The impact of the Victorian infringements system on disadvantaged groups: findings from a qualitative study.

Saunders, Bernadette ; Lansdell, Gaye ; Eriksson, Anna 等

Introduction

In the state of Victoria, Australia, a minor breach of the law typically results in an infringement notice, commonly referred to as a fine. The prompt payment of a fine reduces both the offender's contact with the criminal justice system, and the likelihood of him or her acquiring a criminal record. Coupled with an expectation of minimal government expenditure, an infringements system is supposed to be efficient and cost-effective. Further, it ought not be overlooked that fines are 'a significant source of state revenue', and may even be considered 'costs of living...in consumer societies' arguably undifferentiated from 'taxes and administrative costs (O'Malley 2009a: 21, 22, 80). Indeed, as a fine can be an easily dispensed, 'coercive penalty' (ALRC 2002b: 426), concerns readily arise about 'net-widening' (ALRC 2002a) and the proliferation of infringements for revenue-raising purposes rather than deterrence-based objectives (Fox 1995). In this context, it is particularly concerning that people experiencing challenging life circumstances appear to be fined more often than other people (NSW SC 2006; NSW LRC 2012), and their consequent burden far outweighs the burden experienced by others in better circumstances who, furthermore, are also more likely to have personal connections with people who can financially reduce or eliminate the impact of the offender's monetary penalty (see O'Malley 2009b; 2010). The fine, as O'Malley points out, is an extraordinary criminal sanction in that it 'legally can be borne by someone other than the offender' (2009a: 4) but this is an option only if friends, employers or relatives are able and willing to settle the offender's debt. It is notable that a fine also provides financially well-resourced or well-connected people with the 'capacity to purchase an otherwise forbidden deed' (O'Malley 2009a: 29), such as the ability to park in a restricted zone or to travel on public transport without a ticket. In contrast, 'many of the high-risk offenders are members of the "underclass"' (O'Malley 2009b: 79); disadvantaged groups of people who regularly incur fines beyond their means and in relation to deeds sometimes beyond their control. Navigating through the extremely complex Victorian infringements system can also be more challenging for disadvantaged groups of people, raising questions about its reasonableness and acceptability in its current form.

In Victoria in the 201 1/12 financial year, over 120 issuing agencies served approximately 4.79 million notices (Victorian Attorney-General 2011/12: 5). Initially introduced over 50 years ago in Victoria as a response to parking offences, infringements are now issued for a variety of vehicle-related offences such as speeding and failure to pay tolls, public transport offences such as failing to travel with a valid ticket or placing one's feet on seats, drinking in public, failure to wear a bike helmet, offensive behaviour, indecent language, and shop-theft (Lansdell et al. 2012). Disadvantaged groups often incur fines for public order offences, vehicle-related offences and public transport offences. Indeed, people who are experiencing homelessness are a particular target for public order offences as their challenging circumstances render them more visible and vulnerable than people who are housed. They may also be fined for normal behaviours, such as sleeping, swearing, drinking, urinating, or using a knife to prepare food, that are criminalised when performed in public spaces where homeless people may be forced to live. This arguable breach of human rights 'amounts almost to the application of a quite different set of laws' (Waldron 2000: 397). Further, as Morris, Judd and Kavanagh contend, socially just societies require 'that all sections of the citizenry, young and old, employed and not employed, are able to access adequate, affordable housing' (2005: 249), and research reveals the inadequacy of government resources aimed at addressing the problem of homelessness (Thompson 2007).

People with an intellectual disability or a mental illness may also be unfairly fined for public order offences that criminalise the symptoms of their condition. For example, a psychotic episode perceived as disorderly conduct or offensive behaviour or language can result in a fine (Lynch et al. 2003). The behaviours of people with a physical disability may also be targeted. In 2011, in Victoria, a sober man suffering from cerebral palsy was reportedly fined and detained in police custody for being drunk and disorderly. The man expressed concern about the susceptibility to misjudgement that people with disabilities face (Craven 2011: 27).

The Victorian Government introduced a unified method for issuing, managing and enforcing fines under the Infringements Act 2006 (Vic) (hereafter referred to as the Act). The Act also aimed to provide fairer procedures and included 'special circumstances' provisions to minimise the possibility of specified disadvantaged groups becoming unfairly caught up in the system (Explanatory Memorandum Infringements Bill 2005). As defined under s. 3(1) of the legislation, 'special circumstances' include people experiencing mental illness, an intellectual disability, substance addiction, or homelessness. People espousing 'special circumstances' may request that the enforcement agency internally review their fine/s, and if their 'special circumstances' are conceded, 'the agency should withdraw the infringement notice' (ISOU Internal Review Provisions 2008: 11). To determine eligibility, people must provide written evidence that demonstrates that they are unable to (i) understand that their behaviour constitutes an offence, or (ii) control the behaviour that constitutes an offence. If the matter has proceeded to the enforcement stage, 'special circumstances' eligible clients may also seek a revocation of their enforcement order. If the enforcement agency does not withdraw the fine, the matter is referred to the Special Circumstances List for determination.

