Recommendation 12–2 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations to develop options that:
reduce the imposition of fines and infringement notices;
limit the penalty amounts of infringement notices;
avoid suspension of driver licences for fine default; and
provide alternative ways of paying fines and infringement notices.
12.41 Fines are of little benefit when the person fined cannot pay and the state expends resources to enforce a debt that cannot be discharged. Seeking to enforce an unrecoverable debt is costly for governments. The NSW Bar Association noted that in many cases the ‘cost of enforcement exceeds the amount successfully recovered’, and enforcement has both tangible and intangible costs for a vulnerable person in default.
12.42 The sheer cost, and sometimes number, of penalties can appear insurmountable, where even partial payment may further impoverish a person. Fine default results in loss of driver licences, which can exacerbate disadvantage for Aboriginal and Torres Strait Islander people in regional areas, and affect the likelihood of employment. Loss of a licence may also decrease accessibility to health services and family, kin and community, and result in offences for driving while unlicensed (discussed below). Fine default can also lead to enormous stress and the fear of—or actual—incarceration. As noted by Hogg and Quilter, fine enforcement involves a form of ‘sentence creep’, in which a ‘supposedly lenient penalty for a minor offence gives way to harsh sanctions for those who cannot pay but is also criminogenic in its effects’.
12.43 The ALRC believes that there are more equitable ways to increase the effect of fines and fine enforcement while minimising the harm. The ALRC recommends that state and territories work with relevant Aboriginal and Torres Strait Islander organisations to introduce a suite of options aimed at reducing the likelihood of fines being imposed, mitigating negative outcomes when fines are imposed, and using innovative approaches to ‘pay’ the fine that benefit the person and the community. Stakeholders strongly supported these approaches and provided various models and options, which are outlined throughout this chapter.
12.44 The ALRC encourages states and territories to:
introduce or clarify the use of written cautions (supported by training) issued in lieu of infringement notices for minor or first time offending;
provide concessional infringement penalty amounts for those receiving government benefits;
cap the total penalty amount able to be received in one incident;
consider introducing suspended court-ordered fines;
skip the enforcement step of driver licence suspension for Aboriginal and Torres Strait Islander people living in regional and remote communities; and
introduce the NSW model of voluntary WDOs.
12.45 These options are discussed below.
Reduce the imposition of fines and infringement notices
12.46 Infringement notices are the most common penalty issued by criminal justice systems in Australia. 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 2008, and over 8,000 criminal infringement notices (discussed below). In Victoria up to five million infringement notices were issued across all issuing agencies in 2015–16.
12.47 Infringement notices generally refer to regulatory penalties covering areas such as traffic infringements (such as for parking or speeding) as well as areas such as health and safety, national parks and wildlife, passenger transport, and rail safety. In 2012, the NSWLRC observed in its 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.
12.48 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.
12.49 The imposition of monetary penalties, particularly the significant 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; homeless or transient people with complex needs; and people with mental health issues or cognitive impairments. Aboriginal and Torres Strait Islander people are over-represented in these groups.
12.50 Paying a fine can be especially problematic for people living remotely with little means. A submission from the Torres Strait noted that: ‘I have met offenders with SPER fines in the $4,000 and $6,000. In comparison to a mainland working class this equates to a mortgage for these people. They do not have a hope of making full payment.’
12.51 Penalties received under single or multiple infringement notices can be disproportionate to the offending conduct. In consultations, the ALRC 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 without a ticket. Ms X was asked to present her ticket for inspection by a transit officer. Ms X told the transit officer to ‘fuck off’. Ms X was then issued an infringement notice for fare evasion and offensive language. Ms X responded to the transit officer: ‘you got to be fucking kidding’. Ms X received a further infringement notice for offensive language. In one short incident Ms X was issued with fines well in excess of $1,000.
12.52 Fine mitigation options following the imposition of a fine are available. 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 regarding fine debt. 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. Legal Aid NSW observed that, while
time to pay, the Work and Development Order scheme and the write-off of fine debt are important mitigation measures, they cannot and should not serve as a substitute for proper ‘front end’ regulation of the system. Front end changes are needed to ensure that infringement notices are only issued in appropriate circumstances, and for appropriate amounts, so as to reduce their disproportionate impact on Aboriginal and Torres Strait Islander people.
