Resumed from an earlier stage of the sitting.
HON ALISON XAMON (North Metropolitan) [5.07 pm]: I indicate that I am the lead speaker for the Greens on the Fines, Penalties and Infringement Notices Enforcement Amendment Bill 2019. I also indicate without reservation that we emphatically support the passage of this long overdue legislation. I am very pleased to finally be able to speak on this legislation. I say on behalf of the Greens that it has been a source of significant disquiet that this bill was not prioritised for debate and passage in this house, particularly as we went into the COVID-19 crisis. I have asked a series of questions over the last couple of months around what was happening with the legislation and whether there was any capacity to suspend warrants of commitment. Of course there is not, without this legislation being passed. The real concern has been that while other states were steadily moving towards de-incarceration measures for prisoners as we hit the COVID-19 crisis, Western Australia unfortunately was not bringing in any such measures. This bill is a simple measure that could and should have been dealt with long before we had to deal with the COVID-19 crisis, yet it was not brought on for debate. I want to say how disappointed I am with that. However, having said that, I am very glad we are here now.
This bill finally addresses recommendations made by the Royal Commission into Aboriginal Deaths in Custody almost 30 years ago. That is how long this issue has been hanging around needing reform. The Greens have been calling for this reform for that long as well. The royal commission found that governments and correctional administrators have long recognised that there are compelling social and economic reasons to provide an alternative way to address fine default other than to imprison the defaulters. Changes to address the imprisonment of fine defaulters have also been recommended separately by the State Coroner. As has been mentioned—I will go into this in some detail—that arose directly as a result of the devastating and utterly avoidable death of Ms Dhu.
Changes have also been recommended by the Australian Law Reform Commission, the Human Rights Committee, the United Nations Special Rapporteurs on violence against women and Indigenous peoples, and the United Nations Human Rights Committee. I feel really strongly about this issue. I was one of four members of Parliament who co-hosted a Social Reinvestment WA forum in Parliament last year to draw attention to the importance of this reform. I want to particularly acknowledge and commend the work of Social Reinvestment WA. It is an extraordinary body that has brought together an important coalition of groups to campaign around the issue of social reinvestment and, unsurprisingly, has identified that this was one of the first reforms that needs to be enacted. One would have thought this was low-hanging fruit, but here we are finally debating it after so long.
I also want to note that the work of Social Reinvestment WA has built on the important advocacy work pushed for years by the Aboriginal Legal Service of Western Australia and the Inspector of Custodial Services amongst others. People have been talking about this for a long time, and I am so pleased that we are finally here and, hopefully, very close to getting this reform through Parliament.
Fines are very easy to impose and they are clearly regarded by our courts as an effective sentencing option. Unfortunately, their use has soared since the 1980s. Fines are the most common penalty imposed by our criminal courts in Australia and they are used in over 80 per cent of cases in Magistrates Courts. Given how often and how easily fines are imposed, there is a common assumption that they are inherently lenient. Certainly, if we compare fines with imprisonment, they are more lenient, but they are a very blunt instrument. The fines enforcement system as an administrative system is relatively inflexible. The imposition of a fine, unfortunately, takes little account of the individual circumstances of the offence or, importantly, the financial means of the offender. As such, fines can and do cause disproportionate harm to offenders simply due to their financial situation.
Although publicly accessible data on fines enforcement and its impacts is extremely limited, scattered and inconsistent, we know that fines are disproportionate and have serious adverse impacts on particular disadvantaged sections of our community, including Aboriginal women, young people and people who are homeless, dependent on welfare or who have mental health or substance abuse issues. It also has a disproportionate impact on those who have an intellectual or cognitive disability and those who are experiencing family violence.
An excellent article by Quilter and Hogg “The Hidden Punitiveness of Fines” talks about how the groups I have just described are more vulnerable to not only being fined in the first place, but also accruing multiple fines. They are less likely to be unable to not only pay the fines, but also negotiate the processes that are available to contest the fines and otherwise mitigate their impact. Our Western Australian fines enforcement system relies heavily on notification via post of the various steps in the enforcement process. I was particularly interested in a case from the Kimberley Community Legal Services and I would like to put it on the parliamentary record. It is a case study of client G and states —
Client G resides in an Aboriginal Community near Fitzroy Crossing. He receives his post c/- the Post Office as do many Aboriginal people who reside in communities in the Kimberley where there is no postal delivery to residences. Client G had fines in excess of $20,000 incurred over a long time. He had entered into a repayment agreement and set up Centrepay deductions from his Centrelink benefit. At the time the Centrepay deductions were set up Client G’s Centrelink payments were subject to Income Management. Client G was subsequently taken off Income Management and was receiving a Disability Support Pension (DSP). At the time the transfer was made, all Client G’s Centrepay deductions were cancelled. Client G does not believe he was ever notified of this and to the best of his knowledge he was still making regular payments towards his fines.