People with 'special circumstances' must admit guilt before having their matter referred to the Special Circumstances List at the Melbourne Magistrates' Court or, less commonly, the Neighbourhood Justice Centre in Collingwood. The judicial registrar who presides over the List may prove and dismiss some or all fines, or place the accused on an undertaking of good behaviour (Brown et al. 2013). The 'special circumstances' provisions are a welcome response to disadvantaged groups involved in a highly automated and impersonal system. Walsh's (2011) research into the Brisbane Special Circumstances Court also provides support for enhanced problem-solving approaches that seek to address the causes of offending behaviour. However, our research shed light on many problems inherent in the Victorian infringements system which, we suggest, require amendment. These problems and our recommendations, described in more detail in our final research report (Saunders et al. 2013), are discussed below.

The dual concerns of some Community Legal Centres (CLCs) in Victoria that the infringements system impacts inequitably on disadvantaged groups and that increasing numbers of marginalised persons are desperately seeking fines advice and assistance from CLCs motivated our research. Indeed in 2007 the Federation of Community Legal Centres (FCLC) declared their inability to 'meet the existing need for advice and representations in this area', and noted a threefold increase in the amount of infringements information that they provided' (FCLC 2007: 7).

Methodology

The research aimed to investigate the Victorian infringements system's impact on disadvantaged groups, and to propose feasible improvements. We consulted a variety of stakeholders, including those who issue and enforce fines, those who represent vulnerable fine recipients, and the fine recipients themselves. We primarily collected qualitative data, as the research sought to understand people's subjective experiences. Some quantitative data was obtained from participating CLCs and financial counsellors and through court observations. The Legal Services Board (LSB) Major Grants Program funded the research but was not involved in the publication of the research or any research-related decisions.

In 2010, the St Kilda Legal Service (SKLS) and the Public Interest Law Clearing House (PILCH) Homeless Persons' Legal Clinic (now known as Justice Connect) contacted Monash University's Criminal Justice Research Consortium to initiate the research. In January 2011, the researchers approached seven CLCs--including two rural/regional centres--and Youthlaw to ask them to participate in the project, along with PILCH and SKLS. Four groups of participants were targeted to participate in the study. Group one included 37 client participants with unpaid fines who were randomly selected from the databases of the 10 legal centres. Group two included eight sheriff's officers, two Infringements Court staff, seven local government representatives and four Department of Transport (DOT) representatives who have a direct role under the Act. Group three included 10 financial counsellors, and 23 CLC, PILCH, Youthlaw and Victoria Legal Aid (VLA) lawyers who had acted for persons with unpaid infringements. Three judicial registrars who had been involved in the court process in relation to unpaid infringement fines formed Group four. Professional participants were recruited by contacting the relevant government departments (Financial and Consumer Rights Council, the Sheriff's Office, Magistrates' Court of Victoria, Municipal Association of Victoria, and the Department of Transport) and requesting their participation. Additionally, one representative from Resourcing Health and Education in the Sex Industry was interviewed to gain an understanding of how the infringements system impacts on sex workers.

Limitations

The researchers unsuccessfully requested to interview members of Victoria Police. Transurban, on behalf of CityLink, also declined participation. Many potential clients could not be contacted by either telephone or mail. CLCs reported disconnected phone numbers and returned letters from clients who had changed address. While the majority of invited clients agreed to participate, some declined, not wanting to relive the stress associated with their experiences.

Sixteen clients did not attend planned interview appointments. Legal participants stated that some clients are transient, often missing appointments because of their chaotic lives. Forty-six client interviews were arranged and 30 face-to-face interviews were conducted at legal centres. Seven clients contacted the CLCs to absent themselves due to travel and/or family issues, but they requested that the researchers contact them to arrange a telephone interview.

The research process

CLCs were informed that the data collection would involve three stages: accessing their database to obtain clients' de-identified information, randomly extracting from that database 10 clients to interview, and interviewing at least one of their lawyers, subject to their interest and consent to participate. A staff member at each of the venues extracted the names of persons with infringements in the designated period (July 2009--July 2010), contacted them to explain the planned research and asked for their consent to engage in further case file analysis. Clients were asked for their permission to list their de-identified case details on a data collection proforma (quantitative component) and they were also asked if they would later participate in a 45-minute semi-structured interview with a researcher (qualitative component).

