Queensland Public Interest Law Clearing House
Incorporated
HOMELESS PERSONS’
LEGAL CLINIC
The fines enforcement regime in
Queensland
for people experiencing homelessness:
OPTIONS FOR CHANGE
26 May 2011
Prepared by the Queensland Public Interest Law Clearing House Incorporated’s
Homeless Persons’ Legal Clinic
PO Box 3631
SOUTH BRISBANE BC QLD 4101
T: 07 3846 6317
F: 07 3846 6311
E: [email protected]
W: www.qpilch.org.au
About QPILCH
QPILCH is an independent, not-for-profit incorporated association bringing together private
law firms, barristers, community legal centres, law schools, legal professional associations,
corporate legal units and government legal units to provide free and low cost legal services
to people who cannot afford private legal assistance or obtain legal aid.
QPILCH was established in June 2001 as an initiative of the legal profession and
commenced services in January 2002.
QPILCH coordinates the following services:
 The Public Interest Referral Service facilitates legal referrals to member law firms and
barristers for free legal assistance in public interest civil law cases.
 The QLS Pro Bono Scheme and Bar Pro Bono Scheme facilitate legal referrals to
participating law firms and barristers for legal assistance in eligible civil law cases.
 The Homeless Persons’ Legal Clinic (HPLC) provides free legal advice and
assistance to people experiencing homelessness or at risk of homelessness.
 The Refugee Civil Law Clinic provides free legal advice and assistance on matters
other than immigration law to refugees and asylum seekers experiencing financial
hardship.
 The Administrative Law Clinic provides legal advice and extended minor assistance in
administrative law matters.
 The Self Representation Service (Courts) (SRSCourts) provides free, confidential and
impartial legal advice to eligible applicants without legal representation in the civil trial
jurisdictions of the Brisbane Supreme and District Courts.
 The Self Representation Service (QCAT) (SRSQCAT) provides free, confidential and
impartial legal advice to eligible applicants without legal representation in QCAT.
 The Court of Appeal Self Representation Service (SRSCA) provides free, confidential
and impartial legal advice to eligible applicants without legal representation in the civil
jurisdiction of the Queensland Court of Appeal.
 Intellectual Property and Technology Law Clinic provides free legal advice, referral
and assistance to people with IP and technology law questions who cannot otherwise
afford legal representation.
QPILCH is a member of the Queensland Association of Independent Legal Services,
affiliated with the National Association of Community Legal Centres, and is a member of the
PILCH network. For more information about QPILCH services, please see the QPILCH
website at www.qpilch.org.au under Services.
About the HPLC
The Homeless Persons Legal Clinic (HPLC) is funded by the Department of Communities, to
coordinate the provision of pro bono legal resources to deliver direct, targeted and
accessible legal services to people experiencing or at risk of homelessness. It began as a
project of QPILCH in December 2002 and since inception has assisted over 2000 people
experiencing or at risk of homelessness. The HPLC currently operates 13 outreach legal
clinics at homeless service centres in Brisbane, Toowoomba and Townsville.1 These are
attended by lawyers from private firms and community legal centres, who deliver almost $2
million of legal services annually.
For more details, including times and locations of the clinics, and the law firms that
collaborate in the HPLC, please visit www.qpilch.org.au
This report was prepared by Sue Garlick, HPLC Policy Coordinator, with the assistance of
students from the TC Beirne School of Law, University of Queensland.2
RECOMMENDATIONS
1. SPER to assess homeless people as „needy‟, and as having „no capacity to pay‟.
2. SPER and Corrective Services to provide the opportunity for appropriate community
work instead of fines, to all debtors experiencing homelessness.
3. Enable community agencies in the homelessness sector to administer „fines credits‟
to those clients who meaningfully engage with their services.
4. SPER to construct guidelines, in consultation with the homelessness sector, to waive
SPER debts of homeless debtors, where it can be demonstrated that the debtor is
experiencing long-term homelessness, and there is no reasonable capacity to work.