Client G came to see KCLS to find out how much his fines were. KCLS made inquiries with the local Sheriff and was advised that, at the time of the inquiry, Client G’s fines were approximately $17,000 and there was no current repayment agreement in place. The Sheriff also advised that given the quantum of the fines, unless a repayment agreement was implemented immediately, it was likely a warrant would be issued for Client G’s arrest. Client G was understandably distressed at this information. KCLS assisted Client G to reinstate his Centrepay deductions which avoided the warrant being issued.
The suspension of the repayments was a result of an administrative process internal to Centrelink that was not communicated to Client G, or not communicated appropriately having regard to his literacy and general comprehension of English language, or the issues related to receiving post by checking at the Post Office. Had Client G not contacted KCLS when he did, a warrant for his arrest would have been issued and Client G would have been incarcerated.
That is from an Australian Law Reform Commission report and the submission from the Kimberley Community Legal Services. That is a really important example of precisely why we need to ensure that these sorts of regimes have the required flexibility. We have seen that people can in good faith attempt to pay their fines and enter into all the right arrangements, but for a range of circumstances beyond their control—basically, an administrative stuff-up by Centrelink, coupled with the fact that there is no easy access to correspondence and that the correspondence itself may not be fit for purpose—people can find themselves incarcerated. Frankly, we have hundreds, if not thousands, of examples over the years of exactly those sorts of things occurring to people. It is just not good enough!
We know that people with literacy or numeracy problems, people who have language difficulties either because English is not their first language or they experience a cognitive or intellectual impairment, or people who have housing insecurity often face a lot of difficulty with this form of communication and, importantly, complying with the strict time lines that are often imposed. People might have trouble navigating the fines and infringement system or even receiving correspondence in the first place, especially if they are transient or have unstable housing. People may have problems replying in a timely manner and also understanding the forms and processes. That is aggravated by issues of remoteness and, in particular, living somewhere with an unreliable postal service. Those things can present a very significant barrier to them adequately addressing their fine debts. Many characteristics that might make an individual more vulnerable to running foul of the fines enforcement system, such as remoteness, transience and language difficulties, apply disproportionately to Aboriginal Western Australians. That is just a fact. Quilter and Hogg go on to note that the evidence shows that much fine default in our community stems from an inability rather than an unwillingness to pay. With many people in our community facing low savings levels and increasingly precarious employment, and with growing inequality, this is not surprising, and it is going to get a lot worse, particularly in the short term. The impacts of COVID-19 will undoubtedly aggravate the situation. I understand that almost one million Australians have lost their jobs since the advent of COVID-19, and the Reserve Bank of Australia predicts a 10 per cent drop in the economy over the first half of this year.
There is little publicly available data on individual outstanding fines and infringements, which in itself is a problem; however, we know that many individuals have accumulated enormous debts through receiving multiple fines or infringements, and these debts are then compounded when people are unable to pay them and do not negotiate a time-to-pay arrangement before defaulting. The Inspector of Custodial Services has been consistently raising this issue. A 2016 investigation into fine defaulters in the WA prison system described the case of an elderly non-Aboriginal man sentenced to serve 749 days over two years for his largest fine, which is well over $185 000. Although this is the worst case that the inspector encountered, we still have many anecdotal reports of people who owe tens of thousands of dollars in outstanding infringements—amounts we know they will never be in a position to pay back. That level of debt not only has a financial impact on an individual and their family, but also can have a significant impact on people’s overall mental health and wellbeing.
We are left with WA having an appalling record of imprisoning people for defaulting on fine repayments, particularly when we compare how we rate with other states. From 2006 to 2019, there were 10 534 prison receptions for fine default only—just going to prison for fine default. If we compare that with other states, we find that in Victoria between 2010 and 2016, 272 people were admitted to custody for fine default only. That is 272 people in Victoria as opposed to 10 534 in Western Australia. In 2016, only one warrant of commitment was issued against a fine defaulter in the Northern Territory—one. New South Wales has not even issued a warrant of commitment for outstanding fines since 1998. The crucial difference between the WA regime and other state regimes is the crucial discretion that our act grants to the Fines Enforcement Registry to order a warrant of commitment without judicial oversight or review. I am very pleased that the bill before us aims to address this extraordinarily unjust situation. Imprisoning people for fine default is a completely disproportionate response to the type of offending for which someone might ordinarily receive a fine. As the report of the Royal Commission into Aboriginal Deaths in Custody said —
Poverty should not determine that a person is at risk of imprisonment where a person of greater means would pay a similar fine without such possibility arising.
