairness of the procedures through which on-the-spot fines are administered than with the fairness of the fines imposed themselves. However, fairness of outcomes may be more important in the context of on-the-spot fines than it has appeared to be in other areas of authority relationships. It is at least intuitive to suppose that the decision of whether to pay an infringement notice may be strongly influenced by the perceived fairness of the penalty when that sense of fairness is affected by other factors such as ability to pay.

Comprehensive research examining the role of fairness in relation to compliance with the law is Tyler’s (1990) survey of citizens in Chicago. This study is particularly relevant for the current issue of on-the-spot fines because Tyler specifically examined the role of fairness in compliance with minor offences. In Tyler’s study, 1575 citizens of Chicago were contacted by phone and interviewed about their level of compliance with six minor offences. These included making enough noise to disturb neighbours, littering, drink driving, speeding on highways, shoplifting inexpensive items, and parking illegally. Participants were also interviewed about recent experiences with police or courts, their perceptions of the fairness of the procedures and outcomes received, and their attitudes towards and evaluations of those authorities.

In one part of Tyler’s study those interviewed were asked about the fairness of the outcomes of a recent experience with the police or courts and their satisfaction and support for those authorities. The results showed that the fairness of the outcomes had a positive effect on citizens’ feelings towards and evaluations of authorities such as the police or courts. Citizens



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who perceived their outcomes as fair were more satisfied and thought the authorities were doing a better job than citizens who felt their outcomes were unfair. However, it is important to note that the effects of outcome fairness were overshadowed by those of procedural fairness. Perceptions of procedural fairness were more strongly related to evaluations of the authorities than were perceptions of outcome fairness. In addition, the measures of outcome fairness and procedural fairness were correlated, suggesting that the two constructs were not independent in the minds of the subjects.

In Tyler’s (1990) study, the perceived fairness of procedures used by the police or courts was consistently more strongly related to evaluations of the experience than perceptions of the fairness of outcomes. Citizens’ self-reported level of compliance with the six minor offences was related to their perceptions of the fairness of their experiences. However it seemed that there was not a direct link between procedural fairness and compliance. Rather these perceptions of fairness impacted on their views regarding the legitimacy of the police and courts, which in turn affected compliance with the law. Self-reported compliance with the law was found to be related directly to three main factors: demographic characteristics, personal morality and legitimacy. Demographic characteristics such as gender, age and level of education explained about a quarter of the variance in self-reported compliance while personal morality explained one third. But legitimacy was also significantly related to compliance. The more legitimate the authority in the eyes of the citizen, the more willing he or she was to comply with the law. It was the perceived fairness of the authorities, particularly procedural fairness, which made the authority legitimate. Tyler’s study provides strong evidence that perceptions of fairness are important to people’s attitudes towards and evaluations of legal authorities. Fairness is also an important factor in compliance with the law via its effect on acceptance of the legitimacy of authorities.

Compliance with the law by not committing offences, and compliance with the enforcement procedures, may be somewhat different issues. The importance of fairness may be different in each and will be examined in this study. There is some evidence that fairness maybe at least equally important in compliance with sanctions for breaking the law as it is in compliance with the law in the first place. One particularly notable effect of procedural fairness discussed by Tyler is that it appears to provide a ‘cushion of support’ in the face of undesirable outcomes (Lind and Tyler 1988; Tyler 1990). When the outcomes of an interaction with an authority are positive, such as winning a lawsuit or being found innocent of a charge, people are generally satisfied with their experience and procedural fairness is not such an important issue. However, when the outcomes are negative, such as when a person is ordered to pay compensation, or fines are imposed, procedural fairness has a profound effect on the overall evaluation of the situation. If the procedures which produced this outcome are accepted as fair this increases the perceived fairness of the result, even though it is undesired. There is less discontent both with the specific authority figures involved and with the institution in general. This effect of procedural fairness is clearly relevant to the issue of compliance with infringement notices because it suggests that the burden of receiving a fine can be made more ‘palatable’ by ensuring that the system’s procedures are experienced as fair.

In addition to the ‘cushion of support’ effect of procedural fairness there is a small amount of research showing a direct relationship between fairness judgments and compliance with the decisions of legal authorities. Lind, Kulik, Ambrose and de Vera Park (1991) (cited in Tyler and Lind 1992) examined real-life federal court arbitrations and found that procedural fairness significantly increased voluntary compliance with the award from 54 percent to 77 percent. This effect was all the more striking given that the awards were in the tens and hundreds of thousands of dollars. In another study involving lawsuits these authors (Lind, Kulik, Ambrose and de Vera Park 1993) again found that compliance with the arbitrator’s award was strongly related to



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evaluations of the fairness of the procedure. These studies, and others reviewed by Lind and Tyler (1988), provide good reason to believe that procedural fairness is likely to be a major factor in compliance with infringement notices.

The literature supports the importance of fairness to evaluations of experiences with authorities. Using fair procedures and providing fair outcomes should be an essential function of authorities wishing to secure the support and compliance of the public.

3.1.4 Perceived fairness and outcome favourability

Importantly, evaluations of fairness are largely independent of the extent to which experiences with authorities are personally beneficial. People can feel fairly treated despite receiving an unfavourable outcome, and unfairly treated despite a positive one. For example, Greenberg (1987) reported the results of a laboratory study in which subjects were awarded either low, medium or high amounts of money following either a fair or unfair procedure. In this study the outcomes subjects received had no effect on the perceived fairness of the procedure used.

Tyler and Lind (1992) reviewed several studies in which the relationships between outcome and attitudes towards authorities are reported. In these studies, outcome favourability had little or no effect on attitudes towards authorities in legal, managerial, or political authority relationships. However, people who received positive outcomes were more likely to view the procedures used as fair and this, in turn, lead to more positive attitudes towards the authority. In Tyler’s (1990) study, outcome favourability and perceptions of fairness were found to be largely independent. Using regression analyses Tyler examined the effect of variables related to outcomes and those related to fairness on subjects’ judgments about their personal experience and their general views about legal authority. He found that perceptions of fairness were more strongly related to evaluations of the authority than the outcome. Information about subjects’ outcomes had no effect on the legitimacy of the authorities.

The findings that perceived fairness of authorities is largely independent of the favourability of outcomes received from them suggest that authorities can increase compliance through the use of fairer procedures without affecting the outcomes they impose.

3.1.5 Fairness and the promotion of legitimacy

It is clear that concerns about fairness, and particularly the fairness of procedures, are important factors underlying evaluations of authorities and compliance with their laws and decisions. The mechanism through which fairness exerts these effects has been the subject of much theoretical development within the fields of procedural justice and compliance. In short, fairness produces compliance by increasing the legitimacy of an authority which in turn increases the obligation people feel to obey their laws.

The importance of legitimacy to effective leadership is well recognised in the fields of psychology (French and Raven 1959; Hollander 1985), political science (Easton 1958) and criminology (LaFree 1998). Indeed, a legitimate authority is defined as one which ‘bases its activity on a principle which the members of the system consider to be adequate grounds for obeying their rules’ (Easton 1958: 28). A more psychological definition sees legitimacy as ‘the perceived obligation to comply with the directives of an authority, irrespective of the personal gains or losses associated with doing so’ (Tyler 1990: 27). When an authority is accepted as legitimate citizens tend to obey its laws because they feel that the authority has the right to create laws which set restrictions on public behaviour.

In his 1990 study of Chicago citizens, Tyler found that perceptions of the fairness of the procedures used by police and courts were significantly related to citizens’ support for the



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authority and their felt obligation to obey their laws. When the procedures used were perceived as fair, citizens perceived both the police and courts to be more legitimate. This legitimacy was directly related to participants’ self-reported compliance with the law. Tyler found that perceptions of the legitimacy of the authority explained 11 per cent of the variance in compliance with the law, with personal morality and demographic characteristics also being important. While that percentage may not seem like a large contribution, it is significant considering the number of factors that contribute to compliance and the difficulty in measuring the construct of legitimacy.

