CHEAP AND EFFICIENT JUSTICE? 
NEOLIBERAL DISCOURSE AND CRIMINAL INFRINGEMENT NOTICES
ELYSE METHVEN

Criminal infringement notices (CINs) are now a familiar component of the criminal justice system, especially in the policing of public order and minor offences. Successive Australian state and territory governments have implemented CIN schemes with the objective of reducing administrative demands and trial backlogs, cutting down on paperwork, freeing up police time; saving costs and keeping police ‘on the beat’. This article examines how CINs have been rationalised on the basis of neoliberal economic values, which have overshadowed ordinary criminal justice concerns of morality and responsibility. It focuses on the introduction of criminal code infringement notices in Western Australia for two offences: disorderly behaviour, and steal anything up to the value of $500. The author argues that there is a need to recognise—and to resist—the encroachment of neoliberal economisation discourses into the realm of criminal law. 

INTRODUCTION

I think the offenders would prefer to simply cop it sweet, pay a fine, not spend all that time in court and not attract a criminal record … Is it better for police? Is it better for the offender? I think it is. I think everybody is a winner here.

In Western Australia (WA), police may issue criminal code infringement notices (‘CCINs’) for two offences: disorderly behaviour, and steal anything up to the value of $500. Commencing in March 2015, the scheme enables police to issue infringement notices with a ‘modified penalty’ of $500 as an alternative to the person being charged or summonsed and appearing before a court. The WA Government promised that CCINs would yield a number of benefits, including diverting alleged offenders away from the court system; allowing ‘victims’ to have their cases remedied quickly; and enabling CCIN recipients to avoid a criminal record.
Several months after the scheme commenced, WA police issued a CCIN fine of $500 to a 20-year-old Indigenous woman for allegedly stealing a $6.75 box of tampons at a Caltex service station in Coolgardie, a remote WA mining town. The fixed $500 fine amounted to 74 times the value of the stolen property. The woman’s ‘excuse’ given to police was that she had taken the tampons for another woman who had been ‘too ashamed’ to purchase them. Constable Evans accepted this to be ‘probably true’. He nonetheless determined that issuing a CCIN was the appropriate course of action.
Following the incident, Coolgardie Police tweeted about their decision to issue the $500 fine on Twitter. The decision to issue the CCIN and the crowdfunding campaign soon attracted international media attention. Essentials4 Woman SA, an organisation for disadvantaged women, responded by launching a crowdfunding campaign to cover the $500 penalty. The campaign acknowledged that sanitary items can be prohibitively expensive for women who are financially disadvantaged. In just two days, the campaign had raised $3,456 over its goal of $500. 
In many ways, this case study reflects central problems with CCINs that will be further explored in this article. Firstly, it demonstrates how fixed infringement fines may be disproportionate to, and fail to take into account, the recipient’s circumstances and level of culpability. Secondly, the WA Ombudsman has found that CCINs have had the starkest net-widening impact on Aboriginal females for alleged incidents of stealing. Further, persons recorded as being of ‘Aboriginal appearance’ accounted for 36% of CCIN recipients, despite Aboriginal Australians representing just 3.1% of the WA population. Thirdly, the WA Ombudsman found a correlation between increased socio-economic disadvantage and an increased likelihood of receiving a CCIN. Finally, the ability to source crowdfunding highlights O’Malley’s critique of fines more generally as having ‘the amazing characteristic’ and ‘striking peculiarity’ of ‘being virtually the only criminal penalty that legally can be borne by someone other than the offender’.
What is exceptional about this case, however, is that the officer’s tweet about the decision to issue the CCIN meant that in this instance, the police officer’s exercise of discretion did not go ‘under the radar’ but was exposed to public scrutiny. Ordinarily, there is no public account of the rationale and process for issuing infringement notices. This is because unlike a judicial officer, a police officer is under no obligation to give reasons for their decisions. Instead, CCINs are examples of ‘dividualised’ justice—highly ‘impersonal’ sanctions that can ‘be monitored, delivered and expiated privately and anonymously’. 

A   Quick and Efficient Justice

When Constable Evans was asked whether the decision to issue the CCIN was an appropriate use of police discretion, he rationalised the decision in terms of efficiency: ‘prior to March, we would have to arrest her under suspicion, bring her back, do a recorded interview—it would have taken pretty much all day’. This statement is misleading. Police had—and continue to have—the discretion to caution a suspect for low-level offending. But what is most striking about Evans’ explanation is its lack of concern for the alleged offender’s criminal culpability. Instead, the decision to issue a CCIN was based on the notion of quick and efficient justice. The constable’s message was echoed by then WA Police Minister, Liza Harvey, who explained that CCINs provide ‘swift justice, save court time and allow police to continue frontline duties’. Harvey added: ‘this Government doesn't apologise for handing out swift punishment of actual consequence’.
Both police and politicians adopted a neoliberal discourse of economisation to justify the implementation and use of CCINs in WA. Within this discourse, CCINs are justified in terms of increasing police productivity and flexibility; reducing administrative demands, paperwork and trial backlogs; freeing up police time; and saving costs. Routine police investigation and traditional court processes are commodified and depicted as unnecessary impediments to productivity; while justice is measured in hours and dollars rather than in terms of procedural fairness, the punishment fitting the crime and the application of the rule of law.  
This article examines the introduction and operation of CCINs in WA to demonstrate how criminal justice is being discursively reconstructed along economic lines. This argument will be advanced via five parts. Part I outlines the methodology which informs the article. Part II examines key features of, and identifies problems associated with, criminal infringement notices (referred to generally as ‘CINs’, whereas the acronym ‘CCINs’ is used to refer specifically to the WA scheme). Part III examines key features of the CCIN scheme in WA and reflects on the WA Ombudsman’s 2017 report (‘the Ombudsman’s report’) on the scheme’s operation from the year commencing 5 March 2015 (‘the monitoring period’). After addressing key concerns relating to the use of CCINS, Part IV highlights how CCINs have been represented, legitimised and evaluated in discourse with reference to second reading speeches and ministerial statements relating to CCINS, as well as the Ombudsman’s report.
Part V summarises key findings and evaluates the implications of these for the application of administrative fines to criminal offending more generally. It argues that criminal justice discourse in relation to infringement notices has fostered and naturalised an ideology in which fiscal goals overshadow and supplant values traditionally associated with criminal law and punishment: impartiality, fairness, moral culpability, deterrence, rehabilitation and retribution. The author ultimately takes an interventionist stance by denaturalising the market logic that has infused criminal justice discourse. Prior to advancing this argument, the following section details the methodology used in the article.

