High indigenous imprisonment rates in WA could be addressed by changing the nature of regressive fines in the justice system, according to research by a senior lecturer at the University of Notre Dame.
The number indigenous people being sent to jail for failing to pay fines increased from around 40 per cent prior to 2008 to around 300 to 500 per cent. Tomas Fitzgerald of Notre Dame’s Freemantle law school said the high numbers can be traced back to an administrative change by the Attorney-General relating to persons on community service orders or apprehended violence orders which he said inadvertently captured persons on work development orders as well.
“It wasn’t clear in the material that was presented to parliament that he understood that the way the regulation works, those changes would also capture persons who are on work development orders,” Fitzgerald told Australasian Lawyer.
He said that persons undertaking community service rather than paying a court ordered fine are ending up in prison for minor misdemeanours where prison was previously ruled out by a magistrate.
“As a consequence the actual fine imposed is the product of both consideration of the severity of the offence and also a separate consideration of the relative impact of the fine upon the accused,” Fitzgerald said.
“It’s a symptom of how complicated fines enforcement is in this state, but secondly it seems to be the driving force behind the massive spike we see in particular indigenous people being incarcerated post 2009 when those changes were made.”
Fitzgerald’s research suggests that the implementation of a ‘day fines’ system would be a more appropriate solution, meaning the fine would be proportional to a person’s daily income. There are currently only seven jurisdictions world-wide employing this system.
“The benefits of this approach to fines is twofold,” he said.
“Firstly it will ensure that the imposition of fines on persons of modest means will not be unduly burdensome. Secondly, and as a necessary corollary to securing equal treatment in fact, it follows that the imposition of unit fines will serve the purpose of ensuring that notionally equivalent fines have an equal punitive effect.”
Fitzgerald, who works a lot in GST and Taxation, will have his research will be published in the December edition of the Curtin Law and Taxation Review
. He said he consistently sees pushback from the public on the regressive nature of an increased GST, but not on the regressive nature of fines in the justice system.
“Given the public outcry about the regressive nature of the GST, there’s a big blind spot in terms of the regressive nature of fines in our justice system,” he said.
“It made me wonder, why are we so willing to accept a criminal fines system that is regressive? You get a fine that’s proportionate to the seriousness of your offence, regardless of your capacity to pay.”