Compliance fines under the microscope
Human rights advocates, public health experts and lawyers are calling for greater scrutiny of how police are enforcing Covid-19 public health orders, as new analysis by The Saturday Paper reveals massive discrepancies across jurisdictions and raises concerns about racial bias.
Thousands of Australians have been fined since the social distancing orders were introduced about two weeks ago, with police carrying out tens of thousands of compliance checks.
Around the country, only New South Wales is releasing detailed information about the people fined under these new orders. The Saturday Paper requested similar data from other state and territory police forces, but all declined to share the information.
Victoria’s Equal Opportunity and Human Rights Commissioner, Kristen Hilton, has called on police in the state to collect demographic data on those being fined and for the information to be released to an independent oversight body.
“There has to be a very rigorous collection of the data,” she told The Saturday Paper. “It allows you to interrogate how certain parts of your force are imposing the fines.”
A coalition of legal services, co-ordinated by the Flemington and Kensington Community Legal Centre, has written to police commissioners around the country, calling on a uniform approach to data collection and oversight.
Analysis of the data that does exist, from NSW, reveals significant discrepancies in how the public health orders are being enforced. Infringement notices issued so far are clustered in Sydney’s western suburbs and regional NSW, with 15 per cent of all fines in the state limited to just three local government areas – Liverpool, Canterbury–Bankstown and Fairfield.
All three localities are located in Sydney’s west and, according to the Australian Bureau of Statistics, have lower levels of educational attainment and higher levels of people born overseas than the rest of the state.
There appears to be limited correlation between suburbs with high infection rates and those where most infringements are being handed out.
Liverpool, Canterbury–Bankstown and Fairfield, while responsible for 15 per cent of fines, represent just 5 per cent of recorded Covid-19 cases in the state.
Meanwhile the local government areas of Woollahra, Northern Beaches and Waverley, which takes in Bondi Beach, have recorded 15 per cent of NSW cases, but fewer than 1.8 per cent of infringements.
In regional NSW, a number of infringements have been issued in small towns with no Covid-19 cases.
In the state’s north-west, Walgett, a town of 2000 people, and Bourke, with a population of 1800, have each had five infringements but no cases of coronavirus recorded. Coonamble, in central-western NSW, population 2700, has had four infringements and just one case of Covid-19. All three towns have large Indigenous communities, ranging from 35 to 45 per cent of their total population.
Local residents in Coonamble confirmed the first person fined for breaching the public health orders was an Indigenous resident. The Saturday Paper understands that legal services across western NSW have been approached by a number of Indigenous residents who have received fines in these towns.
Bill Dickens, solicitor in charge of the Dubbo Legal Aid Office, said the fines themselves would significantly disadvantage Indigenous people – who may be further policed for not being able to pay them.
“These figures speak for themselves. Of all the fines that have been issued in Bourke, Walgett and Coonamble, I’d bet the sheep station that they’re all Indigenous,” he said.
Meanwhile, around the country, police forces have taken drastically different approaches to the enforcement of the public health orders, despite all states and territories adopting similar guidelines.
As of Tuesday, Victoria had issued more than 1200 fines for breaches of the health orders, nearly three times the rate of fines issued in NSW. Infringements in Victoria attract a fine of $1600, meaning the state had collected nearly $2 million by the middle of last week. Queensland had issued more than 800 fines.
Police in the Australian Capital Territory have issued no fines, instead focusing their efforts on communication and education.
“I’ve said public success would be not to give out fines at all,” ACT Chief Police Officer Ray Johnson said. “The vast majority of people are trying to do the right thing. People are trying to work out what the new rules are, and they don’t always get it right. We would prefer to work with the community to help them get it right.”
Among police themselves, concerns have been raised that a heavy-handed approach may jeopardise public safety goals. A memo sent to Victoria Police officers this week by Deputy Commissioner Shane Patton warned that an “inconsistent approach” taken by police officers “erodes public confidence”. The warning came after Victoria Police withdrew fines issued to a learner driver who was taking driving lessons with her mother, a man washing his car and a couple who posted holiday pictures from a year ago on Facebook.
