12.1 The Terms of Reference for this Inquiry ask the ALRC to have regard to laws that may contribute to the rate of Aboriginal and Torres Strait Islander offending, including ‘driving offences and unpaid fines’—the statutory enforcement regimes of which affect Aboriginal and Torres Strait Islander people unduly and can result in incarceration.
12.2 The ALRC considers that fine enforcement regimes should not, directly or indirectly, allow for imprisonment, and recommends that legalisation should be amended to this effect. Imprisonment is a disproportionate response to fine default, and impacts especially on Aboriginal and Torres Strait Islander women.
12.3 The imposition of fines and fine enforcement regimes affect Aboriginal and Torres Strait Islander people disproportionately. Fine enforcement regimes can aggravate criminogenic factors and operate to further entrench disadvantage, especially when the penalty for default or secondary offending includes further fines, driver licence suspension or disqualification, and imprisonment.
12.4 The ALRC makes recommendations to increase the efficacy and decrease the harm caused to Aboriginal and Torres Strait Islander people by the imposition of fines. These include decreasing the size of fines, limiting the issue of infringement notices, the nationwide adoption of Work and Development Orders (WDOs) based on the New South Wales (NSW) model, and the provision of a discretion to skip driver licence suspension where the person in fine default is vulnerable, supported by statutory guidelines for state debt recovery agencies. These are not standalone recommendations and, together with the abolition of imprisonment, seek to make fine systems and fine enforcement regimes fairer and more responsive to the circumstances of Aboriginal and Torres Strait Islander people, especially in regional or remote locations.
12.5 This chapter further discusses two key pathways for Aboriginal and Torres Strait Islander people into fine enforcement, namely offensive language provisions and driving without a licence.