Legitimacy is also an important factor because its effect on compliance is separate from the effects of one’s peers, one’s morality, and the perceived risk of getting caught and punished. Although Tyler’s study did not examine the relationship between the legitimacy of the police and courts and compliance with their sanctions, it follows logically that if legitimacy is important to compliance with the laws in the first place, it is likely to be important to compliance with its sanctions.

3.1.6 Implications for public policy

The research on fairness reviewed above is essentially supportive of the normative model of the obedient citizen. Compliance with the law is more strongly related to issues of legitimacy and support for authorities than to concerns about disincentives or incentives. These patterns suggest that attempts to maximise compliance with infringement notices would benefit from focusing on the mechanisms underlying this normative view. From this perspective it could be hypothesised that people comply with infringement notices because, despite the costs suffered, they feel that it is right and fair that they be held accountable for violating a law they accept as legitimate. Conversely, people may refuse to pay their infringement penalty because they feel that the particular prohibition, or the circumstance in which it was enforced, was not legitimate.

Ultimately, the normative perspective paints a picture of a fairer society in which obtaining public compliance with important social policies is achieved by maximising public satisfaction with the manner in which the authorities go about their business, rather than by force of sanction alone. In this way the normative perspective is qualitatively different from the instrumental perspective, and has important implications for public policies. The tax compliance literature, dominated by the instrumental perspective, is beginning to look towards social norms and conformity as explanations of tax compliance and incorporate related variables such as fairness judgments into their models (Casey and Scholz 1991; Cullis and Lewis 1997; McGraw and Scholz 1991). Incorporating concerns with normative motivations into public policy requires aligning those policies with what citizens think is fair.

The social-psychological literature examining the issue of fairness provides some insights into how citizens define fairness, and their preferences for various types of procedures and distributions.

3.1.7 Antecedents of procedural fairness judgments

Research has not only demonstrated the importance of procedural fairness to various aspects of citizens’ responses to authorities and their laws but has also examined how people assess the fairness of particular procedures (e.g. Tyler 1988). The early work of Thibaut and Walker (1978) proposed that procedures are perceived as fair when the subject has some degree of control over the process and the outcome. Leventhal (1980) identified six characteristics of procedures that people use to assess fairness. These were consistency, suppression of bias, accuracy of information, correctability, representativeness and ethicality. Finally, Tyler (1997; Tyler and



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Lind 1992) theorises that procedures are seen as fair when the authorities imposing them are perceived as being trustworthy, neutral and respectful.

The work of Thibaut and Walker (1978; Walker, LaTour, Lind and Thibaut 1974) focused on the fairness of different procedures used to resolve a conflict between two parties. Thibaut and Walker (1978) analysed procedures in terms of the degree of control given to the disputants over the decision reached and the process used to reach it. For example, in a bargaining process the two parties have complete control over the information they put forward to make their case (process control). Both also have control over the decision. Under autocratic procedure both process and decision control are in the hands of a neutral third party. Their theory specifies the optimal distribution of process and outcome control to disputants and third parties as a function of whether the goal of the dispute resolution process is to attain ‘truth’ or ‘justice’. Truth is the primary objective in disputes over conflicting views of reality, such as whether or not a defendant ran a red light. Justice is the primary objective in disputes over the distribution of outcomes, such as in the settlement of an estate. According to Thibaut and Walker’s theory of procedural justice, truth objectives are best served by procedures in which both process control and decision control is given to a third party. Justice objectives are best served by procedures in which process control is handed to the disputing parties but a third party controls the decision. The underlying factor in satisfaction with dispute resolution procedures is ultimately the degree of control the parties involved have over the outcome.

Leventhal’s (1980) theory of procedural justice expanded the range of factors involved in perceptions of fairness beyond those identified by Thibaut and Walker (1978). According to Leventhal procedures are considered fair to the extent that they satisfy the six criteria of consistency, bias suppression, accuracy, correctability, representativeness and ethicality. Consistency requires that procedures be applied consistently across people and across time. Bias suppression requires that the decision-maker be neutral with respect to the outcome and that prior ideologies or beliefs do not produce a bias. Accuracy refers to the extent to which decisions are perceived as informed and based on valid information. Correctability requires that there be some avenue for contesting or appealing inaccurate or unfair decisions. Representativeness is similar to Thibaut and Walker’s (1978) criteria of control and includes the opportunity to have one’s case heard and considered. Finally, ethicality requires that the procedure be conducted in a way that reflects the basic moral and ethical standards of normal social interaction. Leventhal (1980) did not specify the relative importance of these criteria to perceptions of fairness but believed that their importance varies with the specific goals and characteristics of the situation.

Lind and Tyler (1988) propose in their group value model that people are primarily concerned with the implications of a procedure for how the society or group values the individual. From this perspective procedures are deemed to be fair when they indicate a positive relationship between the citizen and the authority: ‘To the extent that a procedure is seen as indicating a positive, full-status relationship, it is judged to be fair, and to the extent that a procedure appears to imply that one’s relationship with the authority or institution is negative or that one occupies a low-status position, the procedure is viewed as unfair’ (Tyler and Lind 1992: 140). Based on this group value model Tyler (1989: 153) identified three variables important to perceptions of procedural fairness. The first was ‘standing’, which was defined as ‘concern about recognition of one’s status and membership in a valued group, organisation, or society’. Standing is communicated by the respect, politeness and dignity with which the authority treats citizens. The second factor was trust in the authority’s intentions or motivations to act ethically, fairly and benevolently. Trust is based on the authority showing concern for one’s needs and consideration of their views. The third factor underlying perceptions of fair procedures was neutrality, a lack of bias or discrimination on the part of the authority. Neutrality is a function of the honesty and



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consistency of the authority as well as their efforts to make an informed decision (see Figure 1 below).

Tyler, later identified five main factors underlying procedural fairness judgments: outcome favourability, control, standing, neutrality and trust. Tyler and Lind (1992) reviewed studies comparing the relative importance of these variables to predicting procedural fairness. When these factors were entered into a hierarchical regression model the data suggested that both outcome and control issues contributed nothing over and above the effects of the relational variables of trust, neutrality and standing. The relational variables explained 24 percent of the variance in procedural justice judgments that could not be explained by control or outcome factors. Tyler and Lind (1992: 153) concluded that ‘although outcomes and relational factors both affect procedural justice judgments, relational factors are the more powerful determinants of procedural justice judgments’.

Figure 1 – Tyler and Lind’s Relational Model of Authority (from Tyler & Lind 1992).

Concern for needs

Trust

Consideration of views

Dignity and politeness

Standing Procedural

justice Value to

group Legitimacy of

authority Voluntary

compliance

Respect for rights

Absence of bias or prejudice

Honesty Neutrality

Fact-based decision making

The research on the antecedents of procedural fairness identifies a number of elements that people regard as characterising fair procedures. These include: the opportunity to state one’s views; consideration of these views; treatment with dignity and politeness; respect for rights; honesty; absence of bias, and accurate, fact-based decision making. To the extent that concerns for procedural fairness underlie citizens’ responses to authorities, non-compliance with infringement notices may reflect a breakdown in one or more of these factors.