Greater use of cautions in lieu of infringement notices
12.53 Issuing officers may use their discretion to informally warn a person rather than to issue an infringement notice in some circumstances. Some jurisdictions also provide for written cautions. The NSWLRC noted:
The use of both warnings and cautions allows issuing officers to encourage compliance by using the least restrictive measure called for in the circumstances of a particular case. A warning or a caution may be particularly appropriate, for example, where the offence is at the very minor end of a scale of offending, or where the person has a vulnerability, such as homelessness or mental illness, that impairs the ability to comply with or understand the relevant regulations or legislation.
12.54 In 2017, SA Police introduced an adult cautioning scheme for some summary offences that would have previously resulted in the person going before the court. The SA scheme does not have a statutory basis. NT Police can also issue written or verbal cautions, although the issuing of a caution is not recorded.
12.55 Issuing officers in NSW are empowered by statute to issue an official caution. For all issuing officers, other than police officers, directions regarding the imposition of official cautions are provided in guidelines issued by the Attorney General (NSW) (the Guidelines). The Guidelines ‘assist officers in exercising their discretion, they do not create any right or obligation to give a caution’.
12.56 The Guidelines set out the matters to be taken into account when deciding whether to issue a caution, including: the characteristics of the offence; whether the person is homeless, has a mental illness or intellectual impairment, or is a child; whether the offending was inadvertent; whether the person was cooperative; and whether it was otherwise reasonable to issue a caution. A caution must only be given in circumstances where an infringement notice could have been issued. Under the Guidelines, the giving of a caution should be recorded ‘where practical’ to do so, including the date, the name of the offender and the issuing officer, and the offence for which the caution was given. Agencies should ensure that all issuing officers have a good understanding of the offences, are aware of the guidelines, and receive ‘regular and appropriate training’.
12.57 In 2012, the NSWLRC found that the cautioning system, while new at that time, could be strengthened, as issuing officers had difficulty identifying vulnerable people. It noted compliance with the Guidelines by issuing officers was ‘uneven’. The NSWLRC recommended that:
the Fines Act 1996 (NSW) direct issuing officers to consider whether it is appropriate to issue an official caution instead of a penalty notice;
all guidelines on the issuing of cautions be publicly available;
unless police develop their own consistent guidelines, legislation prescribe that the Attorney General Guidelines apply to police; and
the Guidelines contain a ‘statement of principle’ regarding the need to reduce the involvement of vulnerable people in the infringement notice system.
12.58 The NSWLRC also found that it was difficult to ascertain the incidence of cautions, and recommended that all cautions be written, recorded and reported on, and that issuing officers be accountable to an oversight body.
12.59 Stakeholders to this Inquiry supported the introduction of formalised adult cautioning schemes across the jurisdictions. ALSWA agreed with the use of cautions when people were clearly vulnerable, noting that it was ‘important to bear in mind that vulnerable and disadvantaged people are not likely to pay the infringement amount in any event’. Instead of attempting to have fines that are issued to disadvantaged people removed after the fact, the Law Council of Australia advocated for wider use of cautions, suggesting that written cautions should be issued in the first instance for most offences. Training and guidelines should be strengthened to include cautioning and referrals to services rather than infringements where cautioning has not been successful. VALS/IWG also expressed strong support for the wider use of cautions and official warnings, stating that low level and first time offending should be routinely dealt with by official warning or written caution.
12.60 Associate Professor Tamara Walsh advised that written cautions are used as an effective diversionary mechanism in the UK, and suggested that they should be further trialled in Australia.
12.61 Official cautioning schemes have the potential to divert minor offenders away from fine enforcement systems. The NSW approach of a statutory scheme with supporting guidelines provides a good model. The requirement for cautions to be issued only where an infringement notice usually would be issued minimises the potential for ‘net widening’. The ALRC suggests that guidelines apply to all issuing agencies, and that the recommendations of the NSWLRC be considered when adult cautioning systems are adopted in other states and territories.
Suspended court fines
12.62 Generally, fines are the lowest penalty a court can impose (excluding no sentence or conditional release orders). Up to 40% of offenders sentenced in Australian criminal courts receive a fine as their principal penalty. Fines are commonly imposed in courts of summary jurisdictions for assaults, thefts, drug offences, property damage and public order offences.
12.63 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. 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). The median fine amount given in courts of summary jurisdiction in 2015–2016 was $669.
12.64 Unpaid court fines are generally subjected to the same fine enforcement regime as infringement notices, although in WA and SA imprisonment is only permitted for default of court-ordered fines.
