Imprisonment terms that ‘cut out’ fine debt

6.21     Fines are penalties imposed for what are usually minor infractions—conduct that the legislature or the courts has determined does not warrant a term of imprisonment.^[18] Imprisonment for fine default results in punishment disproportionate to the offending conduct, and contradicts the principle of imprisonment ‘as a last resort’.^[19]

6.22     In 1991, the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) recommended that all governments ensure that sentences of imprisonment were not automatically imposed for the default of payment of a fine.^[20] While the direct link between fine default and imprisonment has been removed from statutes nationwide, and fine mitigating options have been introduced, fine enforcement regimes still provide a pathway from a fine to imprisonment. Further, regimes that use warrants of commitment permit imprisonment without hearings or trials. Imprisonment remains automatic at a certain point in the enforcement process.

6.23     In 2012, the NSW Law Reform Commission (NSWLRC) recommended the abolition of imprisonment for non-compliance with a CSO in that state, describing the process as contrary to the principles of natural justice and procedural fairness.^[21]

6.24     In 2016, the Coroner’s Court of Western Australia questioned whether incarcerating fine defaulters provided any benefit to the community and recommended the abolition of warrants of commitment in WA.^[22] 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 a CSO or other alternatives) where appropriate.^[23] This reflects enforcement regimes in the ACT, SA and Victoria, and was supported in 2016 by the Law Society of WA.^[24]

6.25     The Western Australian system has been identified as particularly arduous for Aboriginal and Torres Strait Islander women. In 2013, it was reported that one in every three women who entered prison in West Australia did so for fine default.^[25] More recent statistics show that 73% of female fine defaulters in WA were unemployed when imprisoned. About 64% of women imprisoned for fine default were Aboriginal and Torres Strait Islander women.^[26]

6.26     The UN Special Rapporteur on Violence against Women urged the Western Australian 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’.^[27] The 2017 report by the Human Rights Law Centre on the over-representation of Aboriginal and Torres Strait Islander women in prison 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.^[28]

6.27     This concern has been further highlighted by Australian legal advocates. In 2016, the Law Society of NSW submitted to the national Inquiry into Aboriginal and Torres Strait Islander Experiences of Law Enforcement and Justice Services that the WA 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’.^[29]

6.28     The Aboriginal Legal Service of WA has 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.^[30]

6.29     The Law Council of Australia has indicated support for the national abolition of fine default imprisonment schemes.^[31]

6.30     The ALRC is alert to the argument that to remove the option for prison is to remove a ‘short and sharp’ option for people without the means to discharge their fine debt to become debt-free. There may be more equitable means by which to minimise the impact of fines and to clear fine debt. These are discussed below and include:

• limiting the number of infringement notices able to be issued in one transaction and placing limits on the monetary penalty of infringement notices;
• expanding sentencing options for low-level offending; and
• introducing the NSW WDO scheme in each state and territory.

The impact of infringement notices

6.31     Infringement notices are the most common penalty issued by criminal justice systems in Australia.^[32] In 2009, the NSW Ombudsman reported that the NSW Police Force, as an ‘issuing agency’, had issued more than 500,000 infringement notices to adults in the previous year.^[33] At the same, over 8,000 criminal infringement notices (discussed below) were also issued. In Victoria up to five million infringement notices were issued across all issuing agencies in 2015–16.^[34]

6.32     Infringement notices generally refer to regulatory penalties in areas such as traffic infringements (such as for parking or speeding) as well as in areas such as health and safety, national parks and wildlife, passenger transport, and rail safety.^[35] In 2012, the NSWLRC observed in their report on Penalty Notices that

[m]any penalty notice offences involve conduct that is not generally thought of as highly culpable. For instance, few people are likely to think of themselves as engaging in criminal activity when they park illegally, or smoke a cigarette on a railway platform.^[36]

