(QLD) End Imprisonment for Fine Default

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Author: Xuan Vu | Publish date: 21/05/2024

Problem Identification: 

In QLD, an individual can be imprisoned as punishment for defaulting on a fine.

12 sections including s4(i), s52(b), s61, s62, s70, s78(d), s82, s182A, s183, s185, s185A and s186 in the Penalties and Sentencing Act 1992 (QLD) permit or describe imprisonment for fine default. 

This means that individuals in QLD who are unable to pay a fine may face imprisonment as a consequence. Concerns have been raised by the Law Council of Australia (LCA) and the Law Society of Western Australia about fine default systems, which they have stated ‘relies on getting money from people who do not have it and which results in the life-threatening risk and social disruption of imprisonment.’

Context: 

Fine default refers to not paying a fine by the due date. Professor Tamara Walsh from the University of Queensland has emphasised that ‘the vast majority of those who default on payment of fines are too poor to pay.’ 

The State Penalties Enforcement Registry (SPER) collects and enforces unpaid fines. SPER may take actions to recover the fine amount, such as ‘seizing a person’s property and garnishing a person’s wages.’ If the fine remains unpaid, SPER may request a warrant for the person’s arrest.

Before default, fines can be converted into Fine Option Orders, requiring a person to complete unpaid community service at a maximum of 5 hours per penalty unit. These orders are only granted if the individual is ‘unable to pay the fine’ or would ‘suffer economic hardship’ from paying the fine, and is deemed a ‘suitable person to perform community service.’ 

However, Professor Walsh has stated that Fine Option Orders may still be inappropriate for people who are homeless or facing severe financial hardship, due to barriers such as inaccess to transport and/or competing priorities to secure shelter and food. Further, as Professors Quilter and Hogg stated, ‘a fine will likely appear less urgent to a household confronted with the prospect of having the electricity disconnected.’ They have further argued that this system allows a ‘lenient penalty [to convert] into a harsh penal outcome.’ The LCA stated that a system that imprisons people for being unable to pay fines with money they do not have is ‘inherently dysfunctional and ineffective.’

The Australian Law Reform Commission argued that imprisonment for fine default results in a ‘punishment disproportionate to the offending conduct.’ They also asserted that imprisonment for fine default ‘normalises imprisonment’, undermining the deterrence element of imprisonment as a penalty. 

Additionally, fines are known to disproportionately impact already disadvantaged groups, including Aboriginal and Torres Strait Islander people, youth, homeless people, those who are experiencing mental illness, and those with intellectual disabilities. Professors Quilter and Hogg stated that these groups may be ‘more vulnerable’ to being fined, accruing multiple fines, and being unable to pay them. The Queensland Sentencing Advisory Council has further highlighted that ‘imprisonment by fine default has been identified as a key contributor to Aboriginal and Torres Strait Islander incarceration rates.’

The Change the Record Coalition, a First Nations-led group ‘tackling the over-incarceration of Aboriginal and Torres Strait Islander people’, recommended abolishing fine-default imprisonment as soon as possible. They, among others, argued that removing imprisonment from the fine recovery process may ‘reduce the unnecessary incarceration of our people’. They said this could ensure policies ‘support, rather than punish, our most vulnerable people.’

There is domestic precedent for abolishing fine default. In NSW, a person is not liable to imprisonment for failure to pay a fine by the due date.

Solution Identification: 

Repeal references to imprisonment for fine default from s4(i), s52(b), s61, s62, s70, s78(d), s82, s182A, s183, s185, s185A and s186 of the Penalties and Sentences Act 1992 (QLD) to abolish fine default imprisonment in QLD.

This may help to prevent vulnerable people from facing the most serious punishment for a minor offence.

Advice:

The QLD Minister for Justice should amend the Penalties and Sentences Act 1992 (QLD) to abolish fine-default imprisonment at the next opportunity.