The Australian Law Reform Commission argued that if imprisonment is a potential sanction, the offence should be criminal and the defendant afforded the attenuating procedural protections. I acknowledge that in the context of the bill before us, we are talking only about court-ordered fines, which are generally more serious than infringements; however, the Inspector of Custodial Services, again in that 2016 review into fine defaulters in the prison system, found —
Based on an analysis of available data, the majority of offences (54%) for which people were jailed for non-payment of fines were for traffic related offences, including drink driving and driving without a licence.
I think that the community would generally agree that imprisonment is not a proportionate response to this type of offending. I point out that, clearly, courts do not impose it in the first instance, which is why we are talking about fine default. We need to make sure that we are not meting out disproportionate penalties to people based simply on disadvantage. Answers to questions that I asked last year about people who were imprisoned in 2018–19 for fine default revealed that only 433 people were imprisoned and 170 people were held in regional police lock-ups across WA. Of those imprisoned last year for fine default, 210 were unemployed at the time of arrest; 112 were women and 156 were Aboriginal or Torres Strait Islander people; 101 Aboriginal and Torres Strait Islanders were held in police lock-ups in regional locations; 66 Aboriginal women were imprisoned or held in police lock-ups and of those imprisoned—not including those who were kept in police lock-ups—approximately half were unemployed at the time of arrest and around one-quarter, 26 per cent, were women. In June 2019, women constituted 10.4 per cent of the WA prison population. That highlights the disproportionate impact of this regime on women, and over a third were Aboriginal people. Approximately 40 per cent of the total number of women were Aboriginal. Again, Aboriginal people constitute only three per cent-plus of the WA population as a whole. The disproportionate gender and race aspects of these statistics are particularly unsettling. There is something seriously wrong when the group facing the greatest likelihood of imprisonment under a particular statutory regime are Aboriginal women. Women who experience disadvantage are less likely to be able to pay or resolve their fines or to mitigate their impact and, therefore, they are most likely to face the most serious repercussions of the fines enforcement system. They are the ones whose lives and the lives of their families and their children—the people they care for—are most disrupted by them being sent to prison. Women escaping abusive relationships are commonly financially disadvantaged and this double vulnerability can be further compounded by fine debt and the actions the police are forced to undertake in response to the issue of unpaid debt. It is appalling to me that our current system further victimises these individuals.
There has been talk about the final instigator for these reforms so, I too, of course, need to refer to the coronial inquest into the death of Ms Dhu. The catalyst for this reform today was the tragic death of 22-year-old Ms Dhu in August 2014 and the coroner’s findings following that inquest. I, too, would like to express my deep sympathy to the family and the loved ones of Ms Dhu. The distressing circumstances around her death, I think, are fairly well known but they bear repeating as an appalling example of how unjust the current laws are and how incredibly important this legislative reform is.
On Saturday, 2 August 2014, police from South Hedland Police Station arrested Ms Dhu and took her into custody for failing to pay fines and costs totalling $3 622.34. She was required to spend four days in custody to pay off the largest fine of $1 000. As has been said, for most people it is not a lot of money, but for her it was too much. Unpaid fines of course are cut out in prison at $250 a day. Ms Dhu’s treatment while in the lock-up has been aptly described as appallingly inhumane. Ms Dhu complained that she was unwell and was taken twice to Hedland Health Campus for assessment before being returned to the police lock-up. She was still complaining of feeling unwell on the morning of 4 August 2014 but police thought she was feigning her symptoms. It was not until after midday that she was finally taken back to the hospital where, less than 48 hours after first being taken into police custody, tragically, she died. After her death, it was discovered that Ms Dhu had been suffering a serious infection from a broken rib sustained during a domestic violence incident. Members here will be aware that the late Mark Newhouse, who was the chair of the Deaths in Custody Watch Committee WA, was one of my best friends. I remember that not long after this occurred, he came to my place and talked about this case and said how devastated and angry he was. He felt that it was another example of someone whose life had been despairingly and tragically cut short. I remember him sitting at my kitchen table and the frustration and anger he felt at the totally unnecessary circumstances that had led to her death, and he told me other circumstances around what had happened to her, which were devastating and which I will never forget.