6.33     The penalty received under an infringement notice is fixed in price and cannot be tailored to the circumstances of the recipient. While infringement notices can be challenged in court, this is reportedly rare, especially when the accused is vulnerable or an Aboriginal and Torres Strait Islander person.^[37]

Impact on Aboriginal and Torres Strait Islander peoples

6.34     The imposition of monetary penalties, especially the sometimes high fixed amounts under infringement notices, has been widely criticised for having a disproportionate impact on: people with low incomes (including young people); people in prison;^[38] homeless or transient people with complex needs; and people with mental health issues or cognitive impairments.^[39] Aboriginal and Torres Strait Islander peoples are over-represented in these groups.^[40]

6.35     There are other issues related to infringement notice enforcement regimes that are particular to Aboriginal and Torres Strait Islander peoples. For example, a high proportion of Aboriginal and Torres Strait Islander people live in regional or remote communities and may not routinely receive mail. This may mean that enforcement notices are not received and can lead to a greater risk of accruing fine related debt, enforcement costs and enforcement measures.^[41]

6.36     Penalties received under single or multiple infringement notices can be disproportionate to the offending conduct. The ALRC has heard examples of the potential for escalation, such as that of a young Aboriginal girl (Ms X) with a dysfunctional family who skipped school and rode the trains. Ms X was asked for a ticket by a transit officer, who Ms X told to ‘fuck off’. Ms X was then given an infringement notice for fare evasion and offensive language.^[42] For which Ms X said, ‘you got to be fucking kidding’, for which Ms X received another notice for offensive language, amounting to well over $1,000 in fines.

6.37     The ALRC has also heard about an Aboriginal boy (Mr X) who was given an infringement notice on his way to and from school every day for not wearing a bicycle helmet. As a young adult, Mr X was paralysed by fine debt, and ended up in prison.

Ways to lower the monetary penalty

6.38     Punishment should be proportionate to the crime. In 2014, the Sentencing Advisory Council of Victoria (SACV) observed that the principle of proportionality requires that infringement penalty dollar amounts be proportionate to the seriousness of the offence and that the penalty be lower than a person would expect to receive if the matter was to go to court.^[43] The SACV reported that some infringement penalties in Victoria amounted to 50% of the maximum penalty available to the court. It also noted the discrepancy between the high penalty attached to public order offences and the lower, but more dangerous, traffic offences, such as speeding. The SACV recommended a review of infringement penalty amounts to ensure the proportionality of the amount.^[44] In its report on penalty notices, the NSWLRC adopted a formula to recommend that infringement notice amounts should not exceed 25% of the maximum court fine for that offence.^[45]

6.39     Concession infringement notices have been raised as another way to ensure the efficacy and fairness of infringement notices. This was recommended by the SACV, which supported a fixed reduction model of 50% for people experiencing financial hardship (using the same eligibility as that for automatic entitlement to a payment plan). Eligible infringement recipients under this scheme would be able to apply for a reduced infringement penalty to the enforcement agency as soon as the person has received the penalty. This recommendation sought to provide the person with an early exit from the infringement enforcement system.^[46] The NSWLRC considered that the administration of this option could be overly burdensome, citing the added complexity to the infringement notice system, preferring instead to expand the WDO scheme and ‘time to pay’ systems.^[47]

Ways to minimise the issuing of infringement notices

6.40     There may be ways to minimise the issuing of infringement notices in the first instance. The NSWLRC recommended that:

• there be greater use of the discretion to caution and that cautions be written, so that data could be collected; ^[48] and

• issuing officers be required to consider whether the issuing of multiple penalty notices in response to a single set of circumstances would unfairly or disproportionately punish a person in a way that does not reflect the totality, seriousness or circumstances of the offending behaviour, and that where this is found, the issuing agency must withdraw one or more notices.^[49]

6.41     The ALRC asks whether issuing officers should be restricted to one infringement notice in the same category per interaction. This means that, for example, where a person swears multiple times, they would only receive one infringement notice and one penalty, not multiple penalties for each infraction within the same altercation. For example, the girl on the train in the example given above would only receive one infringement notice for using offensive language, and one for fare evasion.

