Published 14 February 202011 March 2020 · The law Fines: designed to crush Shifrah Blustein You get a speeding fine and, although you’re annoyed (at yourself and, probably, at ‘the system’), you pay it and the problem disappears. But think about what happens if you can’t pay. Imagine you had received a dozen fines, or forty fines, or a hundred fines. Imagine you were already living in poverty and were reliant on Centrelink payments to make rent and buy food, and were struggling just to stay afloat amidst persistent mental health concerns. In these kinds of circumstances – which are much less rare than we’d like to think – a fine (or a dozen, or a hundred) constitutes much more than an annoyance. How would you cope? Many individuals shut down in situations of significant stress. Many avoid opening their mail, fearing more correspondence about the problems they can’t deal with. But the fines system is largely automated, meaning that – as time elapses without the recipient acting on the fine – penalties keep accruing automatically, and the problem intensifies. Eventually, the sheriff appears on your doorstep, at which stage you’re likely to be arrested and sent to court for a magistrate to determine whether you should serve time in prison or be placed on a long-term payment arrangement that is still completely unsustainable given your economic circumstances. Your driver’s licence or vehicle registration will probably have been cancelled in the process, further restricting your movement, your ability to work and your chances of ever overcoming those circumstances. There are many individuals facing crushing and utterly unmanageable fine debts. When these debts pile up, they frequently come to exceed $50,000 or even more. These are unfathomable figures for people on moderate incomes, let alone those living in poverty. In these situations, those who have only just been managing to stay afloat can all too easily begin to drown. You might ask: how do people accrue so many fines? In Victoria, one answer is the state’s network of private tolled roads, such as Citylink or Eastlink. If you don’t pay for your travel (between around $2 and $9 per trip), this debt quickly magnifies into an infringement warrant worth in excess of $370 per week of travel (1), regardless of how small or large the initial fee was. Many people regularly use the toll roads without paying because of the chaotic nature of their lives and because they don’t understand the financial and legal consequences of their decisions. These can quickly compound to many tens of thousands of dollars in debt. Although toll roads are run by private companies, debts incurred by motorists are not enforced in the same way as other private debts such as utility or phone bills. Whereas utility or phone companies would engage debt collectors and eventually try to sue you in the civil justice system (with its inbuilt consumer protections – most importantly, the fact that Centrelink income cannot be garnished by a creditor), toll road companies have negotiated cosy contracts, or ‘Public-Private Partnerships,’ with government. These dictate that unpaid toll road use is categorised as a criminal offence. Toll road offences today constitute the most common kind of case heard each year in the Magistrates’ Court. The public, through the police and the Department of Justice and Community Safety, is paying for the enforcement of private debt on behalf of a multibillion-dollar industry. In other industries, which bear their own costs and risks of enforcing debts, ineffectual pursuit of people on Centrelink has spurred industry into adopting policies to write off debts, which they have no hope of recovering from those too vulnerable to ever pay them back. * In 2018, Victoria introduced major reforms to the way fines are managed, known as Fines Reform. These reforms, which include so-called ‘social justice initiatives’ ostensibly designed to create more exit points for vulnerable people, have been a failure. After more than eighteen months of system collapse, which led to a report by the Victorian Ombudsman slamming Fines Victoria for ineptitude to the serious detriment of people trying to deal with their fines, late last year the government appointed a panel led by ex-head cop Ken Lay, to examine Fines Reform and make recommendations to fix the ailing system. The Fines Reform Advisory Board is expected to report to the Attorney-General in March 2020, following public consultation. * Infringements penalise a range of behaviour, most of which is trivial and does not constitute a risk to public safety, such as being found with an open container of liquor (2), driving on a toll road without paying, failing to vote, parking where you aren’t allowed to, travelling on public transport without a valid ticket or failing to produce evidence of concession entitlement, or offensive behaviour such as urinating in public. There are a number of fine offences which regulate public safety matters such as speeding and driving through a red light but, although they attract demerit points, these fines do not necessarily impose higher monetary penalties than those relating to trivial offences (3). The majority of fine offences penalise harmless behaviour whose regulation is justified by moral or public order rationale rather than protecting public safety. Fines are the most widely applied criminal sanction, dwarfing the number of court hearings for more serious criminal offences determined each