12.65 PIAC considered there to be an ‘urgent need’ for state and territory governments to provide alternative penalties to court-ordered fines. The Criminal Lawyers Association of NT (CLANT) submitted that alternatives should be an option when it is apparent that a person has no capacity to pay the fines. YLCLC noted that generally there needed to be a more ‘nuanced and diverse set of tools at the disposal of decision makers within the criminal system. Broader discretion enhances the ability of courts to provide individualised justice’.
12.66 WA introduced legislation to provide for suspended fines in 2017. Suspended fines 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 option of suspended fines allows courts, in sentencing offenders to fines, to order that the fine be suspended for a period set by the court of up to 24 months. A suspended fine cannot be imposed unless a fine equal to the suspended amount would be appropriate in all the circumstances. The effect of suspending a fine is that the offender does not need to pay the fine unless they commit an offence during the suspension period and the court makes an order requiring the person to pay, or part pay, the fine.
12.67 The introduction of suspended fines in WA has been criticised as operating simply 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 unlikely to address the issues that lead to conviction and default.
12.68 In its submission to this Inquiry, VALS/IWG raised these concerns, considering the likelihood of breach by disadvantaged people to be high:
Any intended deterrent function is unlikely to be effective when the offending conduct is compelled by a person’s circumstances—including mental illness, substance dependence, family violence or homelessness. Having said this, suspended fines are preferable to the use of traditional fines.
12.69 As part of the findings in the inquest into the death of Ms Dhu, the WA Coroner’s Court suggested that the question of whether the person has the means to pay the fine if they reoffend is addressed in the WA legislation. The court has 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.
12.70 In 2013, the NSWLRC recommended the introduction of suspended fines in NSW to operate in conjunction with s 10 bonds under the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 10 bonds permit a sentencing court to order the dismissal of charges without proceeding to a conviction. The order can be made with or without conditions. Under the NSWLRC approach, payment of the fine would be required on breach and revocation of the bond, with the court retaining discretion to cancel the fine and resentence where the offender’s capacity to pay had changed from the time of the order.
12.71 Legal Aid NSW supported the introduction of suspended fines so long as the conditions were not too onerous and that the scheme was unable to result in prison term. The NSW Bar Association supported suspended fines as long as they were voluntarily entered into. ALSWA supported the introduction of suspended fines, but submitted that the imposition of a suspended fine without the provision of support services is unlikely to address the underlying issues. ALSWA preferred the proposed amended Conditional Release Orders (CROs) that are yet to commence in WA. CROs would permit the court to require the offender to participate in an approved educational, vocational or personal development program, or unpaid work. ALSWA acknowledged, however, that the proposed amended CROs would not be available to people likely to reoffend (those with previous convictions), and that these are the people who would benefit most from this type of program and who are accumulating massive fine debt, ultimately resulting in short prison terms. A court-ordered WDO was not supported by other stakeholders, who noted that the voluntariness of the NSW program was a ‘key factor of the program’s success’.
12.72 Other stakeholders preferred the introduction day fines. 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 off the fine. This type of approach has been taken in some European jurisdictions.
12.73 Kingsford Legal Centre considered that fixed penalty amounts (extending to infringement notices) hurt the most vulnerable, and preferred a system that proportionally adjusted the fine relative to an individual’s income. The NSW Bar Association submitted that the ‘quantum of fines should be strictly limited, both for infringement notices and in court, for people who are at the lowest level of income’.
12.74 The ALRC considers it to be unlikely that Australian jurisdictions would adopt day fines. In a 2005 Inquiry into the sentencing of federal offenders, the ALRC did not support day fines. It suggested that day fines would be 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:
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.
Limit the penalty amounts of infringement notices
Concession penalty notices for people in receipt of government benefits
12.75 The monetary penalties attached to infringement notices are fixed and can be high. For example, in NSW offensive language provisions attract a $500 penalty.
12.76 There have been proposals and recommendations regarding the best way to lessen penalty amounts for vulnerable people, including Aboriginal and Torres Strait Islander people. In 2014, the Sentencing Advisory Council of Victoria (SACV) observed that the principle of proportionality required 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. The SACV reported that some infringement penalties in Victoria amounted to 50% of the maximum penalty available to the court. It also noted disparity 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.
12.77 In its report on penalty notices, the NSWLRC adopted a formula recommending infringement notice amounts should not exceed 25% of the maximum court fine for that offence. Adopting this recommendation would mean that offensive language infringement penalties in NSW would be capped at $165. This approach was supported by stakeholders to this Inquiry, including PIAC and Legal Aid NSW.