Qualitative data collection

A set of questions guided the interviews, but other questions arose through the interaction with participants (Wellington & Szczerbinski 2007). This allowed the researchers to glean more in-depth information than other more structured research methods. Further, this method is more appropriate for sensitive situations as the interviewer is able to prepare participants before asking sensitive questions, while also being available to explain questions if needed (Kumar 2005). Open-ended and clearly formulated questions, in simple language, enabled freedom of expression and enhanced the study's reliability (Kumar 2005).

All interview participants were assured that their transcripts would remain confidential--any identifying information would not be disclosed. Participants were informed that their quotations used in research publications would be assigned a number. Prior to the interview, participants were asked if they would like a copy of their transcript. Transcripts were provided to participants who wanted to read them to check for accuracy, and to enhance the reliability of the research. Participants were advised to contact the researchers within two weeks if they wished to make any changes, and/or if they wished to withdraw their transcript from the research. If the participant did not initiate further contact, consent to use the de-identified material for our research purposes was assumed. All transcripts were sent via registered mail or via email, with the document encrypted to ensure confidentiality.

Research ethics

All participating CLCs were provided with detailed information on the project's methodology, research explanatory statements, and letters of permission, which they were asked to sign and return to the Monash researchers for Monash University Human Research Ethics Committee (MUHREC) approval. The MUHREC approved all documents relating to the data collection (consent forms, explanatory statements, interview questions). The Department of Justice Human Research Ethics Committee also approved the project.

In April 2011 the participating CLCs were notified that they would be required to send an explanatory statement and permission letter to all clients whose de-identified data would potentially appear on the proforma. This was a MUHREC requirement due to lawyer/client professional privilege. Some CLCs expressed concern that they may be unable to reach clients by mail as many are transient and many have limited English or literacy skills. As a result of this feedback, the researchers sought and received MUHREC'S permission for CLC staff to seek their clients' verbal consent via telephone. If that client then presented for an interview they would be asked to sign any relevant consent documents. All CLCs were advised of the additional procedure.

Clients were informed that participation was entirely voluntary, and that refusal to participate in the research would not impact on their future access to their CLC. Those who could be contacted via mail were provided with an explanatory statement--translated into a variety of languages--and CLC staff explained the project to participants who gave verbal consent. The research team subsequently contacted the clients who consented to be interviewed. Clients were informed that the researchers would not provide legal advice or assist in resolving infringement matters. The majority of interviews were conducted at the client's local CLC. However, clients who were unable to attend on the allocated days were engaged via telephone or email. Overall, 37 clients were interviewed and provided with a $50 Coles/Myer voucher as compensation for their time. All clients--and other research participants--gave written consent prior to their interviews taking place, as confidentiality and informed consent are paramount ethical obligations (Chambliss & Schutt 2010). Participants were informed that the interview could be terminated at any time and that they could decline to answer any questions. The researchers were mindful that CLC client participants might experience some minor discomfort when recalling their experiences. The chief investigator, a qualified social worker, was therefore present at all client interviews. Further, the participant's explanatory statement contained emergency contact numbers for assistance with any subsequent distress.

Qualitative analysis

The researchers transcribed all interviews and the data was analysed using NVivo qualitative data analysis software. The qualitative data was analysed in two phases. The first analysis took place during transcription, where nodes/ themes were created if a theme or issue reoccurred in the audio files on three or more occasions. The second phase involved analysing the transcripts and grouping the nodes/themes under subheadings to form specific categories. The interviews in each group were analysed separately to identify themes for each group, and then common themes across groups were discovered.

The complexity of the Victorian infringements system's process

While payment of an infringement notice is relatively simple, dealing with enforcement procedures or opting to challenge are not nearly as straightforward, particularly for 'special circumstances' eligible groups. For example, the system's reliance on written correspondence is problematic for people who do not have a residential address, are illiterate, or suffer from substance addictions, intellectual disabilities or mental illnesses (NSW LRC 2010). Midgley (2005) found that many homeless people could not understand convoluted letters regarding fines, and several were not aware of helpful legal avenues for redress. People with cognitive disabilities also experience 'widespread confusion' regarding their rights and inadequate information about available assistance (Gray et al. 2009). Indigenous persons face similar challenges (Spiers et al. 2011). Many of our research participants reinforced this concern about clients' feelings of isolation and helplessness. Many clients' confusion resulted from receiving correspondence from several sources, such as Victoria Police, different councils and the Infringements Court. Many also reported that, prior to contacting a financial counsellor or lawyer or receiving a visit from a sheriff, they were unaware of available options such as instalment plans, the possibility of contesting the matter at court, or the 'special circumstances' provisions. When asked about the possibility of matching fines to income, a DOJ representative responded that:

the difficulty with this whole process is [the] education of people ... The number of times where people come before the court when everything's snowballed, where I've said to them, 'Did you know you could write to the council and explain that?' and they say, 'No I didn't (DOJ, 2).