5. That SPER waive administrative fees for homeless clients.
6. Consult with agencies in the homelessness sector to consider the merits of „fine
credit‟ schemes for their clients, appropriate guidelines for such a scheme and the
impact of a scheme on their organisational resources.
7. SPER debtors who are homeless to be genuinely consulted about the impact of the
current fine enforcement scheme and what new options would assist them.
1
The HPLC is located at Brisbane Homelessness Service Centre, Anglican Women‟s Hostel, New
Farm Neighbourhood Centre, Brisbane Youth Service, Pindari Men‟s and Women‟s Hostels, Café
One, 4AAA Kiosk, Roma House, Kyabra Community Centre, South Townsville Drop-in Centre, The
Women‟s Centre Aitkenvale, The Basement Toowoomba.
2
The students were Elizabeth Pendlebury, Jess Owen, Rachael Holt, Rebecca Durrant, Youngwon
Lee, Yoshiko Robertson, Alia Khan, Ashley Burgess, Eryn Richards, James Horwood, Lisa Archbold
and Stacey Lu.
1.
INTRODUCTION
The State Penalties Enforcement Registry (SPER) was created under the State Penalties
Enforcement Act 1999 (the Act) to provide the government with a more efficient fine
collection scheme, for any fines levied by courts or other government instrumentalities.
SPER has been very successful, collecting $166.5 million of debt in 2009/10.3
Section 9 of the Act establishes the SPER Charter, including five stated intentions:
a)
b)
c)
d)
e)
maximising the collection, for victims of offences, of amounts ordered to be paid
under the Penalties and Sentences Act 1992 by way of restitution and
compensation;
maximising the amount of fines and other money penalties paid before enforcement
action is taken;
Promoting a philosophy that community service work is for the needy in the
community and not an alternative to payment of a fine for those who can afford to
pay the fine;
Reducing the use of imprisonment for fine default by encouraging the use of other
enforcement mechanisms;
Promoting public education about the obligations of offenders and the consequences
of not satisfying the obligations.
This report is concerned with the third of these intentions. Its wording suggests, or even
assumes, that a community service option will be available for „the needy‟. „Needy‟ is
contrasted with those „who can afford to pay the fine‟.
The HPLC regularly assists clients with their SPER debts, typically, by writing to SPER on
their behalf and outlining their circumstances, including the fact of their homelessness, their
income and expenses. The HPLC asks SPER to waive fines or give a client access to
community work. However, SPER‟s consistent response has been to offer the client
instalment payments to the minimum of $20 or, on occasion, $10 a fortnight.
SPER does not consider „community service work for the needy‟ as applying to debtors
experiencing homelessness. SPER regularly assesses homeless debtors4 as „having a
capacity to pay‟.
Recommendation : SPER to assess homeless people as „needy‟, and as
having „no capacity to pay‟.
3
State Penalties Enforcement Registry, Right to Information Statistics (3 March 2011)
<http://www.justice.qld.gov.au/justice-services/sper/right-to-information>.
4
Throughout this report, the terms „homeless persons‟ or „homeless clients‟ will be used where it
benefits language clarity. The HPLC affirms that people experiencing or at risk of, homelessness
would not often choose homelessness as an identifying adjective, and should be recognised as
people first and foremost.
2.
DEFINING THE ISSUES
2.1
Who is needy?
The HPLC considers it self-evident that a person experiencing homelessness is „needy‟.
Both the Federal and Queensland governments have demonstrated through their policy,
funding and service priorities,5 a thorough understanding of the causes and impacts of
homelessness, and have rightly abandoned the notion that homelessness can be described
as the choice of individuals. Homelessness represents the complex interplay of individual,
environmental and systemic factors, and is a state of enormous and often entrenched
disadvantage.