I also want to talk about some of the other people whose faces and names come to me when I think about the importance of this legislation. One name may not be very familiar to members but it is one that I think needs to be on the record. I want to point out that this woman’s mum and sister, who have been working with my office, have given me permission for her story to be told, and that is the story of a young woman called Cally Graham. She is a less well known case of a very vulnerable individual who died after being imprisoned for fine default. She was not Aboriginal. She was, however, incredibly vulnerable. She had never been to prison before 19 February 2017 when she was taken into custody by police and eventually admitted to Melaleuca Remand and Reintegration Facility for fine default. On the evening of 20 February she became unwell, but there was a significant delay in the medical response. She was eventually transferred to hospital, where she did not ever regain consciousness. She was released from custody on 24 February whilst still in hospital, where she tragically died two days later on 26 February 2017. Cally paid the remainder of her outstanding fine debt while in hospital receiving palliative care. She was released from custody without ever waking up. She was 31 years old.
Cally had a history of substance abuse and she also had a very close and very loving and supportive family. Her family, who were not told when she was arrested or taken to prison, have many outstanding questions about why Cally was incarcerated and the circumstances of her death. Had they known that she had been imprisoned, they would have helped her pay her outstanding fines. There was absolutely no need for this tragedy to occur. Understandably, this family is still absolutely heartbroken. This February marked three years since they lost her and they are still waiting to know about Cally’s inquest, and it is an issue that I have been repeatedly following up on their behalf. I am really concerned that the already far-too-long delays at the Coroner’s Court are being exacerbated by COVID-19 and it is simply not okay for Cally’s family to have to wait this long for answers. I think Cally’s death was an absolute tragedy. She should have received a public health response to her substance abuse issues, and, just as importantly, she should not have been imprisoned for fine default. I just want to say how sorry I am to her family that they lost their precious daughter and sister.
There are many other examples of reports of vulnerable people who have been caught up in existing fine default provisions. In 2018, Ms Alira Kelly-Ryder, after having lost her job, missed two fortnightly repayments on her time-to-pay arrangement and when she got a new job, she contacted the Fines Enforcement Registry to restart payments and was informed that there was a warrant out for her arrest and she had to hand herself in to the nearest police station. She had simply missed two payments because she had lost her job. These things happen. In 2017, Ms Naomi Bropho’s mother rang police on Ms Bropho’s behalf, seeking protection for Naomi from a violent family member. Instead of receiving help, Naomi was arrested for her unpaid fines after the police ran a background check on her, and Ms Bropho, who was unemployed and the sole carer of 11 children, spent four days in prison before a Melbourne pensioner paid her remaining fine debt. Just days before this bill was introduced in the other place, Ms Keennan Dickie was seriously injured in a violent robbery, so she is the victim. The following day, instead of taking her statement, police took Ms Dickie into custody for outstanding fines. In February, we learnt that an Aboriginal father of seven spent five days in Hakea Prison for fine default after being stopped on a train by police. These examples—there are many more that never make it into the press—are appalling. They paint a concerning picture of the impact of our current fines enforcement regime, particularly the impact of the regime on families and children, people seeking or who are successful in gaining new employment, and victims of domestic violence and other crimes. These examples are particularly horrifying because of the potential impact on the relationship between the community, particularly the Aboriginal community, and the police. I am pretty sure I would not be calling the police for help, no matter how dire the situation might be for me, if I thought it was likely to result in me being sent to prison. This is really worrying, particularly when we think about the statistics of Aboriginal women as victims of crime, and particularly as victims of family and domestic violence. Overall, the imprisonment rate of Aboriginal women has more than doubled since 2000. First Nation women are now more than 19 times more likely to go to prison than non-Indigenous women. We should be doing so much more to prevent sending Aboriginal women, in particular Aboriginal mothers and carers, to prison.
If caring about the human cost of why we need this legislation is not enough, let us talk about the high economic cost of putting fine defaulters in prison. Unpaid fines are cut out at $250 a day in prison, but we know that it costs $770 a day to keep a prisoner for the first three days or so. Admission costs are higher than normal running costs. This decreases to about $340 a day afterwards, but, in contrast, it costs less than $50 a day to supervise someone in a community work order. In 2013–14, the average amount being paid off by incarceration was $732 across a total of 11 867 fines with a total amount of $8 683 268. Not only is that over $8.5 million that the government was unable to recover, but also it cost the government—by that, I mean the taxpayer—more than an additional $2 million to incarcerate people who had not paid this money. That is $2 million that could otherwise have usefully been spent on justice reinvestment and addressing the underlying causes of people getting fines and then not being able to pay those fines.
