6.5 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 to monetary penalties imposed by courts and those received under infringement notices.
6.6 Where fines remain unpaid after a certain period of time, statutory fine enforcement regimes refer collection to relevant state and territory debt recovery offices. The steps for fine enforcement generally include the issuing of notices, licence or vehicle registration suspensions, civil enforcement orders, and community service orders (CSOs). There are fine mitigation options open to defaulters, such as ‘time to pay’ arrangements, waiver processes and, in NSW, the WDO scheme.
6.7 Fine enforcement statutes also provide for terms of imprisonment as a final enforcement step, whereby the term served in prison discharges fine debt: it ‘cuts out’ the fines.
6.8 Aboriginal and Torres Strait Islander peoples are over-represented as fine recipients and are less likely than non-Indigenous people to pay a fine at first notice (attributed to financial capacity, itinerancy and literacy levels), and are consequently susceptible to escalating fine debt and fine enforcement measures.
6.9 Stakeholders in this Inquiry have pointed to the detrimental impact of fine enforcement processes on Aboriginal and Torres Strait Islander peoples, particularly the likelihood of prison in some jurisdictions following ongoing fine default, noting that Aboriginal and Torres Strait Islander women are disproportionally affected.
Statutory enforcement frameworks
6.10 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. The NSW statutory framework is used in this chapter as an example.
6.11 NSW fine enforcement is legislated under the Fines Act 1996 (NSW) (the Act) and administered by the State Debt Recovery Office (SDRO). Enforcement action is taken against fine defaulters when they have not paid a fine as required by a notice served on the defaulter; have not paid by an extended due date granted by the SDRO; or have not paid agreed instalments (see fine mitigation below).
6.12 The progressive recovery process is prescribed by 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.
6.13 Enforcement begins with the issuing of a notice. Ordinarily, the next step is for NSW Roads and Maritime Services (RMS) to suspend the person’s driver licence and/or motor vehicle registration. If the fine is still not paid within a set time period, the SDRO can commence civil enforcement action to satisfy the payment of the fine. If civil enforcement is unable to commence or is unsuccessful, the SDRO may make a 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 for non-compliance with that order. This is reportedly rare, and stakeholders have advised the ALRC that imprisonment for non-compliance following a fine has not happened in recent practice in NSW.
Fine provisions leading to imprisonment
6.14 In each state and territory, fine enforcement statutes permit imprisonment where a person is ineligible or fails to comply with a CSO. However, the process and the likelihood of incarceration differs significantly across the states and territories. There are two key pathways from a fine to imprisonment.
6.15 First, where the court imposes a CSO, and the person fails to comply or is otherwise ineligible, the court can impose a period of imprisonment by which the person ‘cuts out’ the fine amount owed (the ACT, SA and Victoria). There are statutory safeguards, and imprisonment rarely occurs in these jurisdictions.
6.16 Second, where the state debt recovery agency imposes a CSO, and the person fails to comply or is otherwise ineligible, the agency can issue a warrant of commitment for the imprisonment of the person (NSW, the NT, Tasmania, Queensland, and WA). The ALRC has heard that this is never used in practice in NSW. In WA, warrants of commitment can only be issued for court ordered fines and are commonly issued.
6.17 There are maximum periods that the person can spend in prison to cut out fine debt, regardless of the size of the debt. In SA and WA, cutting out fines in prison can only occur for court-ordered fines.
6.18 Imprisonment for fine default is most prevalent in WA. For example, the Western Australian Office of the Inspector of Custodial Services reported that, from July 2006 to June 2015:
7,462 prisoners were received into correctional centres for fine default in WA;
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.
6.19 The particular impact of short term imprisonment on Aboriginal and Torres Strait Islander women is discussed in Chapter 9.
6.20 Imprisonment to cut out fines in WA can also be served in police lock up. This is reported to be a common practice, and is not recorded in the custodial statistics.
Department of Attorney General and Justice (NSW), A Fairer Fine System for Disadvantaged People An Evaluation of Time to Pay, Cautions, Internal Review and the Work and Development Order Scheme (2011) 13.
Legislative Assembly of New South Wales Committee on Law and Safety, Parliament of New South Wales, Driver Licence Disqualification Reform, Report 3/55 (2013) [3.68].
Fines Act 1996 (NSW) s 65(1).
Fines Act 1996 (NSW) s 71(1)(a).
Fines Act 1996 (NSW) s 79(1): calculated at $15 per hour, maximum 100 hours (s 81).
Fines Act 1996 (NSW) div 6, ss 89(1), 90(1): calculated at $120 per day with a minimum of one day and maximum of three months. The defaulter may apply for an order to serve the time under an intensive correction order in the community.
NSW Law Reform Commission, Penalty Notices, Report No 132 (2012).
See, eg, Crimes Sentence Administration Act 2005 (ACT) s 116ZK; Fines and Penalties (Recovery) Act (NT) ss 88, 90, 91; and Infringements Act 2006 (Vic) prt 12, ss 156, 160.
Crimes (Sentencing Administration) Act 2005 (ACT) s 116ZK; Criminal Law (Sentencing) Act 1988 (SA) s 71; Infringements Act 2006 (Vic) ss 156, 160.
See, eg, Infringements Act 2006 (Vic) prt 12; Sentencing Act 1991 (Vic) pt 3B regarding court-imposed fines.
See, eg, Department of Justice (Vic), Statistical Profile of the Victorian Prison System 2006–07 to 2010–11 (2011) 66: five people in 2010/11 were received by Corrections for fine default. Between July 2006 and June 2011, however, 151 prison receptions for people serving sentences for non-payment of fines only, of which 12 (8%) were Aboriginal and Torres Strait Islander peoples.
Fines and Penalties (Recovery) Act (NT) s 86; State Penalties Enforcement Act 1999 (Qld) s 119; Monetary Penalties Enforcement Act 2005 (Tas) s 103; Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 53.
See, eg, State Penalties Enforcement Act 1999 (Qld) s 52A(3): the maximum period of imprisonment is 2 years; Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 53: the maximum time served equivalent to the maximum term of imprisonment, if any, for the offence.
Criminal Law (Sentencing) Act 1988 (SA) s 71(2); Sentencing Act 1995 (WA) ss 58–59: when imposing a fine, courts in Western Australia can order that the person serve a sentence of imprisonment or set the period by which, if not paid, the person be imprisoned.
Office of the Inspector of Custodial Services, Fine Defaulters in the Western Australian Prison System (2016) v.
Prisons Act 1981 (WA) s 16(7).
Inquest into the Death of Ms Dhu (11020–14) (Unreported, WACorC, 16 December 2016) 152–5.