I   METHODOLOGY

In 2001, Bourdieu and Wacquant noticed how, within a matter of a few years, a ‘new planetary vulgate’ had entered the language of ‘employers, international officials, high-ranking civil servants, media intellectuals and high-flying journalists’. This strange ‘Newspeak’ was replete with a vocabulary that seemed to ‘have sprung out of nowhere’, yet now flowed freely from everyone’s lips, with words including globalisation, flexibility, governance, employability, new economy and zero tolerance. Alongside the emergence of this NewLiberalSpeak was the ‘conspicuous’ suppression of terms such as capitalism, class, exploitation, domination and inequality, such words having been ‘peremptorily dismissed under the pretext that they are obsolete and non-pertinent’. 
These buzzwords associated with the domain of free market capitalism are now far from peculiar. Neoliberal free market thinking and values have made considerable inroads into areas where it was once thought the market did not belong. The tide of the ‘Neoliberal project’ rose in the early 1980s, a period in which US and UK leaders Ronald Reagan and Margaret Thatcher maintained an unswerving commitment to free markets and private enterprise and alongside these, the dismantling of government institutions and social welfare. This neoliberal agenda was encapsulated in Reagan’s mantra: ‘Government is the problem’. Adherents to neoliberal economic ideologies professed free, deregulated markets to be the primary means for achieving the public good. From the 1980s onwards, the market expanded into and ‘colonised’ parts of the public realm. As a result of this colonisation, we now have for-profit schools and hospitals; ‘entrepreneurial universities’—restructured and rebranded around the goals of increased outputs, competitiveness, customer-orientation, student employability, market relevance and private partnerships; and privatised prisons, where private companies are building prisons, providing food and medical care and are also involved in their day-to-day management, transforming this once government institution into a for-profit business. As Sandel has observed: ‘The reach of markets, and market-oriented thinking, into aspects of life traditionally governed by nonmarket norms is one of the most significant developments of our time’. 
The concepts associated with neoliberal economics and its jargon are reengineering all aspects of social, economic and cultural life, including criminal law and procedure. CINs are but one example of new measures implemented in the criminal justice system on the rationale of increasing efficiency and productivity while reducing expenditure. Another recent initiative is the New South Wales (NSW) Government’s ‘tough and smart justice’ sentencing reforms. Introduced in 2017, the reforms encompass measures such as fixed sentencing discounts for the utilitarian value of early guilty pleas, regulating the early disclosure of evidence including the ability to serve briefs of evidence in inadmissible form, mandatory case conferencing between parties and the replacement of committal hearings presided over by a magistrate with senior prosecutors who ‘screen out’ cases through charge certification. Similar to CINs, these reforms replace judicial processes with ‘technocratic’ and administrative ones, reduce judicial discretion and oversight within the criminal justice process, and represent a significant departure from the traditional adversarial system. And like CINs, these reforms were sold to the public using utilitarian, neoliberal reasoning, in terms of their ability to ‘deliver swifter, more certain justice’ and to ‘reduce time and money wasted on police, courts and lawyers’. 
With this socio-political context in mind, this research identifies—and argues against—free market and economic logic as a rationale for implementing on-the-spot fines for criminal offending. In doing so, the article builds on O’Malley’s analysis of fines as melded into, and symptomatic of, consumer societies. In 2009, O'Malley postulated that: ‘The persistence and expansion of regulatory fines in the "post-social era", the era of consumer-led market liberalism, perhaps is due not to their "technical" nature alone, but also to their conformity with neoliberal political ideals’. The author advances O’Malley’s suggestion by demonstrating how CINs have been rationalised using neoliberal economic ideals of increasing efficiency and productivity, while cutting expenditure, paperwork and 'red tape'. These neoliberal ideals have crowded out criminal sentencing concerns which prioritise the proportionate punishment of an offender in a fashion which reflects the objective seriousness of the offence and their individual culpability.
The analysis is distinguished from O'Malley's in that its focus is not on money’s peculiar characteristics as a legal sanction. Instead, this article examines how CINs—a quasi-administrative, quasi-criminal sanction—have been legitimised using neoliberal economic reasoning. Criminal law scholars have largely overlooked how neoliberal economic principles have become the central justification for applying administrative fines to criminal offences. Further, previous studies have failed to account for the role of discourse in fashioning a view of CINs as an appropriate and necessary solution to the asserted problem of administrative inefficiency in the justice system. This article fills these gaps in the literature by arguing that, with the advent of administrative fines for criminal offending, there has been a marked discursive shift in how criminal justice is conceived of and rationalised. The article evaluates the legitimacy of CINs from the premise that a critical analysis of discourse illuminates the various ways in which neoliberal economic ideologies have infiltrated the criminal justice system and transformed its values. Criminal ‘justice’ is being discursively reconstructed along economic lines. 
Drawing on the methodology of Critical Discourse Analysis (‘CDA’), discourse is viewed as the primary unit of communication and defined as ‘socially constructed ways of knowing some aspect of reality’. The author analyses the limited set of written texts publicly available in relation to the operation of and justifications provided for CCINs to show how discourse plays a fundamental role in ‘making the socio-economic transformations of new capitalism and policies of governments to facilitate them seem inevitable; representing desires as facts; and representing the imaginaries of interested policies—the interested possible realities they project—as the way that the world actually is’. Simply put, a neoliberal discourse of economisation has reshaped practices within the criminal justice system, so much so that this commodification of justice is now accepted as obvious, logical and inevitable. A key principle of CDA is that discourse is both socially constituted and constitutive: discourse plays a key role in structuring conduct, but it is also shaped by social conduct. As the study is situated within the realm of criminal justice, the term criminal justice discourse is employed to describe how ‘primary definers’ in criminal justice debates linguistically construct reality, with a focus on politicians, police and policy-review agencies such as the Ombudsman. It pays particular regard to political discourse—the linguistic strategies used by political actors to mobilise support for CCINs. 
Due to practical constraints, the study’s focus is on the jurisdiction of WA, but uses as a point of comparison the operation of CINs in NSW. The texts selected for analysis detail the State’s justification for the implementation of, evaluate the operation of and rationalise CCINs, including second reading speeches and parliamentary debates in relation to the CCIN scheme; ministerial press releases and statements made to media; and the WA Ombudsman’s report which evaluated the operation of CCINs in their first year of operation. Further, the texts were selected due to their public availability: police need not give or publish reasons for issuing CCINs and the WA Police policy in relation to CCINs is, at the time of writing, not publicly available.
Through this selection of texts, the study examines ‘not only the entry of discourses into new domains, but the diverse ways in which they are received, appropriated, and recontextualised’. Having detailed the methodology informing the analysis of CCINs, the following Part traces the rise of infringement notices in criminal law and reviews the literature regarding their use.  