SPER does not consider homeless clients as „needy‟, and assesses them as having a
„capacity to pay‟. SPER referred the HPLC to the following examples of individuals who
might be assessed as „having no capacity to pay‟:



If not eligible for Centrelink;
Having high medical expenses;
Previous wage earners who were now terminally ill.6
2.2 SPER assessment of capacity to pay
The Act contains no guidelines for assessing „capacity to pay‟.
However, in section 82, entitled „working out amount to be deducted‟, which applies where
an employer is given authority to deduct payments to SPER from an employee‟s salary, the
employer is directed to leave the employee with a „protected earnings amount‟.
The calculation of this amount is referred to in Schedule 2 of the Act, which in turn refers to
Child Support and Social Security legislation.7 It is essentially 75% of a basic Newstart
allowance. For 2011, this protected earnings amount is $318 per week after tax.8
This protected earnings amount does not apply when SPER is making financial
assessments of the capacity to pay of an unemployed enforcement debtor.9 Section 42
covers applications to SPER to pay in instalments. The minimum instalment is considered to
5
Eg, Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs,
„The Road Home: A National Approach to Reducing Homelessness‟ (Discussion Paper,
Commonwealth Government, 2008); Queensland Department of Communities, Housing and
Homelessness Services, „Queensland Strategy for Reducing Homelessness 2010-2020‟ (Discussion
Paper, Queensland Government, 2010).
6
Interview with Erin Byrne, SPER Community Liaison Officer (SPER South Brisbane, 24 August
2010).
7
Schedule 2 of the Act defines the protected earnings rate as having the meaning given by the Child
Support (Registration and Collection) Act (1988). Section 4 of this Act refers to a weekly rate defined
in the Child Support (Registration and Collection) Regulations (1988), which in section 3 states it is
„75% of the maximum fortnightly basic rate of Newstart Allowance, as determined under the Social
Security Act (1991), payable, on 1 January in that year, to a person who is partnered and has turned
21 years of age and who is without dependent children‟.
8
Australian Government Child Support Agency, 5.2.4: Employer Obligations for collection from salary
or wages (8 December 2010) <http://guide.csa.gov.au/part_5/5_2_4.php>.
9
Interview with Shane Leigh, SPER Community Engagement Team (Telephone Conversation, 27
April 2010).
be $30 per fortnight. Section 42(5) allows SPER to accept a smaller instalment if they are
“satisfied exceptional circumstances exist”. HPLC clients are often placed on instalment
plans of $10 or $20 per fortnight.
These assessments of “exceptional circumstances” are conducted on an ad-hoc basis and
are dependent on information provided by the enforcement debtor. SPER makes an
assessment of „capacity to pay‟ based on this information. SPER have indicated to the HPLC
that „it was rare to find someone that couldn‟t afford to pay $10 per fortnight‟.10
The HPLC has a number of concerns with this process:
a. It effectively limits the definition of „capacity to pay‟ to such a low threshold that it
makes the concept of „needy‟ in the SPER Charter almost meaningless.
b. It is unfair, as the protections accorded to a wage-earner, which leave them with a
minimum of $318 per week, are not applied to a homeless debtor.
c. It relies on the enforcement debtor to have an accurate assessment of their income
and outgoings, which many homeless people are unable to supply. The SPER
Community Liaison Team will assist a client to complete an Individual Circumstances
form, which includes a financial assessment, however, it is „up to the person or their
advocate to include all the relevant information‟.11
d. SPER decides what is a valid expense. A SPER financial assessment includes
categories of expense such as school fees, insurance and car loan repayments.12
These are expenses rarely incurred by a person experiencing homelessness.
However, SPER indicated that although some medication expenses might be
included in an assessment, if a person was a smoker, or was on the methadone
program, these would not be counted as expenses.13
This report will not explore the utility of fines as an appropriate response to the offenses of a
homeless person, nor will it explore the actual capacity of our clients to pay fines, as this is
an issue covered in previous research,14 and requires broader consultation in the sector. We
note however, the greater likelihood of a homeless person attracting fines, due to their lives
being lived in public - with drinking, swearing, sleeping and fighting in public all attracting
fines.
