12.6 The term ‘fines’ usually encompasses both fines imposed by courts following convictions and infringement notices, which are monetary penalties handed out at the point of infringement by issuing officers. Issuing officers include transit police, police officers and council workers. The two penalty types have clear differences and non‑payment can have different consequences. Nonetheless, unless otherwise stated, the term ‘fines’ in this chapter generally refers both to monetary penalties imposed by courts and those received under infringement notices.
Statutory enforcement frameworks
12.7 Every state and territory has a statutory enforcement regime for fine and infringement notice default. Generally, these permit the state debt recovery authority to enforce progressive sanctions against a person in default. The NSW statutory framework is used in this chapter as an example.
12.8 NSW fine enforcement is legislated under the Fines Act 1996 (NSW) (the Act) and administered by State Debt Recovery (SDR)—now called ‘Revenue NSW’. Enforcement action is taken against fine defaulters when they have not paid a fine by a notice served on the defaulter; have not paid by an extended due date granted by SDR; or have not paid agreed instalments (see fine mitigation below).
12.9 The progressive recovery process is summarised in s 58 of the Act:
58 Summary of enforcement procedure
(1) The following is a summary of the enforcement procedure under this Part following the making of a fine enforcement order:
(a) Service of fine enforcement order Notice of the fine enforcement order is served on the fine defaulter and the fine defaulter is notified that if payment is not made enforcement action will be taken (see Division 2).
(b) Driver licence or vehicle registration suspension or cancellation If the fine is not paid within the period specified, Roads and Maritime Services suspends any driver licence, and may cancel any vehicle registration, of the fine defaulter. If the driver licence of the fine defaulter is suspended and the fine remains unpaid for 6 months, Roads and Maritime Services cancels that driver licence (see Division 3).
(c) Civil enforcement If the fine defaulter does not have a driver licence or a registered vehicle or the fine remains unpaid 21 days after the Commissioner directs Roads and Maritime Services to take enforcement action, civil action is taken to enforce the fine, namely, a property seizure order, a garnishee order or the registration of a charge on land owned by the fine defaulter (see Division 4).
(d) Community service order If civil enforcement action is not successful, a community service order is served on the fine defaulter (see Division 5).
(e) Imprisonment if failure to comply with community service order If the fine defaulter does not comply with the community service order, a warrant of commitment is issued to a police officer for the imprisonment of the fine defaulter (except in the case of children).
(f) Fines payable by corporations The procedures for fine enforcement (other than community service orders and imprisonment) apply to fines payable by corporations (see Division 7).
(g) Fine mitigation A fine defaulter may seek further time to pay and the Commissioner may write off unpaid fines or make a work and development order [WDO] in respect of the fine defaulter for the purposes of satisfying all or part of the fine. Applications for review may be made to the Hardship Review Board (see Division 8).
(2) This section does not affect the provisions of this Part that it summarises.
12.10 Enforcement begins with the issuing of a notice. Ordinarily, the next step is for NSW Roads and Maritime Services (RMS) to suspend a person’s driver licence and/or motor vehicle registration. If the fine is still not paid within a set time period, SDR can commence civil enforcement action to satisfy the payment of the fine. If civil enforcement is unable to commence or is unsuccessful, SDR may make a Community Service Order (CSO), requiring the defaulter to perform community service work to pay off the unpaid fine amount. Finally, the defaulter may serve a term of imprisonment calculated in reference to the amount in default for non-compliance with that order.
12.11 Some states and territories also provide for the details of defaulters to be published on a government website.
Fine provisions leading to imprisonment
12.12 Fine default imprisonment can be broken down into three broad categories:
imprisonment on the basis of continued fine default that is not necessarily dependant on breach of a CSO; 
imprisonment following failure to comply with a CSO, imposed following fine default; and
imprisonment for a secondary offence, such as driving while licence disqualified when the driver licence was suspended or cancelled as part of the fine default enforcement regime (see further below).
12.13 In each state and territory, fine enforcement statutes permit imprisonment when a person is ineligible or fails to comply with a CSO. However, the process and the likelihood of incarceration differ significantly across the states and territories.
