Australia: Death in custody leads to law reform in WA

Yamatji woman, Ms Dhu (whose name is not used for cultural reasons) was just 22 years old when she was dragged from her police cell at South Headland in Western Australia and bundled into the back of a police van, before being taken to a nearby hospital. It was her third visit to hospital in as many days. She died several hours later.

A post-mortem found that Ms Dhu died of septicaemia and pneumonia caused by broken ribs. During an inquest into her death,  the Western Australian Coroner  found that the actions of police – who thought Ms Dhu was "faking it", had been both "unprofessional and inhumane" and that the woman could have survived if she had been given proper care.

Ms Dhu had been imprisoned for owing $3,662.34 in unpaid fines.

The tragedy has led changes in the law, with the Western Australian Parliament introducing legislation which will significantly limit the circumstances whereby individuals can be imprisoned for the non-payment of fines.

The WA attorney general, John Quigley, acknowledged that Ms Dhu's death was the catalyst for the reforms, but many remain frustrated that the laws were ever in place, and that reform has taken so long. Ms Dhu died in 2014.

433 people were imprisoned for unpaid fines in Western Australia last year, at a cost of $1.56 million to the taxpayer. A disproportionate number of those imprisoned were Indigenous.

Until now, the Fines Enforcement Registry has been empowered to issue arrest warrants for unpaid fines. This meant police could arrest a debtor and hold them in a cell until their largest fine was "cut out" via time served, at a rate of $250 a day.

The new laws will change this practice.

The  Fines, Penalties and Infringement Notices Enforcement Amendment Bill 2019 (WA) – now passed by state Parliament – amends the Sentencing Administration Act 2003 (WA) and Sentencing Act 1995 (WA) in a way that essentially cancels all unserved warrants for unpaid fines.

However, the state will still be able to imprison debtors in "strict circumstances", where a warrant is issued directly by a magistrate.

The new laws also allow the Sheriff to issue orders to a person's employer or bank to garnish unpaid fines from their salary or bank account, through the introduction of garnishee orders, or Centrelink payments if given Commonwealth approval.

These types of 'forced withdrawals' are meant to only occur if a person has more than the "protected amount" in their account, to avoid undue financial hardship.

New hardship provisions will require authorities to consider a person's mental illness, disability, experience of family violence, homelessness, drug and alcohol addiction and overall financial situation when deciding whether to garnish funds.

Cancelling the driver licence of a person with an unpaid debt will also be prohibited where he or she lives in a remote area.

Attorney General Quigley says the new laws have been crafted to draw a distinction between people who can pay their fines but refuse to do so, and the many experiencing hardship who cannot pay and should not face enforcement measures that further entrench them in poverty.

Another reform sparked by Ms Dhu's death is the introduction of a mandatory  Custody Notification Service (CNS), which is scheduled to become operational in WA later this year.

The CNS is already in operation in other states, including New South Wales and Victoria. It was implemented in the Northern Territory last year.

The CNS was a recommendation of the 1987 Royal Commission into Aboriginal Deaths in Custody, and since its inception, it has been widely credited with saving lives.

By law, police must contact an Aboriginal and Torres Strait Islander legal service (ATSILS) if they have an  Indigenous person in custody, not just so the person can receive legal advice but also access mental health or general health services if necessary too.

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