II    CRIMINAL INFRINGEMENT NOTICES

Criminal infringement notices (CINs, also referred to as CCINs in WA, expiation notices in SA, and more generally, penalty notices or on-the-spot fines) are notices to the effect that if the person served does not elect to have the matter determined by a court (court-elect), they must pay the amount prescribed for the offence within a fixed time period. A once unconventional sanction limited to traffic and parking breaches, CINs are now a familiar component of the criminal justice system, especially in the policing of public order and minor offences. 

A   The Rise of CINs as a Criminal Justice Measure

The creep of administrative fines into criminal law was overlooked by mainstream criminal law scholarship until Fox’s analysis of administrative fines in 1995. Fox then warned: ‘To date, the offences which can be handled by way of an on-the-spot fine have not strayed sufficiently into the domain of 'real crime' to be regarded as posing a threat to civil liberties, but the potential is there.’ In the decades since that prediction, successive state and territory governments across Australia have touted CINs as the obvious solution to reducing court delays, increasing police productivity, saving money and even turning a profit. 
All Australian states and territories now have CINs as an alternative to a criminal charge or summons for nominated offences. For example in NSW, CINs currently apply to the crimes of larceny of property up to the value of $300, being unlawfully in possession of property, offensive behaviour, offensive language, unauthorised entry of vehicles, and drunk and disorderly behaviour following a move-on notice. In Queensland, infringement notices are available for the crimes of solicitation for the purposes of prostitution; certain drug offences; public nuisance (including obscene or offensive language and disorderly, threatening or offensive behaviour), public urination, begging, wilful exposure, trespass, and tattooing or selling spray paint to a minor.

B   Common Features of CINs

CINs impose a uniform penalty regardless of the culpability of the offender or their ability to pay the fine. This means that the punishment imposed may be unduly lenient or unduly harsh. Despite the NSW Law Reform Commission’s recommendation in 2012 that, except in ‘exceptional’ circumstances, penalty notice amounts should not exceed 25% of the maximum court fine for an offence, the fixed penalty notice amounts for a number of NSW offences range from 66-75% of the maximum court-imposed fines. For instance, the CIN amounts for offensive language and offensive conduct in NSW are $500, whereas the maximum fine a court can impose is $660. The CIN amount for the continuation of intoxicated and disorderly behaviour following a move on direction is a sizeable $1100, while a court can impose a maximum fine of $1650. These fixed fine amounts are ‘impossible to pay’ for many recipients, an issue that is examined below. 
CINs are administrative rather than judicial in nature; the question of whether the recipient has committed an infringement offence is determined by a police officer (part of the executive branch of government), not adjudicated by a court (part of the judicial branch of government), and a police officer’s findings in this regard do not carry the weight of a judicial officer’s findings of criminal liability. The WA Police Force’s webpage substantiates this when it states: ‘Paying an infringement is not regarded as an admission for the purposes of any civil or criminal court case, and does not have to be declared on your criminal history.’ Because no determination of criminal guilt has been made, CIN recipients are neither ‘offenders’ nor ‘criminals’, although they are regularly misrepresented as such in criminal justice discourse. The regular misuse of the label ‘criminal’ to refer to a person receiving a CIN, as well the association of CINs with criminal liability, demonstrates that despite being ‘administrative’ fines, the stigma associated with criminality attaches to those who receive a CIN. 
As CINs are—or purport to be—administrative sanctions, police may use these fines to circumvent the protections and principles ordinarily attached to criminal prosecution, which aim to guard against arbitrary and unjust punishment. A CIN need not, and ordinarily does not, detail the facts constituting the charge; police need only specify the relevant criminal offence that has allegedly been committed on the notice. Accordingly, CIN recipients considering whether or not to challenge the CIN through internal police processes or in court, will not have available to them the details of the case against them (presumably, they may be apprised of these details once a request has been made to the police for such information).  
Unless and until a CIN recipient decides to court-elect, the presumption of innocence does not apply. CINs reverse the onus and burden of proof, given that the State need not prove the elements of the offence, nor disprove any defences raised, to the standard of beyond reasonable doubt. Given that CIN fines are punitive in effect (especially considering the serious fines-enforcement consequences attached to non-payment); carry the stigma of being ‘criminal’; and that police retain the threat of criminal charge until a fine has been paid in full, CINs belong in the ‘foggy grey zone’ between criminal and administrative law, branded ‘criministrative’ law. The fourth Part of this article will demonstrate the role of discourse in blurring these boundaries and displacing concerns about procedural safeguards and transparent justice, replacing these with market-related objectives of efficiency and productivity. 
Recipients of CINs are encouraged to accept and pay their fines—or at the very least not appeal them—via a number of built-in ‘incentives’. Then WA Police Minister Rob Johnson recognised this when he stated that ‘offenders would prefer to simply cop it sweet, pay a fine, not spend all that time in court and not attract a criminal record’. As Johnson stated, by ‘copping the fine’, CIN recipients: avoid a judicial finding of criminal guilt and a criminal record; to some extent elude the stigma attached to a finding of guilt; save any time and expenses associated with court proceedings; and avoid the possibility that a court could impose a larger fine and, for some offences, a sentence of imprisonment. A CIN recipient who believes that they are innocent of the alleged offence may nonetheless feel compelled to pay the fine to avoid the possibility of criminal punishment. This threat can be phrased coercively; for instance, the WA Police Force website warns: ‘If you do not want to be prosecuted in court for the alleged offence, pay the Amount Due by the Due Date.’ Although this statement represents criminal prosecution as inevitable upon non-payment, in practice, the consequence of non-payment by the due date is unlikely to result in the initiation of court proceedings, but in a Final Demand notice being issued. That police nonetheless retain the threat of criminal prosecution until a fine is paid shows one way in which CINs amplify police power, by adding to the range of coercive tools at a police officer’s disposal to control public behaviour. 
Fox not only foreshadowed the likelihood that CINs would stray into other areas of the criminal law; he also foreshadowed their net-widening capacity, in other words, the likelihood that CINs will result in the criminal justice system ‘scooping into its net a larger group of citizens than might otherwise have been the case.’ Fox attributed the phenomenon of net-widening predominantly to the ‘ease with which infringement notices can be issued’—police may choose to issue a CIN rather than ignore, caution or warn the alleged offender. These contentions have since been, in some respects, validated by statistics collated in NSW and WA. For example, as detailed below, the WA Ombudsman found the net-widening effect of CCINs to be most striking for Aboriginal females having actions taken against them for alleged incidents of stealing.