3.1.8 Contact with authority and perceived fairness

People may base their perceptions of the fairness of an authority on various sources of information such as the opinions of other members of their social groups, the media, and previous experiences with the authority. Research shows, though, that people’s direct, ongoing experiences with the authority play a major role in shaping their perceptions of the fairness and legitimacy of the authority (Tyler 1990). This is primarily because ‘people use their experiences with particular police officers and judges to generalise about the overall legitimacy of legal



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authority’ (Tyler 1990: 162). For example, Tyler’s (1990) study utilised an experimental design that allowed the effects of actual interactions with authorities to be measured independently of previous attitudes about the authority. By comparing the responses of citizens before and after a personal experience with the police or courts, Tyler found that recent experiences continued to shape citizens’ beliefs about the fairness and legitimacy of the authority. Ongoing contact with authorities is continuously updating and reaffirming citizens’ attitudes towards them. Given the importance of fairness to judgments of the legitimacy of authority, the perceived fairness of the procedures used during actual encounters with police, parking officers, or the authority issuing the infringement notice may have an important effect on citizens’ ongoing support for the authority and compliance with its laws.

3.1.9 Differences in perceptions of fairness between people

Research suggests that people tend to have similar definitions of fairness in a given context (Lind, Huo and Tyler 1994). In the Chicago study there were no significant differences in the criteria used to assess fairness that could be attributed to demographic characteristics. This means that, in general, people of different gender, age, income level, level of education and political affiliation have similar beliefs about what fair procedure entails. People from different cultures also have similar definitions of fairness. Lind, Tyler and Huo (1997) studied the role of several factors in perceptions of fairness amongst citizens of America, Japan, Germany and Hong Kong. The only difference found was that the Americans placed slightly more importance on status recognition than Japanese. Lind et al. concluded that ‘procedural justice is defined in much the same way across widely different cultural contexts’ (Lind, Tyler and Huo 1997: 777; Tyler, Boeckmann, Smith and Huo 1997).

Although research has failed to find differences in criteria of procedural fairness across people, there may be biases in perceptions of fairness between actors and observers. That is, people may have different perceptions of fairness about their own treatment than they do about the same treatment of others. For example, people are more likely to attribute negative outcomes to external factors when they are the recipient of the outcome than when someone else is a recipient (Thibaut and Walker 1978). Therefore, recipients of infringement notices are more likely to attribute the offence to situational characteristics such as ‘unfairness’, ‘bias’, or ‘bad luck’. Such external attributions may reduce one’s sense of responsibility for an offence and thereby reduce one’s motivation to engage in expiatory behaviour (Sherman 1993). There is also an apparent bias in perceptions of what is fair at the inter-group level. Platow and colleagues (Platow, Hoar, Reid, Keryn, and Morrison 1997; Platow, O’Connell, Shave, and Hanning 1995) demonstrate in two experiments that, when group differences are salient, leaders are perceived as fairer when they are biased in favour of one’s own group than when they are neutral.

Finally, there is the issue of identification with the society governed by the authority. As discussed earlier, the degree to which the citizen feels part of and bonded to society is an important factor affecting their compliance with the law. This is particularly important in relation to subgroups or minorities since it appears to affect the relative importance of procedures versus outcomes. Like legitimacy, social identification is a very abstract concept and one notoriously difficult to measure reliably. Nevertheless, it may be informative to examine differences in the degree to which compliers and non-compliers feel bonded to or assimilated with society. Scales to measure identification with groups can be found in the social identity literature (e.g. Haslam 2001).

Identification with the society also affects the importance of procedures versus outcomes to satisfaction with authorities. One study by Huo, Smith, Tyler and Lind (1996) examined the importance of minority identification to employee’s satisfaction with a dispute with their work



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supervisors. These researchers found that procedural fairness was more important to those who identified strongly with the superordinate group (i.e. work organisation) than those who identified less. Those who identified weakly with the work organisation were more satisfied by favourable outcomes than they were by fair procedures.

A more recent study by Huo and Tyler looked at the reactions to legal authority by different ethnic groups in California (Huo and Tyler 2000). Telephone interviews were conducted with over 1600 residents about their most recent encounters with legal authority. They were questioned about different types of encounter, i.e. being stopped by the police and given a ticket or cited for a violation of the law; calling the police for help in relation to a problem; going to court in relation to a dispute.

The variables used in the analysis were directed towards determining:

• satisfaction with the overall experience with the legal authorities

• voluntary compliance with the directives of the legal authority

• nature of the outcome

• perceptions of the fairness of treatment

• perceptions of specific aspects of treatment

The authors make the point that diversity brings with it two potential problems for legal institutions: The first is the extent to which they are willing to adapt to meet the needs and concerns of citizens who may differ widely in their values, beliefs and expectations of authorities. The second is related to the risk that minorities will receive worse treatment at the hands of the justice system than the majority. Though it aims at equality before the law, it also assumes that those who are subject to it share core values and understandings about standards of justice and fairness.

Evaluating traditional public institutions within the new social context is particularly important because these institutions were developed to serve a population that is very different from the one that exists today. (Huo and Tyler 2000: 2)

The major findings (Huo and Tyler 2000: viii-ix) were that:

• when compared to whites, African Americans and Latinos reported lower levels of satisfaction with their interactions with the legal authorities. They also reported less willingness than whites to comply with the directives of the authorities they deal with. This was particularly true of police interactions.

• African Americans and Latinos reported experiencing less procedural fairness than did whites.

• perception of the fairness or otherwise of their treatment was the most important factor shaping the reaction to encounters with the police and courts. It was more important than concerns about the ultimate outcome. This pattern was true across different situations and ethnic groups.

• members of different ethnic groups shared similar conceptions about what constitutes procedural fairness. An authority was perceived to have acted fairly if he or she was judged to be unbiased, concerned about the needs of the individual, and respectful of that person.



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These perceptions of lower levels of fair treatment in minorities have important implications for compliance rates among such groups. It suggests that efforts to act more fairly will lead to more positive reactions and higher rates of compliance.

3.1.10 Perceptions of fairness and compliance with infringement notices:

The psychological literature clearly implicates perceptions of fairness as relevant to compliance with infringement notices. Concerns about fairness have a wide range of effects from framing general attitudes towards authorities and institutions to a willingness to accept the penalties imposed. Fairness has been found to be important to authority relationships in legal, political and organisational contexts and in a range of cultures and communities. Indeed, leading researchers in the field of justice and fairness conclude that ‘wherever research has examined procedural justice it has been found that people care about the fairness of procedures. People may give different weight to various concerns as they decide in different situations what constitutes procedural justice, but they appear always to make procedural justice judgments and these judgments are always important to them’ (Lind and Tyler 1988: 141). The implications of this line of investigation for the issue of compliance with infringement notices are that concerns about fairness, particularly that of procedures, is likely to be an important factor and one that should be considered in current policy. There are several areas in which perceptions of fairness may be important to evaluations of the infringement notice system.

Research on distributive justice and the fairness of outcomes suggests that concerns over the proportionality of the penalties for offences subject to on-the-spot fines may also be important to public perceptions of the fairness of the system. Citizens may assess the fairness of the penalties for various offences in both relative and absolute terms. According to relative deprivation theory (Merton and Rossi 1957) situations are often judged or evaluated by comparison with other situations. The appropriate or fair level of a sanction may be judged by comparison with other crimes and their sanctions. For example, citizens may feel that the penalty for a broken taillight ought to be less than the penalty for speeding, and that receiving the same penalty for both is unfair. There may also be some consensual understanding in the community about the absolute level of a sanction appropriate for certain offences, the fairness of the points system and the option of community service. Such beliefs could be measured within the community and applied to the legislation concerning sanction levels to increase perceptions of fairness in this area.

