The Gaoling System In Australia

The practice of sending fine defaulters to prison for not paying their penalties is known as gaoling. The sum that hasn’t been paid determines how long the sentence will be. The effectiveness of Australia’s gaoling system and its value in ensuring that fines are paid and the crimes connected with the fines are not committed will be examined in this paper. The primary goal of this paper is to determine whether there is another system that can be used in its place, but it will also concentrate on the effects of gaoling on Aboriginal people. In recent years it has been revealed how the gaoling system has affected the Aborigines of Australia. Though the system was created to fine everyone equally the Aboriginals have been affected the most. This because the Indigenous people have a low employment level and low income levels as compared to the Non-Indigenous people according to the Australian Bureau of Statistics. The employment and income difference implies that the Indigenous people are less likely to pay their fines as compared to their counterparts. This factor has seen the number of Indigenous people being jailed for unpaid fines on a high. In 2014 theguardian released figure on the number of Indigenous people arrested over unpaid fines, stating that since 2010 more than one thousand one hundred people are jailed every year because they are too poor to pay their fines. The common principle of the law is that an offender should not be fined an amount that they are not able to pay (e R v Rahme (1989) 43 A Crim R 81). Though there are challenges that face this principle, for example the defendants may not be willing to fully disclose their financial information to the court. This lack of information means the court has no idea about their debts, family obligations, community expectations or even previously unpaid fines. Even though the information is provided for, a judicial officer may still have to impose the unpayable fine either because the legislation states out a minimum fine to be imposed or because there is no other option available. The Royal Commission Report of 1991 on the deaths of Aboriginals in custody investigated ninety nine cases. It concluded some of the deaths were due to suicide and others were straight forward. During the study it was noted that some of the inmates suffered from high alcoholism, gaoling and low levels of education.1

Because of this the gaoling system has taken a huge toll on the Aboriginal community and failed them as well. For instance, the number of the Indigenous people in prisons has been on the rise. This increment of prisoners has also seen the death toll on the rise. Many have complained that this is leading to overpopulation in the prison cells. Chris Howse stated that:

It was not so much that more black people had died than white people in gaol. By and large, they were dying in similar proportion to the size of their respective prison populations. That black people died in larger numbers was clear. Partly because there are particular cultural troubles for Aboriginal people who are locked up. But mainly because there were far more black people in gaol than white people.

The gaoling system has also caused severe unrest among the Aboriginal. In 2014 Ms.Dhu died in police custody. According to the thegaurdian she receiving inhuman and unprofessional treatment from the Western Australia police which was well below the required standards. This sparked demonstrations in Western Australia and issues of discrimination and oppression of the Indigenous people surfaced. They expressed their concerns about police brutality and the unfairness of the gaoling system on them. This has caused for people to come out and speak against this system. The Australian Law Reform Commission (ALRC) stated in 2017 that People shouldn’t go to prison for not paying fines. The indigenous people do not believe that law is equal since they feel as though they are oppressed by it. The Royal Commission into Aboriginal Deaths in Custody (RCIADIC 1991) raised concerns about the imprisonment of Aboriginal people for fine default. Automatic imprisonment for fine default has now been abolished in all jurisdictions. However concerns remain about the hardships caused by fines and the fines enforcement system to Indigenous people. These hardships include financial stress, loss of mobility due to driver’s license suspension or car registration cancellation, imprisonment for both fi ne default and secondary offending (such as unlicensed driving), emotional distress and social exclusion. Though the report concluded that the deaths being investigated was not due to police brutality but because of other issues such as drug overdose, diseases, external trauma and self -inflicted injuries.2

The gaoling system has proved to cause more harm than good thus the question remains, is there a system that can replace it or is there any means of improving the system. There are a few ideas that have been brought up on improving the system. The Australian Law Reform Commission suggested the introduction of so-called work and development orders. They exist in New South Wales and allow people to work off infringements through community work, medical treatment or education, including driving lessons. This will ease congestion in prisons and will also ease the burden of heavy fines on the people. This system involves that instead of going to jail for not paying fines the recipient of the fine should instead do community work such as serving or cleaning of public places or giving driving lessons in order for them to gain the knowledge and avoid committing the mistake again. This is more useful than jailing since it enables the accused to gain knowledge and avoid the crime again and community work serves as a better punishment as opposed to jailing them which is harsh to them.

