Thousands face imprisonment over ‘zombie warrants’ from repealed fines law

4 hours ago 3

Thousands of Victorians face imprisonment on “zombie warrants” for old unpaid fines, almost all issued under a law repealed in 2017 after parliament acknowledged it created significant injustice.

The dormant warrants – many dating back more than a decade – are held largely by vulnerable, low-income people and stem mostly from unpaid toll road fines.

Jarrod West, a Bunurong man and a traditional owner, is among thousands with a warrant hanging over his head for toll road fines accrued many years ago.

At least 3117 unexecuted imprisonment warrants remain in Victoria’s fines system, most issued under the repealed laws, according to Department of Justice data.

A moratorium on executing the warrants began in early 2024 after Victoria Legal Aid and community lawyers raised the alarm when individuals were pursued over long-dormant debts.

The Justice Department now appears intent on enforcing the warrants – and threatening jail if payment plans are refused.

Advocates are urging Attorney-General Sonya Kilkenny to void the warrants. They warn that enforcing them threatens thousands whose desperation drove the 2017 law changes, subjecting them to the very policy the government abandoned.

‘My head in the sand’

Jarrod West, a Bunurong man and traditional owner, accumulated tens of thousands in toll debt following the 2009 Black Saturday bushfires. Then aged 19, West was a firefighter in Strathewen and St Andrews, where 36 people perished.

Reports, including in The Age and the 2010 book, Footsteps in the Ash, recount West caring for a critically burned 12-year-old girl who had watched her parents and sister die when their house collapsed. In the months following, West – later diagnosed with severe post-traumatic stress disorder – lived between homes, couch-surfing and using CityLink without paying. His debt ballooned to $119,000 once penalties were applied. “I didn’t have the headspace to deal with basic life admin after Black Saturday,” he said. “I was sticking my head in the sand.”

When West eventually faced court, a magistrate reduced the debt to $39,000. West’s attempts to arrange a payment plan failed and then, for reasons never clear to him, pursuit over the debt stopped – though the threat of imprisonment hung over him. Then, in October this year, West says Fines Victoria contacted him about his fines and issued a demand for tens of thousands of dollars. “They said, ‘We have the power to come to your house’,” West said.

Fines Victoria did not respond to questions regarding his case.

A legislative trap

The warrants currently sitting in the sheriff’s system were issued under old laws that gave magistrates limited discretion, leading to jail orders being routinely handed out.

But in 2017, a new regime began that gave magistrates discretion on whether to jail people who did not have the capacity to pay, and made imprisonment a last resort.

Legal advocates argue that by pursuing the old warrants now, the government is bypassing its own reforms. Most of the outstanding warrants if heard today would not result in imprisonment because of the added protections.

“People are at risk of imprisonment [from] orders courts made under legislation that has been repealed – in recognition by the government that it was producing significant injustice,” said Shifrah Blustein, a managing lawyer at Inner Melbourne Community Legal.

Blustein said the government’s proposal to reactivate these warrants was a “cash grab” that ignored the fact the orders were unjust. “We are saying all of these pre-2017 orders must be voided.”

A spokesman for the Department of Justice said the imprisonment warrants issued by the court were not currently being executed.  “We’re consulting with stakeholders including community legal centres and courts to find the most fair and effective way to manage these warrants,” he said.

However, legal groups have told The Age they understand the government plans to end this moratorium and allow the sheriff to act.

The toll road connection

Data obtained by Inner Melbourne Community Legal reveals imprisonment warrants are inextricably linked to private toll road operators, rather than speeding fines or red-light cameras.

In cases where a magistrate ordered imprisonment and the person had at least one toll road penalty, 80 per cent of their fines related to tolls – meaning the state’s most severe enforcement powers, arrest and imprisonment, are primarily being used to act as an enforcer for private motorway operators.

Blustein said many of the outstanding arrest warrants, many of which are “years and years old”, were issued without the person’s knowledge after they defaulted on a court-ordered payment plan. “These zombie warrants then sit in a sheriff’s drawer for years, and we don’t understand what triggers action,” she said.

Justice Connect, a community legal centre specialising in the intersection of homelessness and the law, also warned that Victoria’s fines system disproportionately harmed those already in crisis. The centre has been a key voice in lobbying the Justice Department to void the old warrants.

Paula Hughes, a lawyer from Justice Connect, said the “background threat” of these warrants exacerbated trauma for clients already struggling with mental illness or homelessness. She described the fines system as a trap where disadvantage pulled people in and then stripped them of the capacity to navigate their way out.

Hughes argued the situation bore disturbing similarities to the robo-debt scandal because of the “vulnerability of the people impacted” by a system that is “not particularly person centred”.

“It just seems completely unjust that there’s repealed legislation and the government’s looking to enforce warrants issued under that repealed legislation,” she said.

The Age asked Attorney-General Sonya Kilkenny if she was considering legislative reform to change the options open to those with imprisonment warrants against them.

“We encourage people to deal with their fines as soon as they receive them,” Kilkenny’s spokeswoman said. “There are multiple opportunities for vulnerable people to ask for a review of their fine in addition to being able to take it to court, and flexible arrangements for people in special circumstances or without the ability to pay.”

She said warrants and imprisonment were “last resorts for outstanding fines and have nothing to do with the state’s financial position”.

The sheriff returns

While the enforcement of the warrants has been paused, the machinery of the sheriff’s office has recently roared back to life after a long period of dormancy during the COVID-19 pandemic. Data from the Department of Justice and Community Safety shows that in the financial year ending in June 2017, there were 7585 warrants executed. After that, there were zero executed until 2022.

The department noted this hiatus was “partially due to the implementation of fines reform”. But in the 2022-23 financial year, 840 warrants for imprisonment over penalties were issued, which doubled to 1860 the following year.

Legal groups argue the threat of imprisonment is the primary tool, along with sanctions like wheel-clamping, used to coerce payment from people who, in the majority of cases, cannot afford to pay. Advocates are concerned that sending letters threatening imprisonment to this group could have severe consequences.

It could, Blustein warned, “lead to suicides and other harms”.

‘Punishing the most vulnerable’

Victoria still allows imprisonment for unpaid fines, unlike New South Wales and Western Australia. An analysis prepared for Justice Connect by a major Australian law firm highlights that those two states abolished the practice after Indigenous people imprisoned over unpaid fines died in custody. The report noted imprisonment for non-payment of fines “disproportionately affects marginalised populations, and serves to exacerbate previously existing poverty and disadvantage in these groups”. The report also points out that jailing fine defaulters was economically counterproductive: “It costs more to imprison a person for a day than what will be recovered in fines.”

Internationally, jurisdictions such as Sweden and Germany utilise “day fines”, calculated based on a person’s daily income, so that a fine’s punitive impact is proportional to wealth.

By contrast, the Victorian fines system imposes a flat penalty, with ballooning late fees, that can be devastating for those on low incomes. The government justifies the ongoing availability of imprisonment as necessary to compel refusers to pay. Inner Melbourne Community Legal wants the government to void all the outstanding warrants issued under the old laws, and to abolish jailing powers entirely.

“Retaining the threat of imprisonment to strong-arm fine ‘refusers’ who never end up at court is dishonest. The system punishes the most vulnerable with threats and actual imprisonment – people who the system is supposed to protect. It’s seriously messed up,” Blustein said.

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