6.42     There may be an option to issue a written caution instead of an infringement notice. For example, in 2017, South Australian police introduced an adult cautioning scheme for some summary offences that would have previously resulted in the person going before the court.^[50]

6.43     The ALRC notes the availability of fine mitigation options following the imposition of a fine. These include time-to-pay options in all jurisdictions and the availability of Centrepay—the ability to have fines deducted weekly from Centrelink payments to pay off outstanding fines. There are also bodies that consider the special circumstances of the person. These include the Hardship Review Board in NSW and the Enforcement Review Program (a special circumstances court) in Victoria for persons with a diagnosed mental illness or cognitive impairment, an addiction to drugs, or for people experiencing homelessness.

6.44     The ALRC welcomes submissions on options to minimise the impact of infringement notices on Aboriginal and Torres Strait Islander peoples.

Infringement notices for offensive language/conduct

6.45     Infringement notices that are able to be issued by police for minor summary offences are called ‘criminal infringement notices’ (CINs). These can generally be issued for public order offences and some low level larceny or obtaining goods offences. Prior to the introduction of CINs, a person charged for these types of offences would be charged and required to go before the court. CINs are a relatively new form of infringement notice. For example, NSW introduced CINs in 2004, and WA introduced them in 2016.

6.46     Police can issue CINs for offensive language in all states and territories except SA, Tasmania and the ACT.^[51] The maximum fines available (for offences that go before the court) and the CIN amounts are itemised in the table below.

Table 1: Offensive language provisions with maximum penalties per state and territory (source: Elyse Methven, Dirty Talk: A Critical Discourse Analysis of Offensive Language Crimes (PhD Thesis, Faculty of Law, University of Technology Sydney, 2017) Table 4.1) 

Impact on Aboriginal and Torres Strait Islander peoples

6.47     Aboriginal and Torres Strait Islander peoples are over-represented as recipients of offensive language CINs. For example, the NSW Ombudsman found that 11% of CINs for offensive language in 2008 were issued to Aboriginal and Torres Strait Islander people.^[54] More recently, it was reported that the proportion had risen to 17%.^[55] This can have a significant impact. According to the NSW Ombudsman, 89% of Aboriginal and Torres Strait Islander people issued with a CIN failed to pay on time and were referred to SDRO for enforcement. By comparison, 48% of all CIN penalty notices were referred for enforcement.^[56]

6.48     The issues regarding offensive language provisions and how they are applied to Aboriginal and Torres Strait Islander peoples have been well ventilated. Primarily, these arguments are that most offensive language CINs are issued for language directed at police; and, if tested in court, may not meet the legal definition of ‘offensive’.^[57]

Should offensive language provisions be removed from CIN regimes?

6.49     The ALRC has heard from stakeholders that Aboriginal and Torres Strait Islander peoples can be targeted by issuing officers. This may result in many more Aboriginal and Torres Strait Islander peoples entering the fine enforcement system. It has been suggested that offensive language provisions be removed from CIN offences—as the prospect of offensive language charges going before the court may discourage issuing officers from charging trivial infractions.

6.50     The ALRC has also heard that CIN regimes provide an appropriate diversionary option, which results in less contact for Aboriginal and Torres Strait Islander peoples with the criminal justice system—the person is not arrested and need not attend the police station, making it less likely that the person will be charged with further offences, such as resist arrest or assault officer. This addresses a key concern of the RCIADIC.^[58] With regard to the diversionary value of the CIN regime, however, the NSW Ombudsman noted:

Of the Aboriginal people contributing to this review … all voiced concerns that any benefits arising from diverting minor offenders in this way were likely to be eclipsed by the much more pervasive problems associated with fine default, especially with respect to the high number of Aboriginal people who are ineligible to drive or register a vehicle because of sanctions imposed as part of measures to enforce unpaid fines.^[59]

6.51     The ALRC invites submissions on whether offensive language provisions remain an issue related to the incarceration of Aboriginal and Torres Strait Islander peoples. If so, the ALRC asks for comments on whether these provisions should be abolished, or whether they should be removed from CIN regimes.