Most recently, in 2018–19, it cost the state $2 321 550 to expiate $753 750 in fine debt by imprisonment. That does not even make good economic sense. Although more recently there have been some small decreases, but decreases nevertheless, in prison populations in WA, which I am always heartened to see, as we are down to 6 881 people on 30 September last year from 6 942 the previous year—as an aside, I will add that it is disappointing that the department does not update its website with the latest figures; I am always keen to get a hold of them—appallingly, we still imprison 1.6 times as many people as the national average. WA also bears the unenviable distinction of incarcerating its Indigenous people at the highest rates per population in the world. We have all heard so often about the need to address the overrepresentation of Aboriginal people in custody that I am wondering whether there is a concern that we are effectively becoming immune to the true horror of those statistics. Crime rates have fallen markedly, but we are imprisoning a greater proportion of people than ever before.
It is important to note that on any one day, only a small number of people are in prison in WA for fine default. Unfortunately, the legislation before us will have little bearing on our overall prison numbers. However, as people paying off fines are commonly incarcerated for only a short time—on average, about four and a half to five days— this equates to roughly 1 000 people being incarcerated for fine default in WA every year.
As I have said, there are significant costs to short prison stays, as noted by the Inspector of Custodial Services. Short receptions like those experienced by fine defaulters are not only financially costly, but also socially undesirable and risky. They are also disruptive because they create a disturbing churn for both the prisons and the offender. As argued by the Aboriginal Legal Service in its excellent 2016 briefing paper on fine default, the personal, social and economic cost of imprisonment should not be underestimated simply because the duration of the prison stay is relatively short. We absolutely need a fairer system that encourages fine defaulters to engage in supports that will help the underlying causes of offending as well as their inability to pay off fines, rather than pursuing them and just sending them to prison.
I will make some comments on some of the specific provisions incorporated in this bill. The bill will introduce statutory principles to guide decision-makers. I note that this is an Australian first. Imprisonment for failing to pay a fine will truly be an enforcement option of last resort. A person who is experiencing hardship that is impacting on their ability to pay a fine or to work it off should not be imprisoned. I like how broad “hardship” has been defined. It includes mental illness, disability, experience of family and domestic violence, homelessness, drug and alcohol problems, and financial hardship. I note that it is not otherwise specifically defined. I understand that comprehensive guidelines will be developed along the lines of those in Queensland, New South Wales and Victoria. I would like the Leader of the House to confirm whether the government intends to develop comprehensive guidelines.
Although imprisonment will still be an option, the Fines Enforcement Registry will no longer have the power to issue a warrant of commitment and authorise the imprisonment of a debtor. Yay—I am really happy about that! Only a magistrate will be able to issue a warrant of commitment on application by the Fines Enforcement Registry and only when the registry has attempted every other applicable enforcement option. The imprisonment option is retained solely for fine defaulters who have the capacity to pay but simply choose to ignore their obligations. The system will pick up those people who have a lot of money but just cannot be stuffed paying for their offence. The bill has got that balance right.
The bill will also restrict the Fines Enforcement Registry from issuing a licence suspension order for someone whose last known address was in a remote area. I agree that this is a very welcome development. Too many Aboriginal people in remote areas fall foul of the law due to driver’s licence issues. Licence suspension orders have a disproportionate impact on people who live in remote communities and therefore do not have access to public transport. Its effect can further entrench poverty and involvement in the justice system.
Quilter and Hogg have described how licence suspensions can easily lead to secondary offending—for example, when people continue to drive after their licence has been suspended or drive an unregistered vehicle. I think that doing anything to prevent unnecessary suspensions is a very positive step. I am pleased that other work is happening to prevent young Aboriginal people from receiving fines related to licensing issues, such as support for people to obtain their driver’s licences through Aboriginal justice program open days, although I suspect we are going to need to see further investment in this area. Given the potential issues with a person’s last known address, the amendments will enable an individual to present evidence of their current remote address and the registrar must cancel the licence suspension. I welcome that individuals will be able to request that their licence suspension order be cancelled on the grounds of needing to access urgent medical treatment for themselves or family members, or needing their licence to access employment or for family or personal reasons. These are all really sensible amendments.
The bill introduces garnishee orders as an enforcement option. The sheriff could go directly to a bank or an employer to claim moneys owed. It has been acknowledged that consensual payment arrangements should always be the first preference before resorting to enforcement, and I agree that that is the way it should be. I note that there is a safeguard that a protected amount will remain, and that amount will be determined under regulations. Undertakings have been given that it is likely to be a greater amount than in other jurisdictions, but I would appreciate it if the minister could confirm that the intention is that the protected amount in the regulations will be higher than that in other jurisdictions. People may have very legitimate reasons for needing more than just a few hundred dollars in a bank account. They might need it for medication, to meet rental bond or for any number of reasons. I hope the regulations will adequately reflect this. It should not be the case that just because someone has a certain amount of money in the bank, it should automatically be made available. We could inadvertently send people into homelessness or into hospital.
