Magistrates must inquire before imprisoning people with special circumstances for unpaid fines

Victoria Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37


The Court of Appeal held that there is a duty on Magistrates to inquire into whether infringement offenders have disabilities such as mental illness or intellectual disability, or other special circumstances, before making an imprisonment order in respect of unpaid fines. This duty is a consequence of a proper construction of the relevant statutory provision, section 160 of the Infringements Act 2006 Vic. This construction is supported by section 32 of the Charter, as it is more compatible with the rights to equality, liberty and a fair hearing.



Mr Taha has an intellectual disability. Between 2006 and 2008 he was issued with a number of infringement notices for minor offences: riding a bicycle without a helmet, using public transport without a ticket and failing to provide information to authorised officers. Mr Taha did not pay the fines so he was arrested and bailed to appear before the Magistrates’ Court. At his hearing, Mr Taha was represented by a duty lawyer, who was unaware that Mr Taha had an intellectual disability. Mr Taha had previously been placed by the courts on a “Justice Plan” (which is a plan for offenders with intellectual disabilities). This information was available on the Court's database, but the Magistrate did not apprise himself of it, so he too remained unaware of Mr Taha's disability. Therefore the Magistrate applied the ordinary automatic formula for infringements offenders under section 160(1) of the Act, according to which Mr Taha was to pay off the $11,250.20 of fines in monthly instalments of $80.00, in default of which he would be imprisoned for 100 days.


Ms Brookes has a mental illness, namely post-traumatic stress disorder. She is a survivor of domestic violence, which she was subjected to for over nine years in an abusive relationship. Between 1999 and 2001 Ms Brookes incurred a number of fines, mostly for driving on a toll road without CityLink registration. Many of these offences were committed by Ms Brookes’ then-partner. Ms Brookes did not pay these fines, and was eventually arrested and taken to the Broadmeadows Police Station to appear before the Magistrates’ Court. While being held in the cells, Ms Brookes saw a duty lawyer to whom she explained her circumstances. The duty lawyer relayed these circumstances to the Magistrate, but the Magistrate declined to entertain submissions in relation to them in the absence of written evidence. Ms Brookes instructed the duty lawyer not to seek an adjournment to obtain written material, as she wanted the matter to be dealt with on that day. Accordingly, the matter proceeded and the Magistrate made an order, applying the automatic formula under section 160(1), requiring Ms Brookes to pay off the $15,164.50 of fines in monthly instalments of $45.00, in default of which she would be imprisoned for 134 days.

Decision under appeal

Both Mr Taha and Ms Brookes defaulted on their payment plans, and were therefore liable to be imprisoned. No appeal right being available, they sought judicial review of the Magistrate’s decisions. Justice Emerton held that the Magistrate misconstrued section 160 of the Act, by failing to have regard to sections 160(2) and (3), which provide that the Court may discharge the fines in full or in part, if satisfied that the offender has a mental impairment or other special circumstances (section 160(2)), or that imprisonment would be excessive, disproportionate and unduly harsh (section 160(3)). Justice Emerton held that, properly construed, section 160 gives rise to a duty on the Magistrate to satisfy him or herself whether sections 160(2) or (3) might apply, before making an imprisonment order under section 160(1). By failing to inquire as to whether section 160(2) might apply in Mr Taha’s case, and by failing to adjourn Ms Brookes’ matter to allow her to provide written evidence of her circumstances, the Magistrate misconstrued his functions under section 160, which amounted to jurisdictional error. Justice Emerton remitted the matters to the Magistrates’ Court to be determined according to law.


The Court of Appeal unanimously upheld Justice Emerton’s decision.

Construction of section 160

All three judges held that Justice Emerton was correct to adopt a “unified construction” of section 160, which requires Magistrates to consider the possibility of dispositions under sections 160(2) and (3) before making an imprisonment order under section 160(1).

Duty to inquire

All three judges also held that the unified construction gave rise to a duty on Magistrates to inquire as to whether sections 160(2) or (3) might apply.