6.52     There are other options. For example, the NSWLRC recommended that if offensive language provisions were retained, the issuing of a CIN for these offences should be subject to mandatory review by a senior police officer.^[60] South Australian police are able to issue a caution to adults for offensive language offending, and provide an example of swearing at police resulting in the issuing of an adult caution on their website.^[61]

6.53     The ALRC also welcomes submissions on any other CIN offence that affects Aboriginal and Torres Strait Islander criminalisation and incarceration rates. For example, in 2014, the NSW Ombudsman noted that Aboriginal and Torres Strait Islander peoples were particularly affected by the issuing of CINs for the offence of ‘continuation of intoxicated and disorderly behaviour following move on direction’.^[62] The Ombudsman reported that, of the 484 fines or charges issued for this offence during the review period, 31% (150) were issued to Aboriginal people.^[63]

Alternatives to court imposed fines

6.54     Generally, fines are the lowest penalty a court can impose, and a court imposed fine need not equate to a large amount. Courts can use discretion when imposing a fine, and are directed by statute to consider the means of the offender when imposing a fine amount.^[64] There are also statutory maximums. Nonetheless, the courts can still impose relatively large fines, especially where fines are imposed ex parte (in the absence of the accused).

6.55     This section asks whether there is a requirement for other court sanctions to be introduced to prevent people without means from entering the fine enforcement regime. The ALRC outlines options including the potential introduction of suspended fines; day fines; and WDOs, but welcomes submissions on other possible alternatives.

Suspended fines

6.56     WA introduced legislation to provide for suspended fines in 2016.^[65] Suspended fines would operate in the same way as suspended sentences of imprisonment, only to be enforced where further offending occurs within a certain period of time. The provisions are yet to commence.

6.57     The option of a suspended fine would allow a court, in sentencing an offender to a fine, to order that the fine be suspended for a period set by the court of up to 24 months. A suspended fine could not be imposed unless a fine equal to the suspended amount would be appropriate in all the circumstances. The effect of suspending a fine would be that the offender would not need to pay the fine unless they committed an offence during the suspension period and the court makes an order requiring the person to pay, or part pay, the fine.^[66]

6.58     The introduction of suspended fines has been criticised as operating as a postponing device which still criminalises people who are likely to recommit low level offences. This includes vulnerable people who are without means to pay a court imposed fine, such as people experiencing: homelessness; drug and alcohol addiction; and mental health issues. A suspended fine without the provision of support services is argued to be unlikely to address the issues that lead to conviction and default.^[67]

6.59     As part of the findings in the inquest into the death of Ms Dhu, the Western Australian Coroner’s Court suggested that the question of whether the person has the means to pay the fine if they reoffend could be addressed in the legislation, as the court would have the power to re-fine ‘unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended fine was imposed’. If the court decides that ordering payment would be unjust, it must provide written reasons. The Coroner’s Court stated:

One of the obvious merits is that in the case of a suspended fine, the re-offender is brought back before the court for decision, rather than having the fine enforced through a subsequent executive act. This will mandate the consideration, by a judicial officer, of the re-offender’s means to pay the fine at the relevant time, amongst other factors that must be taken into account.^[68]

Day fines

6.60     Day fines refer to fining systems that respond to a person’s capacity to pay. Day fines rely on a formula where the seriousness of the offence is indexed to the offender’s average daily income or the surplus remaining after daily expenses. Fines are then expressed according to the number of days it would take that particular offender to pay the fine off. This type of approach has been taken in some European jurisdictions.^[69]