The degree of transparency of the infringement notice system and the presence or absence of a human face to its procedures is likely to be an important factor underlying compliance. Past research suggests that perceptions of procedural fairness are maximised when citizens have a chance personally to state their views and have them considered; when they are treated with dignity, politeness and respect; and when the authorities are seen as honest, unbiased and accurate in their decision making. There are several components of the on-the-spot fine system to which these issues may apply. The opportunity to state one’s case may be particularly important when citizens are stopped by the police or approached by a ticket inspector. Research shows that face-to-face experiences with authority figures have a significant impact on general attitudes towards the institution as a whole. When an infringement notice is received through the mail or is found on the windscreen citizens may value having some avenue for expressing their views on the offence without having to elect to appear in court in order to do. The absence of an accessible agency or organisation to which appeals and complaints could be made militates against fairness. Dignity, politeness and respect is likely to be important throughout all levels of the process, particularly during face-to-face interactions with police officers, ticket inspectors and court officials. These concerns may also be important in the messages conveyed by infringement notices themselves. Their clarity in communicating the details of the alleged



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offender’s legal options bears upon the honesty, accuracy and neutrality of the process. People generally view a procedure as fairer when the authority figures with whom they interact during their experience are honest, concerned with citizens’ rights and needs, and make an effort to an informed and accurate decision. An important aspect of this is the consistency with which authorities treat different types of people across different situations. The consistency of treatment of offenders may be assessed by comparing an experience with that of others, such as peers and family, or by comparison with one’s own previous experiences. Issues of fairness may also be relevant to the payment of fines. Citizens may value having various options for paying a fine such as extended deadlines, electronic funds transfer, and payment by instalments. They may value a needs-based system that takes into account income levels and expenses, or alternatively may prefer a fixed penalty system which offers no special consideration for disadvantaged citizens or other mitigating factors.

3.1.11 Other factors in compliance with infringement notices:

Theories on compliance with authorities suggest that fairness increases compliance by increasing the legitimacy of the authority. It is legitimacy that directly produces compliance. Therefore, it is important to measure citizens’ perceptions of the legitimacy of the authorities which issue infringement notices. In Tyler’s (1990) Chicago study legitimacy was operationalised as both an obligation to obey and support for the authority, measured separately. Obligation to obey was measured by the degree to which subjects agreed with statements such as ‘people should obey the law even if it goes against what they think is right’. Support was measured on similar scales to statements such as ‘I have a great deal of respect for the [name of authority]’ and ‘I feel proud of the [name of authority]’. Response options were ‘agree strongly’, ‘agree’, ‘disagree’ and ‘disagree strongly’.

Beyond factors of fairness it is necessary to measure the community’s perceptions of the risks of being caught for various offences, and their beliefs about the consequences of failing to pay a fine. Though the normative model of the citizen emphasises the importance of fairness, morality and legitimacy to compliance with authorities, the use of rewards and punishments is still relevant to behaviour (Bourne and Cooke 1993; Klepper and Nagin 1989). Underestimating the risks involved, or ignorance of the consequences, may be a significant factor underlying the decision to ignore an infringement notice.

Finally, the two most powerful predictors of compliance with the law appear to be demographic characteristics and personal morality. Tyler (1990) examined the effects of gender, age, race, income level, level of education and political orientation on compliance with the law. He found that females were more willing to comply than males, and older people comply more than young people do. The higher the participants’ education and income, the lower their self-reported compliance. Not surprisingly, the degree to which people believe it is wrong to break the law is a powerful predictor of compliance. Compliers and non-compliers may differ in the extent to which they believe failure to pay an infringement notice is morally wrong.

3.2 Legal perspectives

Many values regarded as fundamental in modern western legal systems are congruent with both the normative and instrumental approaches to promoting compliance with legal norms. Typically, however, the legal sources are doctrinal rather than empirical.

3.2.1 Fairness: elusive or identifiable

The legal philosopher John Rawls not only asserts that the fundamental idea in the concept of justice is fairness, but also that the significance of accepting rules as fair is that ‘there arises a



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prima facie duty (and a corresponding prima facie right) of the parties . . . to act in accordance with the practice when it falls upon them to comply’ (Rawls 1958: 179). Although a familiar concept in legal discourse, fairness itself is rarely defined, and thus appears vague and elusive. Rawls describes it in these terms(Rawls 1958: 178):

A practice will strike the parties as fair if none feels that, by participating in it, they or any of the others are taken advantage of, or forced to give in to claims which they do not regard as legitimate.

While the concept is multi-layered and often contextually specific, it is arguable that it is one of the few values that provide a unifying force in a community. As Cooke suggests, ‘underlying all the prolix and diverse values within the community is the community’s basic concept of justice and fairness’ (Cooke 1989: 423 cited Thomas 1999: 469). Thomas contends that people have no difficulty in perceiving what is just once they have a particular context in which to assess fairness - ‘once a set of facts is advanced, fairness or what is fair becomes much less elusive’.

Abelson, (1987: 3) writing in an economic context, distinguishes three main schools of thought about fairness:

• Natural Rights - Proponents of this school, including Kant (1970), Nozich (1974) and Peacock and Rowley (1975), propose that individuals have natural rights and any deprivation or denial of those rights is necessarily unfair.

• Fair rules and processes - Theorists such as Clarke (1902), Weber (1958) and Buchanan (1985) who assert that outcomes can never be judged independently of the process that generates them. If the process for reaching a result is fair, that outcome should also be regarded as fair.

• Fairness of outcome – Writers like Bentham (1791) and Samuelson (1947) who emphasise that it is the end that justifies the means and that the primary assessment of fairness must focus on the outcome.

As with the psychological perspective, fairness can be divided into substantive or procedural dimensions:

1. the reasonableness of the actual law being enforced, that is, the degree to which laws satisfy the participant’s expectations of justifiable distribution of costs and benefits (substantive fairness/distributive justice) and,

2. the quality of the procedures applied in enforcing the law, that is, the extent to which the laws are made and applied in accordance with what the participants perceive as right process (procedural fairness/due process).

3.2.2 A balancing exercise

For lawyers, an analysis of fairness involves a subtle balancing of interests. On one side is the state’s interest in suppressing crime and prohibited conduct for the benefit of all and for the preservation of a peaceful and ordered community. On the other side there is the need to maintain respect for the dignity, privacy and human rights of individuals protecting citizens from arbitrary, irregular, illegal or excessive invasion of their liberties by police, prosecuting authorities, or judicial procedures.

The former area of interest, which requires the law to give those responsible for enforcing the law adequate powers over citizens in order to fight crime and unlawful behaviour, can be



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explained by reference to Packer’s (Packer 1968) crime control model. The crime control model emphasises repression of criminal conduct with primary attention being given to the efficiency with which the system operates to screen suspects, determine guilt and secure appropriate sanctions of those convicted. This produces a conveyor belt image of crime control with its willingness to negotiate settlements if they expedite the rapid disposal of cases. This expediency is a feature of the courts of summary jurisdiction and is even more pronounced in the further refinements represented by the infringement notice system.

The latter area of interest can be understood by reference to the ‘due process’ model (Packer 1968). The criminal justice system is not only concerned with bringing about crime control, but also the control of abuse by those who possess power and thus it is concerned with imposing controls on excessive use of state power. The due process model emphasises the importance of personal rights and formal adjudicative fact finding rather than the generation of pleas of guilty. Unlike the conveyor belt image, the due process model looks more like an obstacle course designed to provide checks and balances against use of excessive state power against citizens. Even in areas of wrongdoing allocated for summary hearing and adjudication, the due process model demands retention of core safeguards such as specific accusations, a known process, an opportunity to be heard or make submissions in one’s defence, proportionate penalties, and rights of appeal to correct obvious legal errors.

3.2.3 Requirements of fairness in Australian law

Although the primary focus for the purposes of this project is the criminal justice system and administrative law system, analogies in other areas of law are presented, including, international conventions and statements of human rights and common law principles of due process. For the concept of fairness in the operation of international law, see Franck (1995).