Conversely, homeless people are the least able to pay fines. They have low incomes –
normally a Newstart payment or Disability Support Pension, and high living costs, such as
costs of boarding house accommodation at approximately $180 per week, room only; high
public transport and medical costs – especially connected to high rates of mental illness,
10
Byrne, above n 5.
Byrne, above n 5.
12
Application for an Instalment Plan; Application for a Fine Option Order: State Penalties Enforcement
Registry, Forms and Publications (9 March 2011) <http://www.justice.qld.gov.au/justiceservices/sper/forms-and-publications>.
13
Leigh, above n 8.
14
Eg, Tamara Walsh, „The Overruled Underclass: The Impact of the Law on Queensland‟s Homeless
People‟ (2005) 28(1) University of NWS Journal 122; Tamara Walsh, „From Park Bench to Court
Bench: Developing a Response to Breaches of Public Space Law by Marginalised People’ (Research
Report, Faculty of Law QUT, 2004).
11
high food costs – due to limited capacity to cook and store cheaper food and high rates of
drug addictions.
Cost of living data produced by QCOSS shows a weekly expenditure of $301 for a 45 year
old male on Newstart, which included conservative health and transport estimates, did not
include smoking costs, and allowed for share accommodation in the private rental market,
which is rarely an appropriate arrangement for people experiencing homeless.15 The actual
weekly expenditure of a person experiencing homelessness is likely to be considerably
higher than $301.
2.3 Typical offences and penalties
Using data collected by the HPLC, both as a result of casework and research, we note the
following case-studies.
A male accumulated over $22,000 of fines in five years. Offences include:
 48 counts of ‘travelling without paying correct fare’ incurring a fine of $195 or $200.
 10 counts of failure to wear a bike helmet, with a fine of $120.
A male accumulated over $5700 fines in three years. Offences include:
 12 counts of ‘travelling without paying correct fare’
 Seven driving offences as a learner, such as driving without supervision or without
displaying plates – total fines of $1534.
A female accumulated over $13,650 of fines in ten years. Offences include:
 21 vehicle or driving related offences
 Four common assaults
 Four public nuisance offences
A male accumulated almost $11,000 in fines in 5 years. Offences include:
 11 counts of travelling without paying correct fare
 3 counts of smoking on railway, fined at $253
 6 counts of Assault, obstruct police or contravene police direction
2.4 The average fine of a homeless debtor
In 2010, the HPLC began to scope the size of SPER debts carried by the homeless
population.
The HPLC obtained the consent of homeless persons to access their SPER records for
research purposes, and we have accessed 36 SPER histories to date. These SPER Fine
History Reports detail the offences, the penalty amounts and the payment history of the
debtor.
15
Cost of Living Report 2011, Queensland Council of Social Services (24 March 2011)
<http://www.qcoss.org.au-report.pdf>.
The total SPER debt accumulated by the 36 SPER debtors is $195,650.22, which generates
an average individual debt of $5462.51. The median debt of this group is $3018.26. The
highest debt was $22,108.51 and the lowest debt was $343.00. Only 4 of the debts were
less than $1000.00.
At an instalment rate of $10 per fortnight, assuming that no further fines or charges are
incurred, a median debt of $3018.26 will take almost twelve years to pay.
In informal discussions with the HPLC host agencies, workers supporting homeless people
indicate that clients feel powerless and apathetic about their SPER fines.16 Further
consultation with these organisations and their clients, around this the impact of fines is
required.
2.4 Administrative fees
SPER adds an administrative fee to the debt, whenever they issue an enforcement notice for
a debt. The fee, currently $52, is the same as the one charged by SPER to the
administering authorities, and is set by section 29 of the Regulations.
These fees account for a significant proportion of the debt, sometimes amounting to more
than the fine itself.