C   Impact of CINs on Disadvantaged People and Indigenous Australians

The literature demonstrates that CINs are disproportionately issued to Indigenous Australians and operate especially harshly against those who cannot, or will not, pay their fines. In the year ending 31 March 2017, Indigenous Australians comprised 476 (11%) of the 4386 adults who received a CIN for offensive language or behaviour in NSW, despite Indigenous Australians representing only 3% of the NSW population. The numbers in WA are even more troubling. Of the 1800 CCINs issued in the year ending 4 March 2016 for the crime of disorderly behaviour (which includes offensive language and behaviour), 752 (42%) were issued to recipients whose ‘offender appearance’ was recorded as Aboriginal. Of the total 2978 CCINs issued in that period, 1080 (36%) were issued to recipients whose ‘offender appearance’ was Aboriginal. This percentage more or less reflects that of the prisoner population in WA: Aboriginal and Torres Strait Islander Australians comprised 38% of the WA prison population as at 30 June 2016. By way of contrast, the WA Indigenous population was recorded at 3.1% of the WA population in 2016. 
The WA Ombudsman found a correlation between increased vulnerability and socio-economic disadvantage, and an increased likelihood of receiving a CCIN. Further, vulnerable CIN recipients, many of whom are also Indigenous Australians, often do not and cannot pay their fines on time, if at all. This leads to fines, the initial amount of which is already prohibitive, spiralling into insurmountable debt. The NSW Ombudsman in 2009 documented that nine out of every 10 Indigenous Australians issued with a CIN failed to pay within the time allowed. The WA Ombudsman also found a correlation between increased socio-economic disadvantage and a decreased likelihood of paying one’s fine on time. In addition, the Ombudsman found a low payment rate for CCINs generally: only 21% of all CCIN recipients had paid their CCINs in full as at 22 April 2016. For Aboriginal recipients, only 3% had paid their CCIN for disorderly behaviour and just 1% had paid their CCIN for stealing. 
The fact that Indigenous Australians are more likely to receive infringement notices for public order and other minor offences is a result of multiple and complex factors. Firstly, many Indigenous Australians are more likely to conduct everyday activities, including ‘private’ activities and disputes, in public space than non-Indigenous Australians. This is primarily due to socio-cultural factors and Indigenous Australians’ unique connection to the land. People who are homeless or living in temporary accommodation are also often forced to conduct their private lives, including personal disputes, in public spaces. There is also a greater proportion of physical disability, mental illness, alcohol or drug-dependency, and a history of family and domestic violence among these groups. Factors of disadvantage prevalent within Indigenous communities cannot be divorced from the intergenerational effects of colonisation and government policies which resulted in dispossession, disenfranchisement and the Stolen Generations. 

D  Fines Enforcement Sanctions

Every Australian state and territory has progressive, often punitive, sanction regimes for fine default. If CIN fines are not paid on time, people may accumulate further debts, have their driver’s licence suspended or disqualified, have property seized, their vehicle immobilised or may be ordered to perform community service work. In WA, the CCIN recipient’s details may also be published on a website. 
Driver licence sanctions operate especially harshly on Aboriginal people living in regional, rural or remote communities, where private vehicles can be the only practical means of transport available to access work or basic services, such as health care. In some circumstances, such as where a person is unable to comply with a community service order, fine default may lead to imprisonment. Sentences of imprisonment may also be imposed as a result of secondary offending from fines enforcement actions, such as driving whilst unlicensed due to driver licence disqualification. The Kimberley Community Legal Services has suggested that for many Indigenous people, those who are homeless and other groups experiencing disadvantage, the imposition of a $500 fixed fine for swearing is ‘tantamount to a prison sentence’. The Australian Law Reform Commission recommended in a 2018 report that governments work with relevant Aboriginal and Torres Strait Islander organisations to develop options to reduce the imposition of infringement notices, limit penalty amounts, avoid suspension of drivers’ licences for fine default and provide alternative ways of paying infringement notices.
This article has so far examined key features of CIN regimes, and discussed related issues such as net-widening, arbitrariness, and entrenching socio-economic and Indigenous disadvantage. The following Part scrutinises the WA CCIN regime in detail, before addressing the role of criminal justice discourse in legitimising CCINs and overshadowing concerns raised thus far in relation to their operation.  