year. The most recent published data shows that 5.4 million fines were issued in Victoria In 2016-17, 2.98 million of which were issued by Victoria Police, mostly for driving offences. If you can’t pay your fine, you enter a labyrinthine system that ostensibly creates exit points, but in actuality punishes you more – for example, by forcing you to plead guilty in court following a so-called ‘special circumstances’ review. In this case – and despite Fines Victoria determining that the person could not understand or control the conduct constituting the offence due to their mental health condition, intellectual disability, drug or alcohol addiction, homelessness or family violence – people end up with a criminal record and a sentence such as a good behaviour bond or a court fine. This is a much harsher penalty than if they had been able to pay to begin with, even though people who do not suffer from this kind of disadvantage are seen as more culpable under the law. So what is the significance of an automated – literally inhuman – system like this? We know that some people try to pay their fines and, as a consequence, have to forgo life essentials; or, if they can’t pay, are subjected to stress, court, and ever more punitive and all-encompassing systems of control. Remember that this is only happening to people already living in poverty. This system, then, begins to look a lot like a means to control the life horizons of people who are already seriously marginalised. * Historically, sanctioning through forced payment allowed for the simplification of criminal procedures and a vastly increased productivity of the courts in terms of throughput of matters. This was necessary as cars became commonplace and the need to regulate driver behaviour increased. Ultimately, the rise of the fine must be seen as a corollary of the rise of the consumer society. Jeremy Bentham – the speculative inventor of the ‘panoptic’ prison – first theorised fines as monetary sanctions that could ‘price’ crime in a way that would provide abstract compensation to the state to make it as if the crime never occurred (4). Fines were designed not to change individuals in a disciplinary sense (that is, to punish and correct or rehabilitate individuals beyond basic deterrence); rather, they merely existed to extract a price for unwanted behaviour (5), and were therefore more regulatory than disciplinary in nature. However, this characterisation misses the point of how fines function today. The theoretical implications of fines are different if you are imagining a system where they in fact get paid, as opposed to one that is deliberately set up so that fines are unpayable by some segments of the population (indeed, those most likely to accrue them), and which then exacerbate a life of chaos, surveillance and distress. This is even more the case where the alternatives to paying a fine include court appearances, justice system entrenchment, restriction of rights to vehicular access, a criminal record, and possible imprisonment. Although Foucault does not explicitly examine fines, the systems that are engaged once a person is unable to pay their fines take on distinctly disciplinary functions in a regime Foucault characterised as ‘governmentality.’ As Maurizio Lazzarato notes regarding the subjective functions of debt, the purpose of neoliberal memory techniques are to ‘construct memory, inscribe ‘guilt’ in the mind and body, fear and ‘bad conscience’ in the individual economic subject’ (6). As Nietzsche had observed, ‘the main purpose of debt lies in its construction of a subject and a conscience, a self that believes in its specific individuality and that stands as guarantor of its actions, its way of life … and takes responsibility for them’ (7). Rather than being geared at financial repayment of the debt, systems of debt for impoverished people function to standardise a person’s behaviour, requiring conformity to the dictated ‘life norms’ (8). Repayment is made through a person’s efforts to increase conformity and integration into the social environment. We can clearly see that, in respect of poor people caught up in the fines system, this system functions to enforce conformity, surveillance and the creation of a subjectivity that internalises external disciplinary forces in the hope that the subject will come to discipline itself. But debt as control has, in some ways and for some people who commit certain offences, augmented enclosure in an institution as discipline. This is one way that, with the evolution of technologies of control and surveillance, carcerality has begun ‘bleeding’ into society (9). * Although fines are ostensibly designed to be paid in place of more traditionally disciplinary punishments such as imprisonment, this is not to say that fines cannot result in incarceration in contemporary Australia. Ever since Sisters Inside’s ‘Free the People’ campaign, we have known that in Western Australia non-payment of fines results in warrants for the imprisonment of the fine defaulter. Aboriginal women are vastly over-represented in this system. What is less well known is that you can be imprisoned for failing to pay your fines in Victoria as well. After an arrest for defaulting on your fines in Victoria, your case will be heard by a magistrate who determines whether you should be made to pay, serve time in prison or have your fines cancelled. In practice, magistrates do not sentence debtors to imprisonment right away. Instead, they set