Details from a de-identified SPER debt statement of an HPLC client is reproduced below:
Original
Fine
SPER Fees
Overdue
Amount
Offence Details
$150.00
$46.50
$150.00
Travelling without paying correct fare
$150.00
$46.50
$185.21
Travelling without paying correct fare
$30.00
$46.50
$76.50
Pedestrian, disobey red pedestrian light
$350.00
Nil –court
fine
$350.00
Unlawfully possess anything (except syringe or
needle) that has been used in connection with a
dangerous drug
$100.00
$50.00
$150.00
Consume liquor in a non-designated public place
$150.00
Nil –court
fine
$150.00
Possession of a knife in a public place
$75.00
$46.50
$121.50
Electoral - fail to vote
$545.00
Nil –court
fine
$545.00
Wilful damage
$75.00
$50.00
$125.00
Consume liquor in a non-designated public place
$200.00
$52.00
$252.00
Travelling without paying correct fare
$150.00
$45.00
$150.00
Travelling without paying correct fare
16
Discussions with staff at Roma House and Micah Projects, Brisbane,in the course of this project.
$150.00
$46.50
$196.50
Travelling without paying correct fare
$400.00
Nil –court
fine
$400.00
Possessing dangerous drugs
$150.00
$45.00
$55.00
Fail to produce ticket
$400.00
Nil –court
fine
$400.00
Commit public nuisance
$180.00
Nil –court
fine
$180.00
Unlawful possession of restricted drugs
$100.00
$50.00
$150.00
Consume liquor in a non-designated public place
$3,112.21
$524.50
$3,636.71
TOTALS
This Debt statement indicates that fees form 14.4% of the total debt.
More importantly, for those fines which are levied by statutory authorities rather than the
courts, the administrative fee is 25% to more than 150% of the initial fine.
This is patently unjust for homeless clients who are both more likely to receive infringement
notices and less likely to be able to pay them immediately – making the enforcement
process and fees inevitable.
Further enforcement fees, of $87, may be levied where a default in enforcement occurs, and
a fine collection notice is issued. (s52, s75 of the Act and s27 of the Regulations).
The HPLC notes that hardship policies in the Australian telecommunications and credit
industries are required to remove enforcement and administrative fees from the calculation
of debt.17
Recommendation: That SPER waive administrative fees for homeless clients.
17
Telecommunications Industry Ombudsman, Policies (25 May 2011)
<http://www.tio.com.au/POLICIES/.htm>; Credit Ombudsman, Position Statement – Issue 2.1 (25 May
2011) <http://www.cosl.com.auPositionStatement-Issue2.1.pdf>.
3.
CURRENT LEGISLATIVE OPTIONS
3.1 Initial Payment Options
Upon being issued with a fine by the Courts, or by an „administering authority‟ (prescribed in
the State Penalties Enforcement Regulations 1999 (the Regulations) and including local
councils, authorities such as transport operations, public health, electoral transport
authorities and public health), the Act creates four options for the offender in section 22, all
with a 28 day time frame:
1. Pay in full, to the administering authority: subsection (1)(a)
2. Elect to decide the matter in the Magistrates court, where a fine may be imposed on
a finding of guilt: subsection (1)(b)
3. If it is a vehicle related offence, there is provision to declare that the vehicle was not
yours: subsection (1)(b)
4. Where fine is above a threshold amount, currently $200 (under section 30
Regulations), the offender can apply directly to the administering authority, to pay the
fine by instalments. This is a voluntary instalment plan: subsection (2)
None of these options are readily accessible by a homeless person, as they require a level
of awareness, personal organisation and financial resources not often enjoyed by those
caught up in the chaotic business of survival.
HPLC clients typically take no action. The administering authority then registers the offence
with SPER for enforcement (sections 33, 34(2) and 37), and SPER issues an enforcement
order, requiring payment within 28 days (section 38).
There is no option to seek a „community service order‟ prior to the enforcement stage.
3.2 Enforcement Options
All of the enforcement options have a 28 day time limit.
