Gavin R. Putland,  BE PhD

Wednesday, January 23, 2013 (Comment)

Is myki unconstitutional?

From Crikey, January 7, 2013:

Gavin R. Putland writes: Welcome to the new year — in which Melbourne commuters can no longer buy single-use transport tickets or buy tickets on trams. If travelling without a ticket is an offence, and if the government makes it harder and harder to buy a ticket, there comes a point where the government is aiding and abetting the said offence. That can't be legal. When it's done by the government, it can't even be constitutional.

Under the separation of powers, the executive branch of government is responsible for enforcing the laws. Therefore the executive branch cannot aid or abet breaches of the laws, and the legislative branch cannot authorise it to do so. More fundamentally, the mere existence of a constitution, or of a court, implies the rule of law, which cannot abide a situation in which the entity responsible for enforcing the law encourages breaches thereof.

If I'm right, the government is liable to a court order requiring it to provide more ways to buy tickets.

From Crikey, January 9, 2013:

Gavin R. Putland writes: Re. comments (yesterday). No, Garry Andrews, the government does not require us to “physically turn up to polling booths”. It provides postal and absentee votes. In general, complying with our obligation to vote is made as easy as possible, subject to adequate verification of identity.

But the Victorian government does not make it as easy as possible to comply with our obligation to have valid transport tickets. On the contrary, it has just spent $1.5 billion on a new system that makes it harder to comply. Two more examples of the difficulty have just come to my notice via the Public Transport Users Association.

  1. We are told that we don't have to touch off when using trams. But if you happen to board the same vehicle on which you touched on less than two hours earlier, without touching off, your attempt to touch on again will be a touch off. If you don't notice, you will have committed an offence. And it's an offence of “absolute liability”, meaning that an honest mistake is no excuse. Neither is this scenario unusual: if you take an outbound tram for part of its route, you're likely to get the same tram on its return journey.
  2. Soon you'll be able to use Myki on some V/Line services which stop at some Metro stations. But some of those stations will be designated “set-down only”, meaning that you can't start a trip with a Myki. So if you touch on at “some” stations for “some” destinations you'll be fine; otherwise you'll be fined.

There comes a point where this sort of thing amounts to entrapment — which can't be legal.

The later letter was unpaywalled today (January 23).

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