Indeed, when asked about desirable changes to the way that unpaid fines are currently dealt with, all of our 23 highly educated, participating lawyers described the infringements system's overwhelming complexity:

we had to have half a day training on trying to work out ... what the stages are, what each remedy for the individual concerned is at each stage and how we go about doing it ... it's all kind of convoluted and very confusing and it's just a dog's breakfast really (Lawyer, 15).

Several clients described their state of denial when completely besieged by the amount of correspondence they received in relation to their mounting debts. When asked about her response to fines arriving in the mail, a client said:

I became overwhelmed so I never opened them ... I can't remember ever opening one letter and I received many (Client, 15).

Another client said:

When I got the first few I thought about [paying) it; once it exceeded $1000 or $2000 it was just like, um, pointless (Client, 25).

Many lawyers and financial counsellors recounted stories of anxious clients arriving with bags of unopened fines correspondence. One client (8) had received around 30 letters each day, while another client (15) developed a phobia about receiving mail. When asked if she had considered that fine recipients might discard the fines correspondence without reading it, even a DOJ representative acknowledged that:

There are some people with depression or whatever, they just can't deal with the mail because once one comes you'll find that there are four or five every day (DOJ, 10).

The complexity of the Victorian infringements system derives from the number of options available at different stages of the process, the number of agencies involved, and inconsistent processes. An offender may pay the fine, request a payment plan or an extension of time to pay. Alternatively, the offender may choose to have the matter heard in the Magistrates' Court, but the inconvenience, cost, and the possibility of acquiring a criminal record deters most people from taking this option (Fox 1995b: 283). Indeed, from 2011-2012, less than 38,000 people--0.79 per cent of all notices issued--chose to have their matter resolved in Court (Victorian Attorney-General 2011/12: 16). Another option, as stipulated under section 22 of the Act, is for recipients to write to the enforcement agency--for example, DOT, Victoria Police--to request that the fine be internally reviewed. The agency may: (i) confirm the decision; (ii) withdraw the notice; (iii) withdraw the notice and issue an official warning; or (iv) withdraw the notice and refer the matter to the Magistrates' Court to be heard summarily. This feature of the Act was designed to make the system fairer, particularly for those experiencing 'special circumstances'. However, a Victorian Auditor-General's review, which examined the internal review processes of Victoria Police and four councils during the period 2006-08, revealed 'inconsistent decision making within and across agencies' (2009: 3). Further, none of the agencies, despite the Attorney Generals' guidelines requiring them to do so, 'had guidelines for assessing appeals by offenders with special circumstances' (2009: 38). Indeed, many lawyers and financial counsellors in our study reported that applying for internal review is risky, as enforcement agencies often refer these matters to open court where the client will not receive the concessions available in the Special Circumstances List. Consequently, eligible clients often wait until much later in the process despite the accrual of late fees, the risk of enforcement action and the additional stress that inevitably ensues. The majority of financial counsellors and all 23 lawyers mentioned the inadequacy of Victoria Police's 'special circumstances' internal review processes. When asked to suggest ways to reduce the complexity of this process, a lawyer suggested:

I see no reason why an independent, objective, trained person couldn't assess the internal reviews independent of the agency. So there's just one entity that everybody deals with no matter what their fine is and no matter what stage it's at (Lawyer 19).

Offenders who do not respond within 28 days of receiving an infringement notice are sent a reminder notice and incur additional costs. Failure to take action within a further 28 days results in the matter being lodged with an administrative arm of the Magistrates' Court, known as the Infringements Court (ISOU 2008). The Infringements Court sends an enforcement order to the offender and additional costs are incurred. Failure to pay the fine or request revocation of the order--for example, on the grounds of 'special circumstances'--will result in an infringement warrant being issued. The sheriff executes this warrant if the matter is not settled in seven days. Upon execution, the sheriff may impose sanctions, such as wheel-clamping the offender's vehicle, suspending the offender's driver's licence, or selling property to cover the fine (FLS 2013). In certain circumstances, those who do not have sufficient property to seize may convert the order to a community work permit. If none of these actions are possible, the recipient must attend the Magistrates' Court, where they may have their fines reduced or discharged, be ordered to undertake community work, be given a payment plan, or they may be imprisoned.

Net-widening

Net-widening refers to the exponential growth in the range and number of infringements that are issued, and the subsequent, arguably unnecessary, involvement of increasing numbers of people in the criminal justice system. Offences that might have been overlooked or to which a caution may have been given in preference to prosecution are instead easily, and sometimes efficiently, penalised with an infringement notice. Indeed, as O'Malley notes, regulating behaviour by the imposition of monetary penalties is "almost infinitely expandable" (2010: 365) because they generate revenue as opposed to instituting other sanctions, such as imprisonment, which result in the consumption of resources.