There was some disagreement between the judges as to when the duty would arise. Justice Nettle held that the duty would not arise in all cases. The existence of the duty would depend on the circumstances of the case, such as whether the person is represented, and, if so, whether this is by a duty lawyer or a more prepared lawyer. His Honour held that in Mr Taha’s case, there were sufficient “flags” to give rise to the duty to inquire. Justice Tate, however, held that the unified construction gave rise to a universal duty to inquire in every case, and that the existence of the duty was not contingent on “flags” being raised. Her Honour held that what would be necessary to discharge this duty would depend on the circumstances of the case. Justice Osborn agreed with Justice Tate in regard to the nature and incidents of the duty to inquire.

Requirement for written evidence

Justices of Appeal Nettle and Osborn held that it was not an error for the Magistrate to require Ms Brookes to provide written evidence of her mental illness. However, Justice Tate held that written evidence was not required by sections 160(2) or (3), which require only that the Court be “satisfied” of the mental impairment or special circumstances.  Her Honour held that the Court could be satisfied by sworn oral evidence of the offender, or even unsworn evidence, evidence from the bar, or from its own inquiries.

Duty to adjourn

All three judges held that insofar as the Magistrate considered written material to be necessary, the Magistrate should have adjourned Ms Brookes’ matter to allow her to provide that material.  Their Honours held that regardless of Ms Brookes’ instructions, the Magistrate should have adjourned the matter of its own motion.

Amenability to review

The respondents argued that any errors of the Magistrate were errors within jurisdiction, and were therefore not amendable to review. The Court, citing the High Court’s decision in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, held that the errors involved a misconstruction of the relevant statute and thus amounted to jurisdictional error which were amenable to review notwithstanding the limits on review of inferior courts.

Charter issues

Justice Nettle and Justice Tate agreed with Justice Emerton that the unified construction of section 160 was supported by section 32 of the Charter which, per Momcilovic v The Queen [2011] HCA 34, required the rights to equality (section 8(3)), liberty (section 21) and a fair hearing (section 24) to be taken into account in the as part of the interpretive process. Justice Osborn did not refer to the Charter.

Justice Nettle cited with approval Chief Justice French’s comments in Momcilovic that section 32 of the Charter is essentially a codification of the common law principle of legality, but with application to a greater number of rights. Justice Tate expressly disagreed with this characterisation of section 32. Her Honour stated that a statutory provision such as section 32 might require a stronger interpretive rule that mandated greater departure from strict or literal meanings, than a common law rule such as the principle of legality. Ultimately, however, it was not necessary to determine this issue, as even on the “principle of legality standard”, section 32 gave support to the unified construction of section 160.

Of particular importance were Justice Tate’s comments in regard to the scope of the right not to be arbitrarily detained under section 21(2) of the Charter. Her Honour held that “arbitrarily” in section 21(2) should be understood according to the “human rights meaning” of the term. Under this meaning, “arbitrariness” includes, among other things, a lack of proportionality. Her Honour held that a unified construction of section 160, in so far as it requires Magistrates to consider whether a person might have a mental illness or intellectual disability before imprisoning them, ensures against people being imprisoned where that would be disproportionate. The unified construction therefore guards against arbitrary detention, and is accordingly required by section 32 of the Charter.

Her Honour held that the unified construction was also required by section 8(3) of the Charter. A construction of section 160 that required offenders with special circumstances to raise these circumstances themselves, for them to be taken into account, would be incompatible with section 8(3) as it would give rise to indirect discrimination on the ground of disability by imposing a requirement or condition that would have the effect of unreasonably disadvantaging persons with an impairment.

Because of the rights that were in issue, her Honour considered that it was unnecessary to consider whether section 7(2) of the Charter had a role to play in applying section 32, and therefore whether, and if so how, the divided decision in Momcilovic should be applied.

Finally, her Honour held that the Magistrate was directly bound by section 6(2)(b) of the Charter to comply with the right to a fair hearing protected by section 24 of the Charter. Her Honour held that by failing to consider sections 160(2) and (3) the Magistrate had acted incompatibly with this right.

This decision is available online at:

Hamish McLachlan is a Senior Lawyer in Victoria Legal Aid’s Mental Health and Disability Advocacy Program.