The need for fines reform

Greg Barns

Under Tasmania’s Monetary Penalties Enforcement Act 2005 there is public register of those who have outstanding fines. The idea is to help recoup the millions of dollars owed in fines. When it was established in 2008 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, merely stigmatise individuals and marginalises them even further than they already are from society. Sadly this public list remains today – a sort of primitive public stocks in the town square.

The real issue of course is that fines are regressive. They impact on low income earners disproportionately. They are one of the most oppressive and unfair forms of “punishment”, although they have some completion. 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”, Ms Woodruff says.

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 amount 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, examine the day fine system which 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 offense. For example, a person may receive 10 days of fine for committing a minor theft offense, or a traffic offense. 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. The result is that the richer offender will pay a total of 500 euro fine (10 x 50) and the lower-income offender will pay 200 euro fine (10 x 20) for the same offense.”

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 which would ensure fairness and equity.

This paper is based on an opinion page column published in the Hobart Mercury on 26 September 2021.