  PART IV  CRIMINAL CODE INFRINGEMENT NOTICES 

CCINs commenced operation in a pilot scheme across selected WA suburbs on 30 March 2015, and were rolled out across the state on 3 August 2015. The scheme was modelled on the CIN scheme operating in NSW since 2008, a key difference being that in NSW a recipient must be 18 years or older, whereas in WA the recipient need only have attained the age of 17 years. As at the time of writing, CCINs apply to two prescribed offences: disorderly behaviour in public or a police lock-up (‘disorderly behaviour’), and steal anything capable of being stolen to the value of $500.

A   Issuing a CCIN

Although colloquially referred to as on-the-spot fines, WA police do not actually serve infringement notices on-the-spot; currently, police must first return to the police station, enter the details of the CCIN into the NTIMS (the Non-Traffic Infringement Management Solution) system, and following this, post the notice to, or serve it personally on, the recipient. As evident in the example below, a CCIN specifies the offence which the recipient is alleged to have committed (for instance, ‘behaving in a disorderly manner’), but does not stipulate further details of the conduct constituting the alleged offence (for instance, whether it was offensive language or insulting language), nor the officer’s reasons for issuing the CCIN.
When a CCIN is issued, the suspect is taken to be ‘charged’ for the purposes of the Criminal Investigation (Identifying People) Act 2002 (WA) (although for other purposes, the suspect has not been charged with a crime). This allows police to take and retain identity information such as fingerprints, photographs and the person’s measurements on a forensic database. Police need only destroy the identity information once requested to do so. The WA Ombudsman found that of the 2,978 CCINs issued to 2,817 individuals during the 12-month monitoring period, WA police obtained identifying particulars from 530 (19% of) recipients. Extrapolating from statistics of state-wide data, the Ombudsman estimated that none of the individuals who had paid off their fine had requested the destruction of their identity information.

Image I: example of a CCIN.

B   Consequences of non-payment and fine enforcement measures

If a CCIN recipient fails to pay the prescribed amount within 28 days, the person receives a Final Demand Notice. Police also retain the discretion to prosecute the person in court for the alleged offence. If, following the additional 28-day period, the recipient fails to pay the amount specified on the Final Demand Notice, the infringement may be registered at the WA Fines Enforcement Registry (‘WAFER’) and the infringement is made an order of the court. The recipient may then either pay the fine and added costs within a further 28 days, or elect to have the matter referred to a magistrate. If full payment is still not received within the specified time, enforcement action can include the CCIN recipient’s driver’s license being suspended or their details published on a website. Alternatively, an enforcement warrant may authorise the Sheriff to immobilise the recipient’s vehicle and/or seize and sell their property to satisfy the debt.  

B   Offences Subject to CCINs

As described above, the CCIN regime currently applies to two offences in the WA Criminal Code: disorderly behaviour and steal anything up to the value of $500. Each CCIN offence attracts a modified penalty of $500. These two offences were selected due to ‘the volume of people committing these offences’ and their ‘low-level nature’. It is anticipated that the regime will apply to further offences, however there is no framework against which to assess whether CCINs should apply to a particular offence. In 2010, the NSW Law Reform Commission (‘NSWLRC’) recommended that guidelines should provide that penalty notices are suitable for minor offences (although the NSWLRC admitted that there was ‘no consistency in submissions as to what a definition of “minor offence” should be’). The NSWLRC recommended that CINs are not suitable for offences involving violence. 

1   Disorderly Behaviour

The offence of disorderly behavior in s 74A of the Criminal Code comprises a number of discrete offences, including using insulting, offensive or threatening language and behaving in an insulting, offensive or threatening manner. The offence may target conduct ranging from swearing at police to urinating in public. Conduct is considered ‘disorderly’ if it:

is conduct which, while sufficiently ill-mannered, or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, is also something more—it must … tend to annoy or insult such persons as are faced with it—and sufficiently deeply or seriously to warrant the interference of the criminal law.

The crime of disorderly conduct has a location element, in that the behaviour must occur ‘in a public place’, ‘in the sight or hearing of any person who is in a public place’ or ‘in a police station or lock-up’. The maximum sentence that a court can impose for disorderly conduct is a fine of $6000.
Given broad judicial definitions of ‘disorderliness’ and ‘offensiveness’, the discernment of disorderly conduct is highly subjective. Words are considered to be ‘offensive’ if they provoke in the reasonable person an emotional reaction such as anger, resentment, disgust or outrage in the context in which they are used. The WA Supreme Court has also held that language which challenges ‘the authority of police officers’ is likely to be considered offensive and disorderly. Relevantly, the ALRC in 2018 recommended that state and territory governments review provisions which criminalise offensive language with a view to repealing these provisions or narrowing their scope. This recommendation was made in light of the continued disproportionate use of offensive language and public nuisance charges against Indigenous Australians. Police officers are regularly the ‘victims’ or addressees of behaviour characterised as disorderly, promoting a situation where the investigator, enforcer and adjudicator of a CCIN may also be the alleged victim. Consequently, a level of bias and self-interest may operate in an officer’s determination of whether the conduct is disorderly. 