A. International human rights

The following rights are contained in the International Covenant on Civil and Political Rights (ICCPR), a treaty to which Australia is a party (Joseph, Schulz J. and Castan 2000). While these rights are not necessarily enforceable in domestic law, it is still useful to consider them as they reflect international standards of fairness in legal procedure. Similar rights are provided in regional human rights instruments, including the European Convention on Human Rights, the inter-American instrument, Fundamental Freedoms, and the African Charter on Human and People’s Rights (Sohn 1982).

(a) Article 14: the right to a fair trial

This ICCPR article elaborates a right which has historically been accepted in both criminal and civil law as fundamental. The aim is to ensure proper administration of justice. Article 14(1) provides the general guarantee of a fair trial, which applies to all stages of proceedings in all courts, and article 14(2)-(7) sets out specific guarantees in relation to criminal trials and appeals.

(b) Article 9: freedom from arbitrary arrest or detention

Article 9(1) acts as a substantive guarantee that arrest or detention will not be arbitrary or unlawful. Article 9(2)-(5) provides procedural guarantees that help ensure enjoyment of the substantive guarantee. (See Appendix One.)

(c) Article 7: freedom from torture or cruel, inhumane or degrading treatment of punishment.

(d) Article 26: the right to equality before the law and to freedom from discrimination



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B. Common law and constitutional law

Australia has no Bill of Rights and there is limited scope for implication of individual rights in the Australian Constitution. However, there exists the common law right to a fair trial, criminal and civil, which derives from the power of the common law court to control proceedings, a power that is to be exercised fairly (Beaumont 1999: 106). There is also the notion of due process in judicial proceedings, which is implied by Chapter III of the Federal Constitution, reflecting the Separation of Powers doctrine, which has been construed as a general guarantee of procedural due process in federal courts (Leeth v Commonwealth (1992) 174 CLR 455). Section 80 of the Constitution also confers the right to trial by jury in relation to federal indictable crimes.

C. Criminal law- judicial proceedings

This body of law contains an extensive matrix of rules, standards and presumptions that require fairness.

The requirement of fairness is present from the initial formulation of an offence (e.g. an offence which is defined too vaguely or arbitrarily is unfair) through to detection of the offence (e.g. entrapment is unfair). It exists in regulation of the investigatory stage (e.g. protection against self-incrimination), in the trial process itself (e.g. the right to representation, right to silence, right to call witness, etc); and ultimately in appellate and review processes.

The following is a general list of the main steps in judicial proceedings to identify where issues and requirements of fairness may be located.

1. Circumstances and details of the accusation

(a) The nature of the offence

There are rules against vagueness, i.e. an offence must be defined in clear, understandable language.

There exists a principle that an accused ought not to be convicted of an offence where his or her conduct did not involve an element of moral culpability. Strict liability offences, where there is no such mens rea element, provide exception to that principle. Many of the offences that fall within the infringement notice system are strict liability offences.

(b) The circumstances of detection

There are rules against entrapment and unfairly obtained evidence, i.e. a court has discretion to exclude a confession or admission where in circumstances, it would unfair to admit the evidence against the accused, for example where there is an issue of reliability or forensic disadvantage. (See rules of evidence below.)

(c) Preliminary Examination and Interlocutory Proceedings

An accused must be given sufficient details of the accusations by way of a preliminary examination or some form of interlocutory proceedings, so that the necessary information may be supplied, at least from the Crown.

2. An unbiased tribunal

(a) Role of Judge and Judicial Independence

A judge, in exercising their function of adjudicating on matters brought before a court for decision, must be impartial in his or her legal reasoning and decision making. The judiciary is independent from other arms of government. That independence is ensured



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by the separation of powers doctrine, life tenure of judges and enforceability of binding decisions.

(b) Role of Jury and Jury Independence and Randomness

A jury, as a body of people without legal experience chosen at random from the general community, has the function of determining questions of fact on the basis of evidence presented at trial.

3. Public accountability

(a) Public Trial

All stages of proceedings, except for in some cases, for example cases involving sexual offences against children, are to remain open and public.

(b) Role of Media

The media plays an important role in ensuring public accountability in the trial process and that justice is seen to be done in criminal proceedings. The media thereby has the role of promoting transparency of process, setting and reflecting norms and standards, and ensuring there is understanding of the system in the community.

4. Circumstances of trial

(a) Timely trial

The trial must be held within a reasonable time.

(b) Speedy Trial

The trial cannot commence too early, with undue haste. The defendant needs time to prepare his or her case.

(c) Delay

There must not be excessive delay, or else witnesses might no longer be available, documents may be lost etc.

(d) Bail

The defendant need not be held in custody in order to secure attendance at trial if there are sufficient ties between the defendant and the community. Bail also serves to enable the defendant to better prepare his or her case.

5. Access to representation and right to call witnesses

(a) Legal Representation

An accused has the right to be present at the trial and to conduct his or her own defence or to do so through a lawyer. No one has an absolute right to legal representation at the expense of government, but legal aid is provided when there is much at stake for the accused.

(b) Personal Representation

If an accused conducts his or her own defence in person, the trial judge, though normally impartial, is obliged to make sure that the person is informed of basic procedural rights. The law will not impose a lawyer upon an accused against his or her will.

(c) Right to call witnesses



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Both sides (the defendant and the prosecutor) should have the same right to secure the compulsory attendance of witnesses and documents by subpoena and other processes.

6. Known rules of evidence

(a) General Principles

For the criminal trial, due to the presence of a jury and the possible deprivation of liberty, rules of evidence are much stricter than for civil proceedings. This reflects the overriding concern that the trial is fair in the sense that the accused is protected from prejudice, especially in the eyes of the jury.

The rules are based on three broad principles (McNicol and Mortimer 1996: 3):

• Reliability/utilitarian principle

All evidence brought before a court must be reliable so that the right result is achieved at the trial, i.e. for ascertaining the truth.

Relevant rules include: rules against hearsay, burden of proof rules, rules relating to corroboration and opinion evidence.

• Libertarian/protective principle

Each step of criminal process should be judged for its coherence with a liberal understanding of how individuals should be treated, i.e. fairness towards the individual.

Relevant rules include: rules against propensity evidence, the right to silence, common law and legislative privileges.

• Disciplinary principle

Rules should discourage improper police methods, i.e. enforce standards of propriety.

Relevant rules include: rules relating to arrest, confessions and police interrogations and the collection of evidence.

(b) Presumption of Innocence and the Burden and Standard of Proof

The law starts with the presumption that the person charged is innocent until proven guilty in accordance with law. That guilt must be proven by the prosecutor beyond reasonable doubt.

The common presumption of innocence has been widely undercut by the increasing number of statutory offences, which create a broadly defined offence (e.g. unlawful possession of a drug) and then provide that the accused must prove the existence of the defences or excuses (e.g. a lawful reason to possess the drug). The imposition of burdens of proof on the defendant also undermine his or her right to silence because the person must now produce evidence or personally give evidence or risk conviction.

(c) Right to Silence

A person cannot be compelled to incriminate him or herself. The law recognises that it is unfair to expect a suspect to disclose details relating to the allegation and evidence that supports it, thereby forcing the suspect to overtly act against his or her own interests.



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(d) Cross Examination

Fairness requires that the evidence presented by witnesses be tested in some way. Under the adversary system it is hoped that the truth will be discovered by a process of examination in chief and cross-examination.

(e) Exclusion of Prior Convictions/ Propensity Evidence

The rule operates to exclude evidence of conduct by the accused, either before or after the offence charged, where such evidence is tendered to support an inference of guilt. The law thereby recognises that it is unfair to speculate that just because the accused acted in a particular way on a particular occasion, he acted in that particular way in this particular case.

(f) Exclusion of Illegally Obtained Evidence

Evidence that was obtained unfairly or illegally may be excluded on the basis of the fairness discretion, or the public policy discretion. For example, a confession or admission may be excluded under the fairness discretion, when it would unfair to admit it as evidence against the accused because there is an issue of reliability raising a doubt as to the truth of it, or its prejudicial effect on the accused outweighs its probative value.