12.78 Concessional infringement notices have been suggested as another way to ensure the efficacy and fairness of infringement notices. This was also recommended by the SACV, who 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 such a scheme would be able to apply for a reduced infringement penalty to the enforcement agency following the person receiving the penalty. The SACV model aimed to provide the person fined with an early exit from the infringement enforcement system. This approach was supported by VALS/IWG in their submission to this Inquiry, noting that a $229 infringement notice issued for failing to produce a valid train ticket amounts to 85% of the weekly earnings for a person relying on the Newstart Allowance. VALS/IWG recommended that fines for eligible concession card holders be substantially reduced, reflecting such a person’s actual capacity to pay, and that the SACV recommendation for fixed reduction be implemented.
12.79 A decrease in penalty amounts was not supported by CLANT, who submitted that general deterrence may be affected if fines are decreased.
12.80 The NSWLRC Report considered that the administration of a concessional infringement notice system could be overly burdensome, citing the added complexity to the infringement notice system. It preferred instead to expand the WDO scheme and ‘time-to-pay’ systems. VALS/IWG stressed the need for a variety of options. It observed that, regardless of special circumstances and WDOs, ‘some people may want to resolve their infringements through payment, and for this to be a possibility, the system needs to acknowledge that people on very low incomes cannot, and in fairness should not, pay the same amount as people on average to high incomes’.
12.81 Kimberly Community Legal Services put forward a simpler option: the provision of a standard discount rate for low income earners, welfare recipients and any person who would qualify for a WDO. Similarly, Legal Aid NSW suggested that one rate should be developed for people on Centrelink benefits. It may be less burdensome to develop two penalty streams, with a concession penalty able to be administered at the point of infringement.
12.82 Concession rates are not a standalone solution. As noted by Hogg and Quilter, while concessions are a worthwhile approach, the effect would still be limited for the ‘most vulnerable who typically confront major obstacles in negotiating abstruse administrative processes’. For some people, even a small penalty can be unworkable and lead them into the fines enforcement system. Cautions (above) need to be implemented as well.
Limiting the total penalty amount
12.83 The ALRC has heard that, in some instances, multiple infringement notices may be issued in one transaction. This can be unhelpful and result in insurmountable debt. VALS/IWG observed that the ‘deterrent effect of infringements is not commensurate with the number of infringements issued’, contending that the opposite was true. The more fines received, the more overwhelming and unmanageable they become, and the less effective they are. VALS/IWG reported that their experience had shown that payment and compliance is more likely where fewer fines are issued to a person.
12.84 Multiple issuing of fines could be limited by statute in three ways. Issuing officers could be restricted to issuing one infringement notice in the same offence category per interaction. In practice, this would mean that 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. This approach was not supported by NT Police, because, as outlined in the NT Government submission, ‘police currently consider a person’s capacity to pay and whether the fine is creating further hardship’, but was otherwise ‘strongly supported’ by stakeholders who suggested that this could be achieved through guidelines or statutory reform.
12.85 Stakeholders to this Inquiry further suggested that a cap should be placed on the total financial penalty able to be imposed in a single transaction.
12.86 A third approach was outlined by the NSWLRC in its inquiry into penalty notices. It recommended that 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. This approach was supported by the Commissioner for Children and Young People in WA in their submission to this Inquiry.
12.87 Limiting the number of infringement notices per transaction or placing a cap on the financial penalty serves to minimise the difficulty large fines can place on vulnerable people, including Aboriginal and Torres Strait Islander peoples. The greatest effect on minimising hardship to Aboriginal and Torres Strait Islander people from fine regimes would occur if the limitation on imposing multiple infringement notices also operated in a system where cautions are prioritised, and infringement notices for people in receipt of government benefits are reduced.
Discretion regarding driver licence suspension
12.88 When a person does not pay a fine debt, after a certain period of time, the relevant state debt recovery agency can direct the roads and traffic authority to suspend a person’s driver licence. The original fine need not be for traffic-related offences.
12.89 A person who drives without a valid driver licence commits a criminal offence. Penalties for that offence include: court imposed fines; licence suspension and disqualification; and possible imprisonment, with penalties increasing with each related infraction.