12.14 There are two key pathways from a fine to imprisonment. First, where the court imposes a CSO, and a defaulter fails to comply or is otherwise ineligible, the court can impose a period of imprisonment by which a defaulter pays off, or ‘cuts out’, the fine amount owed (the Australian Capital Territory (ACT), South Australia (SA) and Victoria). While there are statutory safeguards, such as the Hardship Review Board, and it has been reported that imprisonment occurs only rarely in these jurisdictions, it does not mean the provisions are never used. The Sentencing Advisory Council of Victoria reported in 2014 that 338 people entered prison for fine default between 2001 and 2013 in Victoria. National Aboriginal and Torres Strait Islander Legal Services (NATSILS) advised this Inquiry that imprisonment in SA for breach of a CSO imposed for fine default does not show up in statistics as imprisonment for fine default. Instead, it is recorded as a justice procedure offence, and NATSILS ‘sees this occurring in South Australia quite regularly’.
12.15 Secondly, where the state debt recovery agency imposes a CSO, and a person fails to comply or is otherwise ineligible, the state debt recovery agency can issue a warrant of commitment for the imprisonment of the person (NSW, the Northern Territory (NT), Tasmania, Queensland, and Western Australia (WA)). With the exception of WA, which need not rely on a breach or ineligibility for a CSO to issue a warrant, imprisonment for fine default in these jurisdictions is reportedly rare. For example, the NT Government advised that in 2016 only one warrant was issued against a fine defaulter in the NT. The NSW Government advised that SDR had not issued a warrant of commitment since 1998, and that SDR was exploring options to repeal provisions in the Fines Act 1996 (NSW) that permit imprisonment via a warrant of commitment for fine default. The NSW Government submitted they were considering replacing warrants of commitment with a prison sanction that could only be imposed by a court.
12.16 Some jurisdictions distinguish between the types of fines that can result in imprisonment. In Victoria, for example, imprisonment can only be imposed for default on an infringement notice. In SA, imprisonment can only be imposed by the court for default on court-ordered fines. In WA, warrants of commitment can only be issued by the state debt recovery agency for court-ordered fines.
12.17 There are maximum periods that a defaulter can spend in prison to ‘cut out’ fine debt, regardless of the size of the debt.
12.18 Imprisonment for fine default is most prevalent in WA. For example, the WA Office of the Inspector of Custodial Services reported that in WA between July 2006 and June 2015:
7,462 prisoners were received into correctional centres for fine default;
there were approximately 11 people on any given day in prison for fine default;
the average stay in prison for fine default was four days;
Aboriginal and Torres Strait Islander men represented 38% of the fine default male prison population; and
Aboriginal and Torres Strait Islander women made up 64% of the female fine defaulter prison population—and constituted the fastest growing fine default population.
12.19 Imprisonment to cut out fines in WA can also be served in police lock up. In the coronial inquest into the death of Ms Dhu—an Aboriginal woman held in custody on a warrant of commitment—the coroner was advised that cutting out fines in police lock up was common place in WA, and was not recorded in the custodial statistics.
12.20 Regimes that use warrants of commitment that are issued by state debt recovery agencies result in imprisonment without hearings or trials. Imprisonment is automatic at a certain point in the enforcement process. In 2012, the NSW Law Reform Commission (NSWLRC) recommended the abolition of imprisonment for non-compliance with a CSO in NSW, describing the process of warrants of commitment issued by SDR as contrary to the principles of natural justice and procedural fairness. Legal Aid NSW submitted to this Inquiry that the system in NSW was entirely inconsistent with Recommendation 117 of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), which had called for the intervention of a judge or magistrate to determine whether a term of imprisonment should be ordered. The NSW Government advised the ALRC that the relevant NSW provisions are under review.
12.21 In 2016, the Coroner’s Court of WA questioned whether incarcerating fine defaulters provided any benefit to the community and recommended the abolition of warrants of commitment in WA. At the very least, the Coroner’s Court recommended that imprisonment must be subject to a hearing in the Magistrates Court and determined by a Magistrate who is authorised to make orders other than imprisonment (such as CSOs or other alternatives) where appropriate. This approach was supported in 2016 by the Law Society of WA.
12.22 The ALRC understands that the WA Government may introduce reforms to address imprisonment for fine default in that state, including introducing lesser penalties and expanding the use of CSOs.
The impact on Aboriginal and Torres Strait Islander peoples
12.23 Aboriginal and Torres Strait Islander people are over-represented as fine recipients and are less likely than non-Indigenous people to pay a fine at the time of issue of the initial notice (attributed to financial capacity, itinerancy and literacy levels). Aboriginal and Torres Strait Islander people are consequently susceptible to escalating fine debt and fine enforcement measures. Adjunct Professor Russell Hogg and Associate Professor Julia Quilter submitted:
We do know from research and official inquiries that fines have disproportionate and serious adverse impacts on disadvantaged sections of the community: Indigenous Australians, the young, homeless, the welfare dependent, mentally ill, people with intellectual disabilities and prisoners. These groups are more vulnerable to being fined in the first place and to accruing multiple fines. They are less likely to be able to pay fines or to negotiate the processes available to contest them or otherwise mitigate their impact. Literacy and numeracy problems, language difficulties, housing insecurity and residential transience ensure that many will fall foul of inflexible administrative systems that are insensitive to the circumstances of the poor and marginal.
