"You don't have a valid ticket," the officer says. Credit:John Woudstra "That will be $75 please." You swiped your myki at the station, you heard a beep, and believed you had touched on. You might suggest to the officer that the machine could be faulty, but that does not bode well. The officer strongly advises you pay the $75 on-the-spot fine, or risk having to pay a $223 fine.

So what do you do? Credit:Patrick Scala High-profile human rights barrister Julian Burnside QC has shared his advice for commuters, who are fined for not having a valid ticket, when they have taken every reasonable step to pay their way. "First, let's assume that the commuter did what they could to touch on," he said. His advice is not for fare evaders looking for an easy excuse.

"Then they should say to the public transport officer, 'I'm going to record this conversation'." In Victoria, it is illegal to record a conversation covertly. It must be clear that the commuter is recording the interaction. Mr Burnside said the commuter should then explain to the Public Transport Victoria officer the steps they took to try to touch on. "Then they should simply say, 'I will not pay the $75 fine. I will defend this in court and I will expect you to produce the service records for the machine where I touched on and the CCTV footage of the machine where I touched on for the relevant period," he said. Mr Burnside said it was important to have a record of this request, whether it be in writing or in a voice or video recording.

Under these circumstances, a PTV officer would then take the commuter's details so they could be issued with a court summons at a later date. In some cases, summons have not been issued for up to 12 months. Mr Burnside cited several cases, where fines had been withdrawn in court, once a commuter requested a service record of a myki machine and CCTV footage. He is incensed at the bullying tactics used by PTV officers to pressure commuters into paying on-the-spot penalties. "If a commuter has taken all reasonable steps to touch on at a train, bus or tram station, then they are entitled to contest a public transport fine," he said. Authorised PTV officers are equipped with portable EFTPOS machines to collect the "penalty fares", but the on-the-spot fines are just an option.

"A lot of people have been bluffed into paying $75 on the spot instead of going to court," Mr Burnside said. Even if people have a good defence, he said, they are often put off contesting the fine in court due to the time and expense involved. "Most people say, 'hang on, if I go to court it's going to cost me a day off work and if I get a lawyer it's going to cost me a lot more than that, so I might as well pay $75 and be shot of it'," he said. "But I don't like the idea that any public service organisation is standing over people and in effect bullying them into paying up, regardless of whether they've got a defence." You might hop on a tram and try to touch on with your myki, but the card reader is not working. You try another card reader, but that is also not working. You might try a third card reader and that too is "Out of Service". Under those circumstances, you have taken every reasonable step to get a valid ticket.

"What else are you expected to do, jump off a moving tram?" Mr Burnside said. You might swipe your myki card at a suburban train station and believe you have touched on. You arrive at Flinders Street Station, only to find that you can't pass through the myki gates, because your card has not been touched on. You swiped your card, you heard a beep. You have taken all reasonable steps to get a valid ticket. On Tuesday, Fairfax Media revealed that not all myki fines would stand up in court, despite previous claims by PTV. The department has previously claimed that fare evading is a crime of "strict liability", which cannot be challenged in court. Under "strict liability" it does not matter whether a commuter has a valid excuse; if they don't have a valid ticket, they're guilty.

However, that is not correct under the law. In a landmark case, commuter Shane Arch successfully challenged his fine in court, claiming he had done everything reasonable to travel on a Sunbury train in 2013 with a valid ticket, but was let down by the problem-plagued myki technology. Magistrate Peter Mealy dismissed Mr Arch's fine and in doing so was critical of the myki ticketing system and scathing of the public transport department's lack of trial evidence. Mr Burnside is now considering organising a team of junior barristers to act on a pro-bono basis for commuters fighting myki fines. "Our little team of lawyers can just check what people's circumstances are and say 'righty-o, we'll act for you', and go in and knock them off one-by-one," he said.

With Cameron Houston and Rania Spooner