By Kieran Adair and Ugur Nedim
One of our state’s leading law reform bodies is concerned that government-sanctioned fines are “disproportionately affecting” vulnerable people, and is calling for an end to the “vicious cycle” of debt and unfair disadvantage for the poor.
A report by the Law and Justice Foundation of NSW used data from the recent Legal Australia-Wide Survey to determine the impact of Sydney parking fines on disadvantaged people. The organisation noted the inability to pay fines frequently led to disproportionately harsh consequences, including loss of driver licences and a corresponding inability to work, community service orders and even prison sentences.
One of the reports co-authors, Dr Hugh McDonald, explained, “Many disadvantaged people simply become caught in a vicious cycle, where inaction leads to escalating penalties and further financial strain. Realistic options are needed to enable disadvantaged groups to resolve their fines problems.”
Fines are issued for infractions such as parking infringements, low level traffic offences such as speeding, mobile phone use and running red light cameras, and less serious criminal offences such as offensive language/conduct, stealing (less than the value of $300) and having goods in custody that are reasonably suspected of being stolen.
The NSW State Debt Recovery Office (SDRO) reported around three million fines were issued in our state during the 2015–2016 financial year, to the value of $713 million.
How fines can snowball into prison
In NSW, fines are dealt with through the Fines Act 1996 which empowers the SDRO to enforce, and take, they payment of fines.
When a penalty notice is issued, the recipient must do one of the following:
- pay the fine in full,
- apply for a time-to-pay arrangement, or
- dispute it through a review or court proceeding.
If no action is taken by the specified date, a reminder is issued, which provides a further period to take action.
If there is still no action, a new notice will be issued with an additional fee ($65 for adults, $25 for those under 18 years).
If no action is taken thereafter, the SDRO may:
– suspend the recipient’s driver licence and vehicle registration, and/or
– impose garnishee orders, property seizure orders, financial examination summons and land charges.
Each additional enforcement action will incur additional costs.
Final options include the imposition of community service orders, which requiring the recipient to undertake unpaid community work – a big step up from a NSW speeding fine.
And although, unlike in Western Australia, a person in NSW “is not liable to be committed to a correctional centre for a failure to pay a fine or other penalty by the due date”, the snowballing effect of accumulated fines may indeed lead to a prison sentence.
For instance, a person may be sent to prison for breaching the community service order made as a result of non-payment.
Alternatively, a person may receive a prison sentence for driving whilst disqualified after a fine default suspension, even if they ‘needed’ to drive in order to keep their job and support themselves and their family members.
Recipients facing financial hardship may arrange a Work and Development Order. This involves clearing the fine by taking part in approved unpaid work, training, counselling or treatment.
Disadvantaged people unfairly burdened
Unlike the criminal justice system, there is no presumption of innocence for the recipients of penalty notices.
This means they are responsible for challenging unfair fines, and bear the burden of proving why a penalty should not have been issued. The Justice Foundation report says this places a disproportionate burden on “people with low levels of personal and legal capability”.
The report explains that a single fine can be the equivalent of a disadvantaged person’s fortnightly disposable income, making it extremely difficult if not impossible to pay off.
The report also notes the complexity of the fine review process, which relies heavily on written material, making it difficult for people with “poor literacy or limited English, mental illness, intellectual disability or substance addiction, or for people who have no permanent address.”
“The negative impacts for the most disadvantaged people are also more severe, with fines problems often leading to illness, financial and other consequences. The most disadvantaged people were found to be less likely to have the money to pay their fines, or to have the legal capability to challenge their fines if they think they are unfair”, the report explains.
Disputing an unfair fine
Disputing a fine that’s unfair, or applying for leniency in the case of special circumstances, requires an application to the SDRO, which must be submitted before the penalty reminder notice due date, or within 60 days if the penalty has been paid.
A review can be requested:
- Through the following link: http://revenue.nsw.gov.au/fines/pn/review
- By writing to the SDRO at PO Box 786, Strawberry Hills. NSW 2012
- Over the phone for claims of wrong vehicle reported or clear NSW driving record of at least 10 years on 1300 138 118.
You’ll need to include the penalty notice number and the date of the alleged offence, along with any supporting evidence as to why the fine was unfair. The SDRO provides a list of supporting evidence needed for the review.
The review may lead to the penalty continuing to stand, being let-off with a caution, or the penalty being cancelled.
If the request is refused, an infringement can be challenged in court.