WA reforms unpaid fine laws following ‘inhumane’ death in custody

Western Australia has passed a bill to end the controversial imprisonment of residents with unpaid fines after the inhumane death of a young Aboriginal woman in custody.

Naomi Neilson • 18 June 2020 • Big Law

Imprisonment will now be the last resort for fine defaulters in Western Australia, following major calls for law reform after the death of a young Aboriginal woman in custody. The Western Australia premier Mark McGowan said community service or garnishing wages would now come first.

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“The legislation is very clear, you still need to pay your fines,” Mr McGowan said. “It’s just that the methods of enforcement [have] changed.

“Locking people up at huge expense for not paying a fine is not the best way of dealing with it. There are other options, there’s various community services and the like that are better ways of dealing [with] it. [There are also] garnishing wages, and the like.”

As it stands, if a person is unable or unwilling to pay their fines, a warrant of commitment will be issued for their arrest and they can be made to pay it off by serving some time in police or prison custody at a rate of $250 per day.

The changes were sparked by the death of Yamatji woman Ms Dhu – whose name is not used for cultural reasons. She died in custody in August 2014, after she was locked up in South Hedland Police Station for $3,622 in unpaid fines.

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The coronial inquest found that the police behaviour towards Ms Dhu was “inhumane”. The inquest recommended the state’s unpaid fine laws be made a last resort.

Some advocates said the change would reduce the over-representation of Indigenous people in custody. Mr McGowan said the reform would look at reducing this rate, while ensuring “people pay their fines and [reduce] pressure on the prison system”.

Naomi Neilson

Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.

You can email Naomi at: naomi.neilson@momentummedia.com.au

Pete Thursday, 18 June 2020

Imprisonment for unpaid fines already was a last resort; before a warrant is issued, people receive numerous reminders about unpaid fines in the mail, have their driver's licence suspended, and be offered the opportunity to enter into very generous payment plans through Centrelink.

As long as imprisonment remains an option, then this bill will not "end" the system at all. Previously, the court registrar had the power to issue a warrant, but now it will be limited to only magistrates. I can guarantee you that at least some of the magistrates in Perth will not be shy about issuing such warrants.

I remember one case of a serial shoplifter pleading guilty to yet another three counts. Her prior record was as long as War and Peace, and the Mag was informed that she had $26,000 in outstanding fines. But as long as the value of the stolen goods is less than $1,000, the magistrate's only option is to add another fine to the bill. He displayed utter frustration at the situation and imposed a community based order with 50 hours of community work and told her "fail to comply and I will lock you up". However, imposing a CBO was not a valid option under the Sentencing Act. The duty lawyer should have informed the offender of such, so I assume she had the sentence overturned on appeal. But the word "work" momentarily wiped the smile off of her face.

Another relevant point is that fines are "paid off" concurrently when imprisoned. So using the example above, even though the offender had $26,000 in fines, she only needs to serve time for the highest single fine, and all the rest are served concurrently. Assuming her highest fine is less than $1,000, she can wipe her slate clean by serving four nights in jail.

For people who have spent time in jail before, either on remand or as a sentenced prisoner, voluntarily surrendering for a stint of 2 or 3 nights inside is a preferable option to having their driver's licence suspended indefinitely or having $20 per week deducted from their Centrelink payments for the rest of their life. Also, if a person is arrested on a more serious charge, they can apply to serve time for their fines while waiting for a bail hearing.

Therefore, I am highly sceptical that this will end the practice of locking people up for unpaid fines. Even if it does on paper, it will not do so in practice. Under the new law, instead of issuing arrest warrants for unpaid fines, the registrar will instead issue work orders. Guess what happens when the work order is not complied with? The "option of last resort" is once again the only option, but instead it will be a magistrate signing the warrant, not a registrar.

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