12.90 Licence suspension can lead to ‘secondary offending’, when a fine defaulter commits another offence related to the enforcement action taken to recover the original outstanding fine. As noted by Legal Aid WA:
The fine suspension system is complex. Mail may not be received; fine suspension, demerit suspension and court suspension are all administered separately, making inquiries difficult… Fine suspension can lead to a vicious cycle of a person being under fine suspension initially, who then drives under that fine suspension and then is charged with that offence and then may drive under court suspension and ultimately may be imprisoned for driving under court suspension.
12.91 A person convicted of driving while suspended is most likely to receive a court imposed fine, and have their licence disqualified. It is unlikely that a first time offender for driving while suspended would or could receive a sentence of imprisonment. However, where the person drives while under the court imposed disqualification, this can result in serious penalties, including prison.
12.92 Loss of licence through fine default is common. For example, in WA up to 308,400 licence suspensions were imposed by the Fines Enforcement Registry in 2014–15. During the same period, 270,843 suspensions were lifted (for fines paid or for people entering a time-to-pay arrangement). In smaller jurisdictions like Tasmania, up to 12,000 people had their licence suspended over a two-year period.
12.93 Up to 67% of licence suspensions in NSW were the result of fine enforcement measures, as shown in the table below.
Table 12.1: NSW driver licence cancellations and disqualifications (March 2016)
Demerit point suspensions
Fine default suspensions
Source: Roads and Maritime Services (NSW), Monthly Trend in Licence Suspensions and Cancellations by All Licence Holders (Suspensions and Cancellations Commencing during Month) (2016) table 3.1.1.
Impact on Aboriginal and Torres Strait Islander people
12.94 Aboriginal and Torres Strait Islander people are susceptible to licence suspension due to fine default, and are over-represented in this regard. For example, in 2013, the NSW Auditor-General reported that Aboriginal and Torres Strait Islander people were suspended for fine default in NSW at over three times the rate of non-Indigenous people.
12.95 Licence suspension can make life more difficult in regional and remote areas, affecting employment options and family obligations. The need to drive can lead to secondary offending, and ultimately to imprisonment for driving while disqualified. A 2017 study into the barriers to driver licences for Aboriginal and Torres Strait Islander peoples in NSW and SA observed that reduced transport options for regional and remote communities were ‘implicated in the over-representation of Aboriginal people incarcerated for transport offences’. The study attributed over-representation to a ‘cycle of unauthorised driving following the suspension of a driver licence due to fine defaults, leading to court imposed licence disqualification, further fine defaults and—potentially—imprisonment’.
12.96 The impact of fine default licence suspension in the criminal justice system has undergone evaluation. In 2003, a study of WA licence disqualifications found that, in 2001, over 80% of licence disqualifications had originated in fine default. For Aboriginal and Torres Strait Islander people, over 60% of licence disqualifications for fine default related to non-traffic offending, such as court fines for justice and good order offending, and infringement notices for parking and fare evasion. Fare evasion constituted 24% of all fine suspensions.
12.97 The same study found that Aboriginal and Torres Strait Islander people were more likely to receive a custodial sentence once convicted of driving without a valid licence (which may or may not be the result of fine default), with 17.5% of Aboriginal and Torres Strait Islander offenders imprisoned for disqualified driving, compared with 8.6% of non-Indigenous offenders.
12.98 The link between licence suspension due to fine default and imprisonment for driving while disqualified can be difficult to identify. NSW has an offence of driving while licence suspended or cancelled due to fine default. For this reason the NSW Bureau of Crime Statistics and Research (BOCSAR) was able to provide data to the ALRC that traced the history of people imprisoned for driving while disqualified when the licence was originally lost due to fine default.
12.99 The BOCSAR data showed that 5% (89) of defendants who received a sentence of imprisonment for driving while disqualified from January 2016 to March 2017 had a proven prior offence of driving while licence suspended/cancelled due to fine default where they had received a penalty of licence disqualification. Of these, 17% (15) were Aboriginal and Torres Strait Islander people (76% were non-Indigenous and in 7% of cases the Indigenous status was unknown). The median prison sentence for Aboriginal and Torres Strait Islander offenders who had lost their licence due to fine default was four months.
12.100 The data confirms that people can end up in prison due to secondary offending directly related to fine default in NSW. This problem is not confined to Aboriginal and Torres Strait Islander people. Nonetheless, 15 Aboriginal and Torres Strait Islander people were imprisoned in NSW over a 14-month period for driving while disqualified who had initially lost their driver licences through fine default. It may be that the fine they had received and the subsequent licence suspension was entirely unrelated to traffic offending.