them up to be imprisoned later through time-to-pay arrangements that leave custody hanging over a person’s head in the event of default. These are known as ‘imprisonment in lieu of payment’ orders. It is the experience of the legal assistance sector that the imprisonment in lieu orders imposed frequently run for many years or even decades, tying vulnerable low-income people to unsustainable repayment orders that they will almost inevitably default on. In some cases I have seen, these orders oblige debtors to repay their fines until they are 120 years old or even older. When the imprisonment in lieu order is breached, a warrant is automatically issued for their arrest, without the matter going back before a court to decide if imprisonment is appropriate. Information provided pursuant to Freedom of Information request indicates that there are something like 8,000 breached imprisonment in lieu orders in place. Not all of them will result in incarceration, however the numbers in Victoria are significant. Between 2010 and 2018, three hundred Victorians served time in prison just for failing to pay their fines, some serving sentences as long as 429 days behind bars. It is unknown why some people end up in custody while some people’s breached orders remain unresponded to for years. It should also be noted that the Victorian government does not collect data on the gender or Indigenous status of the people it incarcerates for fines. * Some solutions at the fines system level are blindingly obvious: concession-based or so-called day fines, where the amount of a fine is corresponded to a person’s income, making them affordable for all; low-income concession products for toll roads (if we continue to allow toll roads at all (10)); free public transport for Centrelink recipients; the decriminalisation of toll road offences and toll road operators collecting debt through civil means (again, with its greater protections and less crippling legal consequences for the individual) rather than burdening the criminal justice system. But ultimately, the practice of detecting and punishing innocuous behaviour through fines – particularly public space offences like drinking in public or using offensive language, and toll road offences, which pose no significant risks to community safety – must be not only revised, but overturned. These offences serve only to subject a person to police interference, surveillance and, as they are drawn into the criminal justice system when they can’t pay their fines, to disciplinary control and attempts at normalisation. These are symptoms of the punitive management of poverty. While ameliorative policy changes such as those mentioned above are worth serious consideration in the short term, ultimately these are little more than band-aids on the wounds of a system specifically designed to control people in poverty – those who bear the real scars of this structural violence. (1) Following sustained advocacy from the legal assistance sector, legislative change has recently reduced the frequency with which someone can be fined for driving on a toll road without paying from once per day to once per week. This still equates to in excess of $19,000 for a year of unauthorised use of the toll roads. (2) Although the offence of being found drunk in a public place is being repealed as a result of the staunch advocacy of the Day family, being found with an open container of liquor remains on the books. (3) Exceeding the speed limit by less than 10 km per hour incurs a fine of $207, whereas failing to produce evidence of your concession entitlement on public transport sees you receive a fine of $248. (4) Pat O’Malley, ‘The Birth of Biopolitical Justice’ in Ben Golder (ed.), Re-reading Foucault: On Law, Power and Rights, London, Routledge, 2013, p. 157. (5) Ibid. (6) Maurizio Lazzarato, The Making of the Indebted Man: An Essay on the Neoliberal Condition, Joshua David Jordan (trans.), Semiotext(e) Intervention Series 13, Los Angeles, 2012, p. 130. (7) Lazzarato paraphrasing Nietzsche in ibid. p. 134. (8) Ibid. p. 135. (9) Jackie Wang, Carceral Capitalism, Semiotext(e) Intervention Series 21, South Pasadena, 2018, p. 39. (10) At this rate, roads will be tolled in Melbourne forever, although the original Citylink contract would have seen the road move into public – untolled – hands in the next few years. Corporate operators of the toll roads have had their contracts – and their license to collect tolls on the existing roads – extended by decades after approaching the government with further toll road projects such as the West Gate Tunnel Project currently being built. There was no tender process for this project and critics argue it is the product of the overly cosy relationship between the state Labor government and Transurban, the operator of Citylink, which has seen numerous Labor staff go on to high-paid roles at Transurban. Image: Indigo Skies Photography Shifrah Blustein Shifrah Blustein is a community lawyer from Narrm/Melbourne. More by Shifrah Blustein › Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places. If you like this piece, or support Overland’s work in general, please subscribe or donate. Related articles & Essays 1 First published in Overland Issue 228 10 February 202011 March 2020 · The law ‘His dean is making him hire a person of colour’: counter-storytelling and the law Tina Huang Counter-storytelling is a vital strategy for resistance. 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