Outstanding fines and Indigenous imprisonment
Rubeun Yorkshire was on his way to meet his biological father for the first time at Perth’s Scarborough Beach when he was stopped by police officers on January 2 this year. The officers ran a name check on the 27-year-old actor, dancer and Noongar man and discovered he had about $1700 in unpaid court fines dating back to 2013. Last year, Yorkshire fell behind in his repayment plan, and a warrant was issued for his arrest.
The officers arrested Yorkshire on the spot. Sentenced to six days’ jail to clear the debt, he spent five nights in Perth’s Hakea Prison, his time in jail curtailed after an anonymous benefactor paid the remaining $638.
Sisters Inside chief executive Debbie Kilroy says it was Yorkshire’s arrest that prompted the Free The People campaign, crowdfunding money to free those jailed over fines, which has focused its efforts on incarcerated Aboriginal women. At time of writing, Free The People has raised almost $300,000 from more than 6000 donors, freeing 17 women and preparing to pay fines for another 60.
“I thought, ‘I’ll try one of these online fundraiser things, raise a bit of money,’ ” Kilroy deadpans. “Aboriginal women have been ringing us directly and saying, ‘Oh my God, people care about this. This is giving us hope. There are people out there that care about us.’ ”
Kilroy says she felt compelled to act out of frustration with the West Australian government’s lack of progress on abolishing jail time for unpaid fines. Before the campaign took off, she says, Sisters Inside had been met with “absolute deafening silence” from the state’s attorney-general, John Quigley.
“A lot of governments don’t think campaigns like this will make much of a blip on the radar. We get called radicals, mad lefties, professional activists. I think the groundswell of this one has taken them by surprise,” Kilroy says.
While outstanding fines contribute to Indigenous over-imprisonment in every jurisdiction, Western Australia’s Fines, Penalties and Infringement Notices Enforcement Act establishes a pipeline directly from unpaid fines to a prison cell. In 2016, WA’s Inspector of Custodial Services found that “Aboriginal women, and especially unemployed Aboriginal women, are the most likely to be imprisoned for default”. Aboriginal women make up 64 per cent of female fine defaulters in the state’s jails.
Quigley has missed several self-imposed deadlines to fulfil WA Labor’s election pledge to “provide alternative options for fine defaulters to reduce imprisonment for unpaid fines”. In September 2017, a 35-year-old Noongar woman and mother of five was jailed for 14 days over $3900 dating back to 2012, when she was fined for having an unregistered dog. She was taken into custody in her home after police responded to a call about a family member who had become violent and ran a name check. Her fines were eventually paid by a pensioner in Melbourne.
Three weeks later, a heavily pregnant single mother was threatened with six days’ jail over $4123.45 in unpaid fines. Quigley told NITV he would “bring forward a reform package to cabinet before the end of the year”.
In May 2018, a crowdfunding campaign paid off $3744 in fines incurred by Yamatji woman Alira Kelly-Ryder, a mother of four. Kelly-Ryder is a cousin of Ms Dhu, the 22-year-old Yamatji woman who died in Port Hedland watchhouse in 2014 after being jailed over unpaid fines. Quigley told NITV “the intention is to introduce a reform package to the parliament this year”.
Responding to the Free The People campaign, a spokesperson for Quigley said the attorney-general “hopes to be in a position to introduce new laws to reform fines enforcement in the first half of 2019”. This came just months after he unveiled a plan to dock money from fine defaulters’ bank accounts, wages and welfare payments in October 2018.
Academics, Aboriginal and Torres Strait Islander advocacy bodies and legal services suggest the inadequacy of response to Australia’s Aboriginal incarceration crisis is being exacerbated by the quality of the external advice for which the government is paying. In October, federal Indigenous Affairs Minister Nigel Scullion released a Deloitte Access Economics report on the progress federal, state and territory governments have made implementing the recommendations of the 1987-91 Royal Commission into Aboriginal Deaths in Custody.
Almost immediately, those in the sector began to point out flaws in the Deloitte report’s conclusions. Change the Record co-chair Damian Griffis called the review a “whitewash [that] excludes the voices of Aboriginal and Torres Strait Islander communities”. National Aboriginal and Torres Strait Islander Legal Services co-chair Cheryl Axelby described its conclusion that most of the royal commission’s recommendations had been implemented as extraordinary.