Provide ways to skip licence suspension as an enforcement measure
12.101 Where a person has sufficient funds with which to pay a fine, but initially refuses or neglects to do so, licence suspension (or the threat of) can be effective in encouraging payment. However, where a person is not paying a fine because they have insufficient funds to do so, licence suspension can have grievous consequences for that person. This is especially the case for many Aboriginal and Torres Strait Islander people.
12.102 Some Aboriginal and Torres Strait Islander people face particular difficulties relevant to remoteness and transiency that can make them highly susceptible to licence suspension for fine default. Licence suspension can further entrench disadvantage. VALS/IWG considered licence suspension to be an ‘overly blunt tool that penalises whole families and communities and unfairly interferes with people’s employment, education, access to healthcare and other services, and other opportunities’. The Kingsford Legal Centre noted that the ‘link between fine recovery and loss of licence provides a barrier to employment, particularly in remote areas where public transport is unavailable or inadequate’, and recommended the removal of the licence suspension step for fine default enforcement regimes. Removal of this step was supported by other stakeholders, including the NSW Bar Association who submitted that this type of enforcement had a ‘disproportionate impact on marginalised communities … and leads to secondary offending and imprisonment’.
12.103 NATSILS suggested that driver licence suspension had ‘exacerbated effects’ on people living regionally and remotely, stating that unless licence suspension was removed for ‘vulnerable and disadvantaged persons, a pathway to prison for fine default will remain through driving offences in areas or roles where driving is required’. The NT Government acknowledged the problems for defaulters who lived regionally and remotely, but suggested licence suspension for default of fines to be a ‘reasonable action for the majority of people living in urban settings’. Hogg and Quilter noted the importance of driving to many facets of daily life, and echoed NATSILS and the NSW Bar Association when observing that licence suspension for Aboriginal and Torres Strait Islander communities was ‘highly punitive and may also be criminogenic in certain respects’.
12.104 The NSW Government did not support removal of this step altogether, noting that ‘suspension or cancellation of a person’s licence is one of the most effective enforcement actions to recover debts’. Other stakeholders also saw the benefit of retaining the licence suspension step on the condition that greater awareness is made of repayment options and that access to WDOs is increased. Some stakeholders called for the abolition of licence suspension for all non-traffic-related fines, retaining it only where the person defaults on a fine received for traffic offending.
12.105 In 2017, NSW introduced a statutory discretion allowing SDR to skip licence suspension where the person in fine default is deemed to be ‘vulnerable’. Instead, SDR can recover fines earlier via civil enforcement action with ‘less negative impact on vulnerable members of the community’. SDR may decide that civil enforcement action is preferable in the ‘absence of and without giving notice to, or making inquiries of, the fine defaulter’. Many stakeholders supported this approach. There was some concern, however, regarding the practical effects of this provision and how to assess vulnerability with limited information. Hogg and Quilter noted a lack of legislative guidance in NSW on how SDR will be ‘satisfied that civil enforcement action is preferable or how a potential offender is able to agitate for this discretion to be used’.
12.106 Kimberly Community Legal Services recommended the development of statutory principles to help guide the discretion of a decision maker. It suggested that the principles should support the presumption that a driver licence suspension is unsuitable where the original fine did not result from a driving offence; and the person who defaulted on the fine is Aboriginal or Torres Strait Islander, or lives in a remote area, or is unable to pay the original fine, or can otherwise demonstrate that they are reliant on their driver licence.
12.107 Others considered that the relevant state debt recovery agency should exercise its discretion not to suspend when driver licence suspension is likely to have a significant flow-on effect, such as limiting employment, access to health services or where needed to support children.
12.108 In WA, the Fines Enforcement Registrar may impose driver licence suspension orders for unpaid infringement notices and fines. The registrar has discretion not to make a licence suspension order, or to cancel one in certain cases of hardship. These include when a driver licence is needed for urgent medical treatment, to facilitate income or where the licence suspension order would hinder the person performing family or personal responsibilities, or for ‘good reason’. The Registrar can also directly issue a CSO (called ‘work and development order’) and skip or revoke a licence disqualification when licence suspension would be ineffective and would not result in payment of the fine.
12.109 The ALSWA recommended that the discretion in the WA regime should be expanded to cover the same category of person that NSW WDOs currently do, that is: a person experiencing mental illness, mental health or cognitive impairment; homelessness; acute economic hardship; and having substance addiction, where the person can demonstrate a genuine need to drive.
