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Fine but not fair: fines and disadvantage, Justice issues paper 3   

, 2008 There are 17 000 offences in approximately 100 legislative instruments for which a penalty notice or `fine` can be issued in New South Wales (NSW).1 While many fines are for traffic-related offences, fines are also collected for offences such as fare evasion on public transport, littering and failing to `move on` when directed by a police officer. The Law and Justice Foundation`s Access to Justice and Legal Needs (A2JLN) Research Program has identified the disproportionate impact fines can have on the lives of disadvantaged people, particularly those who are homeless, mentally ill, young, on low incomes, or in or recently released from prison. Drawing upon our research, this paper illustrates how these groups are both more vulnerable to being fined and how debts arising from fines can further compound existing disadvantage. It details the complexity of the fine enforcement system in NSW and examines options to lessen the impact of fines and fine enforcement on disadvantaged people.

The NSW Fines Processing System

A multi-tiered system is in place to issue, collect and enforce fines. Once a fine has been issued, the issuing authority (e.g. NSW Police or RailCorp) refers the fine to the State Debt Recovery Office (SDRO), a department of the Office of State Revenue, for collection and enforcement. On receiving a penalty notice a person may pay the fine, request a review or go to court. The person has 21 days to exercise one of these options before a 'penalty reminder notice' is sent. To request a review of a penalty notice on the grounds of 'special circumstances', a written request must be received prior to the due date of the penalty reminder notice. Most of these circumstances appear to relate to the offence itself (e.g. broken speedometer, wrong vehicle etc). 'Mental illness' is the only personal characteristic listed as a possible special circumstance for some offences (such as parking offences, rail and littering offences).10

If the fine remains unpaid after 28 days, an 'enforcement order' is issued and an additional cost of $50 is added to the fine. At this point, the person has 28 days in which to pay the increased amount, apply for more time to pay or to pay in instalments, apply for the fine to be written off or apply to have the fine annulled. In 2007–2008 the SDRO issued 823 951 enforcement orders, for penalty notices not paid within the time limit allowed, with a total face value of $243.7 million.11

If the SDRO does not receive correspondence or payment for the fine within 28 days it can have the person's driver's licence suspended, prevent that person from 'doing business' with the RTA (e.g. applying for a licence), or have their car registration cancelled. A further cost of $40 per restriction is imposed. If the fine still remains unpaid the SDRO may initiate civil enforcement proceedings, which can involve the seizure of property by the sheriff or the garnishing of wages to pay the outstanding fine(s). An additional $50 per sanction imposed is added to the original fine(s). Finally the SDRO can issue a community service order (CSO) to be served to the value of the fines and costs. However, in the experience of the Homeless Persons Legal Service, CSOs are not issued in practice.12

While a person cannot be imprisoned for not paying a fine, they may be at risk of imprisonment if they repeatedly drive when they have had their licence suspended or cancelled due to unpaid fines.

Also, under section 125 of the Fines Act 1996 (NSW), a person may be imprisoned for breaching a CSO. If this happens, the person is imprisoned for one day for every $120 of the unpaid fine. However it should be noted that since the Fines Act 1996 (NSW) was enacted no one has been imprisoned under section 125.13 The practice has been increasingly seen as a last resort after a young man, Jamie Partlic, was assaulted and left in a coma with permanent brain damage while serving a four-day sentence in Long Bay prison for unpaid fines in 1987.14