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Public Support: 

1. Change the Record Coalition

2. Australian Law Reform Commission

3. Law Council of Australia

4. Free Our Fathers Campaign

5. Professor Tamara Walsh

Where to go to learn more: 

• Outlines the harms of fine default - Read the Aboriginal and Torres Strait Islander Legal Service QLD’s media release here

• Provides details about the connection between fine default and imprisonment - Read the Australian Law Reform Commission’s inquiry here

• State Penalties Enforcement Registry - Explains how fines are enforced in QLD. Visit SPER

• Penalties and Sentencing Act 1992 (QLD) - Read the full act here

Human Perspective:

Dylan has been couch surfing since losing stable work six months ago. After receiving a few fines for fare evasion on public transport, an expense he simply couldn’t afford,  he tried to apply for a fine option order. However, without consistent access to transport or a safe place to sleep, he found it impossible to attend appointments or complete community service. The fine remained unpaid. Eventually, a warrant was issued for his arrest. Being taken into custody disrupted the fragile support networks he was trying to build, including a community meal program and a part-time job interview he’d finally secured. For Dylan, what began as a few minor infringements became a downward spiral into the criminal justice system, simply because he couldn’t afford to pay. While imprisoned, Dylan lost contact with his seven-year-old daughter, Mia, whom he used to see regularly. With Dylan behind bars, Mia was left confused and distressed, just wishing she could see her dad.  To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement: 

N/a

Support 

If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com. 

Reference list: 

Aboriginal and Torres Strait Islander Legal Service (QLD). (2016). Media Release: Call for Rethink of Fine Default Reforms. [Media release] https://atsils.org.au/media-release-call-for-rethink-on-fine-default-reforms/ 

Australian Law Reform Commission (2018) Imprisonment terms that ‘cut out’ or result from fine debt. https://www.alrc.gov.au/publication/imprisonment-terms-that-cut-out-or-result-from-fine-debt/#:~:text=It%20is%20the%20view%20of,person%20requires%20assistance%2C%20not%20prison 

Caxton Legal Centre Inc. (2024). Fines. https://queenslandlawhandbook.org.au/the-queensland-law-handbook/offenders-and-victims/sentencing/fines/#:~:text=Failure%20to%20pay%20fine&text=If%20the%20fine%20remains%20unpaid,Restitution%2C%20Compensation%20and%20Restoration 

Fines Act 1996 (NSW)

Hogg, R., & Quilter, J. (2017) Inquiry into Incarceration Rates of Aboriginal and Torres Strait Islander People: Submission 87 to the Australian Law Reform Commission. Australian Law Reform Commission. Retrieved 13 May 2025. https://www.alrc.gov.au/wp-content/uploads/2019/08/87._adjunct_prof_r_hogg_and_j_quilter.docx 

Law Council of Australian and Law Society of Western Australia. (2019). Joint statement: Law Council of Australia and Law Society of Western Australia regarding imprisonment for unpaid fines. [Media release] https://lawcouncil.au/publicassets/9895bf43-cb12-e911-93fc-005056be13b5/1902%20-%20Joint%20media%20statement%20Law%20Council%20of%20Australia%20and%20Law%20Society%20of%20Western%20Australia%20regarding%20imprisonment%20for%20unpaid%20fines.pdf 

Legal Aid Queensland. (2014) Criminal Law Duty Lawyer Handbook (6th Edition) https://www.legalaid.qld.gov.au/files/assets/public/v/1/publications/practitioners-and-service-providers/criminal-law-duty-lawyer-handbook-printable-version.pdf 

Penalties and Sentencing Act 1992 (Qld) 

Queensland Revenue Office. (2024). About SPER. https://qro.qld.gov.au/sper/about/ 

Quilter, J., & Hogg, R. (2018) The hidden punitiveness of fines. International Journal for Crime, Justice and Social Democracy 7(3): 9-40. https://doi.org/10.5204/ijcjsd.v7i3.512 

Somoray, K., Jeffs, S., & Edwards, A. Connecting the dots: the sentencing of Aboriginal and Torres Strait Islander peoples in Queensland. Queensland Sentencing Advisory Council. https://www.sentencingcouncil.qld.gov.au/__data/assets/pdf_file/0009/675783/sentencing-profile-series-connecting-the-dots.pdf 

State Penalties Enforcement Act 1999 (Qld)

Walsh, T. (2005). Won’t Pay or Can’t Pay? Exploring the Use of Fines as a Sentencing Alternative for Public Nuisance Type Offences in Queensland. Current Issues in Criminal Justice, 17(2), 217–238. https://doi.org/10.1080/10345329.2005.12036351 

Wei, Z., Mcdonald, H., & Coumarelos, C. (2018). Fines: are disadvantaged people at a disadvantage?, 27, 1–30. https://lawfoundation.net.au/wp-content/uploads/2023/11/6JI_Fines.-are-disadvantaged-peopl-ta-a-disadvantage_Paper-27_2018.pdf