2   Stealing 

Under s 378 of the Criminal Code, a person who steals anything capable of being stolen is liable to imprisonment for up to seven years, although if the value does not exceed $1000, the person is liable to a summary conviction and a fine of up to $6000. As noted above, CCINs can only be issued where the value of the property is no greater than $500. Generally, a thing is considered capable of being stolen if it is inanimate, moveable ‘property’. Stealing is further defined as ‘fraudulently’ taking anything capable of being stolen or converting property to one’s own use or the use of any other person, with an intent to permanently deprive the owner of the property. Despite being considered a ‘low-level’ offence where the value of the property stolen does not exceed $500, the criminal law elements of stealing are complex, a factor which would weigh against its inclusion within a CCIN regime where liability is determined expediently by police officers. 
The WA Ombudsman’s report found that the option to use CCINs for stealing resulted in net-widening, and that this had the starkest impact on Aboriginal female alleged offenders. The number of actions (including CCINs, arrests and summonses) taken for stealing in the monitoring period when compared to the number of actions (arrests and summonses) taken in the benchmarking period (the year before CCINs commenced operation) increased by 34% for Aboriginal female alleged offenders, and 18% for Aboriginal male alleged offenders. Exemplified by the case study examined at the outset of this article, in some of these instances, the $500 fine would have been disproportionate to the gravity of the offence committed.
The Ombudsman offered a number of explanations for the large proportion of CCINs issued for the offence of stealing during the monitoring period. Notable among these is that where a CCIN is issued, police are able to return the property alleged to have been stolen to the apparent owner or possessor. In contrast, where a defendant is charged with stealing, the property owner may have to forfeit the property to police as ‘evidence’ to be presented in court. This distinction is likely to render CCINs a preferred option for the alleged victim, given that CCINS not only give the impression of ‘swift’ retribution, but also, the alleged victim avoids the time and effort associated with the investigatory process and giving evidence in court, and can have their property returned to them ‘on the spot’. These factors in turn provide an incentive for police to issue a CCIN as an alternative to a charge, summons or caution. 
This Part has detailed the framework of the CCIN regime in WA, and considered its operation with respect to the crimes of stealing and disorderly behaviour in light of the WA Ombudsman’s findings. It has brought to the fore a number of concerns relating to the ‘swift justice’ delivered by CCINs, including increased arbitrariness; excessive police discretion; the reversal of the onus of proof; the imposition of disproportionate punishment; a lack of oversight and accountability; and the reproduction of inequalities. With these concerns in mind, Part IV evaluates how CCINs have been discursively represented and legitimised as beneficial to the police, the public and the court system. 
	
PART IV   A DISCOURSE OF ECONOMISATION 

This is all about smarter and more effective law enforcement, ensuring that our police officers are on the beat fighting crime and our court system is working more efficiently.

A    Cheap and Efficient Justice

While criminal punishment has manifold aims, it is commonly recognised that punishment should be proportionate to the gravity of the crime and the culpability of the offender, denounce the conduct, deter the offender and others from committing similar offences, rehabilitate the offender, account for any harm occasioned to the victim, and protect the community. The justifications provided for introducing CCINs in WA and the principles upon which they were based bear little resemblance to ordinary objectives of criminal punishment. When the Criminal Code Amendment (Infringement Notices) Bill 2010 (‘the Bill’) was first introduced in WA Parliament, then WA Minister for Police, Rob Johnson, touted CCINS as a ‘quick alternative to arrest’ which would reduce administrative demands, increase productivity and deliver cost-savings. The Minister’s press release explained that CCINs would deliver ‘smarter’ and ‘more effective’ law enforcement. Johnson stated that the regime ‘will allow police to remain on frontline duties rather than having to go through a lengthy administrative process to bring an offender before the courts for relatively minor offences’; will save ‘the court system the cost of having to deal with relatively low-level crime’; and will ensure ‘that our police officers are on the beat fighting crime and our court system is working more efficiently.’
This emphasis on increasing efficiency, reducing paperwork and allowing police to remain on the streets was reflected in the language of the Opposition Labor Party and the National Party, which each supported the legislation. This message was also reproduced a few days prior to the commencement of the pilot scheme on 25 March 2015, when then Police Minister Liza Harvey was questioned about the operation of CCINs. Harvey stated: ‘Police officers welcome this initiative. It will reduce red tape. It will take them from behind a desk and onto the front line. It will allow us to divert offenders from the criminal justice system and from the courts.’ 
There are some noteworthy features of the political discourse in relation to CCINs. Firstly, the politicians represent the capacity of CCINs to cut paperwork, save time and divert offenders away from the court system as categorical facts by repeatedly prefacing each proposition with the high modality phrase: ‘It will’. This expresses the speaker’s certainty of, or categorical commitment to, CCINs achieving these objectives. Many of the politicians’ overwhelmingly positive statements about the diversionary and productive capacity of CCINs are framed as objective truths (as opposed to subjective opinions), without the politicians providing any evidence to ground their assertions. Further examples include Johnson’s claim that: ‘These [CCINs] will allow police to remain on frontline duties rather than having to go through a lengthy administrative process’, as well as then President of the WA Law Society, Hylton Quail’s statement that ‘there'll be reduced backlog in the courts’ and ‘that'll also liberate resourcing in policing’. Each of these statements presents the idea that CCINs will benefit the criminal justice system as a universal truth without qualification. 
Another noteworthy feature of the political rhetoric in relation to CCINs is the politicians’ reduction of complex processes into simple nouns, pronouns and metaphors. Consider Harvey’s statement: ‘It will reduce red tape.’ In this concise sentence, the pronoun ‘It’ replaces the CCIN scheme introduced by the Bill. This abstraction misrepresents the truth, for the legislation which introduced the scheme cannot, on its own, ‘reduce red tape’. Whether CCINs will perform their stated objectives will depend on how often police officers issue CCINs in circumstances where they would otherwise have charged the recipient, and how often CCIN recipients pay their fine on-time rather than ‘court-elect’ or are subject to fine enforcement measures. In this way, the political rhetoric oversimplifies the productive and diversionary capacity of the legislation, and masks the variables (such as police exercise of discretion) upon which the Bill’s ability to reduce red tape depends.