12.24 The WA system has been identified as particularly arduous for Aboriginal and Torres Strait Islander peoples, especially women. In 2013, it was reported that one in every three women who entered prison in WA did so for fine default. Between 2006 and 2015, nearly three-quarters (73%) of female fine defaulters in WA were unemployed when imprisoned, and about 64% of women imprisoned for fine default were Aboriginal and Torres Strait Islander women.
12.25 The United Nations Special Rapporteur on Violence against Women urged the WA Government to review the policy of incarceration for unpaid fines, noting the ‘disproportionate effect on the rates of incarceration of Aboriginal women because of the economic and social disadvantage that they face’. This call was reiterated by the United Nations Special Rapporteur on the Rights of Indigenous Peoples, who expressed concern about the growing number of Aboriginal women imprisoned for fine default, and noted that the ‘laws on fine default are an example of legislation having a disproportionate impact on Aboriginal women’. A 2017 report by the Human Rights Law Centre on the over-representation of Aboriginal and Torres Strait Islander women in prison also identified fine default statutes as laws that unreasonably and disproportionately criminalise Aboriginal and Torres Strait Islander women, and recommended the abolition of all laws that lead to the imprisonment of people who cannot pay fines.
12.26 Such concerns have also been highlighted by Australian legal advocates. In 2016, the Law Society of NSW submitted to the Inquiry into Aboriginal and Torres Strait Islander Experiences of Law Enforcement and Justice Services that the WA fine default scheme ‘operates disproportionately on those most vulnerable, particularly Indigenous women and only exacerbates poverty and disadvantage. It furthermore fails to deter fine defaulting or gather fine revenue’. This observation was reiterated by stakeholders to this Inquiry.
12.27 The Aboriginal Legal Service of WA (ALSWA) has previously stated that the
complex underlying problems that exist for vulnerable fine defaulters (such as mental illness, cognitive impairment, homelessness, poverty, substance abuse, family violence and unemployment) will never be addressed by the current blunt fines enforcement system in Western Australia.
12.28 The potential ‘bluntness’ of the enforcement regime in WA was illustrated in a case study provided by Kimberly Community Legal Services:
Client G resides in an Aboriginal Community near Fitzroy Crossing. He receives his post c/- the Post Office as do many Aboriginal people who reside in communities in the Kimberley where there is no postal delivery to residences. Client G had fines in excess of $20,000 incurred over a long time. He had entered into a repayment agreement and set up Centrepay deductions from his Centrelink benefit. At the time the Centrepay deductions were set up Client G’s Centrelink payments were subject to Income Management. Client G was subsequently taken off Income Management and was receiving a Disability Support Pension (DSP). At the time the transfer was made, all Client G’s Centrepay deductions were cancelled. Client G does not believe he was ever notified of this and to the best of his knowledge he was still making regular payments towards his fines.
Client G came to see KCLS to find out how much his fines were. KCLS made inquiries with the local Sheriff and was advised that, at the time of the inquiry, Client G’s fines were approximately $17,000 and there was no current repayment agreement in place. The Sheriff also advised that given the quantum of the fines, unless a repayment agreement was implemented immediately, it was likely a warrant would be issued for Client G’s arrest. Client G was understandably distressed at this information. KCLS assisted Client G to reinstate his Centrepay deductions which avoided the warrant being issued.
The suspension of the repayments was a result of an administrative process internal to Centrelink that was not communicated to Client G, or not communicated appropriately having regard to his literacy and general comprehension of English language, or the issues related to receiving post by checking at the Post Office. Had Client G not contacted KCLS when he did, a warrant for his arrest would have been issued and Client G would have been incarcerated.
12.29 This case study clearly identifies the interrelated issues that Aboriginal and Torres Strait Islander people who live in regional or remote communities and who may not routinely receive mail may face in relation to fine enforcement. Issues of remoteness coupled with unreliable postal services can mean that enforcement notices may not be received, leading to greater risk of fine debt escalating, enforcement costs accruing and enforcement measures being implemented.