1. Pay in full: section 41(a).
2. Apply to SPER to pay in instalments: section 41(b).The registrar may approve this
application, and sets a typical instalment rate of $30pfn except in exceptional
circumstances. Default of instalments may lead to a warrant, a fine collection notice,
or arrest and imprisonment.
3. Take no action. This leads to the default provisions described under option Two.
4. Elect to have Magistrate decide the matter: section 41(d). This option is not available
if fine is paid or if voluntary instalment plan applied for.
5. Apply to SPER to convert fine to community service, under a Fine Option Order
(FOO): section 41(c).
3.3 Fine Option Orders (FOO)
Under section 45 a FOO is not possible where SPER decides that the applicant can pay the
full amount of the fine. The Act contains no provisions to direct SPER in how to make this
assessment, and so we have the inappropriate decisions made about capacity to pay
referred to in section 2.2 of this report.
HPLC clients are refused FOOs on the basis that SPER assesses them as having „capacity
to pay‟.
Section 44 outlines other situations where a FOO is not available:



If you have previously contravened a FOO for the same offence;
If you have been arrested or a warrant for imprisonment has been issued;
If previously been refused a FOO for that offence, where refusal was on the ground
that „capacity to pay‟, unless ‘the person’s financial position has become significantly
worse’. [our italics]
It is hard to imagine how a homeless person is deemed to have „capacity to pay‟ in the first
instance. But what does someone who is already homeless, without assets, income or a
home, need to do to show that their financial position has become „significantly worse‟?
When government policy at all levels is directed to prevention measures for homelessness,
the SPER legislation anticipates diversion action only when a homeless person‟s financial
position gets significantly worse. Moreover, in practice, the HPLC has never had a client
receive consideration for a FOO under this section.
Where a FOO is approved, the application is then referred to Corrective Services for a
decision on suitability. If this is approved, SPER registers the FOO. (ss49 and 50)
The assessment that the probation officer makes considers the likelihood of the participant
being able to successfully complete the FOO.
SPER‟s FOO Fact Sheet states that to be eligible for a FOO, the person must be able to
undertake community work – this includes being able to get to and from the worksite and
providing an address for the term of the order.18 These are both difficult for a homeless client
to comply with.
If you fail to comply with a FOO, the probations supervisor will issue a notice of
contravention, and if not satisfied, they must give SPER a breach notice (section 139) stating
amount still owing on the fine. The FOO and any other FOOS can be revoked.
3.3.1 Experiments with a FOO for homeless debtors
Some attempts have been made to provide appropriate work orders for homeless clients,
however the HPLC has found that access to these orders is extremely limited and barred by
the „capacity to pay‟ finding of SPER.
18
Application for Fine Option Order: State Penalties Enforcement Registry, Forms and Publications (9
March 2011) <http://www.justice.qld.gov.au/justice-services/sper/forms-and-publications>.
The Special Circumstances Court19 works closely with Correctional Services to develop
probation programs for its defendants that involve counselling and rehabilitation for drug use,
or anger management programs.
The Corrective Services officer attached to the Special Circumstances Court acknowledged
that an eight hour day is unsuitable for many people experiencing homelessness, especially
those with addictions or mental health issues. Corrections have developed some four hour
programs at Northey St Farm, at 139 Club and Footprints, where participants work as farm
or administrative assistants.20 A debtor can reduce the amount of their debt by $20 per hour.
(s26)
These programs have had a „chequered success‟. Clients‟ mental health makes it difficult to
complete. „Just attending the program is a significant hurdle for them to overcome‟. 21
The officer noted that „community service orders are valuable to participants because it
improves their self esteem, especially if they can successfully complete‟.
Maximum flexibility, individually tailored programs and relevant “work” are essential for
success.
The SPER Community Liaison Officer advised the HPLC of three rehabilitation facilities that
had registered work programs for FOO, available to participants of that rehabilitation.
However the FOO was not for the rehabilitation itself.