B   Reducing Red Tape

Another transformation within the sentence ‘It will reduce red tape’ is the replacement of a variety of actions with the metaphor ‘red tape’. Red tape serves as a symbol for all manner of ills associated with an ‘overly constrictive bureaucracy’; red tape could allude to unnecessary or meaningless paperwork; too many formal processes or constraints; unnecessary or overly-restrictive rules, procedures and regulations; or unjustifiable delays. Of course, red tape is not actually being reduced by the Bill in a physical sense. Instead, metaphors structure our experience of one thing in terms of another, and are an important ideological means by which to (re)construct reality. 
Harvey’s use of the phrase ‘red tape’ with reference to CCINs must be viewed in the broader context of her, and her political party’s, neoliberal agenda to reduce forms of government regulation and oversight. Harvey cited CCINs as an example of the WA government’s ‘red tape reduction initiatives’ introduced in 2015. The Bill can be viewed as part of a broader package of WA government initiatives, including a ‘Red Tape Reduction Report card’, calls for the public to submit ideas to Treasury to #ShredTheRed and a ‘Red Tape Rapid Assessment Tool’ to identify areas in which red tape could be reduced by Government. In her inaugural speech in 2008, Harvey argued: ‘We must reduce bureaucratic interference and needless compliance. Government needs to keep its nose out of the business of small business, thereby encouraging prosperity in their enterprises’. While initially as Minister for Small Business, Harvey’s red-tape-cutting agenda was concentrated on business and consumers, in 2015 as Police Minister, this focus was expanded to include reducing ‘bureaucratic interference’ in criminal justice measures, such as allowing suspects to be kept in custody without being personally guarded by a police officer, and—relevant to this article—introducing CCINs. By tracing the increasing application of the phrase red tape and its associated goals of cost-cutting and reduced paperwork to criminal justice policies, we see how business and market-oriented values colonise parts of the public sphere ‘traditionally governed by nonmarket norms’. 
In Metaphors We Live By, Lakoff and Johnson observed that once metaphors are naturalised into our understanding of reality, they can guide appropriate future actions that ‘fit the metaphor’, becoming ‘self-fulfilling prophecies’. If red tape is conceived of in negative terms as unnecessarily burdensome, the obvious solution is to cut or eliminate it, hence its correlation with the verb ‘reduce’ in the sentence: ‘It will reduce red tape’. Lakoff and Johnson also remind us that metaphors provide only partial and not total understandings of concepts; for if metaphors were total, that concept would actually be the other, rather than be understood in terms of the other concept. As metaphors provide partial understandings of concepts, they also obscure or downplay other aspects of concepts. And the understandings that metaphors create can be resisted by substituting new metaphors or symbols for old ones.
In Harvey’s sentence: ‘It will reduce red tape’, the processes that the metaphor ‘red tape’ replaces—investigating and prosecuting crime, taking a suspect back to a police station to be charged and fingerprinted, interviewing suspects, drafting up witness statements, proving a crime beyond reasonable doubt, providing reasons for decisions, and adducing fair and admissible evidence in court—do not have to (and it is argued, should not) be conceived of in negative terms. In addition, Harvey’s lexical choice to replace such processes with the metaphor red tape was not inevitable; she could have chosen to spell out the processes which she replaced, or alternatively, used phrases with more positive connotations, such as ‘procedural justice’ or ‘procedural safeguards’. From a different ideological standpoint—one concerned less with reducing government ‘interference’ and increasing ‘efficiency’—the processes that Harvey replaced with the phrase red tape would be correlated with positive values such as increasing fairness, oversight and accountability, and reducing the risk of bias and prejudice. As Kaufman has observed: ‘one person’s “red tape” may be another’s treasured safeguard’. However the business-focused, anti-bureaucratic discourse which characterised the introductions of CCINs meant that questions of procedural fairness were framed as impediments to efficiency and productivity. 

C   The vocabulary of business and economics

The lexis in parliamentary debates, press releases and police websites in relation to CCINs, as well as the Ombudsman’s evaluation of the scheme, is replete with near-synonymous words, ordinarily associated with the fields of business and economics. In the texts analysed, terms and phrases such as ‘red tape’, being ‘behind a desk’, ‘paperwork’, ‘in-house office work’, ‘administrative demands’, ‘court time’ and offenders being dealt with in ‘the criminal justice system’ are framed in negative terms, and collocated with verbs such as reduce, free up, save, cut, slash and divert. Meanwhile, terms such as ‘efficiency’, ‘flexibility’, ‘economic benefits’ and ‘productivity’ are positively appraised, and collocated with verbs such as increase, provide and improve. 
Much of this vocabulary evokes the NewLiberalSpeak described by Bourdieu and Wacquant, and shows an ‘intense preoccupation’ of the speakers with a narrow set of free market values. Like the phrase ‘red tape’, many of these words such as ‘efficiency’, ‘productivity’, ‘administrative demands’ and ‘paperwork’ are examples of abstractions in that they abstract away from more specific micro-actions. Being abstract in form, each of these terms could be infused with a number of different interpretations, depending on the textual context in which they are used, and the ideological position and background of the audience infusing the terms with meaning. For example, ‘efficiency’ in the context of criminal justice to some might necessitate each police officer imposing the highest number of fines in the least amount of time (which may or may not have regard to culpability) to achieve maximum profit to the State. To others, efficiency might involve only imposing fines on those who have the means to pay them, or only issuing CCINs where they might produce a diversionary effect. An imprecise measure of success when applied to the criminal justice system, the term ‘efficiency’ is apt to be misused and abused depending on the motivations of the person using it. 