6.61     While there are advocates for day fines in Australia,^[70] the ALRC considers it unlikely that Australian jurisdictions would adopt such an approach. It is complex to apply, would rely on state and Commonwealth information sharing, and could result in distorted fine and penalty amounts for people on middle to high incomes. In its 2005 discussion paper, federal offenders, the ALRC contended that:

a day fine scheme should not be introduced for federal offenders. Day fine schemes do not operate in any state or territory, and submissions and consultations revealed limited support for such a scheme. A day fine scheme would be time consuming and complex to administer in practice. In addition, the ALRC is not convinced that a day fine scheme would ensure that fines operated more equitably for all offenders. For example, an offender with little or no income may have substantial assets, a significant future earning capacity, or the capacity to acquire money from other sources.^[71]

6.62     The ALRC welcomes submissions on the suitability of this type of system in Australia.

Court ordered work and development order schemes

6.63     Currently, most courts can order some form of community service at first instance or in lieu of a fine debt. Breaches of such orders, however, may result in a prison sentence. The NSW WDO scheme is currently only available following the imposition of a court-ordered fine (or receipt of an infringement notice). It has been suggested that courts should be able to impose a WDO, as understood in NSW, at first instance.

6.64     Courts are already able to issue CSOs or non-conviction orders.^[72] The ALRC is interested in current practice and procedure, and whether there is any need to introduce a WDO sentencing option for courts.

NSW Work and Development Orders

6.65     WDOs were introduced in NSW in 2009 to provide meaningful and achievable ways of discharging fine debt where a person cannot pay.^[73] WDOs enable a person who cannot pay their fines due to hardship, illness, addiction, or homelessness to discharge their debt through community work; program attendance; medical treatment; counselling; or education, including driving lessons. Once on a WDO, any related licence suspension (see below) is lifted.

Legislative framework

6.66     The WDO program is set out in the Fines Act 1996 (NSW). A WDO can be made by the SDRO when a fine enforcement notice has been made, and the defaulter meets the criteria.^[74] An applicant for a WDO must be supported by an ‘approved person’ who is to supervise their compliance.^[75]

6.67     A WDO can—to satisfy all or part of a fine—require the defaulter to:

• undertake unpaid work (for an approved organisation);
• undergo medical or mental health treatment;
• undertake an educational, vocational or life skills course (including driver licence training);
• undergo financial or other counselling;
• undergo drug or alcohol treatment; or
• undertake a mentoring program (where under 25 years old).^[76]

6.68     The applicant must submit the grounds for making an order, outline the proposed activities to be carried out under the order, and propose a time for completion of the activities to the SDRO.^[77] There are some restrictions. For example, where the applicant has an addiction and does not satisfy any other criteria, the person must be required to carry out counselling and/or drug and alcohol treatment.^[78] The rate at which fines are discharged depends on the activity, and is set out in in the WDO guidelines.^[79]

Outcomes

6.69     The WDO program was independently evaluated in 2015. The evaluation concluded that the WDO scheme was ‘achieving its objective of enabling vulnerable people to resolve their outstanding NSW fines by undertaking activities that benefit them and the community’.^[80]

6.70     The NSW Department of Justice stated that, as of December 2016, almost 2,000 service locations provided WDOs, and that nearly $74 million in fine debt had been cleared since the program commenced in 2009.^[81] In October 2016, the Senate Finance and Public Administration References Committee reported that $9 million of the $44 million that had been waived through the WDO scheme had been in ‘Aboriginal communities’.^[82]

Obstacles

6.71     There are some obstacles to nationwide implementation. Regional and remote areas may lack the infrastructure required to implement the programs and provide employment opportunities, excluding some Aboriginal and Torres Strait Islander communities from participating. Nonetheless, there is momentum to introduce WDOs in this form in other jurisdictions. The Sentencing Advisory Council of Victoria (SACV) recommended that Victoria introduce the NSW WDO scheme in 2014.^[83] The Queensland Parliament passed legislation to introduce a WDO scheme in May 2017.^[84]

6.72     The ALRC notes the strong support for WDOs shown in all states and territories during consultation, and seeks further comments on this proposal.