The participants in the SPER HPLC research were asked „Do you have any other comments
about your outstanding SPER fine?‟ Eight participants indicated that they would like to „work
off their fines‟. The HPLC considers that homeless debtors should be properly consulted
about their interest in appropriate community work schemes.
Recommendation: SPER and Corrective Services to provide the opportunity for
appropriate community work instead of fines, to all debtors experiencing
homelessness.
3.4 Good Behaviour Orders (GBO)
Section 118 of the Act allows for a GBO to be offered, where an enforcement debtor is not
considered suitable for a FOO, cannot pay the amount and where it would be inappropriate
to imprison the debtor. The conditions of the GBO typically require the debtor to incur no
further fines during the time of the GBO.
The HPLC understands that these orders have been offered to people with impaired
decision making capacity who are under guardianship orders with the Adult Guardian.
Although some homeless clients are in this category, the HPLC has had no success in
19
The Special Circumstances Court operates in the Brisbane Magistrates Court, and aims to provide
case-management and diversion options for defendants whose offences are considered to be a result
of their homelessness.
20
Interview with Keith McMorrin, Corrective Services Officer (Corrective Services Office, Spring Hill),
October 26 2010).
21
Ibid.
seeking these orders. They are not suitable for most clients whose chances of reoffending
are high, given that activities such as swearing in public can attract fines.
3.5 Waiver
Section 115(5) of the Act provides that the Governor may waive all or part of the fine.
Section 150A also provides that the SPER registrar may write off all or part of a fine, where
the person dies, or is a deregistered corporation or if there is insufficient information to
establish their identity, or „in any other circumstances permitted under a guideline issued by
the Minister under section 150B‟.
Section 150B provides that these guidelines are not available to members of the public. The
HPLC is unaware of any guideline applicable to people experiencing homelessness.
Curiously, there are public guidelines that deal with immobilisation of vehicles (a
consequence of unpaid fines). These guidelines are to take into account any „severe or
unusual hardship caused‟ by the immobilisation.
If consequences of „severe or unusual hardship‟ are considered with respect to vehicle
immobilisation, it is arguable that considerations of „severe or unusual hardship‟ should also
be considered when a debtor is homeless. Accordingly, the power to waive fines should be
readily applied to homeless debtors.
In discussions with SPER the HPLC was advised that the reason that SPER did not waive
debts for homeless clients as a matter of policy was because homeless clients „might get a
job tomorrow and be earning more than you or I‟.22
Recommendation: SPER to construct guidelines, in consultation with the homelessness
sector, to waive SPER debts of homeless debtors, where it can be demonstrated that the
debtor is experiencing long-term homelessness, and there is no reasonable capacity to work.
22
Leigh, above n 8.
4. SUGGESTIONS FOR IMPROVEMENT
The HPLC considers the current fines regime for homeless debtors in Queensland to be
unwieldy and patently unfair.
Both New South Wales and Victoria have implemented enforcement regimes that genuinely
consider the circumstances of those debtors experiencing homelessness.
4.1 New South Wales Work and Development Orders
The State Debt Recovery Office in NSW provided for Work and Development Orders (WDO)
as a two-year trial, commencing in July 2009. Under the scheme,23 a debt can be satisfied
through undertaking:






Unpaid work;
Medical or mental health treatment;
Educational, vocational or life skills training;
Counselling;
Drug/alcohol treatment;
Mentoring program (under 25 yrs).
Persons can apply if they have an intellectual disability, mental illness, are homeless or
experiencing acute economic hardship. There is no need to prove the person‟s
circumstances contributed to the issuing of a fine. It is only required that the condition
contributed to their inability to pay the fine. The definition of homelessness is broad and
includes debtors:





Without conventional accommodation
Moving from one temporary accommodation to another
In temporary accommodation due to domestic violence / unsafe living conditions
Living in a caravan park due to inability to access other accommodation
Living in boarding houses on a medium to long-term basis
Applicants must provide a supporting letter from a lawyer, services provider, case worker or
accredited agency supporting claim for homelessness stating details of circumstances and
how it has affected ability to pay the fine.
