In Australia, the overwhelming numbers of Aboriginal and Torres Strait Islanders in the prisons are one of the urgent human rights issues that the country is facing today. Essentially, as, Attorney-General Senator the Honorable George Brandis acknowledged laws and legal frameworks are a significant fact to over-representation amidst other several factors such as economic, social, and historical. He also noted that the imprisonment rates of the Aboriginal and Torres Strait islander people and their connection to the system of criminal justice was exceedingly higher than that of non-indigenous Australians. In light of this report, we examine various factors leading to the large numbers of Aboriginal and Torres Strait Islanders in the prisons, which will act as a guiding principle to law reforms and revolutionize the current situation. More specifically, the report considers laws, such as the availability of alcohol, driving offenses, and unpaid fines among others have contributed to a large number of indigenous people committing various crimes and in this are reflected in their over-representation in prisons. Precisely, the report will concentrate on the law on unpaid fines and penalties and the various ways it has worked against the Aboriginal people. Similarly, in order to give a comprehensive report on how this law has contributed to the high rates of incarceration among the Aboriginal, we will first explore the Royal commission into Aboriginal deaths in custody. Then the report will also look into the economic status of the Aboriginal and further explore how it has contributed to their high numbers in prison.
Incarceration Rates of Aboriginal and Torres Strait Islander
The Royal Commission into Aboriginal Deaths in Custody
In 1987, the Australian government decided to investigate the increasing number of complaints about the suspicious circumstances in which the Aboriginal people were dying in police cells. The response was due to the growing public concerns about increased deaths that were not adequately explained. In order to monitor this outcry, the Australian Institute of Criminology established a program, which would publish an annual report on national deaths in custody. By 1991 when the final report was released, it was evident that the Aboriginal people were ten more times likely to end up in prison as compared to their non-Indigenous counterparts. Further statistics show that the rates have been increasing. For instance, by 2010 report presented to the Parliament of Australia showed that the Aboriginal were 15 times more likely to be jailed, with Western Australian recording rates as high as 20 times. In 2013, the Australian Institute of Criminology noted that the death rates of the Aboriginal had spiked by five times, while the non-Indigenous remained stable. Sadly, in 2014, the royal commission suffered a major setback into solving the mystery of the Aboriginal when the Northern Territory introduced paperless arrest laws. The move was to free the police from paperwork, and the rules were triggered by offenses such as drinking in public, being rowdy or an untidy yard among others. Initially, these crimes only attracted small fines. The move came along with more than 80 percent of the indigenous people representing the 2,000 arrests made (Davidson, 2015). As if the harm made by these arrests were not enough, in November 2015, the High Court validated the paperless arrests (“High Court upholds Northern Territory paperless arrests law,” 2015). Along with this information and amidst the new development the commission brought light to something else. The ultimate question was why were so many indigenous people in custody, bearing in mind that their population percentage was not as high as non-indigenous individuals were. According to the recommendations of the report, it is easy to conclude that a majority of the Indigenous people in prisons were victims of a legal framework that seemed biased on one community.
In one way or another, the majority of indigenous Australians have had contact with the criminal justice system as either or both victims and offenders. By large, this is a catastrophe because the percentage of the Indigenous people in prison surpasses that of non-Indigenous Australians and because these people make up less than three percent of the overall population. In fact, and according to a report by the Australian Institute of Criminology, the imprisonment rates are 12 times higher as compared to those of the other individuals forming the Australian population (“Indigenous justice in focus,” 2015). Similarly, and as Senator the Honourable George Brandis acknowledged in his report, several factors such as economic, social, and historical factors have been linked with the over-representation of these indigenous people in Australian prisons. Along with that, some various Australian laws have largely contributed to the rates of incarceration among the ATSI’s. Such laws include but not limited to laws regulating alcohol availability, driving offenses, unpaid fines among others. For the study, this paper will explore further the law on unpaid fines and its contribution to the Indigenous people offending.
Unpaid Fines and Penalties
In Australia, court fines and infringement penalties are some of the most common sanctions for criminal behavior. For a majority of the population, their contact with the criminal justice system as offenders is based on infringement notice for driving or parking offense. Although infringement offenses have relatively low levels of seriousness, the number of notices issued every year with offending sentences in courts displays that they have far reaching consequences. Essentially, in Australia, people get fines and offenses on several grounds. For instance, in some states like in Queensland going into a restricted area with alcohol exceeding the carriage limit attracts a fine or a jail term of not less than six months for a second offense and 18 months for a third offense (“Fines and penalties,” n.d). Drinking in public unless it is a licensed area or declared a wet area is prohibited; attracts a spot fine of $126.15. Other forms of crimes that may attract fines and fines in various states of Australia include driving offenses such as leaving the car engine on, hanging an arm out in the window, and over speeding among others.
Essentially, a majority of these fines are on-the-spot fines, which are issued for minor fines such as listed above. Law officers such as the police have been empowered to issue fines for minor offenses such as shoplifting, offensive language, and unruly conduct among others without necessarily involving the court of law. Unfortunately, the extension of powers comes along with fears that such kind of authority may be misused particularly with the indigenous people.
