From "The Division of the Commission constituted under the Australian Law Reform Commission Act 1996 (Cth)"in 2001, reporting to Parliament in November 2002 under the Chair of:
President - Professor David Weisbrot
Deputy President - Dr Kathryn Cronin (to June 2001)
Members
Ian Davis (full-time Commissioner from 13 June 2000)
Brian Opeskin (full-time Commissioner from 31 July 2000)
Professor Anne Finlay (full-time Commissioner from 12 November 2001)
Justice Ian Coleman (part-time Commissioner)
Justice John von Doussa (part-time Commissioner)
Hank Spier (part-time Commissioner from September 2000)
Justice Mark Weinberg (part-time Commissioner)
say in part:
Proposals for model legislation
Developing a model scheme
12.62 Existing federal infringement notice schemes are discussed at para 12.29–
12.47. Fox has suggested the development of uniform legislation to apply nationally across federal, state and territory jurisdictions.1612
He considered that a model scheme should have the following features:
• It should apply only to summary offences;
• Payment of the penalty should fully expiate the offence (that is, no conviction should be recorded);
• Associated loss of benefits such as licence suspension or demerit points may apply but no suspension or cancellation should exceed six months;;
• The maximum penalty payable should not exceed $500 or one-quarter of the maximum statutory penalty if the matter is dealt with by a court;
• The scheme should be administered by the public officials responsible for enforcing the legislation which creates the offence;
• The discretion to issue a warning in less serious cases or to take immediate court action in more serious cases should be available, such discretion to be exercised in accordance with published guidelines;
• Infringement notices should be written in Plain English with foreign language warnings;
• The infringement notice must clearly state that contesting the offence in court is an option;
• The infringement notice should give the person the opportunity to bring factual matters to the attention of the agency issuing the notice, with the aim of having the notice withdrawn; and
• If a court hears the matter, it should be heard by way of a ‘hand-up brief’.
Now that tells us how the general direction for regulation, penalties and "show cause" is to move.
Further, it makes some very specific requirements, putting the onus, onto the regulator to specific ways of doing things of a legal nature.
Question is why don't casa behave this way now??
Read ON:
12.64 The ALRC considers that there is a need for consistency across federal infringement notice schemes and suggests that development of a model federal scheme is appropriate. The features of a proposed federal scheme are outlined below:
(a) It should apply only to strict or absolute liability offences of a ‘less serious nature’ the meaning of ‘less serious nature’ would need to be defined by legislation. It is inappropriate to issue an infringement notice for an offence that requires any detailed forensic analysis, particularly of a state of mind.
1613 Australian Law Reform Commission, Multiculturalism and the Law, ALRC 57 (1992), Australian Law
Reform Commission, Sydney, para 9.28.
(b) The amount payable under an infringement notice should not exceed one fifth or 20% of the maximum penalty which might be imposed if the matter is dealt with by a court. An alternative would be to specify a set penalty in the legislation authorising the issue of the infringement notice. The amount of the specified penalty should be sufficiently lower than the maximum amount likely to be imposed by the court to make the payment of that amount attractive to the alleged offender.
(c) Before an infringement notice may be issued, the regulator must have ‘reasonable grounds to believe’ that the alleged offence has been committed.
(d) Guidelines on the use of infringement notices by the regulator should be issued in the form of a disallowable instrument to permit parliamentary scrutiny and published in locations that are easily accessible to the public.
(e) Only one notice should be issued for each alleged offence. If the conduct might amount to several different offences, the regulator must choose which offence it will base the infringement notice on.
(f) The regulator should have the discretion to give a warning rather than issue an infringement notice.
(g) The regulator should have the discretion to initiate proceedings rather than issue an infringement notice.
(h) There should be a 12 month time limit after the occurrence of the alleged offence in which an infringement notice may be issued.
(i) The rights of the alleged offender should be clearly set out in the infringement notice in Plain English these must include, in particular, the right to elect to contest liability in court; the right to apply for withdrawal of the notice;
and the effect of payment (that is, that it acts as a bar to proceedings being instituted for prosecution of the alleged offence).
(j) The payment of an amount by a person under an infringement notice should not be taken for any purpose to be an admission by that person of any liability for the alleged commission of the offence.
(k) The consequence of failing to pay an amount set out in an infringement notice should be prosecution for the alleged offence and not an alternative or substitute penalty such as licence suspension or cancellation. The imposition of licence variations, demerit points or similar on-going penalties would have an effect similar to that of keeping an infringement notice history of an 418 offender in that the expiation of the offence is illusory and the record of it persists in one way or another.
(l) The alleged offender should have the right to seek to have the infringement notice withdrawn by presenting material to the issuing authority demonstrating that the factual basis on which the notice was issued was erroneous. If substantiated, this would nullify the whole process. However, there should not be any scope for the alleged offender to seek a variation of the penalty, as this would place the regulator in the position of a court.1614
(m) The payment of an amount by a person under an infringement notice should prevent any record of the alleged offence being kept by the regulator. On balance, the ALRC’s provisional view is that the coercive power of an infringement notice to persuade an alleged offender to pay even if liability is in doubt because of the costs of contesting the matter in court is such that to maintain any record of the issue and outcome of infringement notices is unfair.
I believe this gives direction to casa on how to behave.
The question is, why do casa behave the way that they do??
More reading at:
http://www.alrc.gov.au/sites/default...tions/DP65.pdf