7. Appeal

(b) Generally

An individual not satisfied with a determination or decision at first instance should have the right to have the case reviewed. This is an acknowledgement that human judgment is fallible and provides machinery for the correction of errors.

(b) By the defendant

The defendant convicted should have the right to appeal both against the conviction itself and against the sentence imposed.

(c) By the prosecutor

At one time, only the accused could appeal against a sentence, but now fairness to the public requires that the prosecutor should also be able to appeal against excessive leniency in the sentence. There is no appeal by the prosecutor against an acquittal, but the Attorney General may refer a point of law arising out of the acquittal to a superior court for its opinion. The court’s decision only serves to clarify the law, but does not affect the acquittal of the person involved.

D. Administrative law

Administrative law relates to the exercise of governmental power and the functioning of public authorities. Requirements of fairness are present throughout administrative law, and are encapsulated in rules of procedural fairness, ultra vires, other accountability mechanisms and appeals. See generally von Doussa (1998), ALRC Report 95 (2003: ch. 14).

1. Procedural fairness/ Natural justice

(a) Procedural Fairness

Procedural fairness, also known as natural justice, operates as a common law presumption of statutory interpretation and as a ground for review of a decision. The focus is on fairness in procedures not outcome. Procedural fairness is made up of the hearing rule and the bias rule:



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• The hearing rule requires that person be afforded opportunity to be heard before that person’s interests are adversely affected by exercise of discretionary power.

• The bias rule requires that a person or agency exercising discretionary power should not be biased or should not even act in such a way as to lead a fair-minded observer to entertain a reasonable apprehension of bias.

(b) Rationale of Procedural Fairness

The rules of procedural fairness are based on the following principles:

• The rule of law

Procedural fairness rules are derivative of the rule of law, which prevents arbitrariness, of which unfairness is an element. To encourage adherence to the rule of law, law should involve open and stable rules, and particular laws should be subject to general rules.

• Accountability and participation:

Procedural fairness rules facilitate these values by promoting the opportunity for participation and rational decision-making. Good administration is about protecting citizens against official abuse by requiring reasonable decision-making, consistency, even-handedness, generality and continuity.

Procedural fairness rules promote autonomy, human dignity and natural rights. They recognise the psychological and practical elements in resolution. Furthermore, people who participate are more likely to accept a decision. Equality and fairness are also necessary for accuracy of outcome, i.e. a decision-maker is better informed if they have to listen to both parties’ sides of a fact situation.

(c) The Hearing Rule

The content of procedural fairness, that is, what procedural fairness requires in a given situation, is flexible according to the circumstances of the particular case. Following are the fundamental requirements for adversarial type proceedings. In contrast, in the investigation context, inquisitorial procedures are acceptable and procedural fairness is more limited in its scope. It appears that investigative bodies are under duties of fairness, but those duties can be modified so as not to unduly hamper the inquiry.

In adversarial type proceedings, fundamental requirements might include:

• Notice

That a person has proper notice of a hearing is a minimum requirement. The notice should be given in a reasonable time and include notice of actual matters being decided, specific charges and allegations, specific access to materials, and state the possible consequences of an adverse decision. Whether notice is given within a reasonable time depends on to the type of evidence needed, the nature of proceedings, and the complexity of the issue.

• The right to know the case against oneself

• Discovery

Before a hearing, a person should have the opportunity to request a list of all the relevant documents in the other party’s possession.



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• Oral hearing

An oral hearing might be required where there is an issue of credibility, a need to assess truthfulness, conflicting evidence exists, or a person is unable to express themselves in writing, or the allegation against a person is a grave one.

• Production of evidence

• Presentation of arguments

• Legal representation

Legal representation may be required depending on the capacity of individual, including their ability to represent themselves, their level of education, skills and knowledge of the law, the complexity of the issues and the seriousness of the matter.

• Cross-examination

• Full disclosure of information on which a tribunal is making its decision

• Need for logically probative evidence

(d) The Bias Rule

This rule requires that the decision-maker does not have:

• apparent bias, i.e. a judge must be disinterested

Where a judge has a pecuniary interest in the outcome of a case, he or she will be automatically disqualified, irrespective of their actual influence or knowledge.

• apprehended bias, i.e. a judge must not give the appearance of being biased as justice must not only be done, but be seen to be done

If a fair-minded observer would entertain a reasonable apprehension that judge might not bring an impartial mind to the resolution of the issues, then a judge is disqualified.

2. Ultra vires

The rules relating to ultra vires ensure that a decision maker acts within their power and jurisdiction. Substantive ultra vires operates where a decision maker does not have the substantive power to make decision, and procedural ultra vires operates where a decision maker did not comply with requisite procedures.

Fairness is relevant to various grounds of review of an administrative decision. There may take the form of claims that the decision was made with improper purpose, bad faith or fraud, or under wrongful delegation, or as the result of failing to take into account relevant considerations (or taking into account irrelevant ones). Lack of evidence, unreasonableness, abuse of power, or extreme and prejudicial delay are also grounded in a complaint of unfairness. If established, these grounds can invalidate the relevant decision.

3. Some accountability mechanisms

The following mechanisms reflect the principles of accountability and participation.

(a) Ombudsman



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The Ombudsman investigates complaints of mal-administration made by citizens, but has recommendatory powers only regarding any findings it may make. It is worth noting the existence of industry Ombudsmen, who receive complaints from a regulated community.

(b) Freedom of Information

Freedom of Information legislation gives an individual access to government documents held by authorities and obliges agencies to publish ‘internal law’.

(c) Reasons for decision

There is no common law right to reasons for a decision, but a statutory right exists in some circumstances. Access to reasons are granted to ascertain whether there is error in the decision to challenge and is important for promoting rationality in decision making, confidence in the system and providing checks on the arbitrary exercise of discretionary power.

4. Appeal

(a) Appeal on a question of law

This is comparable to a challenge for error of law.

(b) Appeal by way of rehearing

The case is reconsidered to reach the decision that the original decision maker should have made.

(c) De novo hearing

This involves the complete rehearing of a case before a new decision maker.

3.2.4 The legal consequences of unfairness

The requirements for fairness vary to a large degree in terms of how they are enforced. While a breach of procedural fairness will invalidate a decision, and an error of law in a criminal proceeding will provide the opportunity for an appeal, many other rules are only discretionary. For example, a measure used to reinforce fairness at the investigatory stage is the discretion to exclude ‘tainted’ evidence. The courts tend to see these exclusionary powers as being discretionary rather than absolute in nature, and will only apply them in circumstances they find appropriate.

Regardless of these issues of enforceability, the requirements for fairness illustrate normative standards of fairness in the legal context. Not only do these standards provide a framework in which to consider the concept of fairness, but they also serve as reference points from which to understand the meanings of fairness, which are expressed in the compliance literature.

3.2.5 The formal concept of compliance

A formal concept of compliance draws a clear distinction between compliance and non-compliance. Whether conduct is compliant with the law is determined by comparing the actual behaviour of the person being regulated with a formal definition of the legal obligation (Lange 1999: 552). That legal definition derives from legal texts, therefore it does not take into account how those regulated negotiate the meaning of legal obligations and give them social constructions and interpretations. Legal research which relies only on the formal concept of compliance frequently fails to take into account the practical application of the laws and how de facto can be largely achieved though not in accordance with the letter of the law. From this



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perspective, compliance may be achieved by simply creating more rational and accommodating rules which accord with the ‘spirit of the law’.