Patton said he will personally review every fine issued in the state, echoing a promise by NSW Police Commissioner Mick Fuller. Neither Victoria Police nor NSW Police Force would confirm to The Saturday Paper how many fines had been withdrawn as a result of reviews.
Queensland Police Service has announced all fines issued in the state will be sent to an internal review committee. “Because this is such a new system and it’s been put together so very quickly for our officers, like anyone else it’s difficult for everybody to adjust so quickly,” Queensland Deputy Police Commissioner Steve Gollschewski said.
The lack of a public communication campaign before a punitive enforcement regime was introduced has raised concerns among public health experts.
Julie Leask, a professor at the University of Sydney specialising in public health and risk communication, says inconsistencies around the enforcement of the orders could undermine the public health campaign.
“There is clearly inconsistency between the risk of transmission and the rules that have been put in place. So you can see police moving people on when they’re sitting on a blanket in a park, a metre from each other. It’s an exceedingly low risk to get the virus in that way. And yet hairdressers are still operating where there is going to be a slightly higher risk.”
Professor Leask also expressed concern that certain communities were targeted by police. “You see this great big spotlight shone on all the cracks in the system. Clearly Aboriginal people are more likely to be policed in a way that is more severe,” she said. “I also noted, for example, that Western Sydney had a lot more fines issued than Woollahra, where there were a lot more cases. You know, a pandemic is no excuse to reinforce existing inequities.”
The Saturday Paper asked all state and territory police forces whether any guidance documents about enforcement had been distributed, as they were after similar measures were introduced in Britain. All declined to answer.
Tamar Hopkins, who worked as the founding lawyer at the Police Accountability Project in Melbourne and researches police profiling at the University of New South Wales, said the breakdown of infringements issued in NSW “really fits the pattern” of racialised policing.
“I see no reason why, when these public health powers would be exercised, we wouldn’t see the same patterns as we see with the rest of the way policing operates, in that the way police define a suspicious person is intensely racialised,” Hopkins said.
She points to data from Western Australia that shows significant differences between camera-initiated fines and police-initiated fines when it came to Indigenous Australians. Similar data from Flemington North in Melbourne showed African and Middle Eastern youths were much more likely to be stopped by police than were white Australians. “Wherever data is collected in Australia, we see clear patterns of racial targeting going on.”
The Saturday Paper asked all state and territory police forces, including NSW Police Force, for a racial breakdown of those fined. All declined.
“The laws as they are currently drafted are very, very broad. It’s very hard to be clear about what exactly is an illegal and a legal thing that someone could be doing,” Hopkins said.
“It leaves a huge amount of discretion. And the more arbitrary a piece of law is, the more likely it is going to be applied through the biased lenses that police apply to their job in an ordinary context. The facts are that whenever police powers are examined and data is collected over how police are using them, there is always a racial bias in the way that they’re used.”
The Flemington and Kensington Community Legal Centre, which has launched a website to track community interaction with police during the Covid-19 pandemic, is calling on police forces across the country to record demographic data, including racial background, and publish that information to ensure greater oversight and scrutiny.
Police in Britain, Canada and the United States are required to record and release statistics on the racial background of individuals stopped and questioned.
Edward Santow, the Australian Human Rights Commissioner, told The Saturday Paper that these new laws need effective oversight and that mistakes need to be quickly rectified.
“A mistake in this context can lead to someone’s human rights being abused. The situation couldn’t be more serious … You need to keep track of the potentially problematic exercise of strong government powers. That means keeping clear information on the demographic background of people who are subjected to law enforcement.”
As yet, police are not sharing that data. If they continue to refuse, it’s likely to fuel growing concern that the public health orders are being used to target particular communities, especially Indigenous Australians and those from migrant backgrounds.
This article was first published in the print edition of The Saturday Paper on Apr 18, 2020 as "Fines under the microscope".
A free press is one you pay for. In the short term, the economic fallout from coronavirus has taken about a third of our revenue. We will survive this crisis, but we need the support of readers. Now is the time to subscribe.