Why Fines and penalties affect the Indigenous people
Although the Aboriginal people of Australia were the original people in Australia, they have been discriminated the most as compared to their non-indigenous counterparts. These people represent only a small percentage of the Australian population and face higher levels of disadvantages at the workforce than the general population. Apart from inequalities that come with low wages at the work place, the government does not seem eager to make it easier for them (Burton-Bradley, 2017). For instance, the recently introduced rate cuts are feared to have a negative impact on the indigenous workers, especially where employment opportunities are limited. In addition to the above, a majority of the indigenous people are employed in the retail sector and hospitality industry among other small industries. Due to the nature of their jobs, most of the Aboriginal people survive on the family members’ wages with no surplus capital to spend on other things.
The Impact of the Fine and penalty System on Indigenous People
On the surface, the fine enforcement system treats both the Indigenous and non-Indigenous people equally. Unfortunately, the problem comes in on the impacts the system has on the Aboriginal people. As stated earlier, the indigenous people are more likely to experience low-incomes and record the highest number of unemployment. Along with that, the number of illiteracy levels is considerably high with little or no knowledge of English. All these disadvantages come down to one thing; the indigenous people are less likely to afford fines or even negotiate mainly because of the language barrier. In Australia, William & Gilbert note that the common law principle is categorical about imposing fines to the tune of an amount that the offender has no means of paying. Most jurisdictions are required by statute to consider the means of the offender to afford the fines and penalty when determining fines and penalties. Unfortunately, during the hearing process, most defendants do not have legal representation, which means they have no means to defend their case. Apart from that, most offenders are not willing to disclose the financial status, which leaves the court with no information about debts accumulated, family obligations, income, and expectations from the society. It is hard for the judiciary to know about existing fines, as the fines enforcement agencies do not routinely provide this information. Similarly, in some cases, even when there is information on the inability of the defendant to afford the imposed penalty, the judicial must follow the legislation on the minimum penalties set out for the particular offense. In fact, there is considerable evidence showing that a majority of magistrates impose fines with the full knowledge that the defendant is not in a position to pay because it is the only sentencing option available.
In Australia and New Zealand, fines are usually accompanied by sanctions such as license cancellation, enforcement fees, community service, and sometimes imprisonment. When fines are not paid within a stipulated duration, a certain amount of enforcement fees are imposed on the penalty. In some areas, the enforcement fee is added on top of each fine translating to more debt for a single individual. According to a report by William & Gilbert (2011), only a small percentage of the Aboriginal population affords to clear their on spot fines. The large majority cannot afford due to poverty and end up accumulating lots of unpaid debt as enforcement fees accumulate. Another thing that seems to work against the Aboriginal people is the fact that some jurisdictions do not allow payment of fines in installment except when enforcement fees have been added. Still, even with that, some courts demand a large volume of information about the individual’s financial status, income, the value of assets among others. Others require offenders to make a minimum payment, which is still beyond them due to the economic situation. The fine and penalties laws do not seem to favor a majority of the Aboriginal people, leading to a majority of them ending up in prison to serve the required term as required by the criminal justice system.
Prosecution for unpaid fines and penalties has been identified as one of the grounds for high incarceration rates of Aboriginal and Torres Strait Islanders in Australia. The issue is worrying, especially considering that the Aboriginal people have been sidelined for a long time and often discriminated. While fines laws should not be eliminated, the government should come up with other ways to punish offenders instead of issuing fines. Such means may include but not limited to giving warning to the law breaker, community work in place of imprisonment, and driving lessons for the unlicensed drivers among others.
“Fines and penalties.” (n.d). Queensland Government. Retrieved from: https://www.qld.gov.au/atsi/health-staying-active/fines-penalties
“High Court upholds Northern Territory paperless arrests law.” (2015). ABC News. Retrieved from: http://www.abc.net.au/news/2015-11-11/high-court-upholds-northern-territory-paperless-arrests-law/6930340
“Indigenous justice in focus.” (2015). Australian Institute of Criminology. Retrieved from: http://www.aic.gov.au/crime_types/in_focus/indigenousjustice.html
“The drivers behind the growth in the Australian imprisonment rate.” (n.d). Parliament of Australia. Retrieved from: http://www.aph.gov.au/parliamentary_business/committees/senate/legal_and_constitutional_affairs/completed_inquiries/2010-13/justicereinvestment/report/c02
Burton-Bradley, R. (2017). Indigenous Australians in remote areas to be hit hard by penalty rate cuts. NITV. Retrieved from: http://www.sbs.com.au/nitv/nitv-news/article/2017/05/19/indigenous-australians-remote-areas-be-hit-hard-penalty-rate-cuts
Davidson, H. (2015). NT admits paperless arrest laws misused in Aboriginal death in custody case. The Guardian. Retrieved from: https://www.theguardian.com/australia-news/2015/nov/12/nt-admits-paperless-arrest-laws-misused-in-aboriginal-death-in-custody-case
William, M.S., & Gilbert, R. (2011). Reducing the unintended impacts of fines. Indigenous Justice Clearing House. Retrieved from: https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/publications/files/initiative002.v1.pdf
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