3.2.6 Discretion

Departing from a reliance on a formal concept of compliance raises the issue of discretion. Any discussion of the enforcement of regulations requires consideration of how discretion in the law becomes exercised in practice (Galligan 1986). The concept of discretion indicates that legal actors have scope in interpreting the requirements of legal rules. This suggests there are elements of choice in compliance, or at least the existence of an interactive process by which the rules are given effect in everyday life. If the exercise of discretion is not sufficiently flexible to exempt from the category of non-compliers those who regard themselves as adhering to the spirit and purpose of the law a deep sense of injustice may be provoked (e.g. in drivers who are ‘keeping up with the traffic flow’ on major roads). Research has uncovered the importance of non-legal factors for understanding how discretion becomes exercised, which demonstrates that the meaning of legal rules is socially constructed (Lange 1999: 552-555). It follows that it is not only formal law that is the origin of norms in relation to which compliance is assessed, but other sources of norms too.

Lange identifies some dangers associated with an analysis that relies too heavily on the formal concept of compliance. While the behaviour of the regulators is recognised as able to transform definitions of law derived from formal legal texts, the role of the enforcers and the regulated in creating a meaning for the law in its day to day implementation is ignored. Even if social practices are taken into account, they are not adequately linked to legal rules. Consequently, the status of formal law is elevated because it is used as an explanation for social practices, and consideration of other significant practices, such as negotiation and prosecutorial discretion, is neglected.

Lange (Lange 1999: 564) prefers to understand compliance as a link concept broad enough to address the relationship between rules and actual social practices. Researchers should focus on how these links are forged in the territory between rules and social practices, rather than emphasise the notion of a ‘gap’ in regulatory enforcement.

3.2.7 Merging perspectives: law and social psychology

Tyler found that people’s evaluations of their experience with the law are guided more by concerns for how they are treated than the results they obtain. It follows that decision makers can gain public acceptance of their rules and decisions by making and implementing them in ways that the public perceives as fair.

In developing theoretical models from which to design strategies to encourage compliance, the research literature indicates that it is necessary to rely on more than the formal concept of compliance. An effective model must take into account social practices, such as the exercise of discretion, to explore how links between rules and social practices are forged. Judging from Tyler’s findings, the new model is likely to place particular importance on forms of interpersonal interaction between the regulators and the regulated.

It is clear that the self-interest model and simple deterrence based strategy are insufficient bases from which to develop understandings and techniques of compliance. Institutional design would be concerned with building fair procedures in detection and enforcement contexts, which are then backed up by sanctions where required (Ayres and Braithwaite 1992). As suggested by Grabosky and Braithwaite (1986: 224), the enforcer should ‘walk softly while carrying a very big stick’. In other words, the law is to be enforced in a persuasive and respectful way in accordance with fair procedures. Therefore, there would exist low level sanctions for breach of a



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rule that aim at voluntary compliance by enabling participation and encouraging interaction that promotes mutual respect, that are also backed up by harsher penalties; all the while being fair.

In the legal context, the meaning of fairness must be understood against the backdrop a system that requires the balancing of competing interests, represented by the crime control and due process models. There must also be consideration of the limitations of the legal requirements of fairness in terms of enforceability, which may water down the standards set by the requirements. Finally, it is necessary to remember there is no comprehensive legal definition of fairness, only fragmented requirements applied in various fields of law that reflect the notion of fairness in a procedural sense. Giving meaning to the concept of fairness as a motivation for compliance requires identification of those institutional elements of fairness that people value.

Tyler’s research indicates that social dimensions of an experience can be partially determinative in evaluating fairness. This means that formal legal processes alone are inadequate to capture those elements that are central to fairness for people (Casper, Tyler and Fisher 1988: 500).

In order to merger the psychological and legal perspectives, the list below sets out the aspects of fair procedure that people value, as identified by Tyler together with a notation of the formal legal requirements that reflect each aspect of fair procedure included under each of Tyler’s headings.

(a) Participation in decision making process

(i) principles behind administrative law, in particular as manifested in the hearing rule and accountability mechanisms

(ii) in criminal law, the existence of preliminary examinations and interlocutory proceedings, and rules relating to delay or speed of trial

(iii) in both criminal and administrative law, requirements associated with legal representation and calling of witnesses

(iv) appeal mechanisms in law generally

(v) the right to a fair trial at common law and in international law, that is, the existence of the individual right in the first place.

(b) Neutrality of decision maker

(i) the bias rule and various ultra vires grounds in administrative law

(ii) independence of judiciary and jury independence and randomness in criminal law

(iii) the presumption of innocence in criminal law

(iv) the separation of powers doctrine, which requires judicial independence and procedural due process in federal courts

(v) the right to trial before jury in international law, and in the Constitution for federal matters

(vi) the right to equality before the law and freedom from discrimination, and freedom from arbitrary arrest and detention in international law

(c) Interpersonal aspects of the decision making procedure

(i) rules of evidence regulating police conduct at investigatory stage

(ii) freedom from torture or cruel, inhumane or degrading treatment of punishment in international law

(d) Motivations of the relevant authority

(i) ultra vires, the bias rule and accountability mechanisms in administrative law

(ii) accountability in terms of public hearings in criminal law



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(iii) the right to a fair trial; equality before the law, freedom from discrimination and freedom from arbitrary arrest or detention

(e) Fair outcomes

(i) various appeal mechanisms

(ii) ultra vires in administrative law

(iii) principles behind the rules of evidence, for example the aim of ascertaining the truth

There is a strong correspondence between the first two aspects, participation and neutrality, and the legal requirements. The final three aspects, interpersonal elements, motivations of the authority and outcome, do not have as strong a relationship with the legal requirements. However, there are legal principles that reflect those final aspects, which indicate there is, to some extent, consistency in people’s expectations and law’s approach to the issue of fairness.

3.2.8 Implications for the an infringement notice system

The On-the-Spot Fines and Civic Compliance project seeks to explore, among other things, social expectations regarding concepts of fairness and due process appropriate to the level of social control and civic compliance sought to be attained by the infringement notice system. Here, some themes of the system are presented to highlight the areas which need to be assessed in light of the points that have arisen from this literature review.

(a) Generally: Issues that appear to be of particular relevance to the present functioning of the infringement notice system mainly relate to procedural aspects of law and enforcement in this area.

(b) Substantive: While people’s primary concern is likely to be the level and immediacy of a fine, people also pay attention to the substance of the law. There is some suggestion that people understand and discriminate between the legal obligations imposed on them. This highlights the need to investigate the relationship between compliance and perceived reasons for a law.

(c) Procedure: understanding of the system and its purposes in both its entirety and individual components, by those who are subject to it needs to be tested. The coherence and comprehensiveness of procedures and sanctions (including proportionality) may be questionable. The role of discretion at various stages needs to be evaluated and its relationship with public perceptions of fairness. The fairness of all current procedures, from initial formulation of the offence to the final enforcement of a sanction, should be assessed by reference to Tyler’s findings.

(d) Defaulters: The system seems to achieve a high level of compliance with its processes once an offence has been detected. However, the utility of the system diminishes in the event of non-compliance. It is necessary to analyse what distinguishes those who discharge their on-the-spot fines in a timely manner from those who do not. Attitudes to the rules or regulations breached as well the enforcement mechanisms utilised in default should be explored.

4. Methods used to study civic compliance The study of why people obey the law has utilised both experimental laboratory methods and correlational analyses of survey data to test and extend theory. While laboratory studies are useful, particularly for developing and testing theory, they tend to be somewhat artificial and so suffer from a lack of external validity. In contrast, survey studies typically lack the control of experimental laboratory studies but maintain a high level of applicability to the real world.



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Survey studies have proven to be the most useful for examining the application of theory to real world issues. Tyler’s (1990) survey study is one example of this type of research that has been particularly influential in identifying the importance of various factors underlying compliance with legal authorities. However, caution should be exercised when generalising from his study to the current issue. There may be large differences between citizens of Chicago in the late eighties and those of Victoria today. The relevance of these factors for the current issue should be assessed within a sample of Victorian residents.