Net-widening trends are apparent in Victoria and other Australian jurisdictions. Indeed, it has even been suggested that 'the ease with which penalty notices may be issued' can lead to notices being issued even when there is uncertainty that an offence has been committed (NSW LRC 2012: 19). Fox's commentary over 20 years ago remains apt: '[n]ot only is the net itself being widened, but its mesh is becoming finer. The overall intensity of surveillance is increasing' (1995: 289). Fox (1995) observes that fines were introduced in Victoria in the 1950s for parking offences but, over time, a system of infringements grew initially to include moving vehicle offences, and then public transport offences. More recently, public order and offensive behaviour offences, such as drinking, urinating, sleeping or swearing in public, have been included, as well as not obeying a request to leave a licensed premises, careless driving, shop theft of goods up to $600 in value, and wilful damage of property worth up to $500.

In our research, several lawyers expressed concern about the disproportionate fining of marginalised groups for public order offences. Lawyers (1, 12, 13, 16, 19, and 26) also disclosed that their clients were unfairly fined for using offensive language towards police. In response to a question about the number of clients who receive fines for swearing and public nuisance offences, a lawyer said that transport police and authorised officers (AOs) often pick up clients for:

offensive language, then they'll get a dropping burning litter or something ... but technically if the language is only directed at the officer that's not offensive behaviour ... It needs to be offensive in a general sense and it can't just be directed at the officer (Lawyer, 26).

Disadvantaged groups also incur a disproportionate number of fines for vehicle-related offences, particularly for unpaid tolls. More than half of the interviewed lawyers, financial counsellors and Department of Justice representatives commented that CityLink fines constitute the bulk of all fines issued in Victoria. Indeed, in the 2010-11 period, in excess of one million infringement notices were issued for tolling offences (both Eastlink and CityLink), however this figure decreased to approximately 898,000 notices from 2011-12 due to Eastlink 'taking a more proactive approach to its customer service and its collection process' (Victorian Attorney-General 2011: 11). While some people do not pay the tolls because they want free travel, others are unaware that they are required to pay, or they may have a mental illness, such as bipolar disorder, driving back and forth oblivious of any repercussions. People who are homeless may also incur driving offences. In response to a question about the type of infringements that homeless people commonly receive, a lawyer noted reliance on unregistered cars both to sleep:

and to get around because they're frightened away from public transport (Lawyer, 6).

When asked about the type of fines he had received from the police, a previously homeless client recalled that he:

couldn't afford the rego but 1 had to live somewhere and I didn't really want to live in the gutter. So I decided to sleep in my car, but because you're in the car and you have the keys on you, well you're driving an unregistered vehicle, so bad luck (Client, 3).

People suffering disadvantage also regularly incur public transport fines. Many lawyers and financial counsellors expressed concern at the lack of discretion demonstrated by AOs with regard to the issuing of warnings in lieu of public transport-related infringements. The Victorian Ombudsman also raised this concern in a 2009 report, which recommended that authorised officers should receive further training in the use of discretion. The report also listed passengers' complaints alleging that AOs had 'led them to believe that an infringement notice might not be issued against them' (2010: 29), yet they received a fine in the mail. Lawyers and financial counsellors who participated in our research also recalled many occasions when their clients were advised that they would receive only a warning, yet subsequently received a fine. Further, several clients described frightening, aggressive interactions with AOs. When asked about emotive aspects of receiving a fine, client 3 described authorised officers as 'always aggressive to everybody' and client 35 said that she was 'quite frightened' during one of her encounters.

Concern has also been expressed about the simultaneous issuing of multiple notices on the one occasion, particularly when subsequent notices are issued 'for an emotional response to the issue of a primary penalty notice' (NSW LRC 2012: 177). The Victorian Federation of Community Legal Centres (FCLC) (2007) has argued that the ease of issuing fines could result in people being fined for 'add-on offences', such as being fined for travelling on public transport without a ticket and also for offensive behaviour in response to receiving the fine. Net-widening, and the arguably disproportionate punishment that ensues from simultaneously receiving multiple notices for minor offences, is particularly concerning when disadvantaged groups are targeted. Suffering disadvantage often makes people more susceptible to contact with and subsequent entrapment in the system. Lawyers and financial counsellors who participated in our study expressed concern about clients who had been fined sometimes receiving several fines on one occasion for behaviours that commonly in the past would have been overlooked. Indeed, when responding to a question about changes in the issuing of infringements over the previous five years, a DOJ representative said 'the regime' is now more geared towards punishing people and:

rather than admonishing them or giving them a warning, they are fined (DOJ, 7).

When asked about the use of discretion, the DOJ representative added:

there is less use of discretion because the fine is impersonal (DOJ, 7).