In December, a group of 33 academics, as well as the University of Technology Sydney’s Jumbunna Institute for Indigenous Education and Research, released a joint statement condemning the Deloitte Access Economics report as “of such poor quality as to render its findings largely worthless”.
The academics said the Deloitte report “gives a misleadingly positive view” about government responses to the royal commission, and “has the potential to misinform policy and practice responses to Aboriginal deaths in custody”.
“Using the Deloitte review to inform policy decisions will risk increasing Aboriginal deaths in custody”, the academics warned. “It is no exaggeration to suggest that this is a matter of life and death.” Records on AusTender, the federal government’s contract publication database, show Deloitte was paid $350,000 to produce the report.
Of the 339 recommendations made by the royal commission, Deloitte’s report said governments across the country had implemented 64 per cent of them and made progress on a further 30 per cent. This included a finding that WA had successfully implemented recommendation 92, which states that governments “should legislate to enforce the principle that imprisonment should be utilised only as a sanction of last resort”.
The report does not mention that the rate of Indigenous incarceration in WA nearly doubled between 1990 and 2010. Nor does it point out how the 7462 prison sentences served for defaulting on fine payments in WA between 2006 and 2015 contributed to an explosion in the state’s prison population.
Towards the end of its report, Deloitte admits the evaluation “was limited to whether actions had been taken to respond to each recommendation, not whether the actions had been successful”.
University of Technology Sydney associate professor of law Thalia Anthony was one academic who criticised Deloitte’s report. Beyond its “overly simplistic” approach and the “lack of critical analysis” on display, she was struck by the bloodlessness of its language.
“They could’ve been writing about tax law,” Anthony says. “The review didn’t comprehend what was happening on the ground. There was no understanding that deaths in custody are still affecting human lives and communities.”
Anthony noted with concern that Deloitte “was reliant on what the government provided them” and said the group confined itself to a “desktop review” of government policy – corporate-speak for secondary research. While the report cites some Aboriginal organisations and resources, most of its conclusions were drawn from data provided by government departments, corrective services agencies and police.
“They were working off the government’s own archives. That’s just really lazy research,” she says. “Best practice is that if you’re looking at Aboriginal issues, it should absolutely be done by Aboriginal-owned or -led research organisations.”
In a statement, Deloitte’s health, economics and social policy lead partner, Lynne Pezzullo, said “the scope of our review and report was very specific and, as per that scope, we have provided an important and accurate assessment regarding the process of recommendation implementation, not outcomes”.
“We are proud of this work, the information it provides and the important step it represents,” Pezzullo told The Saturday Paper. “It has been well received by policymakers and other stakeholders as being a comprehensive review of the matters it was intended to review and is a useful first step in a longer-term process.”
However, Anthony says the issue isn’t limited to Deloitte’s report – broadly, the criminal justice research space is pervaded by a faith in the powers of private-sector outfits to find logic and clarity in a discipline where they often don’t exist.
“There’s this naivety that a private, for-profit corporation is able to do things more objectively and have more credibility. There tends to be this sense that criminal justice has some kind of logic on par with economics,” she says.
“It’s not a cost-benefit analysis. It’s a very human process, with a lot of discretion and arbitrary decision-making. It’s highly politicised and highly racialised. I don’t think that private consultancies are really capable of understanding that.”
Debbie Kilroy agrees. “Who do Deloitte talk to? They don’t come and talk to the Aboriginal women that we work with and for … They go read reports, they go speak to bureaucrats. They get paid an absolute fortune to cover up the reality of women’s day-to-day lives who are living in absolute poverty.”
As for the Free The People campaign, although initially set up to free imprisoned Aboriginal mothers, its success has allowed for an expansion of its scope.
“We’ve had people donate $2, and we’ve had people donate $10,000,” Kilroy says. “It started because of Rubeun, so we thought we could start to help out Aboriginal fathers, single fathers. It can encompass anyone who’s been criminalised because of poverty.”
This article was first published in the print edition of The Saturday Paper on Jan 26, 2019 as "A fine mess". Subscribe here.