12.110 There is little doubt that licence suspension due to fine default entrenches disadvantage and can result in further penalties, including further fines or even imprisonment, for Aboriginal and Torres Strait Islander people. In Recommendation 12–2, the ALRC supports the introduction of a statutory discretion for state debt recovery agencies to skip the licence suspension step where the person is vulnerable. There is a clear need for this to be underscored by statutory principles to help guide the decision maker in the use of this discretion. These principles should be developed by state and territory governments with relevant Aboriginal and Torres Strait Islander bodies in all jurisdictions.
Alternative ways of paying fines and infringement notices
NSW Work and Development Order scheme
12.111 Work and Development Orders (WDOs) were introduced in NSW in 2009 to provide meaningful and achievable ways of discharging fine debt. WDOs enable a person who cannot pay their fines due to acute economic hardship, mental illness, serious 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 driver licence suspension is lifted.
12.112 The WDO program is set out in the Fines Act 1996 (NSW). A WDO can be made by SDR when a fine enforcement notice has been made, and the defaulter meets the criteria. An applicant for a WDO must be supported by an ‘approved person’ who is to supervise their compliance.
12.113 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).
12.114 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 SDR. 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. The rate at which fines are discharged depends on the activity, and is set out in the WDO guidelines.
12.115 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’. The NSW Department of Justice has reported 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. 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’.
12.116 The NSW Government submission to this Inquiry advised that in 2016–17, 4,875 WDOs were approved for Aboriginal and Torres Strait Islander participants, which represented 21% of all WDOs during that time. The average debt was $3,281 per Aboriginal and Torres Strait Islander participant, which was about 7% higher than the average debt for non-Indigenous participants. The majority of Aboriginal and Torres Strait Islander participants were eligible due to acute economic hardship (50%), addiction (34%) and mental illness (18%).
12.117 There is momentum to introduce WDOs in other states and territories:
the ACT has introduced WDOs for traffic infringements;
the Queensland Parliament passed legislation to introduce a WDO scheme in May 2017;
a WDO scheme came into force in Victoria in July 2017, applying only to infringement notice penalties;
the Legal Services Commission of SA advised the ALRC that legislation before SA Parliament contains a financial hardship provision, allowing debts to be offset by attending treatment programs and community service; and
the NT Government has advised that it is considering options for payment of fines, including WDOs, although it noted that its implementation may be hampered by the required service provision throughout that Territory.
12.118 The vast majority of stakeholders to this Inquiry supported the introduction of WDOs across jurisdictions. WDOs were generally considered to be an innovative yet sensible solution to both fine debt and disadvantage. The Australian Red Cross—a WDO ‘sponsor’ providing a driver mentor program in Wagga Wagga, NSW—considered that ‘wide implementation’ of WDOs would provide an important diversionary option for ‘vulnerable people struggling to pay existing fines’. It submitted:
Not only do Work and Development Orders provide an opportunity to divert people from the system, but they also provide a unique opportunity to gain work place experience through volunteering and community work that can be conducted as part of the scheme. It is important that such a measure is sufficiently funded in order to maximise participation in the scheme.
12.119 The Commissioner for Children and Young People (WA) supported WDOs because an order ‘recognises the individual circumstances and capacity of a juvenile offender as well as providing for further rehabilitation, rather than taking a purely punitive approach’. Kingsford Legal Centre offered a similar observation, and stated that the ‘WDO program directly reduces incarceration of highly vulnerable ATSI peoples by offering a non-financial method of repaying fines, whilst simultaneously incentivising participation in educational and counselling services’.
12.120 The redirection of resources away from punishing individuals for fine default and into addressing the issues which saw the individual incur the fine was described by Victorian Legal Aid as ‘justice reinvestment in action’.
12.121 Some improvements to the existing scheme were proposed. The need to further include Aboriginal and Torres Strait Islander people in the scheme was key. PIAC, for example, stated:
The Work and Development Order (WDO) scheme has proven to be an effective mechanism for helping individuals manage and reduce their debts. For many clients of PIAC’s Homeless Persons’ Legal Service, access to the WDO scheme has allowed them to resolve their fines debt while engaging in meaningful activities that promote positive outcomes, such as volunteer work or health treatment.
However, the WDO scheme is not suited to all individuals as paying off a substantial debt would require a regular commitment over an extended period of time. Consideration should be given to the additional barriers to participation that are faced by Aboriginal and Torres Strait Islander people who may have family and cultural commitments that require them to spend their time across two or more locations.
