State’s inequitable laws lead to a fine mess

Greg Barns | Talking Point – Mercury | 26 September 2021    

TO its eternal shame, in 2008 a Labor government established a public list of fine defaulters.

The idea was to help recoup the millions of dollars owed in fines.

When it was established, the government warned that unless individuals came to an arrangement with the Monetary Penalties Enforcement Service their name would remain on the list and it would impact on their applications for housing and credit.

Naming and shaming, by the way, never works, it merely stigmatises individuals and marginalises them even further from society than they already are.

The real issue of course is that fines are regressive. They affect low-income earners disproportionately. They are one of the most oppressive and unfair forms of “punishment”.

Imprisonment for short periods, which breaks up families, forces job losses and does nothing to address the cause of offending, is another.

Do we really think it is fair that a person convicted of a drink-driving offence gets the same, or similar, fine irrespective of whether they live in abject poverty or are earning over $100,000 a year?

The former is highly likely to end up on the “name and shame” list.

The Greens in Tasmania, and it has been the case since now Senator Nick Mckim was leader and a state MP, rightly support calls from lawyers such as this columnist who work with marginalised communities to inject justice into the fines system.

In 2017, Greens MP Rosalie Woodruff argued: “For some who cannot afford to pay a fine, it can lead to further fees, driver licence disqualifications, and significant disruption to their lives. A person on a higher income will not experience the same financial disadvantage and some won’t even notice the money gone.

“The outcomes for people who are fined can be drastically different between people who have committed the same offence or infraction depending only on their income – this is not just.”

Independent MLC Meg Webb supports this view but also makes the very valid point that fines do not act as a deterrent for those with high incomes.

While a fine of $500 for an offence is crushing to a person on the miserably low Centrelink payment, to the professional running a successful business that level of sanction does nothing to deter his or her conduct.

As Ms Webb observes, it’s not smart justice to levy fines that can never be paid, or if so, only by placing even more pressure on the person fined and which, on the other hand, are water off a wealthy duck’s back.

It does not have to be this way of course. Elena Kantorowicz-Reznichenko, of Erasmus University in the Netherlands, and colleague Michael Faure in a blog post published in June this year, written in the context of the Netherlands parliament looking at fines reform, examined the day fine system that has been operating in Finland for a century and has been introduced into other European nations.

The day fine system means that the income of the individual is linked to the fine levied. Kantorowicz-Reznichenko and Faure explain how the day fine system works.

“They are imposed using a two-stage procedure. First, the number of days to pay the fine is determined based on the severity of the offence. For example, a person may receive 10 days of fine for committing a minor theft offence, or a traffic offence. In the next step, the daily amount of the fine is determined based on the person’s income. For example, a person with a daily income of 100 euro would pay 50 euro while a person with a daily income of 20 euro will pay 10 euro per day.”

All of the evidence from numerous studies shows that fines levied according to income achieve greater compliance in payment and act as a more effective deterrent.

Ben Bartl, one of Tasmania’s few lawyers who care deeply about justice for the marginalised, argued in a 2012 paper that the most important goal of moving to a capacity to pay system of fines “will be not only that justice and fairness towards both the rich and poor is done, but that it is also seen to be done”.

Karl Marx got a lot wrong as it turns out, but he also got a lot right and that included that the criminal justice system favours the rich and oppresses the poor. The current one-size-fits-all fines system is testament to that observation. It is extraordinary that our legal system and legislators tolerate it when there is successfully ready-made fines reform models available that would ensure fairness and equity.

Hobart barrister Greg Barns SC is a human rights lawyer who has advised federal and state Liberal governments.

See more of Meg’s recent media.