Many lawyers mentioned that the lack of discretion at the point of issuing was a primary weakness of the infringements system, particularly when notices were issued to those who clearly had 'special circumstances'. Victoria Police and the Department of Transport (DOT) were the two key agencies that rarely issued warnings in lieu of fines despite the Attorney-General's guidelines to the Act (2006) stating that the use of discretion at the issuing stage is one of the ways in which vulnerable groups can he diverted away from the system. However, the guidelines do state that the Act 'does not require that issuing officers of enforcement agencies consider 'special circumstances' at the issuing stage' (2006: 8). Of relevance, research suggests that issuing a warning in lieu of a fine may in fact increase future compliance (NZ MOJ 2006). Many clients also talked about minimal discretion and multiple fines.

In Victoria, given the ease with which infringement notices may now be issued in place of warnings or selectively turning a blind eye, the likelihood of drawing people into the criminal justice system is increased. When asked for his view in relation to the broadening of behaviours that could be dealt with by way of infringement notice, a DOJ representative said:

It's a lot easier to issue an infringement than it is to prepare a brief for open court (DOJ, 11).

And in response to the same question, a financial counsellor said:

instead of making work for the criminal justice system |it makes] work for a lot of other people. It's really just shifting the deckchairs ... it's not a solution. It's actually just part of the problem (Financial Counsellor, 2).

Proportionality

The fixed-rate penalties, inherent to the Victorian infringements system, also disproportionately impact upon people suffering financial disadvantage. Indeed, there have been calls from various Australian jurisdictions to implement methods, such as concession rate amounts, to deal with this inequity (NSW HPLS 2011; Grant et al. 2005; VCOSS 2004; Macken 2010; TSPC 2006: Crawley 2012; ATODA 2012). Similarly, many lawyers, financial counsellors and clients who participated in our research suggested that fines should be proportionate to income. When asked about key concerns with the current infringements system, a financial counsellor suggested that:

If there was any possible way of means testing ... then people would be able to address the issue within a 28-day period (Financial Counsellor, 9).

Similarly, when asked to suggest changes in relation to responding to unpaid fines, another financial counsellor said:

There should be an incentive for people on concession cards or healthcare cards to be able to apply to get a straight up, straight away concession (Financial Counsellor, 1).

When discussing possible changes to the infringements system, a client suggested:

if people are on Centrelink benefits obviously they don't have the same amount of money as everybody else does, so I think there should be concessions on fines for those people ... people are willing to pay the fines but they [fines] just become so overwhelming when you're talking thousands [of dollars] (Client, 21).

A further dimension of this disproportionality issue is the prospect of imprisonment as a penalty if fines are not paid. In Victoria, a person who attends court in relation to an infringement matter and is sentenced under s.160 of the Infringements Act 2006 (Vic) may be placed on a payment order with an Imprisonment in Lieu (IIL) order attached. In effect, this means that failure to meet even one instalment payment leads to imprisonment for a period of one day for each penalty unit owed (one penalty unit is $140.84 in the 2012-13 financial year). Even more concerning is the fact that the Act does not allow appeal against these orders to the County Court, despite an appeal right being available for all other offences, under the Criminal Procedure Act 2009 (Vic) (VLA 2011b: 13). However, changes introduced in 2013 allow those sentenced to imprisonment under s.160 (1) of the Infringements Act 2006 (Vic) a right to a rehearing in cases where evidence of their special circumstances was not put before the court at the original hearing (Lansdell et al. 2013). As a lawyer noted when asked about his key concern with the current infringements system:

The nature of the things which people get the fines for are low-level [summary] offences where they wouldn't normally receive imprisonment. If a person has something like $40,000 worth of fines, they can be looking at an excess of a year's imprisonment for offences of such a minor character that they wouldn't actually [otherwise] attract prison. If a person is a burglar or does an assault or a serious crime that we would see as serious, they'll receive a much lesser prison penalty (Lawyer, 3).

A Special Circumstances List appearance cannot result in imprisonment. However, our research found that some people who fulfil 'special circumstances' criteria do not apply for the List and may subsequently be placed on payment orders with IILs orders attached. One lawyer (11) mentioned a 78-year-old client who spent 28 days in prison for defaulting on a payment plan despite the fact that he had significant physical and mental health issues. Similarly, a DOJ representative (5) recounted the experiences of a person suffering from schizophrenia who was arrested and imprisoned for defaulting (see Lansdell et al. 2013 for a more detailed discussion of this issue).