Privacy protections are also provided. Information about offences will not be permitted to be provided to employers or the bank. This is really important, because I would imagine that if someone turned up to an employer saying, “We need you to garnishee the wage”, an employer would be likely to say, “I would like to know the circumstances and what is going on.” I am really glad that that information is not able to be proffered. Also, an employer will not be able to treat that employee less favourably than another employee simply because of that garnishee order. Of course, the sheriff can return the moneys. I am pleased that Centrelink payments will be excluded, because it is very likely that these individuals will be in hardship. Of course they will be in hardship, because our Centrelink payments are inadequate. We really need to raise the rate. I just thought I should put that in there.
The bill provides that the sheriff will no longer issue a notice under the act about money that might be compensable under the Criminal Injuries Compensation Act. That is just as well, because often those moneys are there to assist people to get counselling, to get a whole range of psychological supports, or to meet medical costs and reimbursement for expenses that have already been incurred. That money should not be touched.
The bill introduces work and development permits. If a person experiencing hardship is not able to pay their fine debt, they will be able to enter into an agreement to undertake activities with the support of a sponsor, such as drug and alcohol counselling, vocational educational programs, unpaid work, or medical or mental health treatment. I note that not just anyone can turn up and say that they are a sponsor. The activity and the sponsor must be approved. The key difference between the permit system and existing work and development orders is that the permits will effectively be an agreement between the debtor, the sponsor and the registrar to undertake activities that will expiate fine debt, whereas the orders are supervised by a community corrections officer. The permit scheme will not commence until the infrastructure for its successful rollout is in place. I note that it will commence after the bill’s other provisions. The bill also includes a separate statutory review provision just for the WDPs. I would like to know the anticipated time frame for the rollout of this particular regime. I am hoping that the delay of this bill coming to this house at least might have the effect of ensuring that it will come on board sooner rather than later. I really do welcome the introduction of the permit system and the focus on seeking to address the underlying causes of disadvantage that lead people to not be in a position to pay their fine debts, and in some cases addressing the more general underlying causes of the offending in the first place through drug and alcohol counselling and access to mental health services. That is eminently sensible.
Of course, permits are not an opportunity to write off a person’s punishment; participants have to make a commitment and actively address their debt through those programs’ activities. This scheme has the potential to reduce longer term costs to the government and risks to the community. It just makes sense. People can use a permit to increase their skills and employability, or to address health and mental health issues. It will effectively help people to get back into the community and, hopefully, be able to live their best life.
I note that a very similar scheme was introduced in New South Wales back in 2008, and it is generally seen as an incredibly successful model. Eighty-seven per cent of program sponsors have reported that that scheme has supported offenders to address the reasons that originally made it difficult for them to pay or manage their fines. I echo the concerns that have been raised about making sure there is appropriate resourcing and support for potential work and development permit sponsors, and whether there is capacity in existing programs to meet the increased need that will result from the implementation of this new permit scheme. For example, we already know that drug and alcohol services and mental health programs are often full. We are already dealing with existing waiting lists and they are unable to accept new clients even now. This was made absolutely apparent to those of us who were on the Select Committee into Alternate Approaches to Reducing Illicit Drug Use and its Effects on the Community. There is already an inadequate number of services available, so I certainly hope there will be additional support to ensure that people can do this. The government should be able to find the money, because it will save money by not sticking people in prison—which, as I have already outlined, is economically ridiculous. I am also worried that there has not been an audit or the necessary groundwork undertaken to determine whether, indeed, this is the case, and to put forward resources to boost capacity where it is needed. That will be even more important, given that we know we will be looking at increased pressure on the community sector as a direct result of the COVID-19 crisis.
The New South Wales experience and its evaluation demonstrates how important it is to make sure we are upskilling and supporting potential sponsors so that the scheme can be successful. I understand that Legal Aid New South Wales and the Aboriginal Legal Service (NSW/ACT) Ltd operate a service to assist fine defaulters to access the program and to assist practitioners to become sponsors. I am pleased to hear that a similar arrangement is intended in Western Australia. I say again that appropriate resourcing will be absolutely vital for ensuring the success of the program here.
I also note that it is likely that the Western Australian government will need to front up more money than New South Wales provides to these organisations, given that New South Wales is only 800 000 square kilometres in size—a teeny, tiny state compared with WA, which is, of course, 2.5 million square kilometres. That needs to be factored in.