The use of Special problem-solving courts has also been coined. This courts can include drugs courts, alcohol courts or even indigenous courts. This courts may prove useful than mainstream courts when it comes to solving the issue where to vulnerable people where fines may not be of good use. For example, in Queensland, a person who is homeless or has impaired decision-making capacity and is pleading guilty to public order or procedural offences can be referred to the Special Circumstances Court Diversion Program for an assessment. The findings of the assessment can be taken into account by the magistrate in sentencing and the program can help defendants with accommodation, addressing outstanding fines, and referral to legal, health, and other services (Queensland Courts nd).

If the fine remains unpaid for a long time seizure of property or wages is recommended. Fine defaulters are credited with the amount received at auction of the goods, which is usually much less than their purchase price or replacement value.

Instead of jailing the unpaid fines can be converted to unpaid work. If the fine defaulter demonstrates that they are not able to pay the fines it is converted to unpaid work. In most jurisdictions it is converted to a community service order administered by the corrective service agency.

On Spot Fines

On spot fines have also been an issue. Before on spot fines were on-the-spot fines were only issued for minor offences such as parking infringements and fare evasion but recently it has been misused by the officers and their issuing has been misused. An instance is such as the Darwin City Council has a by law making it an offence to sleep in a public place. Over the last two years many of the Aborigines have received a fine of $50 for infringing this by law. The reason the council gave for passing this by law is that it wants to get rid of itinerant people in its parks and beaches. The problem of the on spot fines is that failure to pay the fines one goes straight goes to the gaol. The Aboriginal Justice Society (AJAC) has raised complains about this policy and the number of Indigenous people that have been gaoled under it. According to Chris Howse:

There has been litigation about the by-law. AJAC has brought Supreme Court proceedings to challenge it and the Court has held that while valid, the Council has no lawful authority to prosecute the by-law by means of the ‘on the spot fine’ system. A finding that should result in far fewer black faces behind bars in the Northern Territory this year. But for a small advisory body like AJAC to take the step of suing the City Council is extraordinarily rare, if not unprecedented. There is a context to AJAC’s resorting to the Courts. The context is the peculiar political climate in the Territory and it is worth taking pains to explain it.

Recipients of on-the-spot fines have the option of contesting the fine in court. ‘Contesting fines may result in the fine being reduce or being replaced with another option such as caution’ (Williams and Gilbert 2). Though it has been noted that not many Aboriginal people contest their fines and this mostly because of their lack of information. The impact of on-the-spot can be reduced by ensuring that it only be issued when there is no other option available instead of being issued on frequent basis. It has been reported in many instances that the on-spot-fines are usually issued without even the recipient receiving a warning. If a fine is necessary, providing more information with the fines notice about how to dispute the offence, seek a withdrawal, seek leniency, contest the fine in court, or obtain legal advice could reduce the disproportionate impact of fines on Indigenous people.

CONCLUSION

Throughout the paper it is evident that the gaoling system has failed in creating equality especially among the Aboriginals. The effects of this system are both physical and psychological stress. The thought of going to jail over unpaid fines seems unjust to most people this causes so much stress on someone to the point they are not able to perform their daily routines effectively. Many alternatives to the gaol have been brought up and they offer a much better alternative. The final conclusion on the Royal Commission report brought confusion as the death of Ms.Dhu was because of police brutality and it is evident that police brutality plays a part in the Aboriginals deaths in custody. The jailing system has caused issues such as racism to surface as the Indigenous feel they are being targeted and the evidence supports them.This system has failed to provide a solution in solving crimes and has caused friction in the country I personally feel that this system should replaced with another system that will be more helpful.

Works Cited

Howse, Chris. “Towards a Dealing Just and Kind.” Alternative Law Journal, vol. 25, no. 3, 2000, pp. 108–112., doi:10.1177/1037969x0002500302.

Williams, Mary Spiers and Gilbert, Robyn. ”Reducing The Unintended Impact Of Fines.” eHow, https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/publications/files/initiative002.v1.pdf

Thomasine F-R. ”More than 1,100 people a year jailed over unpaid fines in Western Australia.” 26.Nov.2014. https://www.theguardian.com/australia-news/2014/nov/26/more-than-1100-people-year-jailed-unpaid-fines-wa

Wahlquist,Calla. ”Death in custody.” 16.Dec.2016. https://www.theguardian.com/australia-news/2016/dec/16/ms-dhu-endured-inhumane-treatment-by-police-before-death-in-custody-coroner

Queensland Courts nd. Special Circumstances Court Diversion Program. http://www.courts.qld.gov.au/

Johnston, Elliot. Royal Commission into Aboriginal Deaths in Custody (RCIADIC). Canberra : Australian Government Publishing Service, 1991.