Imprisonment for the non-payment of fines in Western Australia could be addressed by removing their regressive nature on those with low incomes and adopting a ‘day fine’ system, according to research by Senior Lecturer at The University of Notre Dame Australia, Tomas Fitzgerald.
Published in the December edition of the Curtin Law and Taxation Review, Mr Fitzgerald, from the University’s School of Law, Fremantle, argues that WA’s current fines enforcement legislation is contributing to higher incarceration rates among Aboriginal people and those of a low socioeconomic status due to non-payment.
To reduce the number of people incarcerated for non-payment of fines in WA, Mr Fitzgerald’s research suggests the implementation of a ‘day fines’ system. Only seven jurisdictions across the world, including Germany and Finland, currently employ this system.
A day fine is one that is prescribed based on the offender’s daily personal income, representing one day incarcerated without salary. Likened to income tax, which is a financial contribution proportional to a person’s income, a day fine system is claimed to be more equitable for those of a low socioeconomic status and can lead to reduced jail time for transgressors.
“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,” Mr Fitzgerald said.
“The benefits of this approach to fines is twofold. 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.”
In WA, people who are sentenced to a fine have 28 days to pay that fine. Those who do not or cannot pay off the fine can enter into a Work Development Order to clear their fine by engaging in an equivalent amount of community service work.
However, those who do neither are subject to having a warrant of commitment issued by the Registrar of the Fines Enforcement Registry which requires that the fine be ‘cut out’ by serving a certain number of days in prison.
Mr Fitzgerald argues that amendments by the WA government to the processing of Community Service Orders in 2009 has had an immediate, dramatic and on-going effect on the number of people incarcerated in WA, especially Aboriginal people.
“Looking at raw figures, 101 Aboriginal people entered into custody for fine default in the calendar year 2008; 590 Aboriginal people were incarcerated for fine default in the calendar year 2013,” Mr Fitzgerald said.
“Strikingly, if the rate of imprisonment for fine default had not increased between 2008 and 2013, the real number of Aboriginal people who entered into incarceration in the State of Western Australia would have declined.
“Consequently, fines will continue to have excessive punitive bite with respect to persons who are disadvantaged or on low incomes. Law reform in this area would be greatly advanced by serious consideration of the extent to which the broader problem of imprisonment for non-payment of fines could be addressed by removing the regressive nature of fines, generally through the imposition of a day fine system.”
Professor Doug Hodgson, Dean of the School of Law, Fremantle, commended Mr Fitzgerald on his cutting-edge socio-legal research and continuing articulate contributions to Australian public policy debate on contemporary societal issues.
“I congratulate Tomas for his scholarly review on this significant piece of legislation in WA in the hope that a positive resolution can be found,” Professor Hodgson said.
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