Fine expiation orders will allow offenders who are already in custody for reasons other than fine default to expiate their fine debt, including people who are detained under the heinous Criminal Law (Mentally Impaired Accused) Act 1996. Hopefully, we will not have that hideous, horrible act for much longer; I wait in hope. This means that when people are released from custody, they will have less financial burden. People will need to apply to have their fines expiated, because we note that approval is not automatic and requires the registrar to be satisfied that the person does not have the means to pay or property to seize or sell to satisfy the debt. That is an appropriate check and balance, because, as I said, if someone has a lot of money, they should pay. The custody notification service will include a fines check. I understand from the briefing that corrective services staff will support people to apply for their fines to be expiated, and I hope that happens as a matter of course. It would be terrible for people to not realise that that option is available. I welcome the fact that people can apply for their fines to be expiated in relation to a period of custody that has since ended, as long as it was after the relevant provisions came into operation, but how much better would it be for that to be automatic so that people will not have to try to deal retrospectively with those provisions?
The Fines, Penalties and Infringement Notices Enforcement Amendment Bill 2019 also provides for a restricted power for the Fines Enforcement Registrar to continue to issue warrants of commitment until the substantive provisions of the bill commence, but only when a debtor is already in custody for other reasons to allow those debtors to expiate those debts while in prison. The bill provides that on the day after royal assent, all unserved warrants of commitment will be immediately cancelled and anyone in prison for fine default alone will be released in the first 24 hours. Those people who are not in prison but still subject to unserved warrants of commitment—there are thousands of them—will have those warrants cancelled. Of course, their fines will still stand and they will be subject to the new regime, but, importantly, those warrants will be cancelled.
The bill enhances the information-sharing powers of the Fines Enforcement Registrar and the sheriff to assist them to make earlier contact with individuals with outstanding fine debts to encourage them to enter time-to-pay arrangements. The aim is to avoid the escalation of enforcement action that attracts fees and increases the debt and, hence, the problem.
The bill amends the time-to-pay arrangement provisions for both infringements and fines to make it easier for debtors to enter into agreements to pay by either a lump sum or regular repayments. People will be able to access time-to-pay arrangements at any point; they will not have to wait until they fail to pay and the fine has been passed on to the Fines Enforcement Registrar or the court where the costs then escalate. However, an application for a time-to-pay order cannot be made if an enforcement warrant is in force, if an individual has elected to have the matter heard in court or if an enforcement warrant, ongoing fine expiation order or warrant of commitment are in force. If a person has contravened a previous time-to-pay order, they must have a reasonable excuse for having done so or they will not be granted a new order. To access the time-to-pay provisions, a person has to prove that they do not have the capacity to pay out the fine within the 28-day period and the registrar can request a means test, although that can be done only every 12 months. The registrar must also ensure that the payments are within a person’s means. There is no point in a person entering into an arrangement that they have no hope of being able to meet. The bill allows a person to apply to have their time-to-pay order amended, which may require a means test. The application might not be approved, but the registrar may choose to amend the time-to-pay order. A time-to-pay order can be cancelled by the registrar if it has been contravened or the individual has not complied with the request to supply that means test. There are plenty of checks and balances around that provision. All other enforcement actions are suspended while the time-to-pay arrangements are in force, including licence suspension orders—that is good and sensible.
It has previously been indicated that a fine debtor will be able to go straight to the courthouse counter and negotiate a time-to-pay arrangement immediately before enforcement action starts and the fees rack up. I, too, would like to confirm that that is indeed the case and intention. I hope that some effort will be made to encourage and support people to do this. I understand that the family and domestic violence court officer model has worked really well and perhaps consideration could be made to providing similar support for vulnerable people to make their fine payment arrangements.
The bill also amends the Sentencing Act and Sentencing Administration Act to make it easier for courts to make a fine enforcement work and development order at the point of sentencing. Currently, the court cannot make a work and development order unless it is satisfied by evidence provided under oath that the debtor does not have the means to pay, a vehicle licence or even any property to seize and sell off to pay their debts. Unfortunately, this stringent requirement has proven to be a barrier to the courts making work and development orders at this early stage. The bill will allow a court to satisfy itself of these matters without evidence under oath from the offender. It also removes the consideration of a vehicle licence altogether, which will improve flexibility for the courts to make work and development orders directly. I am always a fan of flexibility for the courts.