There are currently 35 approved providers24 including organisations such as Centacare,
Salvation Army, Neighbourhood Centres and Lifeline.
The Homeless Persons Legal Service in NSW was instrumental in the introduction of the
WRDO scheme, through its 2008 report, Not Such a Fine Thing!25 and commented on the
23
Attorney General of New South Wales, Work and Development Orders (WDO) Guidelines – Issued
under the Fines Act 1996, 1 August 2009, 6.
24
a list of the sanctioned organisations and medical practitioners can be found at:
http://www.sdro.nsw.gov.au/publications/approved_wdo.html
25
Ellena Galtos and Emma Golledge. „Not such a fine thing!‟ (Report, Public Interest Advocacy Centre
and Homeless Persons‟ Legal Service NSW, 15 April 2006)
<http://www.piac.asn.au/publication/2006/04/not-such-fine-thing>.
scheme in a paper delivered by the HPLS coordinator to the National Homelessness
Conference in 2010. The HPLS notes that the program has been successful, despite some
initial administrative delays in approving both participants and providers.
There was no additional funding provided by the NSW Government for the program so
providers are required to use existing resources to implement the program. The HPLS found
that some providers are unresponsive to the program as their resources are already
stretched without handling WDO applications.
The HPLS assisted a young woman through the WDO process in order to gain
understanding of how the program works on a practical level. The woman, who is homeless,
has $1,600 in unpaid fines accumulated for riding on trains without a ticket. She is doing
volunteer work with HPLS which will assist her computer, telephone and personal skills. The
HPLS has already observed significant improvement in her self-esteem and confidence.
Although there are no reported statistics available at this stage regarding the WDO trial in
New South Wales, it seems that individual participants are achieving positive results.
By implementing a similar program in Queensland, homeless people can be diverted from
perpetuating cycles of financial hardship and encouraged to engage with support services to
develop sustainable solutions to their homelessness.
Recommendation: Consult with agencies in the homelessness sector to consider the
merits of “fine credit” schemes for their clients, appropriate guidelines for such a scheme
and the impact of a scheme on their organisational resources.
4.2. Victorian Enforcement Review Program
The Infringements Act 2006 (Vic) introduced the Enforcement Review Program, which allows
both a discretion to statutory authorities to issue an official warning in lieu of a fine, where it
is apparent that the offender is homeless; and where a fine is issued, for a person with
„special circumstances‟ to apply for fines to be revoked. „Special circumstances‟ includes
mental illness, drug addiction & homelessness.
The statutory authority which issued the fine is compelled to internally review the fine on
„special circumstances‟ grounds. Sixty-six percent of infringement notices reviewed through
this process were withdrawn in 2008-09.26
If the statutory authority confirms the infringement notice, the matter must be referred to a
Magistrate for determination which allows for a more thorough and individual assessment of
the person‟s needs and circumstances („Special Circumstances List‟). 26,544 enforcement
orders were revoked on the grounds of special circumstances in 2008-9.
Although the enforcement review system has been seen as a positive measure by the HPLC
in Victoria, there appears to be considerable inconsistencies between the policies of the
26
Victorian Department of Justice, „Attorney-General‟s Annual Report on the Infringements System
2008-09‟ (Report, February 2010).
various agencies in deciding whether special circumstances exist, both at the point of issuing
a warning and in the review process. A uniform set of criteria needs to be developed.
4.3 Consultation with debtors experiencing homelessness
The HPLC considers that there is great scope for improvement in the administration and
enforcement of fines in Queensland against people experiencing homelessness.
Queensland has the opportunity to learn from developments in other jurisdictions to provide
fairness to this vulnerable group.
However, no changes should be implemented without sensitive consultation with those most
impacted.
Recommendation: SPER debtors who are homeless to be genuinely consulted about
the impact of the current fine enforcement scheme and what new options would
assist them.