Two key strategies could be adopted that would help make the scheme more accessible on a wider scale:
To ensure that culturally appropriate options are available to participants, Aboriginal and Torres Strait Islander community controlled organisations should be supported to become participants in the WDO scheme in New South Wales, and in other jurisdictions where the scheme is adopted. Additional resources may be required to allow those organisations to provide appropriate support to participants, and to meet the ongoing administrative and reporting requirements of their own participation in the scheme.
The process for temporarily suspending and then reinstating a WDO should be streamlined. This would make it easier for individuals with complex life circumstances to take part, and to continue with their participation following a break (which may be due to a health condition, family commitment, unstable housing, etc).
12.122 VALS/IWG strongly supported the introduction of ‘WDO-style schemes’ across Australia, but noted the need to resource the scheme for Aboriginal and Torres Strait Islander fine defaulters. It observed that, in Victoria, almost all of the sponsor organisations were mainstream organisations. The ALS NSW/ACT also noted the lack of sponsor sites in regional and remote areas of NSW and the ACT, and recommended that an ‘incentive scheme’ be considered to encourage regional and remote locations to sponsor WDO placements. This observation was echoed by Kimberly Community Legal Services, who supported implementation of the NSW model, but expressed ‘significant concern’ about how WDOs could be made available across WA. The Commissioner for Children and Young People (WA) emphasised the need for governments to work with local Aboriginal communities and organisations to provide WDOs in regional and remote areas.
12.123 Other suggested improvements to help facilitate use of WDOs by Aboriginal and Torres Strait Islander people included:
creating greater awareness of the program by having a certain level of fine debt trigger recovery agencies to assist with solutions, such as directing the person to contacts for undergoing a WDO; and
expanding the definition of ‘acute economic hardship’ to include those on Abstudy; and victims of family violence. Consideration should also be given as to whether to include gambling addicts.
12.124 Sisters Inside supported the introduction of the WDO program in Queensland, but noted that it remains ‘practically impossible’ for large debts to be discharged solely through WDOs. Legal Aid NSW supported the implementation of WDOs in other states and territories, but stressed the importance that it not be the only option, and that frontend solutions need be found.
12.125 The ALRC encourages state and territory governments to adopt the options outlined above to limit the imposition of fines, and decrease the negative effects of fine enforcement, as well as providing for WDOs or other innovative payment solutions.
‘Cutting out’ a fine when already in prison
12.126 There is a clear difference between imprisoning people for fine default and enabling people already in prison to ‘cut out’ their fines concurrently while serving a sentence of imprisonment. Those who exit prison with outstanding fines often face further barriers to reintegration, especially where fines prevent them from driving, or act as a disincentive to employment where there is a garnishee order in place. Fine debt can prevent Aboriginal and Torres Strait Islander peoples from accessing housing, and impact on the likelihood of recidivism. Legal Aid NSW told this Inquiry that they had provided advice to some 153 Aboriginal women leaving prison in the previous year, and of those women close to 100% had a fine debt.
12.127 Victorian statute provides for prisoners to request that unpaid fines are ‘cut out’ and converted to days spent in custody under sentence for another offence. In NSW, Corrective Services are a sponsor of the WDO scheme, and prisoners who complete voluntary programs in prison can have this count towards their fine debt. The ALRC recognises the negative impact that a fine debt can have on a person exiting prison and supports these initiatives.
12.128 The NSW Government submission also provided information on the Driver Knowledge Test, available to prisoners in NSW, which aims to support a reduction in recidivism for licensing offences and to increase the number of Aboriginal and Torres Strait Islander peoples with a driver licence. It also provided information on the Aboriginal Inmate Birth Certificate Program run by Corrective Services which provides financial assistance to eligible Aboriginal prisoners who wish to obtain a birth certificate for the purposes of obtaining ‘qualifications, completing vocational training or accessing services’. In 2016–17, the program provided 800 birth certificates to inmates across the state’.
12.129 The Prison to Work Report noted that, in the NT, the Department of Corrective Services can work through licensing issues with prisoners, and can ‘support prisoners to pay outstanding fines, enabling suspended licences to be reinstated’. It further noted that, depending upon the security classification of a prisoner, such prisoner may be able to ‘qualify for a learner’s permit or probationary licence while in prison, although many are released without a licence’. A similar program exists in the ACT, where prisoners can complete ‘Road Ready’ driver theory training while in prison, however ‘practical driver instruction is not available due to the need for prisoners to be contained inside the prison’.