People have contacted my office to tell me how difficult it can be to complete a work and development order, particularly when they have caring responsibilities or health issues. One case came to me of a grandcarer who is the primary carer of a number of grandchildren. The grandchildren have quite complex needs and need supports, and she was finding it next to impossible to comply with the work and development order. In 2018–19, 747 individuals undertook work and development orders to clear unpaid fines, and only 63 per cent of them, or 468 people, successfully completed those orders. That is not a terrific rate. Issues with the current work and development order provisions include a lack of flexibility for individual circumstances, limits to where they are offered, and that individuals are required to sign up for a minimum of 12 hours a week, which can be particularly difficult for those with caring responsibilities. Individuals find themselves in breach of the orders after missing three workdays. If I go back to the example of the grandcarer, as I said, one issue was that her grandchildren had a whole range of complex needs and she needed to be able to get them to appointments and other supports, so she was not able to comply with the order. It was absolutely impractical. I welcome changes to increase flexibility in the administration of these orders and remove the prescribed number of hours—the mandatory minimum of 12 hours a week—that people must sign up to complete each week. Again, coming back to this particular woman, if she had been able to knock it off on one day a week as opposed to the 12-hour minimum, she would have been able to comply.
I think it is important that I make some comments about the issue of fines versus infringements, because this has certainly concerned people who have been in contact with my office. The act currently distinguishes enforcement for court-imposed fines from enforcement for infringement notices, with only the former being enforced by way of imprisonment. I acknowledge that some of the provisions of this bill cross both infringements and fines, including amendments to the provisions on time-to-pay arrangements to make it easier for debtors to enter into agreements to pay their debts, as well as licence suspension order changes. However, the bill does not make other substantive changes to provisions applicable to individuals who have other infringement debts, such as parking tickets or Transperth or council infringements, rather than debts associated with court-issued fines. For example, individuals with infringement debts who experience hardship and face the same challenges in being able to repay them as those who have been given court-related fines are not able to access the work and development permit scheme. Although I acknowledge that failure to pay an infringement notice is subject to civil enforcement measures only, such as licence suspension or seizure of property under warrant, and does not carry a risk of imprisonment, that does not mean that the system does not disproportionately punish people who default on infringement debts and cause them significant hardship. We will still have the same sorts of problems with things like the suspension of drivers’ licences; the same cascading problems will ultimately emerge.
I understand that the challenges faced by people in addressing infringement debts have been acknowledged, particularly for those issued by police. A commitment to infringement reform was previously given, including improving opportunities for early payment and engaging with prosecuting agencies responsible for issuing infringement notices under a number of enabling acts, but I would love to get some idea of the time frame for that. I know that I am not the only person who wants that information. I echo the calls by Social Reinvestment Western Australia to expand access to work and development permits to people with infringements. I think that would be an important mechanism to address the disproportionate impact of infringement debt on people who live in poverty.
Currently in Western Australia, the Fines Enforcement Registry has the ultimate discretion in determining whether to issue a warrant of commitment for unpaid fines. Although the bill before us addresses that issue by requiring the registrar to make an application to a magistrate for a warrant of commitment to be issued, it does not change the ultimate discretion that the registrar has in other actions taken for fine defaults. A person can appeal against a fine or the decision giving rise to a fine and appeal to a court against a warrant of commitment order but they cannot otherwise appeal. Recently, two constituents raised with my office concerns about a lack of transparency in the decisions being made by the registrar and the lack of opportunity to have decisions independently reviewed. I note that New South Wales has the Hardship Review Board, an independent statutory body that comprises representatives from the Department of Justice, Treasury and Revenue. It is responsible for reviewing decisions made by Revenue in New South Wales about writing off fines, granting time to pay fines or approving a work development order. I think consideration should be given to establishing a similar body or alternative avenue of appeal in Western Australia. I am interested to know whether the government would consider this as a future reform.
As I said before, I have long held concerns about the collection, analysis and reporting of Department of Justice data, particularly for our prisons, which is pretty poor. Although I acknowledge that the government has done some work in this space, it is imperative that continual monitoring and review of the fines enforcement system is undertaken to ascertain the impact of these changes. New systems will often bring up their own problems and, as I have said, fines and infringements are largely an administrative system with the potential for a lack of transparency. I am pleased that the bill includes a three-year statutory review provision, including a review of the work development permit scheme, but it needs broader ongoing monitoring and research to improve the evidence base, including the intersection between fines and infringements and disadvantages.
In conclusion, we all expect that people will be punished for breaking the law. However, that punishment needs to be reasonable and proportionate. The current ability of the fines enforcement registrar to issue a warrant of commitment and send someone to jail solely because they have defaulted on a fine is clearly not okay, and I am really pleased that this is finally going to be addressed. We are looking at a fairer and smarter approach that will result in better prospects for longer term positive outcomes, which have been sorely needed. We owe it to the memories of women such as Ms Dhu and Cally Graham and their families and to those children whose mums and dads have been taken from them and put in prison simply because they did not have enough money to a pay their fines and because they were unable to navigate the system. This reform has been decades in the making, and I am pleased to be supporting this bill today.
[speeches and comments of various members]
Debate adjourned, pursuant to standing orders.