Problematic aspects of 'special circumstances' processes

In the current Victorian infringements system, an application to revoke a fine on the grounds of 'special circumstances' must be accompanied by specific documentation supporting fulfilment of the criteria as specified in the Act. Our research suggests that for many fine recipients the required documentation is both difficult and costly to access. People applying on the grounds of homelessness must provide the Infringements Court with a report from agencies such as the Salvation Army and/or a medical report from a general practitioner or psychiatrist. These reports must be less than 12 months old and specify how the homelessness and, if relevant, any form of drug use or mental illness, contributed to the person's offending. Several lawyers expressed concern that disengaged people, such as those who were sleeping rough and classified as 'the primary homeless' (Chamberlain & Johnson 2001: 39), could be rendered ineligible for 'special circumstances' provisions if they were unable to gather the necessary supporting documentation. When asked what she considered to be the key issues in relation to 'special circumstances' documentation, a lawyer spoke of the difficulties that the disengaged homeless person faces and said:

there needs to be far greater flexibility in terms of the documentation that's accepted in order to prove special circumstances (Lawyer, 13).

Indeed, some lawyers suggested that homelessness must co-occur with a mental illness to gain eligibility. One lawyer (2) claimed that the Infringements Court often requested medical reports when the sole criterion in the application was homelessness.

Even people applying on the grounds of mental illness, substance addiction or intellectual disability often experience difficulty obtaining reports, as medical practitioners typically charge significant fees. In addition, many clients have had only irregular contact with a medical professional, and are unable to obtain official reports about their past. Legal Aid can provide some financial assistance, however this is limited to people who fall within specific income brackets and whose fines exceed $5,000 (VLA 2012c). In response to a question asking about major obstacles to fulfilling eligibility requirements for 'special circumstances', it became apparent that some professionals, doctors, and psychologists demand payment for reports:

The clients can't afford to pay for the doctor's services. We sort of have to make do (Lawyer, 23).

Similarly, a financial counsellor said:

It's becoming increasingly hard for people like myself to get doctors to cooperate. They normally want payment, even where someone's on a Centrelink benefit (Financial Counsellor, 8).

The requirement to appear at court may also pose a significant challenge to those with 'special circumstances' who often feel alienated from the criminal justice system. Homeless people may feel embarrassed about their appearance in the formal court environment (Midgley 2005), and people with mental illnesses or intellectual disabilities may feel distressed due to their condition or inability to understand the language used. The prospect of publicly revealing their circumstances or condition may also be daunting (MHLC 2010). This stress can be exacerbated by the lengthy waiting periods that are often involved with court processes (Gray et al. 2009). While the Special Circumstances List was designed for vulnerable groups and is less formal than other arms of the court, the public disclosure of sensitive information, for what are sometimes very minor infringements, is concerning. Some clients in our study were unfazed by the court process. However, others talked about heightened anxiety and depression (Client 33), and described the process as 'an absolute nightmare' (Client 32). When asked about her experience of the Special Circumstances List, a client said:

I had to appear and honestly all I can remember is being shit scared ... honestly, going to court just terrifies me ... you just feel powerless in court no matter how well-represented you are ... I had all these images going through my head--that they'd say go to jail. And it's only a parking fine, you know (Client, 29).

Lawyer participants were divided when asked whether or not 'special circumstances' eligible clients should be required to appear in court. Some felt that the court process was unnecessary and that matters should be dealt with 'on the papers', or alternatively in a more closed setting, while others stressed the importance of a court hearing. Comments included:

It's got to be open and it might be very difficult. The truth of the matter is that virtually everybody who goes into a court is a little unsettled--it goes with the territory; it's meant to. If it doesn't, it's not working properly (Lawyer, 17).

If there's somehow we could avoid going to court it would be much easier for the clients and everyone concerned (Lawyer, 23).

It is also of concern that fine recipients who wish to have their matters heard in the Special Circumstances List must plead guilty, thus acquiring a criminal record. Criminal records checks include all charges found proven in court, including those that originate as a result of an unpaid infringement notice (NMLS 2009), and this applies even when the magistrate stipulates that no conviction be recorded. Disadvantaged people may be particularly burdened by the possible repercussions of a criminal record, including restricted employment, accommodation and credit opportunities. When prompted to comment upon the increased imposition of fines on disadvantaged groups who are unable to pay, an inequitable and unfair impact was observed:

We all overindulge at some point. If you get fined for drunk in public and it ends up in court and it ends up on your criminal record, should you be paying for that for the rest of your life? (Financial Counsellor, S).

The advantage of not having a criminal record is great for people who are middle class and are able to pay these fines--it's a class issue (Lawyer, 21).

Another concerning issue is that victims of domestic violence and people experiencing long-term financial hardship are not included in the legislative definition of 'special circumstances'. Lawyers participating in our study (3, 5, 7, 13, and 16) recalled clients who were dealing with vehicle-related fines that their abusive partners had incurred when driving vehicles registered in their partner's name. While the legislation does allow nomination of another driver in such circumstances, time periods apply, and people in abusive relationships are often either unable or too afraid to adopt this process. Notably, if evidence of a mental illness or homelessness can be obtained, access to the Special Circumstances List is usually granted.