Out of the office and on the beat

An additional preoccupation discerned from the parliamentary debates and media statements is that of ‘frontline policing’. The politicians commonly express that the best—and sometimes the only—place for police to be is ‘on the streets’, ‘out amongst the public or on the road’, ‘on the beat’, ‘outside the office’, doing ‘frontline duties’ or ‘on the front line’. By contrast, police should not be ‘typing’ ‘in-house’, ‘behind a desk’ and doing ‘paperwork’. This notion that police belong on the streets is encapsulated in the following excerpt from the speech of then Minister for Agriculture and National Party member, Philip Gardner, regarding the Bill: 

the best place for the police is, mostly, out amongst the public or on the roads … They play a valuable role in ensuring that those of us who are tempted or pressured to break the law in minor ways hold to the law. Therefore, anything that reduces police paperwork is a good thing. Those of us who have been in police offices must be appalled at how much typing and in-house office work the police are meant to do. Coming from an agricultural background, I can say that the more time spent in the office, the less time spent where the work that needs to be done is, because the season is always pressing for the work out in the paddock to be done. In my view, the same principles apply to the police function. 

In this excerpt, Gardiner draws similarities between the occupations of policing and farming. If one were to unpack this analogy, it could be argued that a police officer’s primary responsibilities: to detect crime, enforce the law and protect the community, bear little resemblance to those of the average Western Australian farmer: sowing seeds, planting crops or raising animals for human consumption to make a profit. This analogy, and the consistent pairing in parliamentary debates of ‘police’ with places such as ‘on the front line’ and ‘on the beat’, promote a dichotomous ordering of the environment in which police belong outside, or are ‘in place’ on the street, but are ‘out of place’ inside a courtroom or an office. With repetition, the notion that police belong on the street assumes the character of ‘orthodoxy’, a taken-for-granted truth or ‘law and order commonsense’. Not one politician in the parliamentary debates in relation to the Bill interrupted or challenged this orthodoxy by proposing the heretical view that time spent indoors typing, documenting interactions and doing research might be necessary or appropriate tasks for police officers to undertake.

Part V   Conclusion

This article has demonstrated how CCINs have been legitimised as a necessary criminal justice measure in WA using neoliberal economic reasoning. Drawing on CDA, the author has demonstrated how market values have been applied to criminal law and procedure, displacing the application of criminal justice policies that incorporate due process, transparency and accountability. In addition, from the discourse examined, it is clear that policy-makers and evaluators have privileged the ‘engine of economic activity’ over traditional criminal punishment objectives relating to proportionate punishment, deterrence, denunciation of the conduct, rehabilitation, protection of the community, and recognition of the harm done to the victim and the community.
A key problem with evaluating criminal or quasi-criminal sanctions in terms of economic objectives is that in doing so other priorities, particularly those concerned with morality, culpability and justice, are overshadowed. Language associated with the domains of business and free-market capitalism is particularly adept at stifling moral and ethical values, especially when the primary imperative of business is to increase its profits or maximise shareholder value. As John Lanchester has argued: ‘The language of money doesn’t express any implied moral perspective: Judgements of right and wrong are left out.’ An alternative proposition, and one that this author finds even more convincing, is that the language of money does profess a moral judgment, a morality which prioritises profit over all other goals. 
Neoliberal goals of maximising productivity and profit, while reducing government expenditure and oversight, can distract us from the central question of whether administrative fines for criminal offences are capable of delivering justice. To this end, the author suggests that the following justice-related factors, raised in the analysis above, should replace (or at least be ranked before) neoliberal concerns if we are to properly evaluate the operation and legitimacy of CINs schemes:
•	the lack of evidence linking CINs to sentencing objectives such as community safety, denunciation, deterrence and rehabilitation;
•	police officers issuing CINs perform the (often conflicting) roles of investigator, enforcer, judge and sometimes also the alleged victim; 
•	CINs displace the criminal burden and standard of proof, police need not provide reasons for their decision to issue a CIN and there is little oversight of this decision; 
•	the fixed penalty imposed by a CIN may be disproportionate to—and fail to account for—the culpability and financial means of the offender; 
•	police may be motivated to issue CINs by reasons other than the culpability of the offender or their capacity to deter further offending (such as cost-savings, time-savings or returning property back to the victim); 
•	many recipients have not challenged their CINs in circumstances where they may have escaped criminal sanction;
•	CINs have been disproportionately used against those who are financially disadvantaged, homeless, have a mental illness or disability, and/or are Aboriginal and Torres Strait Islander.
These factors taken together not only operate as a barrier to any further implementation of CINs schemes; they also provide a strong foundation for an argument that Parliaments should reconsider their use in the context of minor and public order offences, at least until issues such as unequal application, lack of transparency and judicial oversight, and disproportionate punishment are adequately addressed. The focus of lawmakers, and those evaluating CINs, must shift to whether CINs adequately incorporate these criminal justice safeguards. 
This argument is made with knowledge of the likelihood that CINs will apply to an increasing number of offences in the near future. On this issue, the WA Ombudsman in 2017 recommended that CCINs be used ‘for a range of other appropriate offences subject to consideration of the findings and recommendations in this report regarding the impact on Aboriginal and Torres Strait Islanders and vulnerable communities.’ This recommendation was made with the objective of maximising profit and increasing productivity, being largely based on the Ombudsman’s assessment that broadening the CCIN scheme will result in an ‘economic benefit’. The NSW Police have similarly foreshadowed an expanding use of CINs in that state. The NSW Police Force’s Corporate Plan for the years 2016-2018 lists as one of its priorities: ‘Maximise use of available court alternatives for minor offences’. The strategy that the NSW Police will implement to achieve this is to: ‘Explore legislative amendment to expand the use of criminal infringement notices’. Incredibly, in light of the many variables upon which criminal offending numbers depend, the Corporate Plan lists as an ‘indicator of success’ the NSW Police Force achieving a target of greater than or equal to 11,300 CINs.
There is a need to question the consequences of expanding the application of on-the-spot fines to minor offences, and alongside this, to resist the intrusion of a neoliberal discourse into the domain of criminal justice. This is not to say that questions of cost and efficiency should not be considered in criminal justice policy reform. Instead, market values should not be the dominant paradigm according to which (quasi-) criminal sanctions are measured. By implementing criminal justice reform based on market values, we risk displacing the safeguards ordinarily attached to the criminal justice system.