Survey studies typically use correlational analysis of quantitative data to test hypotheses about the relations between variables. Such analyses examine linear relationships between variables measured on at least ordinal scales. It is common in psychological research to gather quantitative data using Likert-type scales which offer up to seven response options to a given item. One example of a Likert-type scale asks participants to indicate how much they agree with a given statement, with response options ranging from ‘do not agree at all’ to ‘agree completely’. The response options correspond to a numerical value that forms the basis of the quantitative data. One issue with the use of Likert-type scales is whether to use an odd or even number of response options. Odd numbers usually imply a ‘middle choice’, such as ‘neither agree nor disagree’, which poses problems for interpretation. Middle choice options are sometimes used by participants who are unsure how to answer the question, unsure of the meaning of the question, or because they do not wish to answer the question truthfully. Such motives cannot be distinguished from the intended meaning of the middle response option. On the other hand, even numbered scales force the participant to choose one side or the other, such as agree or disagree, and are sometimes called forced-choice scales. These scales can be misleading if a participant really feels impartial on the issue but is forced to indicate one way or the other.

One limitation of correlational designs is the difficulty of making causal inferences about relationships between variables. When two variables are correlated changes in either one may be causing changes in the other or, alternatively, a third variable may be causing changes in both simultaneously. This problem is less significant when research is guided by theory. When hypothesised relationships are confirmed by the data the direction of causation can be inferred from theory.

Another issue involved with the use of survey designs is that data is usually based on participants’ self-report. For obvious reasons this may pose a problem for gathering valid and reliable data on rates of compliance with the law and infringement notices. Nevertheless, honesty can be encouraged by assuring anonymity and asking participants to be honest.

Despite the limitations outlined above, survey studies are the most useful and appropriate methods for studying relationships between variables in the real world. Survey studies are particularly suitable for measuring community attitudes and norms that may vary across time and context. A survey study of Victorian residents would be an appropriate methodology for testing the importance of the factors identified in this literature review to compliance with infringement notices.

5. Related surveys There have been no reported systematic surveys of public opinion on the infringement notice system in Victoria or elsewhere in Australia as far as it has been possible to ascertain.



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5.1 Australian Transport Safety Bureau

The Australian Transport Safety Bureau of the Federal Department of Transport and Regional Services regularly conducts national surveys into community attitudes toward road safety issues. Fifteen have been undertaken since 1986. The most recent, conducted in March 2002 (Australian Transport Safety Bureau, Department of Transport and Regional Services 2002), was based on Australia-wide telephone interviews with a sample of 1,563 Australian residents aged 15 years and over. The main trend it noted was a growing awareness of the risks associated with speeding and a less permissive attitude to drivers exceeding the posted speed limits. The responses indicated that the Australian community continued to identify speed as the main factor that leads to road crashes (37% of respondents). This was identified well ahead of either drink driving (11%), or driver fatigue (11%). This ranking squares with that of United Kingdom drivers’ attitudes to the seriousness of road traffic offences (Brown and Copeman 1975).

On the other hand the study reported that (Australian Transport Safety Bureau, Department of Transport and Regional Services 2002: 1):

. . . the community is less willing to accept the need for speed enforcement, in comparison with its support for drink driving enforcement. Support for random breath testing is almost universal (now 97%), while more than half (56%) agree that ‘fines for speeding are mainly intended to raise revenue’.

Though some 83% of those surveyed agreed that speed limits were generally set at reasonable levels, up to a half expect a degree of enforcement tolerance of up to 10 km/h over the limit before being booked, particularly in the higher speed limit zones:

In 100 km/hr zones, 36% favour strict enforcement of the speed limit and 56% would permit less than 10 km/hr over the limit before being booked. Only 10% support an enforcement tolerance of more than 10 km/h.

In relation to the 60 km/hr limit in urban areas, almost half of those surveyed nationally (49%) believed the limit should be strictly enforced, but with a further 38% supporting a speed tolerance of 65 km/hr and another 9% believing that 70 km/hr should be accepted (Australian Transport Safety Bureau, Department of Transport and Regional Services 2002: 46).

It was also noted (Australian Transport Safety Bureau, Department of Transport and Regional Services 2002: 41-42) that the proportion of the community believing that the police are now carrying out more speed enforcement activities has increased from 58% in the last (March 2001) survey to 65%. However this only returned to the higher levels recorded in March 2000. There is a positive correlation between experience and perceptions:

Consistent with previous surveys, the group of drivers who have been booked for speeding is significantly above the average in thinking that speed enforcement activity has increased. A high 83% of those booked within the last six months (8% of past or current licence holders) feel the police have been more active on speed enforcement. A similarly high proportion (82%) of those booked up to two years ago (21% of past or current licence holders) agree with that view on increased activity.

While the national average of those believing that the police are now carrying out more speed enforcement activities in March 2002 was 65%, there was a marked growth in Victoria, from 51% in the previous year (when respondents in that state were the least likely to perceive any increased police activity on speed enforcement) to 70%.



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One in five of those surveyed who have ever held a drivers’ licence admitted being been booked for speeding within the past two years and 8% had been booked in the past six months. Gender difference were significant: male drivers (28%) were significantly more likely than females (13%) to say they have been booked for speeding in the last two years, and also in the past six months (10% males vs. 5% females). See Table 22 of the Australian Transport Safety Bureau 2002 report, set out below:

The Bureau’s reports do not examine public perceptions of or experience with parking offences, nor attitudes to the issue and enforcement of infringement notices (other when such notices might be issued for speeding in various speed limit zones).

5.2 Other

Victorian studies of driver attitudes to speeding and related driving behaviour have been recently undertaken by or at the behest of entities such as the Monash University Accident Research Centre (Senserrick 2000; Diamantopoulou and Cameron 2002); the Royal Automobile Club of Victoria (Ogden 2002), and the Transport Accident Commission (Sweeney Research 2001). Again, none specifically deal with public perceptions of or experience with the issue and enforcement of infringement notices generally and the factors which promote or hinder compliance. However researchers at the Monash University Accident Research Centre have compiled some general principles derived from evaluation of the 1990 Victorian enforcement and publicity programs relating to random breath testing (introduced in 1976), speed cameras (1985), and television publicity supporting enforcement (Cameron, Newstead and Ganzer 1995). Earlier research emanating from VicRoads examined the effect of increases in penalty severity on the behaviour of traffic enforcement officers (Portans 1989) and red light running behaviour (Kent, Corben, Fildes and Dyte 1995), but neither took up the issue of public perceptions.

6. Sources Australian Transport Safety Bureau, Department of Transport and Regional Services (2002)

Community Attitudes to Road Safety, Community Attitudes Survey Wave 15 (prepared by Mitchell-Taverner P.). Report CR 213. Canberra: Australian Transport Safety Bureau.

Australian Transport Safety Bureau, Department of Transport and Regional Services (2003), Survey on speeding and enforcement (prepared by Mitchell-Taverner P., Zipparo L. and Goldsworthy J.). Report CR 214. Canberra: Australian Transport Safety Bureau.

Abelson P.W. (1987) ‘Fairness in the real world: rules, choices, expectations, policies’. Australian Economic Papers 26(48), 1.



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Australian Law Reform Commission (2002) Securing compliance. Discussion paper 65. Sydney: ALRC.

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Bottoms A. (2001) ‘Compliance and community penalties’ in Bottoms A., Gelsthorpe L. and Rex S., (eds) Community penalties: change and challenges. Devon UK: Willan Publishing, Chapter 5, 87.

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Casper J.D. Tyler T. and Fisher B. (1988) ‘Procedural justice in felony cases’. Law and Society Review 22(3), 483.

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