People who are experiencing long-term financial hardship are also often disproportionately vulnerable to incurring infringements. Several client participants said they were unable to afford public transport tickets, amounting to a few dollars, yet they incurred $207 fines for illegal travel to attend important appointments. As this type of offending is often unavoidably associated with living in financial hardship, it appears to meet the 'special circumstances' eligibility criterion of being unable to control the offending. When asked about her perception of the fairness of public transport fines, a client said:

If I haven't got the money sometimes I try and walk but it depends on the time. I don't take a seat. I stand up ... I'm not taking anyone's spot (Client, 24).

Many clients described their depression, anxiety and stress when unable to pay their fines. One client (17) said she was forced to delay urgent dental work to pay her fines debt or face imprisonment. Further, many lawyers and financial counsellors revealed that their clients used drugs to cope with their debts. Indeed, previous research suggests that 'financial strain precipitates or escalates the use of licit and illicit substances, which in turn exacerbates existing financial strain' (Martire 2010: 164).

Conclusion

Our findings suggest that the Victorian infringements system is expedient and efficient when people can promptly pay their fines. However, multiple issues need to be addressed if the system is to be just and fair to people suffering various types of disadvantage. While the Act provides concessions for some vulnerable groups, such as the discretion to issue a warning in lieu of a fine, discretionary warnings appear to be rare. Additional education and training that encourages consideration of the nature and impact of mental illness, intellectual disability, substance addiction and poverty is recommended for both Victoria Police and Department of Transport authorised officers. We also recommend that the Act be amended to state that the enforcement agencies' issuing officers must consider people's 'special circumstances' and use reasonable discretion prior to issuing a fine.

The complex nature of Victoria's infringements system and the limited public education and subsequent awareness of how it works are also problematic. The alienating language used in fines correspondence should be simplified and infringement notices should contain clearer information for offenders requiring legal advice. As the accumulation of debt can lead to a state of denial, alternatives to fines, such as community work, ought to be made available. People who are unable to do community work due to their circumstances or medical conditions could be offered other expiation methods, ideally addressing the underlying causes of their offending behaviour. Options could include attendance at counselling sessions or education and self-development courses. In New South Wales, for example, Work and Development Orders (WDOs) are now an option

for eligible people in New South Wales who have a mental illness, intellectual disability or cognitive impairment, are homeless, are experiencing acute economic hardship, or have a serious addiction to drugs/alcohol/volatile substances to satisfy their fine debt through unpaid work with an approved organisation or by undertaking courses or treatment (NSW Government 2012).

Further, as many enforcement agencies' 'special circumstances' internal review processes are inadequate and inconsistent, a central, independent agency could be created to deal with all internal review applications.

The ongoing expansion of the infringements system into areas such as public order has inevitably led to net-widening and the disproportionate punishment of marginalised groups. We propose that an amendment to the Attorney-General's guidelines to the Act curtail the issuing of multiple infringements on the one occasion by stipulating that all issuing officers must consider whether issuing multiple fines is proportionate and justifiable. The Act could contain a right to automatic withdrawal of the fine at the internal review stage if due consideration has not occurred, for example, when an officer imposes an additional fine when a person swears after being fined for travelling on a train without a valid ticket. Financially disadvantaged people could also be provided with an opportunity to apply promptly to a central agency for a standard concession rate fine. This would more equitably burden offenders. Further, s. 160 of the Act could include a right of appeal to the County Court for those who are sentenced to imprisonment for defaulting on a payment plan with an IIL order attached.

While the implementation of 'special circumstances' concessions was a positive step, concerning issues remain. As the evidence required to establish 'special circumstances' is often too difficult to obtain for those who are experiencing homelessness, an applicant's statutory declaration could be accepted. Moreover, 'special circumstances' documentation could be sourced from a wider range of professionals, such as social workers and drug and alcohol counsellors. Clients could also be provided with the option of a closed hearing, or alternatively they could be able to request non-attendance at court. Further, as people who can pay their fines are not stigmatised and criminalised, unpaid infringement offences should not be disclosed in criminal record checks. It follows that people who have their matters heard in the Special Circumstances List should not be required to plead guilty as their eligibility deems them not to be criminally liable for their offensive behaviour (ISOU 2008: 11). Eligibility for 'special circumstances' provisions could also be extended to victims of domestic violence and those who are experiencing long-term financial hardship. Finally, as the expansion of the infringements system results in more disadvantaged people seeking legal advice, a small percentage of infringements revenue could be allocated to CLCs and VLA to assist with the rising demands for their services.

The Victorian infringements system presents inequitable, unjustifiable challenges for too many people already challenged by their 'special circumstances'. The infringements net has trapped and caused pointless anxiety to people suffering genuine disadvantage, and people caught in the net are provided with limited and confusing means by which to be set free. A just and empathetic reform of the current system is well overdue.

Acknowledgement

The Legal Services Board Grants Program generously funded this research.

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